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Madhya Pradesh High Court · body

2011 DIGILAW 971 (MP)

S. B. Bhargava v. State of M. P.

2011-08-23

ALOK ARADHE, RAJENDRA MENON

body2011
JUDGMENT Alok Aradhe, J. 1. The Order of the Court was delivered by :-In this petition, the petitioner has challenged the validity of the order dated 17.10.1997 by which the petitioner has been reverted from the post of Additional District Judge to the post of Civil Judge, Class-I. In order to appreciate the petitioner's challenge to the impugned order few facts need mention which are stated infra. 2. The petitioner was appointed as Civil Judge, Class-II in 1979. The petitioner was promoted to the post of Civil Judge, Class-I in 1987 and was further promoted to the post of Chief Judicial Magistrate in 1990. The petitioner, thereafter, was promoted to higher judicial service in 1992 and posted as Additional District Judge, Khurai, district - Sagar. The petitioner joined at Khurai on 27.9.1992. The petitioner on 13.1.1995 issued a notice to one D.R Thakur, advocate to show cause why he should not be prosecuted under Sections 191 and 192 of the Indian penal Code for fabricating false-evidence. It appears that Bar Association, Khurai took a decision to boycott, the court of the petitioner and delegation of senior advocates along with the President and the office-bearers met the District and Sessions Judge, Sagar on 17.1.1995 and informed him that since the said D.R Thakur appeared on behalf of accused in proceeding under Section 157 of the Indian Penal Code and got the bail for the accused and since the petitioner was personally interested in the said case that is why the show-cause notice was issued to said D.P. Thakur with a view to wreak vengeance. 3. Accordingly, the District and Sessions Judge was informed that member of the Bar Association have taken a decision to boycott the Court of the petitioner. The District and Sessions Judge, Sagar vide communication dated 18.1.1995 apprised the High Court about the decision taken by the members of the Bar Association, Khurai. A complaint was also made by the Bar Association, Khurai to the Chief Justice. Thereupon Shri S.S. Saraf, the then Registrar (Vigilance) visited Khurai and conducted a preliminary enquiry. A show-cause notice dated 12.5.1995 along with article of charges, list of documents and witnesses was issued to the petitioner by which the petitioner was asked to file his reply to the charge-sheet within a fortnight. Thereupon Shri S.S. Saraf, the then Registrar (Vigilance) visited Khurai and conducted a preliminary enquiry. A show-cause notice dated 12.5.1995 along with article of charges, list of documents and witnesses was issued to the petitioner by which the petitioner was asked to file his reply to the charge-sheet within a fortnight. The petitioner on receipt of the charge-sheet by communication dated 23.5.1995 demanded the copy of the statement of witnesses as well as the documents on the basis of which the charge-sheet was issued to him to file the reply. 4. Thereafter vide communication dated 17.11.1995 an enquiry was directed to be conducted against the petitioner. The enquiry officer ordered the petitioner to appear on 4.12.1995 at Jabalpur failing which the petitioner was informed that ex parte proceeding would be taken against him. The petitioner once again vide communication dated 2.12.1995 requested for decision on the application which was submitted by him on 23.5.1995. The petitioner informed the Registrar General of the High Court vide communication dated 19.12.1995 that though the documents sought for by the petitioner were not supplied to him yet on the basis of his memory he is filing the reply to the article of charges. 5. The petitioner thereafter by another communication dated 19.12.1995 sought the assistance of a legal practitioner, namely, B.B. Bhargav. However, by communication dated 21.9.1996 the petitioner was informed that reply filed to the charge-sheet as well as application seeking assistance of legal practitioner has been rejected. The petitioner thereafter filed another application seeking assistance of Civil Judge Shri S.K. Choubey and Shri S.A.Naqvi, the then Additional Registrar of Gwalior Bench of this Court. However, the petitioner vide communication dated 16.2.1996 was informed that he has not been permitted to seek assistance of Shri Bhargav and Shri Naqvi. However, the petitioner was granted liberty to seek assistance of any other judicial officer. 6. On 19.12.1995, 31 documents were supplied to the petitioner. Thereafter on 22nd and 23rd January, 1996 the witnesses were examined. The petitioner cross-examined witnesses as well as examined 11 witnesses in his defence. The Enquiry Officer thereafter submitted his report to the disciplinary authority in which five charges out of six charges levelled against the petitioner were found to be proved. Thereafter on 22nd and 23rd January, 1996 the witnesses were examined. The petitioner cross-examined witnesses as well as examined 11 witnesses in his defence. The Enquiry Officer thereafter submitted his report to the disciplinary authority in which five charges out of six charges levelled against the petitioner were found to be proved. A show-cause notice dated 24.7.1996 was issued to the petitioner along with copy of the enquiry report and the petitioner was asked to show-cause with regard to proposed punishment. The petitioner thereafter made a request to permit him to inspect the record of the departmental enquiry proceeding on 12.8.1996. The petitioner, submitted the reply to the show-cause issued by the disciplinary authority on 14.8.1996. Thereafter by order dated 17.10.1997 the punishment of reversion was imposed on the petitioner. 7. Mr. A. D. Deoras, learned senior counsel for the petitioner while referring to rule 14 (4) and 5 (a) of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1996 (hereinafter referred to as 'the Rules') submitted that it was incumbent upon the disciplinary authority to obtain the reply of the petitioner to the charge-sheet. However, without obtaining the reply of the petitioner to charge-sheet the enquiry officer and presenting officer were appointed. In support of aforesaid submission, learned senior counsel has placed reliance on the decision in State of Punjab v. V.K. Khanna AIR 2001 SC 343 . It was further submitted by him that the petitioner was denied the assistance of lawyer in the departmental enquiry proceeding which is violative of rule 14 (8) of the Rules. In support of aforesaid submission, learned senior counsel has placed reliance on the decision in C.L. Subramaniam v. Collector of Customs, Cochin, AIR 1972 SC 2178 , Board of Trustees of the Port of Bombay v. Dilip kumar Raghavendra nath Nadkarni and Others, AIR 1983 SC 109 and J.K. Aggarwal v. Haryana Seeds Development Corporation Ltd. and Others, AIR 1991 SC 1221 . It is also submitted by learned senior counsel that the petitioner was neither supplied the documents nor he was permitted to inspect the record of the departmental enquiry proceeding. It is also submitted by learned senior counsel that the petitioner was neither supplied the documents nor he was permitted to inspect the record of the departmental enquiry proceeding. It was pointed out that the witnesses of the departmental enquiry were examined on 22nd and 23rd January, 1996 and thereafter the documents were supplied to the petitioner in violation of Rule 14(11) of the Rules which provides that the documents be supplied to the delinquent employee three days before commencement of examination of witnesses in the departmental enquiry. In support of the aforesaid submission, learned senior counsel has placed reliance on the decisions in State of Madhya Pradesh v. Chintaman, AIR 1961 SC 1623 and Chondroma Tewari v. Union of India, AIR 1988 SC 117 . 8. It has further been submitted that the impugned order has been passed in violation of Rule 15 (3) of the Rules inasmuch as no reasons have been recorded while passing the order imposing the penalty on the petitioner. It has also been urged that there is no material on record to prove that the charges leveled against the petitioner and in fact charge number 5 does not constitute the misconduct. In this connection reference was made to the decision of the Supreme Court in Union of India and Others v. J. Ahmed, AIR 1979 SC 1022 . It is also submitted that there is no material on record to prove the charge number 4 and in respect of judicial work, the charges cannot be framed and disciplinary enquiry cannot be conducted. In support of his submission, learned senior counsel has relied on the decisions in Zunjarrao Bhikaji Nagarkar v. Union of India, AIR 1999 SC 2881 and PC. Joshi v. State of UP. and Others, AIR 2001 SC 2788 . 9. On the other hand, Shri V.S. Shroti, learned senior counsel for the respondent No.2 submitted that since the statements recorded in the preliminary enquiry were not relied in the departmental enquiry therefore, there was no need to supply the copy of the statements of the witnesses recorded in course of preliminary enquiry. While referring to the report of the preliminary enquiry it was submitted that preliminary enquiry was held in the knowledge of the petitioner. While referring to the report of the preliminary enquiry it was submitted that preliminary enquiry was held in the knowledge of the petitioner. It was further submitted that the petitioner had 18 years of experience as judicial officer and taking into account the nature of charges, the denial of assistance of legal practitioner has not caused any prejudice to the petitioner. In support of his submission, learned senior counsel has placed reliance on the decision in Dinesh Chandra Pandey v. High Court of Madhya Pradesh and Another, AIR 2010 SC 3055 . It is also submitted that the documents were supplied to the petitioner along with the charge-sheet. The petitioner has examined the witnesses. Learned senior counsel referred to the proceedings recorded by the enquiry officer on 11.12.1995 to demonstrate that the documents were supplied to the petitioner as well as he was permitted to inspect the record of the disciplinary enquiry proceeding. In support of his submission, learned senior counsel has placed reliance on the decision in Crescent Dyes and Chemicals Ltd. v. Ram Naresh Tripathi, (1993) 2 SCC 115 . It is also urged that the findings recorded by the enquiry officer are based on material available on record and by no stretch of imagination, the same can be said to be perverse. The scope of judicial review with regard to findings recorded by the enquiry officer is limited. In this connection, learned senior counsel has relied on the decision in High Court of Judicature at Bombay v. Shashikant S. Patil and Another, (2000) 1 SCC 416 . It is also submitted by him that it was not necessary to mention reasons in the order of punishment. The question of validity of the proceeding of the departmental enquiry has to be examined on the touchstone of the prejudice which has been caused to the delinquent employee. In this connection reference has been made to the decisions in State Bank of Patiala and Others v. S.K. Sharma, AIR 1996 SC 1669 and Union of India and Others v. Alok Kumar, (2010) 5 SCC 349. 10. We have considered the submissions made by learned counsel for the parties. The scope of judicial review of the decision of disciplinary authority or in the proceeding in the departmental enquiry is well settled by catena of decisions of the Supreme Court. 10. We have considered the submissions made by learned counsel for the parties. The scope of judicial review of the decision of disciplinary authority or in the proceeding in the departmental enquiry is well settled by catena of decisions of the Supreme Court. The judicial interference in the proceeding of the departmental enquiry is warranted where there is violation of principles of natural justice or of statutory rules or if the decision of the authority is so arbitrary or capricious that no reasonable person would have arrived at such a conclusion. It is well settled in law that if there is some evidence on which the finding in a departmental enquiry can be based then adequacy or reliability of the material is not a matter which can be canvassed in a writ petition under Article 226 of the Constitution of India. It is equally well settled that this Court cannot sit as a court of appeal on the findings recorded by the enquiry officer or disciplinary authority and re-appreciate the evidence. [See: B. C. Chaturvedi v. Union of India and Others, (1995) 6 SCC 749 , and Shashikant S. Patil (supra) (2000) 1 SCC 416 . Similarly, it is a well settled legal proposition that every violation of rules of natural justice may not be sufficient for invalidating the action of the disciplinary authority and the court may refuse to interfere if the decision due to such violation has not caused any prejudice to the delinquent employee. Reference in this connection may be made to the decisions in Indu Bhushan Dwivedi v. State of Jharkhand and Another, (2010) 11 SCC 278 and State Bank of India and Others v. Bidyut Kumar Mitra and Others, (2011) 2 SCC 316 . 11. Keeping in mind the aforesaid well settled legal principles, we may advert to the facts of the case. The first ground of attack to the disciplinary enquiry proceeding is that the statements of witnesses recorded in the preliminary. enquiry were not supplied to the petitioner. In Kashinath Dikshit v. Union of India, AIR 1986 SC 2118 it has been held that copy of the statements of witnesses recorded in the preliminary enquiry should be supplied particularly if those witnesses are proposed to examine in the departmental enquiry. enquiry were not supplied to the petitioner. In Kashinath Dikshit v. Union of India, AIR 1986 SC 2118 it has been held that copy of the statements of witnesses recorded in the preliminary enquiry should be supplied particularly if those witnesses are proposed to examine in the departmental enquiry. It has also been held that non-supply of statements of witnesses in the preliminary enquiry would not vitiate the departmental enquiry proceeding unless it is shown that on account of non-supply of the documents any prejudice has been caused to the delinquent officer to his defence. 12. Similarly in Chondroma Tewari (supra) it has been held that statements of witnesses recorded in the preliminary enquiry should be supplied to the delinquent officer if the enquiry officer has relied upon the same in support for his findings. It has also been held that question whether non-supply of the statements of the witnesses recorded in course of preliminary enquiry has resulted in violation of principles of natural justice has to be tested on the touchstone of prejudice which is caused to the delinquent officer. Similar view has been taken in Vishal Singh and Another v. State of M.P., AIR 1998 SC 308 as well as Syndicate Bank and Others v. Venkatesh Gururao Kurati, AIR 2006 SC 3542 . In the instant case, from perusal of the enquiry-report we find that the material collected during the course of preliminary enquiry has not been relied upon by the enquiry officer in the departmental enquiry. Therefore, in our view, it was not necessary to supply the copy of the statements of the witnesses recorded during the course of the preliminary enquiry. Besides that, the petitioner has not been able to demonstrate the prejudice which has been caused to him on account of non-supply of the statements of the witnesses recorded in course of preliminary enquiry. That apart, it can be seen from the proceedings of the enquiry that when the witnesses were examined, the petitioner has elaborately cross-examined them without any objection. Therefore, the first ground of attack to the departmental enquiry is hereby repelled. 13. From perusal of the order sheet dated 21.12.1995 of the proceeding in the departmental enquiry, we find that enquiry officer had supplied the documents in 39 pages to the petitioner. The petitioner has acknowledged the receipt of aforesaid documents. Thereafter the proceedings were fixed for 22nd and 23rd January, 1996. 13. From perusal of the order sheet dated 21.12.1995 of the proceeding in the departmental enquiry, we find that enquiry officer had supplied the documents in 39 pages to the petitioner. The petitioner has acknowledged the receipt of aforesaid documents. Thereafter the proceedings were fixed for 22nd and 23rd January, 1996. On 22nd and 23rd January, 1996 the witnesses were examined. The aforesaid witnesses were cross-examined by the petitioner. From perusal of the document Annexure P-19, we find that on 23.1.1996,51 documents were supplied to the petitioner. Thus, grievance of the petitioner that the relevant documents were not supplied to him and the documents were supplied to him after the statements of the witnesses were recorded in the departmental enquiry is not substantiated by the records of the departmental enquiry proceeding. The petitioner has not been able to point out the specific documents which were not supplied to him as a result of which prejudice is caused to him in this regard and further as to how the same could materially affect the final outcome of the enquiry. Therefore, the second ground of attach to the departmental proceeding must also fail. 14. The petitioner has assailed the departmental enquiry proceeding on yet another ground that he was denied the assistance of legal practitioner as well as assistance of judicial officer. In Dinesh Chandra Pandey (supra) while considering Rule 14 (8) of the Rules the Supreme Court has held that in case where an enquiry is held against the judicial officer, the rule permitting the delinquent employee to seek assistance of legal practitioner is not applicable. It has been held that in an enquiry against the judicial officer where Additional District Judge is appointed as presenting officer, he cannot be termed as legal practitioner. It is also relevant to mention here that the charges levelled against the petitioner are not of complicated nature. The petitioner has not been able to show any prejudice caused to him on account of denial of assistance of legal practitioner or assistance of judicial officer. Therefore, on this ground also no fault can be found with the departmental enquiry proceeding. 15. The impugned order imposing the punishment of reversion has also been assailed by the petitioner on the ground that the same has been passed in violation of Rule 15 (3) of the Rules inasmuch as it does not contain any reason. Therefore, on this ground also no fault can be found with the departmental enquiry proceeding. 15. The impugned order imposing the punishment of reversion has also been assailed by the petitioner on the ground that the same has been passed in violation of Rule 15 (3) of the Rules inasmuch as it does not contain any reason. Rule 15 of the Rules deals with the action on the enquiry report. Rule 15 (2) provides that if the disciplinary authority disagrees with the findings of the inquiring authority on any article of charge, it shall record its reasons for such disagreement and record its own finding on such charge, if the evidence on record is sufficient. Rule 15 (3) provides that if the disciplinary authority having regard to the findings on all or any of the articles of charge is of the opinion that any of the penalties specified in rule 10 should be imposed, it shall notwithstanding anything contained in rule 16 make an order imposing such penalty but in doing so it shall record reasons in writing. If Rules 15 (2) and 15 (3) are read conjointly, it is clear that the disciplinary authority is required to record reasons in writing only in the case when it disagrees with the finding of the enquiry officer. In the instant case the disciplinary authority has agreed with the finding of the enquiry officer and, therefore, the provisions of Rule 15 (3) are not attracted in the facts and circumstances of the case. For the aforementioned reasons, the order passed by the disciplinary authority cannot be said to be violative of Article 15 (3) of the Rules. 16. In Union of India and Others v. A.N. Saxena, (1992) 3 SCC 124 it has been held that if a judicial officer commits serious acts of recklessness and negligence, the same is a conduct which amounts to misconduct in discharge of duty and, therefore, disciplinary action can be taken against him for maintaining the high standard of judicial discipline and proprietary and for upholding the confidence of people in judiciary. In A.N. Saxena (supra) the Supreme Court has stated contingencies in which disciplinary action can be taken against the delinquent officer. Therefore, the contention of the learned senior counsel that no charge can be framed in respect of judicial work cannot be accepted. In A.N. Saxena (supra) the Supreme Court has stated contingencies in which disciplinary action can be taken against the delinquent officer. Therefore, the contention of the learned senior counsel that no charge can be framed in respect of judicial work cannot be accepted. In the aforesaid backdrop, we have gone through the records of the departmental enquiry proceeding. We find that the findings recorded by the enquiry officer are based on material available on record. The same, by no stretch of imagination, can be said to be either perverse or based on no evidence. This Court cannot act like an appellate authority and re-appreciate the material available on record. Thus, challenge to the findings recorded by the enquiry officer also deserves to be repelled. 17. For the aforementioned reasons, we do not find any merit in this petition. In the result, the writ petition, fails and is hereby dismissed.