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Madhya Pradesh High Court · body

2007 DIGILAW 701 (MP)

SURENDRA PRASAD PANDE v. STATE OF MADHYA PRADESH

2007-07-10

R.S.JHA

body2007
Judgment ( 1. ) THE petitioner has filed this petition being aggrieved by order dated 15-11-1995 imposing upon him a punishment of compulsory retirement from service. ( 2. ) BRIEF facts necessary for decision of the present case are that the petitioner was served with a charge-sheet on 21-6-1995 in respect of charges which related to the period when the petitioner was posted as Sub Inspector/ thana Incharge, Piplaud, along with another officer, i. e. , A. S. I. , M. L. Arya. Charges against the officers were that on 18-1-1995 one Shri Ramdas and tulsiram came to the police station to lodge a report in respect of abduction of their sister Sonkali and Jamuna Bai but the petitioner did not record the said report immediately thus, showing gross dereliction of duty. The charge against shri Arya, ASI was that instead of registering two cases of missing persons he registered only one case. The enquiry was conducted in which the charge was found to be partly proved. Show-cause notice dated 24-1-1995 was issued to the petitioner proposing imposition of penalty of compulsory retirement from service while punishment of reversion for one year to the post of Head constable was proposed in respect of ASI, M. L. Arya. ( 3. ) THE petitioner submitted his representation against the proposed punishment before the authority and ultimately by the impugned order dated 15-11-1995 he was compulsorily retired while a punishment of stoppage of two increments for one year was imposed upon ASI, Shri M. L. Arya. It has been brought on record by the respondents that the appeal filed by the petitioner against the said order of punishment was dismissed by the Appellate Authority by order dated 22-4-1997 which, however, is not a subject matter of challenge before this Court. ( 4. ) IT is contended by the learned Counsel for the petitioner that the impugned order is bad as it is not based on proper appreciation of the evidence on record and as the punishment imposed upon the petitioner is grossly disproportionate to the alleged misconduct. Learned Counsel for the petitioner also submits that the Disciplinary Authority while imposing punishment of compulsory retirement could not have taken into consideration the past record of the petitioner. Learned Counsel for the petitioner also submits that the Disciplinary Authority while imposing punishment of compulsory retirement could not have taken into consideration the past record of the petitioner. The punishment has been imposed without giving any notice or opportunity of hearing to the petitioner in respect of consideration of his past record and, therefore, the impugned order of punishment deserves to be quashed. ( 5. ) LEARNED Counsel for the respondents, per contra, submits that the petitioner has been found to have committed misconduct on the basis of oral and documentary evidence on record and as there is no procedural irregularity and as this Court does not sit as an Appellate Authority over disciplinary proceedings, the issues raised by the petitioner are beyond the scope of Article 226 of the Constitution of India and deserves to be rejected. Learned Counsel for the respondents has relied upon the decisions rendered in the cases of B. C. Chaturvedi Vs. Union of India and others, (1995) 6 SCC 749 and P. C. Kakkar Vs. Chairman and Marketing Director, United Commercial Bank and others, (2003)4 SCC 364 , in support of the above mentioned contention. ( 6. ) IT is settled law that the scope of interference in disciplinary proceedings is limited to cases of no evidence, perversity or arbitrariness in the sense that as the order suffers from Wednesbury unreasonableness as has been held by the Supreme Court in Yoginath D. Bagde Vs. State of Maharashtra and another, (1999) 7 SCC 739 . The decisions relied upon by the learned Counsel for the respondents are also of the same effect. ( 7. ) IN the present case, from a perusal of the documents on record as well as the impugned order it is apparent that the present case is not one of no evidence as admittedly the report was recorded by the petitioner several days after the report was lodged by the complainants. It is also clear that the authority has duly appreciated the evidence on record and has rightly recorded a finding against the petitioner and, therefore, it cannot be said that the present case suffers from perversity or Wednesbury unreasonableness. In the circumstances, i do not find any merit in the contention of the learned Counsel for the petitioner regarding the findings recorded by the Disciplinary Authority against the petitioner. ( 8. In the circumstances, i do not find any merit in the contention of the learned Counsel for the petitioner regarding the findings recorded by the Disciplinary Authority against the petitioner. ( 8. ) THE only issue which remains to be considered is whether the disciplinary Authority could have taken into consideration the past record of the petitioner for the purpose of imposing a penalty of compulsory retirement without prior notice or intimation to the petitioner to the effect that the authority proposed to take into consideration the past record of the petitioner for the purpose of imposing the penalty of compulsory retirement. ( 9. ) FROM a perusal of the record it is apparent that while the authority issued a notice on 24-9-1995 proposing to impose a penalty of compulsory retirement the authority did not disclose the fact that the proposed punishment was to be imposed on the basis of the past record of the petitioner. The fact that the past record was considered by the authority for imposition of the punishment of compulsory retirement is evident from the impugned order imposing punishment dated 15-11-1995. ( 10. ) IN the case of The State of Mysore Vs. K. Manche Gowda, AIR 1964 sc 506 , a five Judge Bench of the Supreme Court has held as under:-Under Art. 311 (2) of the Constitution, as interpreted by this Court, a Government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the government servant must be told of the grounds on which it is proposed to take such action : see the decision of this Court in the state of Assam Vs. Bimal Kumar Pandit, Civil Appeal No. 832 of 1962, decided on 12-2-1963 : ( AIR 1963 SC 1612 ). If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment: he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment: he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment was mainly based upon the previous record of a government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the knowledge of the Government servant. It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him; nor would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record. This contention misses the real point, namely, that, what the Government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. It is not possible for him to know what period of his past record or what acts or omissions of his in a particular period would be considered. If that fact was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers. Even if the authority concerned took into consideration only the facts for which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. We cannot accept the doctrine of "presumptive knowledge" or that of "purposeless enquiry", as their acceptance will be subversive of the principle of "reasonable opportunity". We, therefore, hold that it is incumbent upon the authority to give the Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give an explanation. Before we close, it would be necessary to make one point clear. It is suggested that the past record of a Government servant, if it is intended to be relied upon for imposing a punishment, should be made specific charge in the first stage of the enquiry itself and if it is not so done, it cannot be relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment. An enquiry against a Government servant is one continuous process, though for convenience it is done in two stages. The report submitted by the Enquiry Officer is only recommendatory in nature and the Final Authority which scrutinizes it and imposes punishment is the authority empowered to impose the same. Whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject matter of the enquiry. But it is not necessary in this case to decide whether such previous record can be made the subject matter of charge at the first stage of the enquiry. But, nothing in law prevents the punishing authority from taking that fact into consideration during the second stage of the enquiry, for essentially it relates more to the domain of punishment rather than to that of guilt. But what is essential is that the Government servant shall be given a reasonable opportunity to know that fact and meet the same. " ( 11. But what is essential is that the Government servant shall be given a reasonable opportunity to know that fact and meet the same. " ( 11. ) ON application of the law as laid down by the Supreme Court in the case of Manche Gowda (supra), to the present case it becomes evident from a perusal of the impugned order imposing penalty dated 15-11-1995 that but for the fact that the petitioner in his 28 years of service had been conferred with 158 awards and suffered 81 penalties including five major penalties, the Disciplinary authority would not have imposed the punishment of compulsory retirement, however, the fact that the authority was influenced by his past record in this regard or that the punishment was being proposed on the basis of the petitioners bad past service record was not disclosed to the petitioner in the show-cause notice, thus, keeping him in the dark in this respect. The resultant disparity is also evident from the fact that while a punishment of compulsory retirement has been imposed upon the petitioner, the other ASI because of his good past record has only been punished with the stoppage of two increments for a period of one year. ( 12. ) IN view of the above, while the challenge to the findings recorded by the Disciplinary Authority as made by the petitioner is rejected, in view of the law as laid down by the Supreme Court in the case of Manche Gowda (supra) and in the case of Managing Director, EC1l Vs. B. Karunakar, (1993) 4 SCC 727 , the matter is remanded back to the Disciplinary Authority to re-decide the question of the punishment to be imposed upon the petitioner after giving due opportunity to the petitioner in respect of consideration of his past record. It is, however, made clear that as this Court has upheld the findings recorded by the Disciplinary Authority and the matter is being remanded back only for redecision of the question of punishment on the ground that the petitioner had not been given a show-cause notice regarding consideration of his past record, the question of any back wages or reinstatement as raised by the petitioner in the present case does not arise. It is further clarified that in case, the authority, on due reconsideration proposes to impose a lesser punishment it would be at liberty to decide all incidental issues. It is further clarified that in case, the authority, on due reconsideration proposes to impose a lesser punishment it would be at liberty to decide all incidental issues. ( 13. ) THE petition is partly allowed to the extent indicated above. In the peculiar facts and circumstances of the case, there shall be no orders as to costs. Writ Petition partly allowed.