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Madhya Pradesh High Court · body

2004 DIGILAW 987 (MP)

Ram Das Patel v. State of M. P.

2004-12-07

DIPAK MISRA

body2004
ORDER Dipak Misra, J. 1. The petitioner was selected for the post of Central Commandar on 7-7-1963. He was confirmed in the said post as Company Commandar at Jhabua in the year 1990 and was attached to Damoh at the time of by-election of M.P. Legislative Assembly which took place on 6-5-1990. During the aforesaid period a disciplinary proceeding was initiated against him on the foundation that he had entered into collusion with Central Commandant Mr. Uma Shanker Gour who was working under him and forged signatures of 16 soldiers and shown their presence in Vidhan Sabha Election duty and prepared forged bills and committed fraud. A show cause was issued. A departmental enquiry was hold against him and Senior Staff Home Guard was appointed as Inquiry Officer who found that the charges levelled against him had not been proved and he was innocent. The Inquiry Report has been brought on record as Annexure-A/1. The Disciplinary Authority, Director General and Commandant General Home Guard did not agree with the findings of the Inquiry Officer and after recording his dissent submitted a show-cause as Annexure-A/2 stating that why he should be punished for dismissal from service. Thereafter, as setforth, the petitioner vide Annexure-A/3 submitted his reply. The Disciplinary Authority imposed the punishment as per Anexure-A/4 dated 19-12-1992. By virtue of said punishment the petitioner was brought to the minimum of pay scale with cumulative effect for a period of five years, the period of suspension was treated as such and he would not be entitled to any further sum and he would be reinstated in the post of Company Commandar at Damoh. The petitioner preferred an appeal which was disposed of, as submitted in the petition. In view of the aforesaid factual position a prayer has been made to set aside the order of punishment dated 19-12-1992 (Annexure-A/4) and to consider his case for promotion to the higher post. 2. A counter affidavit has been filed contending, inter alia, that the disciplinary authority on scrutiny of the report and other documents submitted by the Inquiry Officer found that the Inquiry Officer had not found the charges proved against the applicant though there was enough material to come to the conclusion that the petitioner was guilty of the charges. The reasons ascribed by the disciplinary authority has been incorporated in the return. The reasons ascribed by the disciplinary authority has been incorporated in the return. It is contended that the show cause notice was issued for imposing punishment of dismissal. The disciplinary authority taking into consideration the totality of circumstances issued different kind of punishment. It is also putforth that the appeal was rejected vide order dated 5-5-1994 and the petitioner has attained the age of superannuation on 30-4-1996. It is contended that the petitioner was not promoted to the higher post because of unsatisfactory report. It is urged that under Rule 10(6) of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 the case of the petitioner was properly considered and the punishment was imposed keeping in view the seriousness of the charges. 3. A rejoinder has been filed setting forth that the disciplinary authority has taken note of the report of the handwriting expert though the same not produced by the presenting officer. The disciplinary authority had not conducted any further inquiry but passed the order on the material brought on record which was not good enough to find him guilty. The disciplinary authority has also not taken into consideration the evidence of 16 Sainiks who admitted before the Inquiry Officer that they had performed the duty and drawn the salary and they admitted that the signatures to be their signatures. Once the signatures has been admitted and there is also admission of receiving of salary the opinion of the expert has lost its significance, more so, when the said expert was not examined and not produced before the delinquent officer for cross-examination. 4. I have heard Mr. S. K. Verma, Learned Counsel for the petitioner and Mr. Om Namdeo, learned Government Advocate for the respondent-State. It is contended by Mr. Verma that note of disagreement by the disciplinary authority was totally unwarranted inasmuch as the said disagreement was based on erroneous foundation as if the expert opinion can be taken into consideration when he was not examined. It is also urged by him that the reasons ascribed by the disciplinary authority are cryptic and contrary to record and, therefore, it is crystal clear that there has been perversity of approach and hence, liable to be quashed. 5. To appreciate the rivalised submissions raised at the Bar we have carefully perused! the report of the inquiry officer. It is also urged by him that the reasons ascribed by the disciplinary authority are cryptic and contrary to record and, therefore, it is crystal clear that there has been perversity of approach and hence, liable to be quashed. 5. To appreciate the rivalised submissions raised at the Bar we have carefully perused! the report of the inquiry officer. The inquiry officer has discussed the material brought on record and expressed the view that Sainiks had admitted their signatures and they admitted the payment. He has recorded in clear cut manner that the report of the expert cannot be made acceptable. The disciplinary authority while discussing had given reasons and emphasized on the fact that the witnesses might have given evidence under pressure and that report of the expert could not have been exonerated. The question that falls for consideration is whether the statement of the witnesses can be totally exonerated. The inquiry officer has unequivocally and categorically recorded that the said witnesses have stated with certitude that they had worked and drawn money and that they had admitted signatures. The reasonings given by the disciplinary authority has to be sound, reasonable and acceptable. Mere assigning of reasons would not sub-serve the cause of justice. In the case of Punjab National Bank vs. Kunj Bihari Mishra, AIR 1998 SC 2713 a three judge Bench of the Apex Court in paragraphs 19 and 20 have expressed the view as under :- 19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary to accept the favourable conclusion of the inquiry officer. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file representation before the disciplinary authority records its finding on the charges framed against the officer. 20. The aforesaid conclusion, which we have arrived at, is also in consonance with the underlying principle enunciated by this Court in the case of Institute of Chartered Accountants, AIR 1987 SC 71 (supra). While agreeing with the decision in Ram Kishan's case AIR 1995 SCW 4027 (supra), we are of the opinion that the contrary view expressed in S. S. Koshal, AIR 1994 SCW 2901 and M. C. Sexena's cases AIR 1998 SCW 965 (supra) do not lay down the correct law. 6. I have referred to the aforesaid paragraphs to show that the concept of natural justice is attracted. Once the concept of natural justice is attracted the order is infirmed by reasons for, the reasonings being the heart and soul of the order. Once it is held that it is infirmed by reasonings the reasons are to be germane, congent, acceptable and presentable. Ascribing reasons for the sake of stating reason would not be sufficient enough. The Court cannot enter in the sufficiency or adequacy of reasonings but the reasons are prima facie unsound and do not really have the marrows of logic in proper sense of terms and there can be no scintilla of doubt that perversity of approach ushers in. In the case at hand the disciplinary authority has disagreed with the report of the inquiry officer on the ground that the witness might have been pressurized. These reasonings are in the realm of guess work and conjectures. When the witnesses themselves admitted that they are their signatures and they had accepted the salary there cannot be any conjecture in this regard. That apart, the disciplinary authority has laid emphasis on the expert report. The said expert has not been examined. The delinquent officer has not been afforded an opportunity to cross-examine the expert report. When the witnesses themselves admitted that they are their signatures and they had accepted the salary there cannot be any conjecture in this regard. That apart, the disciplinary authority has laid emphasis on the expert report. The said expert has not been examined. The delinquent officer has not been afforded an opportunity to cross-examine the expert report. Besides that, an opinion of expert is in the realm of piece of evidence. It cannot be said that in all circumstances the evidence is to be accepted. In the present case when the delinquent officer was not afforded an opportunity the expert's evidence cannot be placed reliance upon and taken aid of to record disagreement. Once the disagreement goes, as a logically corollary, punishment based upon said disagreement has to pave the path of vitiation. Accordingly, the fall out is quashment of the order of punishment. 7. Resultantly, the order of punishment passed against the petitioner is quashed and it is directed that he shall reap all consequential benefits inquiry differential salary. However, he would not be entitled to any interest on the differential sum. His case shall be considered for further promotion from the date when his juniors were considered by convening a review DPC and if he is found suitable the benefits be conferred on him. In the peculiar facts and circumstances of the case there shall be no order as to costs.