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Madhya Pradesh High Court · body

2006 DIGILAW 1288 (MP)

Mahendra Singh Thakur v. State of M. P.

2006-11-14

S.K.GANGELE

body2006
ORDER 1. The petitioner has filed this petition challenging the order of dismissal Annexure P- 2 dated 8.2.1999 and also dismissal of his appeal. 2. The petitioner was charge-sheeted vide memo dated 26.2.1996 when he was working as Assistant Development Officer, Block Ghatia, District Ujjain for some financial irregularities. Four charges were levelled against the petitioner that he misused the amount of Rs.47,926.55 and also there· " were financial irregularities with regard to amount of Rs.1,29,739.10 and other financial irregularities. The departmental enquiry was completed ex party. The enquiry officer found the charges proved against the petitioner. Thereafter, a show cause notice was issued to him and order of punishment of dismissal was awarded to him vide order dated 8.2.1999. Against the aforesaid order, he preferred an appeal and the appellate authority vide order dated 6.4.2002 partly allowed the appeal, suspended the order of dismissal of the petitioner and remanded the matter back to the Commissioner, Ujjain for completing the departmental enquiry within a period of two months. It was observed by the appellate authority that the ex-party enquiry was against the rule of natural 'justice. Hence, the proceedings of ex-party enquiry are hereby quashed. 3. The Court directed the respondents to produce the record of enquiry. The respondents have produced the record. From the record, it is clear that after the order of the appellate authority, one District Enquiry Officer, Mr. S.L. Soni was appointed as Enquiry Officer. Thereafter, several correspondence was made by him and other district authorities for availability of the record of the case and that record was not made available. The second enquiry officer also sent notices to the petitioner but he did not participate in the enquiry and thereafter, the Second Enquiry Officer submitted his enquiry report on 10.3.2003. In the aforesaid enquiry report, it has been mentioned by him that he issued registered notices to the petitioner but he did not appear in the enquiry and earlier, proceedings of the enquiry were suspended. Hence, as per the earlier enquiry, the charges levelled against the petitioner are proved. It is clear from the aforesaid enquiry report that no further enquiry has been conducted by him neither he examined the record of the case, documents or witnesses. Thereafter, the order of punishment has been passed. No second show cause notice has been issued to the petitioner. 4. It is clear from the aforesaid enquiry report that no further enquiry has been conducted by him neither he examined the record of the case, documents or witnesses. Thereafter, the order of punishment has been passed. No second show cause notice has been issued to the petitioner. 4. Learned counsel for the petitioner has submitted that the order of punishment and the second enquiry report of the enquiry officer is against the law and findings recorded in the second enquiry report are perverse. Contrary to this, the learned Government Advocate has submitted that earlier only, the enquiry was suspended by the appellate authority. The petitioner did not participate in the enquiry proceedings. Hence, the second enquiry officer has rightly been found the charges proved against the petitioner. 5. As per the facts, if is clear that the appellate authority suspended the order of punishment imposed against the petitioner in pursuance to the earlier enquiry dated 19.6.1998. The appellate authority specifically held that the ex-party enquiry conducted against the petitioner was against the law and no proper opportunity of hearing was given to the petitioner and on the basis of this, the order of punishment was suspended and the matter was remanded back to the Commissioner, Ujjain for re-enquiry and thereafter, second enquiry officer Mr. Soni was appointed as Enquiry Officer. From the record of the enquiry proceedings, it is clear that he and district authority issued letters to the concerned authorities for availability of the record and that record was not made available to the enquiry officer and thereafter, without examining the record, any witness or giving any findings, simply he observes that earlier, the charges against the petitioner have been found proved. Hence, the aforesaid charges have been found proved also, thereafter, no second show cause notice was issued to the petitioner neither the enquiry report has been given to the petitioner and the order of dismissal has been passed. 6. In my opinion, the whole procedure adopted by the authorities are illegal and contrary to the provisions of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. As per Rule 27 of the aforesaid Rule, the appellate authority has power to remand the case back to the authority and the appellate authority remanded the case back for re-enquiry on the ground that earlier, ex-party enquiry was bad in law. As per Rule 27 of the aforesaid Rule, the appellate authority has power to remand the case back to the authority and the appellate authority remanded the case back for re-enquiry on the ground that earlier, ex-party enquiry was bad in law. When that ex-party was set aside then it was obligatory on the part of the second enquiry officer to conduct a de novo enquiry and record his findings on each of the misconduct. If the petitioner did not participate in the enquiry, then also it was his duty to examine the record independently, re-examine the witnesses and thereafter, submit a fresh enquiry report and thereafter, a second show cause notice has to be issued to the petitioner. No such procedure has been adopted in this case. Hence, the order of punishment is unsustainable. 7. Consequently, the petition of the petitioner is allowed. The impugned orders Annexure P-1 and dated 7.4.2004 and Annexure P-2 dated 8.2.1999 are hereby quashed. The petitioner would be deemed in continuation of service with all the consequential benefits but looking to the nature of the proceedings and to the fact that the allegations have not been considered on merits, in my opinion, the petitioner would not be entitled salary for the period when he was out of employment on the principal of 'No work no pay'. No order as to cost.