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Madhya Pradesh High Court · body

2011 DIGILAW 219 (MP)

Swami Prasad Yadav v. State of M. P.

2011-02-15

RAJENDRA MENON

body2011
ORDER Rajendra Menon, J. 1. Challenging the order dated 3-5-1990 Annexure A/1 passed by the Disciplinary Authority imposing penalty of stoppage of five increments with cumulative effect and the subsequent order passed by the Appellate Authority rejecting the appeal filed by the Petitioner on 26-5-1994, Petitioner has filed this writ petition. 2. In the year 1979 Petitioner was working as Deputy Range Officer in Range Jatara. On 15-3-1979 animals were found illegally grazing in the forest area i.e. the prohibited area. It was found that 4475 Sheep and 77 Camels coming from Rajasthan have entered unauthorizedly in the forest area. It is stated that animals were seized and case bearing No. 7024/1 was registered on the same date i.e. 15-3-1979 and seized animals were kept in the animal home of the forest department. It is stated that keeping in view the seriousness of the matter, the Range Officer, Jatara was orally told to take care of the animals and on 16-3-1979 by a written letter the Petitioner Swami Prasad Yadav was directed to ensure that the seized animals are not let-off. It is further the case of the department that on 16-3-1979 itself the offence was compounded and after imposing a fine of Rs. 21- per sheep and Rs. 15/- per Camel towards compounding fee a total fee of Rs. 10,105/- was imposed and by letter dated 16-3-1979 the then Range Officer intimated the Petitioner to recover the amount towards compounding of the offence and thereafter release the animals. It is alleged that vide order No. 455 dated 17-3-1979 Petitioner informed the authorities that the animals are not available in the Kanji House and therefore, he cannot recover the amount. For the aforesaid, Petitioner was found guilty, on the charge that Petitioner without receiving of the compounding fee released the animals and committed dereliction of duty and committed loss to the Government to the extent of Rs. 10105/-, the charge-sheet was issued to the Petitioner. However, it seems that the Petitioner did not submit any reply to the charge-sheet and therefore, vide order dated 21-4-1987 the Divisional Forest Officer, Tikamgarh was appointed as an Enquiry Officer and the Project Officer, Tikamgarh as 'Presenting Officer' to conduct an enquiry into the charge-sheet dated 21-1-1982 issued to the Petitioner. 10105/-, the charge-sheet was issued to the Petitioner. However, it seems that the Petitioner did not submit any reply to the charge-sheet and therefore, vide order dated 21-4-1987 the Divisional Forest Officer, Tikamgarh was appointed as an Enquiry Officer and the Project Officer, Tikamgarh as 'Presenting Officer' to conduct an enquiry into the charge-sheet dated 21-1-1982 issued to the Petitioner. It may be taken note of that the incidence took place on 15th, 16th and 17th of March, 1979 and charge-sheet was issued on 21-1-1982 and Enquiry Officer was appointed after a period of five years on 21-4-1987. Finally, the departmental enquiry was conducted and the Enquiry Officer submitted his report holding the Petitioner guilty of the charges levelled against him. The report of the Enquiry Officer is Annexure R/l is dated 14-2-1990. On the basis of the aforesaid enquiry report the impugned order of penalty was passed on 3-5-1990 and the appeal having been dismissed, Petitioner has filed this petition initially in the year 1999 as an application under Section 19 of the Administrative Tribunals Act, 1985 and after winding up of the Tribunal, the matter has been transferred to this Court. 3. Shri K. C. Ghildyal, learned Counsel for the Petitioner in support of the petition and to contend that the action taken against the Petitioner is unsustainable, basically canvassed three grounds. His first ground of attack was to the effect that in the Departmental Enquiry no defence assistance was provided to the Petitioner and therefore, in the absence of the defence assistance Petitioner was handicapped in effectively defending himself in the enquiry. The second contention was that documents relevant for defending the Petitioner and demanded by the Petitioner vide Annexure A/5, A/6 and A/7 were never supplied to the Petitioner during the enquiry. Learned Counsel submits that apart from various documents indicated in these communicates the letter dated 16-3-1979 on the basis of which Petitioner was directed not to release the animals till recovery of the fine was never produced in the enquiry and was not even part of the enquiry. In spite thereof, reliance is placed by the Enquiry officer for holding the Petitioner guilty. Contending that the relevant document was not supplied to the Petitioner, the second ground of attack is that enquiry stands vitiated. In spite thereof, reliance is placed by the Enquiry officer for holding the Petitioner guilty. Contending that the relevant document was not supplied to the Petitioner, the second ground of attack is that enquiry stands vitiated. Finally, by taking me through the report of the Enquiry Officer as contained in Annexure R/l, Shri K. C. Ghildyal argued that the Enquiry Officer has given a perverse finding which cannot be termed as a 'enquiry report' at all. It was emphasized by him that except for recording the allegations levelled in the charge-sheet and narrating the statement of witnesses of the prosecution and the defence, the Enquiry Officer simply recorded a finding in 10 lines to the effect "in the facts and circumstances of the case and on going through the evidence charges are proved". This according to Shri K. C. Ghildyal is not a finding at all. It is argued by him that the Enquiry Officer was duty bound to analyze the case of the prosecution, thereafter discuss the defence of the Petitioner and hold the charges proved by recording a positive finding giving cogent reason for holding so. It is stated that Enquiry Officer has recorded a finding without giving any reason and therefore, the finding recorded by the Enquiry Officer is nothing but his own assumption without any basis and therefore, is a perverse finding on the basis of which the penalty imposed is unsustainable. 4. In support of his last submission Shri K. C. Ghildyal invites my attention to the principles laid down by the Supreme Court in the case of Sher Bahadur v. Union of India and Ors. : (2002) 7 SCC 142 . 5. Accordingly, on the aforesaid grounds, Shri K. C. Ghildyal submits that the findings of the Enquiry Officer and the Consequential action taken on the basis of such a perverse and illegal finding is unsustainable. 6. Shri Rajesh Tiwari, learned Counsel for the State Government refuted the aforesaid and by producing the original enquiry report emphasized that as a reasonable finding is recorded by the Enquiry Officer based on the evidence and material that came on record, no case is made out for interference. He submits that the enquiry has been held in accordance to the requirement of the Rules and therefore, no further action is required to be taken in the matter. Accordingly, he submits that the petition be dismissed. 7. He submits that the enquiry has been held in accordance to the requirement of the Rules and therefore, no further action is required to be taken in the matter. Accordingly, he submits that the petition be dismissed. 7. I have heard learned Counsel for the parties and perused the record. From the record it is clear that the departmental enquiry was conducted as indicated hereinabove and on the basis of the enquiry conducted the impugned punishment has been imposed upon the Petitioner of with-holding five increments with cumulative effect. As far as first objection of Shri K. C. Ghildyal to the effect that defense assistance is not provided, the said argument cannot be accepted. Record indicates that Petitioner has participated in the enquiry and had cross-examined the witness of the prosecution and has also produced 6 witnesses in his defence. Except for contending that defense assistance was not allowed, nothing is brought to the notice of this Court to demonstrate as to what is the prejudice caused to the Petitioner for not providing the defence assistance and as to how it would have materially effected the final outcome in the enquiry. That being so, in the absence of prejudice on this count being pleaded, demonstrated and established, the first ground of challenge cannot be accepted. The same is accordingly rejected. 8. As far as second ground is concerned, even though in the applications Annexure A/5, A/6 and A/7 Petitioner has sought for various documents but the document dated 16-3-1979 was an important document as it is this document on the basis of which it is alleged against the Petitioner that he permitted the animals to be left to be released in spite of direction by the competent authority. Admittedly, this document was never produced in the enquiry and when the Petitioner in his defense sought for this document, the report of the enquiry officer indicates that this document is not relevant and he has further gone to say that the document is not available on record. It is therefore, clear that the communication dated 16-3-1979 which was made to the Petitioner directing him to recover the compounding fee was never produced in the enquiry and the basis for issuing the charge-sheet itself was not available. It is therefore, clear that the communication dated 16-3-1979 which was made to the Petitioner directing him to recover the compounding fee was never produced in the enquiry and the basis for issuing the charge-sheet itself was not available. If the document was not produced as it was the relevant document prejudice is bound to have been caused to the Petitioner and therefore, non-production of this document vitiates the enquiry as right of the Petitioner to defend himself is materially effected, and to the extent the grievance made by the Petitioner is justified. 9. As far as third ground is concerned, Rule 14(23) of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 contemplates a statutory provision with regard to preparation of enquiry report by the enquiry officer after conducting the enquiry in accordance to Rule 14. Rule 14(23)(1) contemplates that after conclusion of the enquiry a report shall be prepared and it shall contain the four details given thereunder. The four requirements to be complied with by the enquiry officer are: i) mentioning of the articles of charges and statements of imputation of misconduct or misbehaviour in the enquiry report; ii) Mentioning the defense of the Government servant in respect of each of the charges; iii) Assessment of the evidence in respect of each article of charge separately; and iv) finding on each article of charge and the reason thereof. 10. It is therefore, clear that the enquiry officer is statutorily duty bound to submit a report meeting the requirement of Rule 14(23)(1). If the report in question Annexure R/l is analyzed in the backdrop of the requirement of the statutory rule, it is crystal clear that the report does not meet the aforesaid statutory requirement. After narrating the charges as are contained in the charge-sheet the enquiry officer has simply stated as to what each of the nine prosecution witnesses have stated in the enquiry. After giving the statement of the witnesses and the cross-examination of the Petitioner, Shri Swami Prasad Yadav with regard to each of the witnesses the enquiry officer has reproduced the statement of six defence witnesses and finally he has recorded the defense statement of the Petitioner and while recording the defense statement of the Petitioner the Enquiry Officer has tried to say that how the defense statement is not proper. Finally, without assessment of the evidence produced by the prosecution and without giving any reason a conclusion is drawn in less than 10 lines indicated that "after going through the evidence and material that has come on record, the allegations levelled in the charge-sheet is proved". This finding of the Enquiry Officer is contrary to the requirement of Rule 14(23)(1) (c) and (d) and is nothing but a perverse finding. 11. The Supreme Court in the case of Sher Bahadur (supra) has laid down the principle which is required to be followed by an enquiry officer while recording his finding and the principle is crystallized by the Supreme Court in para 7 in the following manner 7. It may be observed that the expression "sufficiency of evidence" postulates existence of some evidence which links the charged officer with the misconduct alleged against him. Evidence, however, voluminous it may be, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in law. The mere fact that the enquiry officer has noted in his report, "in view of oral, documentary and circumstantial evidence as adduced in the enquiry", would not in principle satisfy the rule of sufficiency of evidence. Though, the disciplinary authority cited one witness Sh. R. A. Vashist, Ex. CVI/N. Rly., New Delhi, in support of the charges, he was not examined. Regarding documentary evidence, Ex. P-1, referred to in the enquiry report and adverted to by the High Court, is the order of appointment of the Appellant which is a neutral fact. The enquiry officer examined the charged officer but nothing is elicited to connect him with the charge. The statement of the Appellant recorded by the enquiry officer shows no more than his working earlier to his re-engagement during the period between May, 1978 and November, 1979 in different phases. Indeed, his statement was not relied upon by the enquiry officer. The finding of the enquiry officer that in view of the oral, documentary, and circumstantial evidence, the charge against the Appellant for securing the fraudulent appointment letter duly signed by the said APO (Const.) was proved, is, in the light of the above discussion, erroneous. In our view, this is clearly a case of finding the Appellant guilty of charge without having any evidence to link, the Appellant with the alleged misconduct. In our view, this is clearly a case of finding the Appellant guilty of charge without having any evidence to link, the Appellant with the alleged misconduct. The High Court did not consider this aspect in its proper perspective as such the judgment and order of the High Court and the order of the disciplinary authority, under challenge, cannot be sustained, they are accordingly set aside. 12. In the case of Anil Kumar v. Presiding Officer and Ors.: AIR 1985 SC 1121 the duty of the enquiry officer to give a reasoned finding and the effect of a perverse finding recorded by the enquiry officer without application of mind and without assigning proper reason is considered in the following manner: 5. We have extracted the charges framed against the Appellant. We have also pointed out in clear terms the report of the Enquiry Officer. It is well-settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the Enquiry Officer has a duty to act judicially. The Enquiry Officer did not apply his mind to the evidence. Save setting out the names of the witnesses, he did not discuss the evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the Appellant did not appeal to him or was considered not credit worthy. He did not permit a peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the Appellant. An enquiry report in a quasi-judicial enquiry must show the reasons for the conclusion. It cannot be an ipse dixit of the Enquiry Officer. It has to be a speaking order in the sense that the conclusion is supported by reasons. This is too well settled to be supported by a precedent. In Madhya Pradesh Industries Ltd. v. Union of India : (1966) 1 SCR 466 : AIR 1966 SC 671 , this Court observed that a speaking order will at best be a reasonable and at its worst be at least a plausible one. The public should not be deprived of this only safeguard. In Madhya Pradesh Industries Ltd. v. Union of India : (1966) 1 SCR 466 : AIR 1966 SC 671 , this Court observed that a speaking order will at best be a reasonable and at its worst be at least a plausible one. The public should not be deprived of this only safeguard. Similarly in Mahabir Prasad v. State of U.P. : (1971) 1 SCR 201 : AIR 1970 SC 1302 , this Court reiterated that satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appealed to the authority. It should all the more be so where the quasi-judicial enquiry may result in deprivation of livelihood or attach a stigma to the character. In this case, the enquiry report is an order sheet which merely produces the stage through which the enquiry passed. It clearly disclosed a total non-application of mind and it is this report on which the General Manager acted in terminating the service of the Appellant. There could not have been a gross case of non-application of mind and it is such an enquiry which has found favour with the Labour Court and the High Court. 6. Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma and it has to be held in accordance with the principles of natural justice, the minimum expectation is that the report must be a reasoned one. The Court then may not enter into the adequacy or sufficiency of evidence. But where the evidence is annexed to an order sheet and no correlation is established between the two showing application of mind, we are constrained to observe that it is not an enquiry report at all. Therefore, there was no enquiry in this case worth the name and the order of termination based on such proceeding disclosing non-application of mind would be unsustainable. 13. If the report of the Enquiry Officer-in the present case is analyzed in the backdrop of aforesaid principle laid -down by the Supreme Court, it would be clear that the Enquiry Officer has not given any reason either for accepting the evidence of the prosecution or for rejection or discarding the defense of the Petitioner. The Enquiry Officer while conducting an enquiry and recording a finding with regard to charges is under statute duty bound to record reason for his finding. The Enquiry Officer while conducting an enquiry and recording a finding with regard to charges is under statute duty bound to record reason for his finding. The reason has to be supported by material that has come in the enquiry and enquiry report should show application of mind, assessment of evidence and reasons for either accepting or rejecting the particular piece of evidence. In the absence of aforesaid formalities being complied with the report of the enquiry officer is nothing but a "perverse report showing non-application of mind and based on the ipse dixit of an enquiry officer and on the basis of such enquiry report, no action can be taken against the delinquent employee, which does not show application of mind or analyze of evidence and record of evidence for holding the charges to be proved is perverse and any action taken on the basis of perverse report is unsustainable. That being so, I find much force in the third ground urged by Shri K. C. Ghildyal to the effect that report of the Enquiry Officer is perverse, is not a reasoned report and therefore, entire action on the basis of such a report is perverse. That apart, even if the Enquiry Report was perverse as indicated hereinabove, atleast the disciplinary authority and the Appellate Authority could have rectify the mistake by analyzing the prosecution case, the defense of the Petitioner and thereafter recording the finding with regard to charges levelled against him. The Disciplinary Authority and the Appellate Authority have followed suit and have simply accepted the report of the enquiry officer without analyzing the evidence and material that came on record and without recording any finding as to how and on what basis the allegation are said to be proved. The allegations against the Petitioner are basically that he permitted the animals to be released without approval of the Competitive Authority resulting in loss to the Government to the tune of Rs. 10105/-. The defense of the Petitioner was that on 16-3-1979 night when he was sleeping, the Range Officer P.W.I Shri S. P. Pandey had instructed him to go to some other place in connection with some official duty and when he had gone, some person in the Kanji House has released the animals. 10105/-. The defense of the Petitioner was that on 16-3-1979 night when he was sleeping, the Range Officer P.W.I Shri S. P. Pandey had instructed him to go to some other place in connection with some official duty and when he had gone, some person in the Kanji House has released the animals. This defense of the Petitioner is not at all considered and even without the communication dated 16-3-1979 being available on record, the Petitioner is held guilty of charges levelled against him. Petitioner in his defence has clearly indicated that the communication dated 16-3-1979 was never received by him. It was only orally told to him on 17-3-1979 that he should not release the animals. However, in his absence when the animals were already released on 16-3-1979 it is explained by him that the communication dated 17-3-1979 was made by him indicating these facts. This vital defence of the Petitioner is not at all assessed and taken note of by the enquiry officer. It is a case where the charges are found to be proved without taking note of the defense of the Petitioner without analyzing the prosecution witnesses properly and as indicated hereinabove, the entire action is based on a perverse finding which cannot be upheld by this Court. 14. Accordingly, finding the action taken against the Petitioner to be wholly perverse, contrary to the provisions of law, this petition is allowed. Impugned order of punishment and order of Appellate Authority dated 26-5-1994 are quashed. Original record returned back to the counsel for the State Government. 14A. Petition stands allowed and disposed of and no order as to costs.