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2005 DIGILAW 980 (MP)

Razaque Mohd. S/o Imamuddin v. State of M. P.

2005-09-14

A.K.SHRIVASTAVA

body2005
ORDER A.K. Shrivastava, J. 1. This petition was originally filed before the Indore Bench of M. P. State Administrative Tribunal, on 19-4-1995. On account of the abolition of the Tribunal, this petition has been received by this Court for its adjudication. 2. By this petition the petitioner is challenging the validity of the order Annexure A/1 dated 26-9-1994 by which he has been punished from the dismissal of his service by Superintendent of Police. The order of Disciplinary Authority has been affirmed by the Appellate Authority i.e., D.I.G. Police, vide Annexure A/12 dated 3-10-1994. W. P. (S) No. 4631 of 2003 decided on 14-9-2005. (Indore) 3. On account of the misconduct by the petitioner he was subjected to the Departmental Enquiry on the following charges : 4. In the Departmental Enquiry all the charges were found to be proved. As a result of which the Disciplinary Authority passed impugned order punishing the petitioner by dismissing from the service. The order of dismissal has been affirmed by the Appellate Authority i.e. D.I.G. Police. 5. The contention of Mr. D.M. Kulkami, learned counsel for the petitioner is that the punishment of dismissal accorded by the Disciplinary Authority and affirmed by the Appellate Authority is based on no evidence. Mr. Kulkarni has pointed out that there is a concurrent finding of the two authorities that the impugned motorcycle No. MP14 C 645 is not registered in the RTO Office in the name of the petitioner. The contention is that one Balaram was using this motorcycle who was later on arrested on 23-3-1993 in a case under the NDPS Act since the contraband article was found in the said motorcycle. Learned counsel has also stated that there is no evidence that the impugned motorcycle was in possession of the petitioner. Thus, according to the learned counsel the impugned orders cannot be allowed to remain stand. 6. On the other hand, it has been contended by Mr. Joshi that 14 witnesses have stated that petitioner was having connection with Balaram and petitioner purchased the motorcycle from one Shahid who was the registered owner of the motorcycle. Thus the charges are proved and this petition be dismissed. 7. After having heard learned counsel for the parties I am of the view that this petition deserves to be allowed. 8. Thus the charges are proved and this petition be dismissed. 7. After having heard learned counsel for the parties I am of the view that this petition deserves to be allowed. 8. Before dealing with the rival contentions of the learned counsel for the parties, it would be appropriate to mention here that the scope of judicial review in regard to interference in the quantum of punishment or to quash the departmental proceedings is very limited. Unless and until some glaring mistake is pointed out which goes to the root of the matter, this Court should not interfere in the departmental proceedings and should not quash the same. Similarly, if the punishment is shockingly disproportionate or the misconduct is not at all proved, the Court should not interfere in the quantum of punishment. 9. On the basis of above said enunciation of law this case will be decided on the touch stone of the evidence which has come on record in the departmental enquiry. The Disciplinary Authority as well as the Appellate Authority on the basis of evidence placed in the departmental proceedings came to hold that the impugned motorcycle No. MP14 C 645, is not registered in the name of the petitioner. One Shahid is the registered owner of the said motorcycle. If that is the position, the view of this Court is that it was incumbent upon the department to have examined Shahid in order to prove the fact that he sold the impugned motorcycle to the petitioner. In that regard my attention has been drawn to internal page 3 of the order of the Disciplinary Authority wherein it has been mentioned that the statement of Shahid could not be recorded because at the relevant point of time he was not available in Jaora and for that reason the statement of Shahid was also not taken by Head Constable. The view of this Court is that it was incumbent upon the department to examine Shahid who could be the best witness to say that he sold the motorcycle to the petitioner. No witness has been examined by the Department in order to show that the transaction of sale of the motorcycle between Shahid and petitioner took place before that witness. Thus, the first charge that petitioner purchased the impugned motorcycle No. MP14 C 645, without obtaining permission from the department is not at all proved. 10. No witness has been examined by the Department in order to show that the transaction of sale of the motorcycle between Shahid and petitioner took place before that witness. Thus, the first charge that petitioner purchased the impugned motorcycle No. MP14 C 645, without obtaining permission from the department is not at all proved. 10. So far as the other charges are concerned, merely the said motorcycle was being used by one Balaram who was later on made accused in a case under the NDPS Act would not mean that the petitioner was indulged with Balaram. Admittedly no case has been registered against the petitioner under the NDPS Act and he is not made accused along with Balaram. Thus, even if the Balaram was meeting frequently before the registration of the criminal case against him under the NDPS Act would not mean that the integrity of the petitioner was doubtful. There is nothing on record in order to demonstrate that antecedent of Balaram is black and he was made accused earlier also in some cases. There is nothing on record in order to prove that except the present case of NDPS against the Balaram he was indulged in any offence. Thus, merely because Balaram was meeting frequently with the petitioner before registration of the case against him (Balaram), it cannot be said that the conduct and the integrity of the petitioner was doubtful. However, if the contraband article was found in the motorcycle which does not belong to the petitioner and was being possessed by Balaram, the petitioner cannot be made responsible for it. 11. Mr. Kulkarni, learned counsel for petitioner has invited my attention that in the present case Presenting Officer was not appointed and the Enquiry Officer played the role of the presenting officer. He himself examined the witnesses and also cross-examined them. If that is the position, the view of this Court is that the departmental enquiry was not conducted in accordance with law and the procedure so adopted by the enquiry officer is wholly unwarranted under the law. The action of the enquiry officer playing the role of presenting officer and examining and cross-examining the witnesses, goes to the root of the matter and on this ground the departmental enquiry is vitiated. Otherwise also the charges levelled against the petitioner are not proved. 12. Eventually this petition succeeds and is hereby allowed. The action of the enquiry officer playing the role of presenting officer and examining and cross-examining the witnesses, goes to the root of the matter and on this ground the departmental enquiry is vitiated. Otherwise also the charges levelled against the petitioner are not proved. 12. Eventually this petition succeeds and is hereby allowed. The impugned order Annexure A/1 dated 26-6-1994 passed by Superintendent of Police and Annexure A/2 the order of Appellate Authority i.e. D.I.G. Ujjain dated 26-9-1994 is hereby quashed. The respondents are hereby directed to reinstate the petitioner forthwith with full backwages. 13. Petition is allowed. No order as to costs.