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Madhya Pradesh High Court · body

2010 DIGILAW 23 (MP)

RAJESH UPADHYAY v. STATE OF M. P.

2010-01-07

S.C.SHARMA

body2010
Judgment S.C.Sharma,J. ( 1. ) The petitioner, a dismissed Constable, has filed this present petition being aggrieved by the order dated 31.1.2006, by which a punishment of dismissal from service has been inflicted upon him. The petitioner is also aggrieved by the order dated 21.6.2006 passed by the Dy. Inspector General of Police Range Gwalior,Gwalior(Appellate Authority),rejecting the appeal of the petitioner. The petitioner is also aggrieved by the order dated 4.12.2006 passed by the Inspector General of Police, by which a Mercy Petition preferred by the petitioner against the dismissal has also been turned down. ( 2. ) The contention of the learned counsel for the petitioner is that the petitioner was appointed as Constable with effect from 22.7.1997 and was posted at Police Station Billaua,District Gwalior in the year 2005, i.e., at the time the alleged incident took place, on the basis of which he has been dismissed from service. The petitioner has further stated that a chargesheet was issued on 27.6.2005 on account of the alleged misconduct and the petitioner was directed to file reply to the charges levelled against him. The petitioner submitted a reply to the charges levelled against him and denied the charges by submitting a reply on 28.7.2005. The petitioner has further stated the appointing authority being not satisfied with the reply submitted by the petitioner appointed an Inquiry Officer and Inquiry Officer conducted an inquiry into the matter. The petitioner has further stated that the Inquiry Officer has held the charges established against him and on the basis of the report submitted by the Inquiry Officer, the petitioner has been dismissed from service vide order dated 31.1.2006 and the same has been affirmed by the Appellate Authority as well as by the Inspector General of Police while dismissing the Mercy petition of the petitioner. The petitioners further contention is that as per the chargesheet dated 27.6.2005, three charges were levelled against him, which are as under :- (A) He has demanded illegal gratification as entry fee from Complainant Pooran Singh Yadav on 8.2.2005 and on refusal on the part of Pooran Singh Yadav,he has misbehaved with Shri Pooran Singh Yadav and he was also under the influence of liquor; (B)He was absent from duties from 10.9.2004 to 3.10.2004unauthorizedly without there being any sanction-leave application; (C) He has unauthorizedly used the Police Vehicle and the same has also met with an accident resulting in damage to the vehicle as well as to the Gate of the Police Station. ( 3. ) The petitioners contention is that Complainant Pooran Singh Yadav in his statement recorded during the Departmental Enquiry has categorically stated before the Inquiry Officer that the petitioner was not present and has not demanded any money from him on 8.2.2005. The petitioners contention is that once the complainant has categorically stated before the Inquiry Officer that he is not the person who has misbehaved with the complainant on 8.2.2005, the Inquiry Officer could have not established the Charge No.l. In respect of Charge No.2,i.e. unauthorized absence from 10.9.2004 to 3.10.2004, the petitioner has stated that the aforesaid period was regularized by passing an order dated 2.8.2005 and the petitioner was punished with a punishment of censure by the Superintendent of Police and, therefore, once he was punished in respect of the same period by the Superintendent of Police, he could have been punished for the same again. In respect of Charge No.3, the petitioner has stated that the Station House Officer had permitted him orally to use the vehicle and in support of the same, a document was produced before the Inquiry Officer and in spite of that the Inquiry Officer has held the petitioner guilty of the Charge No.3 also. The petitioner has prayed for quashing of the punishment order passed by the Superintendent of Police as well as the order passed by the Appellate Authority and also the order passed by the Inspector General of Police dismissing the Mercy Petition of the petitioner. The petitioner has also argued before this Court that the Inquiry Officer has also acted as a Presenting Officer and has cross-examined the witnesses during the course of the inquiry and, therefore, the inquiry also stands vitiated. The petitioner has also argued before this Court that the Inquiry Officer has also acted as a Presenting Officer and has cross-examined the witnesses during the course of the inquiry and, therefore, the inquiry also stands vitiated. However, the petitioner before this Court has categorically stated that he is not claiming any back wages in the matter. ( 4. ) A detailed and exhaustive reply has been filed in the matter and the contention of the respondents/State is that the chargesheet was issued to the petitioner on account of the alleged misconduct and the chargesheet was based upon the preliminary inquiry. The respondents-State has produced the entire record relating to the departmental inquiry and the contention of the respondents is that during the preliminary inquiry all the witnesses have stated categorically that it was the petitioner who had demanded illegal gratification by way of entry fee from Shri Pooran Singh Yadav. The respondents have stated that after holding the preliminary inquiry as prima- facie charges were established against the petitioner, the respondents decided to hold a regular inquiry in order to grant an opportunity of hearing to the petitioner and a chargesheet was issued on 26.7.2005. The respondents have further stated that in the departmental inquiry, the petitioner was granted an opportunity of hearing. He was granted an opportunity to cross- examine all the witnesses produced during the course of the inquiry and the Inquiry Officer has not acted as a Presenting Officer and only clarificatory questions were asked. The respondents have stated that the evidence on record establishes the guilt of the petitioner and, therefore, as it is not a case of no evidence, the order of punishment, the order passed by the Appellate Authority and the order passed in the Mercy Petition do not warrant any interference and the petitioner being a member of the Disciplined Force has rightly been dealt with in the matter. ( 5. ) Learned Dy. Advocate General has also argued before this Court that the order of punishment in respect of unauthorized absence for a period with effect from 10.9.2004 to 3.10.2004 has been cancelled subsequently on 31.1.2006, therefore, it is not a case of double jeopardy. Learned Dy. ( 5. ) Learned Dy. Advocate General has also argued before this Court that the order of punishment in respect of unauthorized absence for a period with effect from 10.9.2004 to 3.10.2004 has been cancelled subsequently on 31.1.2006, therefore, it is not a case of double jeopardy. Learned Dy. Advocate General has also argued before this Court that the petitioner has admitted the Charge No.3 and has also gone to the extent in getting the Gate repaired of the Police Station at his own expenses and, therefore, the petitioner being the member of the Force has rightly been punished by the authorities. ( 6. ) Heard the learned counsel for the parties and perused the record. ( 7. ) In the present case, the petitioner, who is an employee of the Police Department, was appointed on 22.7.1997 and at the time of the incident, i.e., on 8.2.2005, he was posted at Police Station Billaua,District Gwalior. A preliminary inquiry in respect of the alleged misconduct was held in the matter and the statements of the witnesses were recorded in the preliminary inquiry. One Shri Pooran Singh Yadav,who filed a complaint to the Authorities in respect of demand of illegal gratification, was examined during the preliminary inquiry and the complaint of Shri Pooran Singh Yadav is also on record,which has been produced before this Court by the respondents. The complaint of Shri Pooran Singh Yadav, which is dated 8.2.2005, refers to Arakshak Upadyaya. From the complaint, it is established that the word "Rajesh"has been written with Pen between the words "Arakshak and Upadyaya",though the entire complaint is a typed complaint. During the course of the departmental inquiry, the complainant Shri Pooran Singh Yadav has categorically stated before the Inquiry Officer that the petitioner is not the same person who has asked for illegal gratification or who has misbehaved with him. Thus, the complainant himself has stated before the Inquiry Officer that the petitioner has not committed any misconduct and he has never seen the petitioner earlier. ( 8. ) Keeping in view the statement of the complainant who himself has categorically stated that the petitioner was not the person who has misbehaved with him or has demanded illegal gratification, the findings recorded by the Inquiry Officer in respect of the Charge No.l are perverse in nature. ( 9. ( 8. ) Keeping in view the statement of the complainant who himself has categorically stated that the petitioner was not the person who has misbehaved with him or has demanded illegal gratification, the findings recorded by the Inquiry Officer in respect of the Charge No.l are perverse in nature. ( 9. ) In respect of Charge No.2, the competent disciplinary authority in its own wisdom has earlier punished the petitioner by passing the order dated 2.8.2005 and a punishment of censure was inflicted upon him. Once the punishment of censure was inflicted by the Disciplinary Authority in respect of the absence from the duty without prior sanction of the leave, by Order dated 2.8.2005, the question of punishing to the petitioner on the basis of the charge of misconduct amounts to double jeopardy even though the respondents have subsequently cancelled the order dated 2.8.2005 on the same day and the order of dismissal has been passed in the matter, i.e., on 31.1.2006. ( 10. ) In respect of Charge No.3, the inquiry report of the Inquiry Officer reveals that the petitioner has brought to the notice of the Inquiry Officer a receipt issued by M/s. Private Sales,Dabra, duly signed by the Station House Officer as he has purchased the diesel for the same vehicle under authorization of the Station House Officer. The petitioner has categorically stated that he was permitted orally by the Station House Officer from time to time in case of emergency to use the Vehicle. Though the petitioner has not produced any evidence on record, by which it can be safely gathered that the petitioner was permitted by the Station House Officer to use the Government vehicle as stated by the petitioner, however, in the present case, the entire record of the departmental inquiry reveals that no Presenting Officer was appointed by the Disciplinary Authority at any point of time. The Inquiry Officer himself has acted as a Presenting Officer and he has cross-examined all the witnesses in detail produced during the course of the departmental inquiry. As many as 9 witnesses were produced during the course of the departmental inquiry and it was the Inquiry Officer who has cross-examined all the 9 witnesses in detail during the course of the inquiry. As many as 9 witnesses were produced during the course of the departmental inquiry and it was the Inquiry Officer who has cross-examined all the 9 witnesses in detail during the course of the inquiry. Not only this, he has cross-examined the complainant also, namely,Shri Pooran Singh Yadav S/o Deviram and during his cross-examination by the Inquiry Officer,a question was asked to Shri Pooran Singh Yadav as to whether Rajesh Upadyaya has misbehaved with him or not. In his cross-examination, he has categorically stated that he has not named Rajesh Upadyaya. He has further stated in his cross-examination that later on some interpolation has been done by inserting the name "Rajesh"in his complaint. Thus, the record establishes that the Inquiry Officer has acted as Prosecutor in the present case, ( 11. ) This Court in the case of Ram Prakash Gaya Prashad Vs. State of M.P. and others 2008(4)M. P.L.J. 35 in paragraphs 8, 9, 10 and 11 has held as under:- "8. Rule 14 of the CCA Rules of 1966 provides procedure for imposing penalties. Relevant Rule 14 (5) (c) reads as under: "Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding an inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the "Presenting Officer" to present on its behalf the case in support of the articles of charge. " 9. The Presenting Officer appointed under rule 14 (5) (c) of the CCA Rules of 1966 is in fact is a person appointed like a prosecutor and the person has to prove the misconduct before the Enquiry Officer. It is the Presenting Officer who conducts the chief examination of the prosecution witnesses as well as cross-examination of the defence witnesses. It is again the Presenting Officer who conducts the cross-examination of the delinquent government servant in order to arrive at a finding of guilt. In the present case after going through the record minutely, it is evident that the Enquiry Officer has conducted the chief examination and he has conducted the cross- examination of the defence witnesses as well as cross-examined the delinquent government servant. Thus, the Enquiry Officer Himself has played the role of the prosecutor. 10. In the present case after going through the record minutely, it is evident that the Enquiry Officer has conducted the chief examination and he has conducted the cross- examination of the defence witnesses as well as cross-examined the delinquent government servant. Thus, the Enquiry Officer Himself has played the role of the prosecutor. 10. A Division Bench of this Court in the case of Union of India through its Secretary, Ministry of Railway, New Delhi and others vs. Mohd. Naseem Siddiqui 2005(1) LLJ931 in paragraph 16 has held as under: We may summarise the principles thus: (i) The Inquiry Officer, who is in the position of a Judge shall not act as a Presenting Officer, who is in the position of a prosecutor, (ii) It is not necessary for the Disciplinary Authority to appoint a Presenting Officer in each and every inquiry. Non-appointment of a Presenting Officer, by itself will not vitiate the inquiry. (iii) The Inquiry Officer, with a view to arrive at the truth or to obtain clarifications, can put questions to the prosecution witnesses as also the defence witnesses. In the absence of a Presenting Officer, if the Inquiry Officer puts any questions to the prosecution witnesses to elicit the facts, he should thereafter permit the delinquent employee to cross- examine such witnesses on those clarifications. (iv) If the Inquiry Officer conducts a regular examination-in-chief by leading the prosecution witnesses through the prosecution case, or puts leading questions to the departmental witnesses pregnant with answers, or cross-examines the defence witnesses or puts suggestive questions to establish the prosecution case employee, the Inquiry Officer acts as prosecutor thereby vitiating the inquiry. (v) As absence of a presenting Officer by itself will not vitiate the inquiry and it is recognised that the Inquiry Officer can put questions to any or all witnesses to elicit the truth, the question whether an Inquiry Officer acted as a Presenting Officer, will have to be decided with reference to the manner in which the evidence is let in any recorded in the inquiry: Whether an Inquiry Officer has merely acted only as an Inquiry Officer or has also acted as a Presenting Officer depends on the facts of each case. To avoid any allegations of bias and running the risk of inquiry being declared as illegal and vitiated, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases. To avoid any allegations of bias and running the risk of inquiry being declared as illegal and vitiated, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases. Be that as it may. 11. In the present case, it is evident from a perusal of the enquiry proceedings that no Presenting Officer was appointed by the disciplinary authority. The evidence on behalf of the disciplinary authority has been presented by the Enquiry Officer, by conducting a regular examination- in-chief of prosecution witnesses by taking them through the prosecution case. The Enquiry Officer has also conducted in the present case regular cross-examination of the defence witnesses. The Enquiry Officer has also conducted the cross-examination of the delinquent government servant. It is not a case where the Enquiry Officer in the absence of the Presenting Officer has simply put clarificatory questions to the delinquent government servant. ( 12. ) Keeping in view the judgment delivered by this Court and also keeping in view the record relating to Departmental Enquiry Proceedings, it is evident that the Inquiry Officer has in the present case conducted regular cross examination of witnesses and he has also conducted the cross-examination of the delinquent government servant. It is not a case where the Inquiry Officer has simply asked clarificatory questions to the delinquent government servant. Meaning thereby, the Inquiry Officer, has assumed the role of the prosecutor while acting as a judge in the departmental enquiry proceedings. ( 13. ) Learned Counsel for the petitioner has stated that the Inquiry Officer heavily relied upon the statement recorded during the preliminary inquiry and it is an admitted fact that the petitioner has not participated in the preliminary inquiry at any point of time. The statements of the witnesses were recorded during the preliminary inquiry behind the back of the petitioner and, therefore, the conclusion of the Inquiring Officer based upon the statement of the persons recorded during the course of the preliminary inquiry, stands vitiated. The Apex Court in the case of Union of India and Others v. Mohd. Ibrahim reported in (2004) 10 SCC87 has held as under :- "1. Leave granted. 2. The Apex Court in the case of Union of India and Others v. Mohd. Ibrahim reported in (2004) 10 SCC87 has held as under :- "1. Leave granted. 2. The Union of India is in appeal against the order of the Tribunal setting aside an order of dismissal of the respondent as well as the order of the High Court refusing to interfere in its jurisdiction under Article 226 of the Constitution. In a disciplinary proceeding against the respondent, a set of charges levelled against whom appear to be grave and serious, the ultimate conclusion of the enquiring officer having been based upon statement of persons made in the course of preliminary enquiry, the Tribunal came to hold that the conclusion is vitiated since the same was based upon the statement of persons examined in the preliminary enquiry and accordingly the Tribunal set aside the order of dismissal. The High Court on being approached has refused to interfere with the order in an application under Article 226 of the Constitution. When the matter was listed for admission, the learned ASG requested that the power of the employer to start a fresh proceeding should not be whittled down in any manner, particularly in view of the nature of charges against the delinquent. He, however, fairly stated that in the procedure adopted in the case in hand, the order cannot be found fault with. Pursuant to the notice, the respondent has entered appearance and the learned counsel for the respondent vehemently contested on the ground that 17 long years have elapsed and it will cause great hardship to start a proceeding afresh. We are unable to be persuaded to agree with the submission of the learned counsel for the respondent, particularly looking at the charges levelled against. In that view of the matter, though we are of the considered opinion that the order of dismissal was vitiated as the findings have been based on consideration of statement of the persons examined during the preliminary enquiry but the power of the employer to start a fresh proceeding cannot be taken away. Therefore, we dispose of the matter with the observation that it will be open to the competent authority to start a fresh disciplinary proceeding and conclude the same in accordance with law. 3, The appeal is disposed of accordingly." ( 14. Therefore, we dispose of the matter with the observation that it will be open to the competent authority to start a fresh disciplinary proceeding and conclude the same in accordance with law. 3, The appeal is disposed of accordingly." ( 14. ) Keeping in view the totality of the facts and circumstances of the case and also keeping in view the Charge No.l, which was a very serious charge as the complainant himself has categorically denied the involvement of the petitioner in the incident which took place on 8.2.2005, the findings arrived at by the Inquiry Officer can safely be termed as perverse findings and the entire departmental inquiry stands vitiated in the matter. ( 15. ) Resultantly, this petition is allowed. The impugned orders dated 31.01.2006, 21.06,2006 and order dated 04.12.2006 are hereby quashed. The petitioner shall be entitled for all consequential service benefits except back wages. Normally, this Court would have granted an opportunity to the Department to proceed with the departmental inquiry afresh, however, in the peculiar facts and circumstances of the case as the complainant himself in the departmental inquiry has categorically stated in respect of the Charge No 1 that the petitioner was not the person who has committed any misconduct and he was not the person who has misbehaved and asked for the illegal gratification, no purpose would be served by initiating the disciplinary action afresh against the petitioner and, therefore, the respondents are hereby directed to reinstate the petitioner within thirty days from the date of receipt of the certified copy of this order. Petition allowed.