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Madhya Pradesh High Court · body

2008 DIGILAW 1051 (MP)

NANHE BHAI RAIKWAR v. DISTRICT AND SESSIONS JUDGE

2008-08-21

R.S.JHA

body2008
Judgment ( 1. ) THE petitioner has filed this petition assailing the legal validity of order dated 4-10-1997 by which a punishment of dismissal from service has been imposed upon him as well as orders dated 22-1-1999 and 19-11-1999 by which the appeal filed by him and review application filed by him were dismissed. ( 2. ) THE brief facts, necessary for adjudication of this petition are that the petitioner was working as a peon in the Court of the District and Sessions judge, Damoh and at the relevant time was posted at Hata. On 3-7-1997, Civil judge, Class II, Hata made a written complaint in respect of the conduct of the petitioner to the District and Sessions Judge, Damoh alleging that the petitioner was in the habit of refusing orders, misbehaving and remaining absent from his duties. Pursuant to the complaint a charge-sheet was issued to the petitioner on 7-7-1997 and a departmental enquiry was instituted against him. On 27-9-1997, the Civil Judge, Class II, Hata submitted a written application before the enquiry officer that the date mentioned in the written complaint be changed and, therefore, an amended charge-sheet was issued to the petitioner on 8-8-1997. On completion of the enquiry, in which all the charges were found to be proved, a notice on the enquiry report was issued to the petitioner on 2-10-1997 and, thereafter, by order dated 4-10-1997 a punishment of dismissal from service was imposed upon the petitioner. The appeal filed by the petitioner was rejected on 22-1-1999 and the review application filed by the petitioner also suffered the same fate by the impugned order dated 19-1 -1999. ( 3. The appeal filed by the petitioner was rejected on 22-1-1999 and the review application filed by the petitioner also suffered the same fate by the impugned order dated 19-1 -1999. ( 3. ) THE petitioner being aggrieved by the impugned orders and the punishment imposed upon him, has filed the present petition challenging the impugned orders on the grounds that the enquiry conducted against him is not in conformity with Rule 14 of the M. P. Civil Services (Classification, Control and appeal) Rules, 1966, inasmuch as the petitioner was asked to submit a written submissions by the Enquiry Officer and not by the Disciplinary Authority, notices were not issued in accordance with Rule 30 of the Rules, 1966, that the disciplinary Authority while passing the impugned order dated 4-10-1997 has travelled beyond the charge-sheet levelled against the petitioner and that the petitioner was not given due and proper opportunity to defend himself by adducing evidence as provided by Rule 14 (17) of the Rules, 1966. The petitioner has also contended that there is no evidence on record to establish the charges against him and, therefore, the present case is one of no evidence and there is perversity on the part of the Disciplinary Authority while imposing the punishment and on the aforesaid grounds has prayed for quashing the impugned orders. ( 4. ) PER contra, the learned Counsel, appearing on behalf of the respondents, submits that the departmental enquiry was initiated against the petitioner on a written complaint made by the Civil Judge, Class II against the petitioner. It is further submitted that the procedure prescribed by the Rules, 1966 was meticulously followed and the petitioner was given due and proper opportunity of hearing during the enquiry which is evident from the perusal of the order-sheets of the enquiry dated 9-9-97, 16-9-97, 19-9-97 and 1-10-97, wherein it has been specifically recorded that the petitioner himself appeared before the enquiry officer and a copy of the charge-sheet along with the supporting documents was supplied to him. It is further submitted that from a perusal of order-sheet, which is filed as Annexure P- 5, it is clear that in spite of being given several opportunities to the petitioner on his own volition did not file any reply nor did he produce any witness in his defence. It is further submitted that from a perusal of order-sheet, which is filed as Annexure P- 5, it is clear that in spite of being given several opportunities to the petitioner on his own volition did not file any reply nor did he produce any witness in his defence. The learned Senior counsel appearing for the respondents submits that the petitioner was also given due and proper opportunity to file his submissions on the enquiry report submitted by the enquiry officer but the petitioner failed to do so. It is further submitted that each and every charge levelled against the petitioner was found to be proved on the basis of the oral and documentary evidence adduced during the enquiry and, therefore, the present case is not one of no evidence and as the disciplinary Authority has recorded the finding against the petitioner on the basis of the aforesaid evidence on record, the impugned orders do not warrant any interference by this Court in exercise of its extra-ordinary jurisdiction as this court does not sit over the matter as an Appellate Authority nor is it required to re-appreciate the evidence. ( 5. ) I have heard the learned Counsel for the parties at length. From a perusal of the documents filed by the petitioner and the respondents, it is evident that the petitioner personally appeared before the enquiry officer and was handed over a copy of the charge-sheet and all supporting documents and affixed his signatures in acknowledgment of receipt. It is also clear that the petitioner repeatedly sought time but did not file any reply or adduce any evidence in his defence. In the aforesaid facts and circumstance, the contentions of the petitioner regarding Rule 14 (5) and Rule 30 of the Rules, 1966 do not deserve consideration inasmuch as the petitioner did not at any point of time object to the proceedings taken by the enquiry officer and himself appeared and accepted notice of the charge-sheet and all supporting documents as is evident from a perusal of the statements of the witness, which have also been filed along with the petition, it is also apparent that no fault can be found with the finding recorded by the enquiry officer as there is adequate evidence to indicate that the charges levelled against the petitioner stood proved beyond preponderance of probabilities. ( 6. ( 6. ) IN view of the above, I do not find any illegality or irregularity in finding recorded by the authorities in respect of the charges levelled against the petitioner, however, on a perusal of the document Annexure P-10, it is clear that a show-cause notice with a copy of the enquiry report was issued to the petitioner on 2-10-97 and he was asked to submit a reply by 11. 30 a. m. on 4-10-97 and, therefore, the petitioner was hardly given 24 hours to file his response against the enquiry report. That apart, a perusal of the impugned order dated 4-10-97 indicates that the Disciplinary Authority while imposing the extreme penalty of dismissal from service upon the petitioner has taken into consideration the fact that the petitioner was in the habit of disobeying orders and remaining absent from his duties by making false excuses and that he had also disobeyed oral orders of the Disciplinary Authority. The Disciplinary authority has also stated that taking into consideration the fact that the petitioner was orally warned several times on previous occasions but there was no improvement in his conduct his continuance in service is intolerable and not in public interest. The Disciplinary Authority has also stated in the impugned order that the petitioner is missing from headquarters without permission and, therefore, he need not be given an opportunity of hearing and has thereupon imposed the punishment of dismissal from service upon him. ( 7. ) ON perusal of the aforesaid, it is clear that the authority while imposing punishment on the petitioner has not given him adequate and sufficient notice along with the copy of the inquiry report to enable him to file his reply and state his contentions in respect of the finding recorded by the inquiry officer in the inquiry report as only a 48 hours notice was given to him and the disciplinary Authority has passed orders specifically stating therein that there was no need of giving any opportunity of hearing to the petitioner as he was absent from headquarters. ( 8. ( 8. ) IN my considered opinion, the authority was required to give the petitioner adequate and sufficient notice along with the copy of the inquiry report so that he could go through the same and file his response thereto as the opportunity required to be given to the petitioner in that respect is not illusory and meaningless but is a real and substantial opportunity in view of the law laid down by the Supreme Court in the case of Union of India Vs. Mohd. Ramzan khan, (1991) 1 SCC 588 and Managing Director, ECIL Vs. B. Karunakar, (1993)4 SCC 727 . ( 9. ) IT is also apparent from the perusal of the impugned order that the disciplinary Authority has repeatedly stated that the petitioner had in the past disobeyed oral orders on several occasions and has thereafter gone on to narrate in detail an incident based upon his personal knowledge, alleging that the petitioner had disobeyed his oral orders and on the pretext of illness absented from duty although no charge to this effect was either levelled against the petitioner or stated in the charge-sheet nor was the petitioner given any, opportunity to defend himself in respect of the aforesaid allegations or given any indication that the aforesaid incidents would be considered by the authority for the purposes of imposing a punishment of dismissal upon the petitioner. ( 10. ) IN the case of Remington Rand of India Ltd. Vs. Tahir Ali Saifi and another, (1976) 3 SCC 69 , the Supreme Court has held that an order of dismissal from service cannot be based on a ground not slated in the charge-sheet. Similarly, in the case of State of Punjab Vs. Bakhtawar Singh, (1972) 4 SCC 730 , the Supreme Court has again stated that a charge in respect of which an employee is not given any opportunity to defend himself cannot be taken into consideration and has observed in Para 11: "11. It may be noted that Shri Bakhtawar Singh was not charged with having not discharged his duties impartially. None of the charges levelled against him accused him of not discharging his duties impartially. Hence the Minister was not justified in taking into consideration a charge in respect of which the member was not given any opportunity to explain his position. " ( 11. None of the charges levelled against him accused him of not discharging his duties impartially. Hence the Minister was not justified in taking into consideration a charge in respect of which the member was not given any opportunity to explain his position. " ( 11. ) IN view of the aforesaid, I am of the considered opinion that the impugned order of punishment violates the principles of natural justice on both counts, i. e. , on account of not giving the petitioner adequate and sufficient notice and on account of taking into consideration charges which were neither stated in the charge-sheet nor communicated to the petitioner to enable him to defend himself in that respect and, therefore, in view of the law laid down by the supreme Court in the case of Managing Director, ECIL (supra), the matter is remitted back to the Disciplinary Authority for the limited purpose of reconsidering the order of punishment after giving the petitioner due and proper opportunity of filing his reply to the inquiry report and thereafter passing fresh orders in that respect. As the matter is being remitted back for reconsidering the order of punishment, I do not propose to nullify the impugned order dated 4-10-1997. However, it is made clear that the authority after giving opportunity to the petitioner as aforesaid, would take a fresh decision taking into consideration and applying its mind only to the charges levelled against the petitioner and the evidence adduced during the enquiry in respect of the charges and either affirm or modify the impugned order and may also pass any other consequential order if so required. Looking to the fact that the incident relates to the year 1997, it is directed that the authority would complete the aforesaid exercise expeditiously, as far as possible, preferably, within a period of three months from the date of furnishing a copy of the order passed in this petition subject to the fact that the petitioner renders all assistance and co-operation. ( 12. ) THE petition is accordingly remitted back to the Disciplinary authority with the aforesaid direction. In the facts and circumstances of the case, there shall be no order as to costs.