Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 75 (MP)

Ramesh Chand Rathore v. State of M. P.

2010-01-19

S.C.SHARMA

body2010
Judgment ( 1. ) The petitioner before this Court has initially preferred an original application before the Madhya Pradesh State Administrative Tribunal and the same has been transferred to this Court after abolition of the Madhya Pradesh State Administrative Tribunal for adjudication. ( 2. ) The petitioner has stated in the present writ petition that he is working on the post of Assistant Grade-III in the service of the State of Madhya Pradesh and while he was posted at Gwalior a charge sheet was issued on 7.1.1998. It was alleged that the petitioner while serving as an Assistant Grade-in Diversion Branch has misplaced/lost 8 revenue cases relating to diversion and the petitioner was directed to file reply to the charge levelled against him. The petitioner did submit a reply on 19.1.1998 and it was categorically stated by the petitioner that he went on leave from 25.9.1997 till 28.9.1997 with an appropriate application and the petitioner after handing over all documents, cause list as well as keys of the Almirah proceeded on leave. The disciplinary authority not being satisfied with the reply of the petitioner has appointed the Superintendent Diversion as Presenting Officer and Shri R.P. Sudele, Deputy Collector as Inquiry Officer. The contention of the petitioner is that as per the charge sheet, B.K. Bhatnagar Superintendent Diversion was the only witness in the departmental enquiry initiated against him and the same Superintendent Diversion was appointed as Presenting Officer. The petitioner has further stated that the Inquiry Officer has cross-examined the petitioner and all other witnesses who were later on produced in the departmental enquiry. His contention is that the Inquiry Officer by cross-examining all the witnesses has acted as a prosecutor and therefore, the enquiry stands vititated. The petitioner has further stated that the Inquiry Officer while submitting the enquiry report has categorically stated that the petitioner while proceeding on leave has handed over the entire charge however after availing the leave he has not demanded the 8 revenue cases from the person to whom he has handed over the charge and therefore, it means that he misplaced/lost 8 revenue cases. The petitioner has further stated that based upon the enquiry report a punishment order dated 23/3/1999 was passed by which a punishment of stoppage of two annual increments with comulative effect has been inflicted upon him. The petitioner has further stated that based upon the enquiry report a punishment order dated 23/3/1999 was passed by which a punishment of stoppage of two annual increments with comulative effect has been inflicted upon him. The petitioner has, thereafter, preferred an appeal before the appellate authority and the same was also dismissed by the appellate authority on 24/2/2000. The petitioner has prayed for quashing of the order of punishment as well as the order passed by the appellate authority. ( 3. ) Areply has been filed on behalf of the respondent State and the stand of the respondent State is that the petitioner was the custodian of the revenue cases as reflected in the charge-sheet and it was the duty of the petitioner to verify the files after reporting back on duty. The respondents have also stated before this Court that no procedural irregularity of any kind has taken place in the matter while inflicting the order of punishment dated 23rd March 1999 and the same has been passed based upon the findings arrived at by the Inquiry Officer, The respondents have also stated that the appellate authority with due application of mind has dismissed the appeal preferred by the petitioner and therefore, as no procedural irregularity has been committed in the matter of Departmental Enquiry nor it is violative of the principle of natural justice and fair-play, the question of interference with the punishment order as well as the order passed by the appellate authority does not arise. The respondents have prayed for dismissal of the writ petition. ( 4. ) Heard learned counsel for the parties at length and perused the record. ( 5. ) In the present case, the petitioner is an employee serving on the post of Assistant Grade-Ill was charge-sheeted vide charged sheet dated 7.1.1998 and it was alleged that he has lost/misplaced files of 8 revenue cases while he was serving as an Assistant Grade-Ill. It is also an admitted fact that the Superintendent Diversion was one of the witness enlisted in the charge sheet was appointed as a presenting officer. The record of the enquiry proceedings reveals that the enquiry officer has cross examined each and every witness while conducting the departmental enquiry. It is also an admitted fact that the Superintendent Diversion was one of the witness enlisted in the charge sheet was appointed as a presenting officer. The record of the enquiry proceedings reveals that the enquiry officer has cross examined each and every witness while conducting the departmental enquiry. The report of the enquiry officer also reflects that the petitioner proceeded on leave on 24/9/1997 and while proceeding on leave handed over the entire charge along with Keys of Almirah. It is also not in dispute that the petitioner went on leave with due permission from the department after observing all formalities including handing over of the charge. The report of the enquiry officer reveals that the petitioner has been held guilty of the alleged misconduct as after returning from the leave he has not received back and verify the revenue cases from the person to whom he has handed over the charge. In the present case, it is an admitted fact that the Inquiry Officer has cross-examined each and every witness and the presenting officer was also one of the witness enlisted in the charge sheet itself by the disciplinary authority. This Court in the case of Ram Prakash Gay a Prasad v. State of M.P. and others, 2008 (4) MPLJ 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 penalities. 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. 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 of the defence witnesses as well as cross-examined the delinquent government servant. Thus, the Enquiry Officer himself has played the role of 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 v. Mohd. Naseem Siddiqui 2005 (1) LLJ 931 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 evey 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-chiefby leading the prosecution witnesses through the prosecution case, or puts leading questions to the deaprtmental 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 or 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. 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. ( 6. ) 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. ( 7. ) in the present case, the Inquiry Officer report reveals that the petitioner while proceedings on leave has handed over the entire charge including the cases in question along with the Key of the Almirah and merely because after returning from the leave he has not demanded files of 8 revenue cases which were lost from the person to whom he handed over the charge, it does not mean that the petitioner can be held liable for loss of record 8 revenue cases. The apex Court in the case of Union of India and others v. Prakash Kumar Tandon 2009 (III) MPJR (SC) 162 in paragraph 18 has held as under :- "18. InM.V. Bijlani v. Union of India and Ors. The apex Court in the case of Union of India and others v. Prakash Kumar Tandon 2009 (III) MPJR (SC) 162 in paragraph 18 has held as under :- "18. InM.V. Bijlani v. Union of India and Ors. [ (2006) 5 SCC 88 ], this Court has held: Although the charges in a departmental proceedings are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analyzing the documents must arrive at a conclusion that there had been preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with." ( 8. ) Keeping in view the judgment delivered by the apex Court, it is evident that in the present case, the departmental proceedings have not been fairly conducted and the findings of the Inquiry Officer by which the Inquiry Officer had held the charges established against the petitioner are also perverse in nature. Resultantly, the impugned order passed by the respondents dated 23rd March 1999 as well as the order passed by the Commissioner, Gwalior Division, Gwalior dated 24/2/2000 are hereby quashed. The respondents are directed to release the increments withheld by them by virtue of the aforesaid punishment order. It is made clear that the respondents shall revise the salary of the petitioner notionally and the petitioner shall be entitled for all consequential benefits except arrears of salary and difference of salary for the period he was under suspension. ( 9. ) With the aforesaid observation, the present writ petition stands allowed and disposed of. No order as to costs.