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Madhya Pradesh High Court · body

2008 DIGILAW 1095 (MP)

B N VERMA v. STATE OF MADHYA PRADESH

2008-09-01

R.K.GUPTA, R.S.GARG

body2008
Judgment ( 1. ) THE short facts necessary for disposal of the present writ appeal are that a charge-sheet was issued to the petitioner on 4-7-1995 and much before that, i. e. , on 21-6-1995 he was placed under suspension. An Enquiry Officer was appointed to enquire into the allegations made and charges levelled against the petitioner. It also appears that another charge-sheet was again issued to the petitioner on 15-4-1997 (Annexure A-3/1) alleging inter alia that while functioning as Superintendent, Bapu Vimukt Jati Ashram, Raisen the petitioner defalcated scholarship amount of Rs. 13,500/- which was to be released in favour of 45 resident students. After considering the reply of the petitioner dated 9-5-1997 (in relation to the second charge-sheet) a departmental Enquiry was conducted against the petitioner. After recording the evidence the Enquiry Officer found the petitioner guilty of the charges. The collector, Raisen, the Appointing Authority issued notice to the petitioner along with the copy of the enquiry report dated 22-11-1999, which was accordingly replied by the petitioner. The Collector, vide order dated 29-12-1999 (Annexure A-1) imposed capital punishment of dismissal against the petitioner. As the appeal proved futile the petitioner filed Original Application no. 1810/2000 before the M. P. Administrative Tribunal, Bench at Bhopal but on abolition of the Tribunal the matter came to this Court and was registered as w. P. No. 24992/2002. After hearing learned Counsel for the parties the learned single Judge was pleased to dismiss the writ petition, therefore, the petitioner filed the present writ appeal. ( 2. ) SHRI Rai, learned Counsel for the appellant submitted that the enquiry Officer was appointed in relation to charge-sheet dated 4-7-1995 but the said enquiry was abandoned and the Enquiry Officer who was appointed to make enquiry into the first charge-sheet assumed jurisdiction to make enquiry into the charge-sheet dated 15-4-1997. The submission is that if the Enquiry officer was not appointed nor was authorized to make enquiry into the charge-sheet dated 15-4-1997 issued by the department then he was an authority which can be condemned as coram non judice and as the Enquiry Officer had no jurisdiction to make an enquiry, he could not submit his enquiry report to the collector and the Collector on the strength of such enquiry report could not award the punishment. ( 3. ( 3. ) SHRI Rahul Jain, learned Counsel for the respondent/state, on the other hand placing reliance upon letter dated 21-8-1997 (Annexure A-5 in this writ appeal) submitted that the Enquiry Officer, Shri L. N. Sharma was appointed to enquire into the charge-sheet dated 15-4-1997, therefore, the submissions of the petitioner are patently wrong and are contrary to records. ( 4. ) CONTENDING contrary to this submission, Shri Rai submitted that on a perusal of the letter dated 21-8-1997, it would clearly appear that it was making reference to petitioners suspension order dated 21-6-1995 and, therefore, this matter could not be related to the charge-sheet dated 15-4-1997 but, would be relatable to the charge-sheet which was issued on 4-7-1995, i. e. , after the suspension was made. ( 5. ) WE have gone through Annexure A-5 and have also gone through the order passed by the learned Single Judge. ( 6. ) THE question posed before us has been rejected by the learned single Judge mainly on the ground that the question regarding non-appointment of the Enquiry Officer was never raised by the petitioner before the Enquiry Officer or before the Appellate Authority, therefore, such question could not be allowed to be raised for the first time in the writ. The learned Single judge has observed that from order dated 21-8-1997 it would clearly appear that the Enquiry Officer was appointed not to enquire into the charge-sheet dated 4-7-1995 only. ( 7. ) IN our considered opinion from a perusal of letter dated 21-8-1997 it would clearly appear that it does not refer to the charge-sheet dated 4-7-1995 or 15-4-1997 but it refers to an event which took place prior to 4-7-1995. ( 8. ) THE letter dated 21-8-1997 clearly refers to earlier letter dated 21-6-1995 where under the petitioner B. N. Verma was placed under suspension. It would therefore be reasonable, just and prudent to hold that in relation to the charge-sheet issued immediately after 21-6-1995, Shri L. N. Sharma, the Deputy collector was appointed as Departmental Enquiry Officer and the District organiser, Adim Jati Kalyan Vibhag, Raisen was appointed as Presenting officer. By no stretch of imagination the order/letter dated 21-8-1997 can be related to the charge-sheet dated 15-4-1997. ( 9. By no stretch of imagination the order/letter dated 21-8-1997 can be related to the charge-sheet dated 15-4-1997. ( 9. ) IT appears that the Departmental Officer and the Enquiry Officer all belaboured under a misapprehension that Enquiry Officer was appointed in relation to the charge-sheet dated 15-4-1997 less appreciating that the letter dated 21-8-1997 was referring to an action taken on 21-6-1995. ( 10. ) IT is also to be seen that the petitioner was not placed under suspension in relation to the charge-sheet dated 15-4-1997 but was placed under suspension in relation to the charge- sheet dated 4-7-1995. If these are the facts floating on the surface of the records, we must hold that in connection with the charge-sheet dated 15-4-1997 no Enquiry Officer was ever appointed. ( 11. ) WE would also be justified in observing that the State Government despite fullest opportunity available to it before the State Administrative tribunal, before the Single Judge and in this writ appeal did not produce any material to convince us that the order dated 21-8-1997 was in relation to charge dated 15-4-1997. ( 12. ) AFTER we have reached to the conclusion that no Enquiry Officer was appointed to enquire into the charge-sheet dated 15-4-1997, the question still would be that is the petitioner precluded from raising these questions before this Court. ( 13. ) THE law in relation to the domestic enquiry clearly provides that after a show-cause notice is issued if the authority does not find the reply to be satisfactory it may issue a charge-sheet. Before or after issuance of the charge-sheet the delinquent can be placed under suspension. After the charge-sheet is issued the delinquent is again required to submit his reply to the charges. In case he does not admit the charges levelled against him then the concerned Disciplinary Authority has to appoint an Enquiry Officer and has also to appoint a Presenting Officer. The delinquent officer would be given a date to appear before the officer and he may submit his written statement. After such written statement is filed the Enquiry Officer shall proceed to record the statements on behalf of the department and shall also receive the documents. After the prosecution closes its case the deliquent officer/employee would be given appropriate opportunity of defence. After such written statement is filed the Enquiry Officer shall proceed to record the statements on behalf of the department and shall also receive the documents. After the prosecution closes its case the deliquent officer/employee would be given appropriate opportunity of defence. In case the Enquiry Officer is not the disciplinary Authority then such Enquiry Officer shall place his report before the Disciplinary Authority. The Disciplinary Authority if himself conducts the enquiry then after recording its own findings or after receiving the report from the Enquiry Officer may issue a notice to the delinquent officer against proposed punishment. ( 14. ) WE are referring to the procedure in detail to show that an officer unless is appointed as an Enquiry Officer he cannot receive the written statement nor he can receive the evidence either documentary or oral. Appointment of a person as Enquiry Officer clothes him with the jurisdiction to conduct the enquiry. In case like present when there is total violation of the rules and the enquiry had proceeded contrary to the provision of the rules, the State would not be allowed to say that the question ought to have been raised before the Enquiry Officer or the Disciplinary Authority or the Appellate Authority. The State by raising such pleadings is in fact adding premium to its own wrong. It would be trite to say that if law provides a particular mode for doing a thing then it has to be done following the mode or procedure or not at all. In fact, the State would be obliged to convince the Court that after issuance of the charge-sheet an Enquiry Officer rather a Competent Enquiry Officer was appointed and such enquiry Officer was conferred jurisdiction to receive the documents, evidence etc. In absence of an order of appointment of the Enquiry Officer some person would not have jurisdiction to conduct the enquiry. In the present case non-appointment of the Enquiry Officer has vitiated the enquiry proceedings. ( 15. ) PRESENT is not a case where the Disciplinary Authority has come out with the case that the Disciplinary Authority had appointed an Enquiry Officer or delegated its functions and powers in favour of somebody to record the findings after receiving the report. ( 16. ( 15. ) PRESENT is not a case where the Disciplinary Authority has come out with the case that the Disciplinary Authority had appointed an Enquiry Officer or delegated its functions and powers in favour of somebody to record the findings after receiving the report. ( 16. ) IN our considered opinion; the learned Single Judge not only made a mistake on the factual aspect by observing that the order dated 21-8-1997 could be read in favour of the State also erred even on the legal aspect in holding that such a question regarding competence and jurisdiction of the Enquiry officer was since not raised before the Enquiry Officer, Disciplinary Authority or Appellate Authority, therefore, could not be raised before the High Court. When the question of jurisdiction goes to the very root of the matter and a fact finding enquiry is not required to be made then question of jurisdiction can certainly be raised in the writ petition. ( 17. ) IN the matter of Shyam Bahadur Shrivastava Vs. State of M. P. , 1971 mplj 626 , the Division Bench of this Court had observed that objection relating to defect in enquiry on ground of violation of natural justice, which is vital can be taken for the first time in a writ proceeding. If violation of the principles of natural justice can be raised as a ground for the first time in the writ petition then the question of total lack of jurisdiction of the Enquiry Officer can certainly be raised for the first time in the writ petition. ( 18. ) AS the State Government has failed in proving that it had appointed an Enquiry Officer to enquire into the charge-sheet dated 15-4-1997, we are unable to hold that the Disciplinary Authority on strength of the enquiry report could dismiss the petitioner from services or the Appellate Authority could dismiss the petitioners appeal. ( 19. ) FOR the reasons aforesaid, we set aside the complete enquiry proceedings, the order passed by the Disciplinary Authority and the order passed by the Appellate Authority. With all humility at our command, we set aside the order passed by the learned Single Judge. ( 20. ( 19. ) FOR the reasons aforesaid, we set aside the complete enquiry proceedings, the order passed by the Disciplinary Authority and the order passed by the Appellate Authority. With all humility at our command, we set aside the order passed by the learned Single Judge. ( 20. ) WE are told that the petitioner is yet to retire, under the circumstances, we hereby direct that the petitioner would continue to be under suspension as he was on the date of the order of dismissal. The respondents would be entitled to proceed with the charge-sheet dated 4-7-1995 and may also proceed to enquire into charge-sheet dated 15-4-1997 provided they appoint an enquiry Officer in accordance with law or the Disciplinary Authority himself takes up the issue and decides the matter in accordance with law. We would however, also crave indulgence of the Departmental Authorities to Rule 9 of madhya Pradesh Civil Services (Pension) Rules, 1976 which relates to right of the Governor to withhold or withdraw pension. The petitioner would be entitled to the subsistence allowance from the date of his termination till the date of his reinstatement. The said amount shall be paid to him before he retires. There shall be no order as to costs.