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Madhya Pradesh High Court · body

2006 DIGILAW 858 (MP)

State of M. P. v. Jagdish Prasad Yadav

2006-07-13

A.K.GOHIL, SUBHASH SAMVATSAR

body2006
ORDER Gohil, J. -- 1. State has filed this petition under Article 226/227 of the Constitution of India for issuance of a writ of mandamus, certiorari or any other suitable writ, order or direction for quashing the order passed by respondent No.2 M.P. State Administrative Tribunal, Bench Gwalior Dated 18.4.2001 in OANo. 1457/2000. 2. The facts of the case are that the respondent No. 1 at the relevant time was holding the post of Assistant District Public Prosecuting Officer Gwalior. He was served with a charge-sheet. Reply of the charge-sheet was filed and a regular departmental enquiry was conducted against him under M.P. Civil Services (Classification, Control and Appeals) Rules. After conducting the regular enquiry, the enquiry officer gave a finding that the respondent No.1 is guilty of committing misconduct as per the charge-sheet. On the basis of the aforesaid report, disciplinary authority served a show cause notice in respect of imposition of punishment and it was proposed to give the punishment of stoppage of five increments. The matter was referred to M.P. Public Service Commission for consultation before taking final decision in the matter. Public Service Commission after considering the entire material as of the view that some severe punishment should be given. After the advice of the P.S.C. by order dated 10.1.1997 the order of compulsory retirement was passed, which the respondent No.1 challenged in OA No. 59/97, which was decided by the order dated 30.1.1999 and the punishment of compulsory retirement was set aside with a liberty to the respondent to decide the disciplinary proceedings after giving him a fresh show cause notice in view of the opinion as given to them by the PSC along with their own finding and proposing the punishment therein. Thereafter the State Government gave a fresh show cause notice dated 26.7.1999 (Annexure A-29) imposing the punishment of compulsory retirement. The reply of the said show cause notice was submitted on 2.9.1999 and 2.12.1999. Thereafter the State Government imposed the punishment of compulsory retirement on the applicant vide impugned order dated 16.2.2000. The applicant again challenged the said order in OA No. 1457/2000 before the M.P. Administrative Tribunal, Gwalior. Tribunal vide order dated 18.4.2001 allowed the application, set aside the impugned order, against which the State has filed this petition. 3. We have heard the learned counsel for the parties and perused the order passed by the Tribunal. The applicant again challenged the said order in OA No. 1457/2000 before the M.P. Administrative Tribunal, Gwalior. Tribunal vide order dated 18.4.2001 allowed the application, set aside the impugned order, against which the State has filed this petition. 3. We have heard the learned counsel for the parties and perused the order passed by the Tribunal. Learned counsel for the State submitted that the impugned order passed by the Tribunal is bad in law and liable to be set aside. In reply, the learned counsel for the respondent No.1 supported the order passed by the M.P. Administrative Tribunal. 4. The Tribunal has held that the order dated 10.1.1997 (Annexure A-26) for imposing the penalty of compulsory retirement of the applicant was issued on the advice of the PSC. PSC gave opinion that the proposed punishment of withholding five increments with cumulative effect was inadequate and suggested the punishment of compulsory retirement. The State Government concurred with the opinion of the PSC. Thereafter issued the fresh show cause notice and awarded punishment of compulsory retirement. The learned Tribunal rejected all other arguments of the respondents which were raised to challenge the order of punishment. The Tribunal only considered this aspect of the matter, that the enquiry officer had found charge No.4 as only partly proved and the disciplinary authority has found this charge as fully proved. Therefore there was disagreement between them. As per charge-sheet, four charges were levied against respondent No.1. Enquiry Officer found that the first charge was not proved. Charge No.2, 3 and 4 were found fully proved but due to mistake in the last para of enquiry report it was mentioned that the charge No.4 was partly proved. The Tribunal has discussed from para No. 19 to 23 about the proving of charge and considered that it as a case of disagreement between the enquiry officer and the disciplinary authority and has held that the disciplinary authority has not recorded any reasons for disagreement. The Tribunal has discussed from para No. 19 to 23 about the proving of charge and considered that it as a case of disagreement between the enquiry officer and the disciplinary authority and has held that the disciplinary authority has not recorded any reasons for disagreement. It as argued before the Tribunal that if somewhere it was wrongly written that charges No.2 and 4 were fully proved and there is silence about charge No.3 then it was only a case of clerical mistake that in some document it was written that charges No.2 and 3 were proved and charge No.4 was partly proved but considering that clerical mistake, Tribunal held that it is a case of disagreement between the finding of enquiry officer and the disciplinary authority and later should have recorded reasons and it should have also given a show cause notice afresh before doing so and quashed the impugned order on the aforesaid ground. 5. We have seen the enquiry report (Annexure P-5). The enquiry officer has clearly found charges No.2, 3 and 4 as fully proved, but in the concluding para of enquiry report it was mentioned that charge No.4 was partly proved. If it was the clerical mistake it could have been corrected by the Tribunal or should have ignoed the same, letter dated 24th July, 1995 (Annexure P-6) was issued to the respondent No.1, in which it was mentioned that charges No.2 and 4 are fully proved. It appears that Tribunal has unnecessarily stretched the matter without seeing the finding recorded by the enquiry officer in the report, according to which all the three charges charges No.2, 3 and 4 were found fully proved against the respondent No.1. If a charge is found fully proved by recording a reasoned finding and if in the end of the enquiry report it was wrongly written or mentioned due to clerical or typing mistake that the same was partly proved, it will not change the finding and the opinion recorded by the enquiry officer and the respondent No. I was not entitled to take the benefit of such clerical mistake the Tribunal was wrong in setting aside the impugned order simply on the ground that the charge No.4 was only found proved partly. If the Tribunal was of the opinion, then instead of considering it as a case of disagreement between the authorities, could have himself examined the detailed finding recorded by the enquiry officer whether charge No.4 was found partly proved or fully proved. In our considered opinion, the Tribunal was not justified in setting aside the impugned order of punishment simply on the aforesaid ground. Tribunal has accepted that charges No.2 and 3 were fully proved. Charge No.3 was of very serious nature that he had demanded Rs.300-500 per month including wine and meat regularly from constable Prahlad Singh No. 604 for continuing as a Court Moharrar in the Court of CJM. Charge No.4 was also of a grave nature that he gave illegal protection to head constable Mevalal Pandey, who was transferred and he had not relieved him. There was a complaint against him and thereafter DIG had issued instructions for relieving him immediately. 6. Therefore, after perusal of the impugned order and the finding recorded by the enquiry officer, we do not find that there was any disagreement between the enquiry officer and the disciplinary authority and that could not have been the ground for setting aside the impugned order of punishment that the charge No.4 was found partly proved, even it was found partly proved coupled with two other charges, charges No.2 and 3, which were also found proved. The punishment imposed by the Government as suggested by the PSC was just and proper and for that the Tribunal was not justified in interfering with the findings recorded by enquiry officer. Except the above, the Tribunal has not found any other ground in favour of respondent No.1. 7. It is settled law that the Administrative Tribunal cannot sit as a Court of appeal over a decision based on the finding of the inquiry authority in disciplinary proceedings, as has been held in the case of Government of Tamil Nadu v. A. Rajapandian [ AIR 1995 SC 561 ]. Where there was some relevant material which the disciplinary authority has accepted and which material reasonably support the conclusion reached by the disciplinary authority, it is not the function of the Administrative Tribunal to review the same and reach on a different finding than that of the disciplinary authority. 8. Where there was some relevant material which the disciplinary authority has accepted and which material reasonably support the conclusion reached by the disciplinary authority, it is not the function of the Administrative Tribunal to review the same and reach on a different finding than that of the disciplinary authority. 8. In the case of B. C. Chaturvedi v. Union of India and others [( 1995) 6 SCC 749], it was held that where findings of the disciplinary authority/ appellate authority are based on some evidence, Court/Tribunal cannot reappreciate the evidence and substitute its own findings. Again in the case of Union of India v. G. Ganayutham [ AIR 1997 SC 3387 ] it was held that unless the Court/Tribunal opines in its secondary role, that the administrator was on the material before him, irrational according to wednessbury or CCSU norms, the punishment cannot be quashed. Even then, the matter has to be remitted back to the appropriate authority for reconsideration. It is only in very rare cases that the Court might, to shorten litigation think of substituting its own view as to the quantum of punishment in the place of the punishment awarded by the competent authority can interfere. 9. Again in the case of Union of India v. A. Nagamalleshwar Rao [ AIR 1998 SC 111 ] it was held that the Tribunal cannot examine the evidence produced before the inquiry officer as if it is an appellate Court. In the case of High Court of Judicature at Bombay v. Shshikant S. Patil [ (2000) 1 SCC 416 ] it has been held that the disciplinary authority is the sole judge of facts if the enquiry has been properly conducted. If there is some legal evidence on which findings can be based, then adequacy or even reliability of that evidence is not a matter to be canvassed before the Court. 10. In the light of the aforesaid law laid down repeatedly by the apex Court, the Tribunal has wrongly acted as an appellate Court. Simply on the ground that there was disagreement between the Enquiry Officer and the Disciplinary Authority, in our considered opinion the Tribunal has wrongly interfered in the impugned order passed by the disciplinal y authority regarding imposition of punishment of compulsory retirement. Simply on the basis of clerical mistake Tribunal has created mountain on mole, which is not permissible under the law of judicial review. Simply on the basis of clerical mistake Tribunal has created mountain on mole, which is not permissible under the law of judicial review. 11. Therefore, we hold that the order of compulsory retirement cannot be said to be improper and bad and the Tribunal was in error in holding otherwise. Thus, we allow this petition, set aside the impugned order passed by the Tribunal dated 18.4.2001 and uphold the order dated 16.2.2000 (Annexure A-1) of compulsory retirement of the respondent No.1. Under the facts and circumstances of the case, parties are directed to bear their own costs.