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Madhya Pradesh High Court · body

2005 DIGILAW 1277 (MP)

Shobha Maheshwari v. State of M. P.

2005-12-13

R.K.GUPTA

body2005
ORDER 1. The petitioner by way of filing the present petition before this Court has challenged the order of penalty dated 30.6.1992 which is Annexure p22 to the petition. The petitioner also challenges the order Annexure P-25 to the petition dated 23.3.1993. The petitioner was issued a charge sheet. The copy of which is placed on record which is Annexure P-18 to the petition. In the said charge sheet, the charge against the petitioner is that the then Chairman Suraj Pal Pawan submitted his TA bills for the period May 1985 to May 1986 and alongwith the said TA bills certain receipts of payment which were made in relation to the vehicle taken on rent. It was suspected that vehicles which were mentioned in the receipts were not taxi. It was also suspected against the petitioner that the petitioner had written the said receipts in her handwriting while working as a Lower Division Clerk. The total receipts for total amount of Rs. 1,000.50 were prepared. The said receipts were submitted to the handwriting expert Shri C.T. Sarwate. The said handwriting expert has given his opinion that the aforesaid money receipts are false. 2. A departmental enquiry was conducted against the petitioner. In the departmental enquiry no witnesses were examined by the management. More so the handwriting expert Shri Sarwate though submitted his report but was not examined in the departmental enquiry. The Inquiry Officer submitted his report wherein the petitioner was held guilty of the charges and show cause notice was given to the petitioner. Thereafter, an order dated 30th June, 1992 (Annexure P-22) was passed wherein the petitioner was imposed a penalty of removal from service. The petitioner submitted a detailed appeal to the appellate authority and the appellate authority passed an order on 23.3.1993 which is Annexure P-25 to the petition whereby the appeal of the petitioner was dismissed. 3. Counsel for the petitioner submitted that it is a case where there is no evidence in the departmental enquiry against the petitioner yet there being no evidence penalty of removal from service was imposed. It was submitted that it was the duty of the department to examine the witnesses in support of the charges but no witnesses since have been examined therefore it is a case where there is no evidence against the petitioner. 4. It was submitted that it was the duty of the department to examine the witnesses in support of the charges but no witnesses since have been examined therefore it is a case where there is no evidence against the petitioner. 4. Counsel for the petitioner relied upon the judgment passed by apex Court as reported in AIR 1999 SC 677 (Kuldeep Singh v. Commissioner of Police). On the basis of this, counsel submitted that a distinction has to be made in a case where there is some evidence and in a case where there is no evidence. In a case of some evidence, judicial review of the High Court under Article 226 of the Constitution of India is not available to re-appreciate the findings recorded by the enquiry officer. He submitted that in a case where there is no evidence then in such a case the Court can look into the findings recorded by the Inquiry Officer and thereafter can pass an appropriate order. Counsel for the petitioner partly is correct in his submission that in the present case no evidence was recorded by the department in the enquiry but it is not a case where there had been no evidence. The report of handwriting expert Shri C.T. Sarwate was available in the enquiry. The petitioner did not submit any application that she be given an opportunity to cross-examine the said handwriting expert. The handwriting report was a part of the enquiry proceedings which was relied upon and referred by the Inquiry Officer to hold the petitioner guilty of the charges. It is not a case of no evidence but it is a case where some evidence has been available in the inquiry, i.e., the opinion of the handwriting expert Shri C.T. Sarwate. The finding recorded by the Inquiry Officer cannot be sustained on the ground that no opportunity was given to the petitioner to cross-examine the handwriting expert Shri C.T. Sarwate and without giving any opportunity to the petitioner, the Inquiry Office has relied upon the said report. In fact the Inquiry Officer should have given an opportunity to the petitioner to cross-examine the handwriting expert and thereafter would have relied upon the said report. In view of this, the procedure adopted by the Inquiry Officer is not in accordance with the principles of natural justice. 5. In fact the Inquiry Officer should have given an opportunity to the petitioner to cross-examine the handwriting expert and thereafter would have relied upon the said report. In view of this, the procedure adopted by the Inquiry Officer is not in accordance with the principles of natural justice. 5. The order of punishment is based on illegal enquiry therefore the order of dismissal has to be set aside. 6. The next submission of the counsel for the petitioner is that the petitioner has been acquitted of the charges by the criminal Court. According to him, he has been acquitted of the same set of charges. The acquittal had been subsequently to the dismissal. The dismissal order was passed on 30th June, 1992 and the acquittal order was passed on 27.4.1995. The order of dismissal is based upon the departmental enquiry and is not based upon any criminal case. In view of this subsequent acquittal of the petitioner by the criminal Court will have no effect in the present case. 7. The petitioner submitted detailed appeal to the appellate authority raising various questions in the appeal but the appellate authority did not consider the questions raised by the petitioner with reference to her objection submitted by the petitioner against the acceptance of the report of handwriting expert. On the contrary, the appellate authority proceeded on the assumption that when a departmental enquiry is conducted under Article 14 of the M.P. Civil Service (Classification, Control and Appeal) Rules, 1966 then the charge-sheeted employee has full opportunity to cross-examine the prosecution witnesses and also to adduce evidence. There had been no careful consideration of the objection submitted by the petitioner against the acceptance of report/opinion of the handwriting expert. The appeal has also been decided without there being any application of mind and to the questions raised in the appeal by the petitioner. Thus, the order passed by the appellate authority has also to be set aside. 8. Since this Court has found that the petitioner has not been given a full opportunity in the enquiry to cross-examine the handwriting expert Shri C.T. Sarwate, therefore, the order of punishment and the order passed by the appellate authority are quashed. The matter is now remitted to the inquiry stage and the Inquiry Officer shall give an opportunity to the petitioner to cross-examine the handwriting expert. The matter is now remitted to the inquiry stage and the Inquiry Officer shall give an opportunity to the petitioner to cross-examine the handwriting expert. In case the Inquiry Officer has retired or is not available for any reason then the respondents shall appoint a new Inquiry Officer to hold a de novo enquiry. The petitioner on quashment of the dismissal order dated 30th .June, 1992 shall remain under suspension till the enquiry is completed and she shall be entitled to the subsistence allowance from the date of her dismissal and full back wages shall be paid to the petitioner on termination of the departmental proceedings in ease she is exonerated of the charges in accordance with law and subject to the provisions as contained in the Fundamental Rules applicable to the State Government employees. Since the matter has been pending before this Court since 1993 and the petitioner had been out of employment therefore in the present case the respondents before starting with the enquiry shall pay the subsistence allowance to the petitioner for the intervening period, i.e., from the date of her dismissal and then only the de novo enquiry shall be completed by the respondents. 9. The petition is, thus, decided accordingly.