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2012 DIGILAW 110 (CHH)

RAMADHAR BHASKAR v. STATE OF M. P.

2012-04-12

MANINDRA MOHAN SHRIVASTAVA, SATISH K.AGNIHOTRI

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ORDER As per Hon'ble Shri Satish K. Agnihotri, J.:- 1. By this petition, the petitioner seeks to quash the order dated 06.08.1997 (Annexure A/12) passed by the Madhya Pradesh State Administrative Tribunal, Jabalpur (for short 'the Tribunal'), and also the order dated 30.09.1992 (Annexure Al8), passed by the Superintendent of Police, Surguja, (for short 'the SP') whereby the services of the petitioner was terminated and the order dated 23.03.1993 (Annexure A/11) whereby the appeal preferred by the petitioner against the order dated 30.09.1992, was rejected by the Deputy Inspector General of Police, Bilaspur Range, affirming the order passed by the SP. 2. The facts, in brief, as projected by the petitioner are that the petitioner, while working on the post of Police Head Constable, at Police Station, Kelhari in Surguja District was served with a charge sheet on 15.01.1992, wherein it was alleged that the petitioner has beaten one Dheersai Gond, without any reason and secondly, he has received a sum of Rs.500/- as bribe from one Sarju Singh Gond, resident of Bundeli. Prior to serving of charge sheet, a preliminary enquiry was conducted by the City Superintendent of Police (for short 'the CSP ') wherein the petitioner was not found guilty of any of the charges. Thereafter, the SP, disagreeing with the conclusion of the preliminary enquiry report, issued a show cause notice to the petitioner which was replied by the petitioner. After consideration of the reply of the petitioner, the SP, being disciplinary authority, imposed a penalty of removal from service vide order dated 30.09.1992 on the petitioner. 3. There against, the petitioner preferred an appeal before the Deputy Inspector General of Police, Bilaspur Range, which was also dismissed confirming the order passed by the SP, on 23.03.1993. Being aggrieved by the appellate order dated 23.03.1993, the petitioner filed an application before the Tribunal, being O.A. No.261/1993. The Tribunal, after having considered the application at length, dismissed the same on 06.08.1997 (Annexure A/12). Thus, this petition. 4. Being aggrieved by the appellate order dated 23.03.1993, the petitioner filed an application before the Tribunal, being O.A. No.261/1993. The Tribunal, after having considered the application at length, dismissed the same on 06.08.1997 (Annexure A/12). Thus, this petition. 4. Shri Rao, learned counsel appearing for the petitioner would submit that the Tribunal has erred by holding that the decision of the Disciplinary Authority i.e. the SP is not perverse, despite the fact that Rule 15(2) of the M.P./C.G. Civil Services (Classification, Control & Appeal) Rules, 1966 (for short 'the Rules, 1966') requires reasons to be mentioned for dissenting with the findings of the Enquiry Officer, which has not been done in the instant case. There is iota of evidence to show that the allegations leveled against the petitioner were true. The SP could not have taken a different view other than what was recorded by the Sub Divisional Officer (Police) [for short 'the SDO (P)] Manendragarh, who conducted the departmental enquiry. 5. On the other hand, Shri Bhatia, learned Deputy Government Advocate appearing for the State/respondents would submit that there is no illegality or perversity in the orders sought to be impugned. The order passed by the SP as well as the appellate order, passed by the DIG, are based on proper appreciation of facts and evidence. Thereafter, the Tribunal has passed a reasoned order, wherein the action of the respondent authorities have been justified. Thus, no interference may be warranted. 6. Heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. 7. On perusal of the order passed by the Tribunal, it is evident that the SP, in the impugned order dated 30.09.1992 has considered the factual aspect of the charges against the petitioner, in detail. The statement of witnesses, examined in the enquiry have also been considered properly. There appears no irregularity or infirmity with the order passed by the SP, as the charges were found proved. Thereafter, in an appeal, the DIG has also taken the same view as taken by the SP. 8. The charge-sheet, as aforestated was issued containing the allegation that the petitioner had indulged into assault of one Dheersai Gond, and further, he received a sum of Rs.500/- as bribe from one Sarju Singh Gond, resident of village Kudeli. The charge sheet was accompanied by list of witnesses, list of documents, and article of charges. 8. The charge-sheet, as aforestated was issued containing the allegation that the petitioner had indulged into assault of one Dheersai Gond, and further, he received a sum of Rs.500/- as bribe from one Sarju Singh Gond, resident of village Kudeli. The charge sheet was accompanied by list of witnesses, list of documents, and article of charges. Thereafter, the Sub Divisional Officer (Police) Manendragarh, after holding a detailed enquiry came to- the conclusion that the allegations, as afore stated, were not found proved in its report dated 31.07.1992 (Annexure A/5). Thereafter, the SP, disagreeing with the enquiry report, submitted by the Enquiry Officer, issued a show cause notice dated 29.08.1992 (Annexure A/6) stating therein that after examining the entire allegations and findings recorded by the Enquiry Officer, holding that the charges have been found proved, thus, why the petitioner be not dismissed from service. The petitioner filed his reply to the said notice. Thereafter, the petitioner was dismissed from service on 30.09.1992 (Annexure A/8) which was affirmed by the DIG by order dated 23.03.1993 (Annexure A/11) and thereafter, by the Tribunal, on 06.08.1997 (Annexure A/12). 9. The Tribunal, in its order dated 06.08.1997 (Annexure A/12) held that the departmental enquiry was conducted in a fair manner after granting proper opportunity of hearing to the petitioner at every stage. All the documents were provided, witnesses were properly examined. It was further held that the Disciplinary Authority has right to disagree with the findings of the Enquiry Officer and if there is a disagreement, then the delinquent employee has no right to have show cause notice. Thus, the contention of the petitioner that on disagreement of the Disciplinary Authority on the findings of the Enquiry "Officer, a fresh show cause notice be issued to the petitioner before taking he DIG, i.e. the appellate authority. 10. It is an admitted fact that the service conditions of the petitioner are governed by the provisions of Rules, 1966. Section 15 of the Rules, 1966 provides for a situation wherein the Disciplinary Authority, if it is not itself the inquiring authority, may for the reasons to be recorded in writing, disagree with the findings of the inquiring authority. For ready reference, the same is reproduced below: "15. Section 15 of the Rules, 1966 provides for a situation wherein the Disciplinary Authority, if it is not itself the inquiring authority, may for the reasons to be recorded in writing, disagree with the findings of the inquiring authority. For ready reference, the same is reproduced below: "15. Action on the inquiry report.-(1) The disciplinary authority if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14 as far as may be. (2) The disciplinary authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own finding on such charge, if the evidence on record is sufficient for the purpose. (3) If the disciplinary authority having regard to its 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 on the Government servants, it shall, notwithstanding anything contained in Rules 16, make an order imposing such penalty but in doing so it shall record reasons in writing: Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant." 11. In the show cause notice dated 25.08.1992 (Annexure A/6) after disagreeing with the report of the Enquiry Officer, the SP has given a detailed reason for disagreeing with the findings of the Enquiry Officer. However, before recording the reasons or thereafter, no opportunity of hearing was afforded to the petitioner to put forward its case in support of the findings of the Enquiry Officer. The show case notice was in the nature of second show cause notice, after approving the alleged charges for imposition of punishment. Thus, the said show cause notice does not satisfy the principles of natural justice before recording reasons for disagreeing with the findings of the Enquiry Officer. 12. The show case notice was in the nature of second show cause notice, after approving the alleged charges for imposition of punishment. Thus, the said show cause notice does not satisfy the principles of natural justice before recording reasons for disagreeing with the findings of the Enquiry Officer. 12. On bare perusal of section 15 of the Rules, 1966, though it is not provided that the Disciplinary Authority shall afford opportunity of hearing, if it disagrees with the findings of the Enquiry Officer, except that such disagreement have to be recorded, however, identical provisions have been considered by the Supreme Court in Punjab National Bank & Others Vs. Kunj Behari Misral (1987) 7 SCC 84. The relevant regulation 7(2) of the Punjab National Bank Officer Employees (Discipline & Appeal) Regulations, 1977 was under consideration, which reads as under: "7. Action on the enquiry report.-(l) The disciplinary authority, if it is not itself the enquiring authority, may, for reasons to be recorded by it in writing, remit the case to the enquiring authority for fresh or further enquiry and report and the enquiring authority shall thereupon proceed to hold the further enquiry according to the provisions of Regulation 6 as far as may be. (2) The disciplinary authority shall, if it disagrees with the findings of the enquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose. (3) If the disciplinary authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in Regulation 4 should be imposed on the officer employee, it shall, notwithstanding anything contained in Regulation 8, make an order imposing such penalty. (4) If the disciplinary authority having regard to its findings on all or any of the articles of charge, is of the opinion that no penalty is called for, it may pass an order exonerating the officer employee concerned." 13. The above regulation is para-materia to provisions of section 15(2) of the Rules, 1966. 14. In the aforesaid case, the Supreme Court held as under: "19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). The above regulation is para-materia to provisions of section 15(2) of the Rules, 1966. 14. In the aforesaid case, the Supreme Court held as under: "19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry Officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer. 20. The aforesaid conclusion which we have arrived at is also in consonance with the underlying principle enunciated by this Court in the case of Institute of Chartered Accountants. While agreeing with the decision in Ram Kishan case we are of the opinion that the contrary view expressed in S.S. Koshal and M.C. Saxena cases do not lay down the correct law." 15. In State Bank of India & Others Vs. K.P. Narayanan Kutty (2003) 2 SCC 449, the Supreme Court held as under: "6. .........In para 19 of the judgment in Punjab National Bank case extracted above, when it is clearly stated that the principles of natural justice have to be read into Regulation 7(2) [Rule 50(3)(ii) of the State Bank of India (Supervising Staff) Service Rules, is identical in terms applicable to the present case l and the delinquent officer will have to be given an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer, we find it difficult to accept the contention advanced on behalf of the appellants that unless it is shown that some prejudice was caused to the respondent, the order of dismissal could not be set aside by the High Court. 7. 7. Therefore, we are in respectful agreement with the decision of this Court in Punjab National Bank case being directly on the point." 16. The case of Punjab National Bank & Others (1987) 7 SCC 84 (supra) was referred with approval in Punjab National Bank & Others Vs. K.K. Verma (2010) 13 SCC 494. 17. In view of the well settled principles of law, as aforestated, the employer is obliged to issue notice to the delinquent employee enabling him to persuade the Disciplinary Authority, to accept the favourable conclusion of the Enquiry Officer. In the case on hand, the notice in respect of reasons for disagreeing with findings of the Enquiry Officer was not conveyed to the petitioner so as to enable him to put forward his case in support of the findings of the enquiry report. 18. In view of the foregoing, the show cause notice dated 25.08.1992 (Annexure A/6) cannot be held as show cause notice as required under section 15(2) of the Rules, 1966, as explained hereinabove. 19. Thus, the consequential punishment order dated 30.09.1992 (Annexure A/8) passed by the SP, order dated 23.03.1993 (Annexure A/11) passed by the DIG and the order dated 06.08.1997 (Annexure A/12) passed by Tribunal, are unsustainable in the eyes of law, and are accordingly quashed. 20. Resultantly, the writ petition is allowed. However, it is open to the Disciplinary Authority to initiate fresh enquiry from the stage of submission of Enquiry Report by the Enquiry Officer and take appropriate action in accordance with law on its own merits. In the event, the petitioner has crossed the age of super-annuation, the petitioner would be entitled to consequential benefits, including retrial benefits, flowing from this order. 21. There shall be no order as to costs. Petition Allowed.