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Madhya Pradesh High Court · body

2012 DIGILAW 1216 (MP)

Ghanshyam Sharma v. State of M. P.

2012-11-27

SUJOY PAUL

body2012
ORDER 1. With the consent of parties, matter is finally heard. 2. The petitioner is aggrieved by order dated 12.1.2011 (Annexure P-1) whereby the competent authority directed to remove the petitioner under section 86 (1) of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993. 3. Shri G.S. Sharma, learned counsel for the petitioner submits that this order has been given effect to and petitioner has been discontinued. This order is called in question on the singular ground that before removing the petitioner, procedure mentioned in M.P. Panchayat (Discipline & Appeal) Rules, 1999 have not been followed. No enquiry has been counducted and outrightly petitioner is removed on the basis of Annexure P-7 which, by no stretch of imagination, can be said to be an admission of guilt by the petitioner. 4. Per contra, shri Newaskar and Shri Himanchu Sharma supported the order and submits that petitioner was served with a show cause notice dated 3.7.2010 (Annexure P-6) and petitioner has not chosen to file his detailed reply and he has not denied the allegations and, therefore, the authority has rightly treated it to be an admission of charges. On account of petitioner’s admission, no enquiry was required and he was rightly removed from service. 5. I have heard the learned counsel for the parties and perused the record. 6. It is not in dispute between the parties that for the purpose of removing an employee, the statutory provisions of D & A Rules aforesaid must be followed. However, this is settled in service jurisprudence that when there is a clear admission of guilt, no departmental enquiry is required. The pivotal question is whether reply to show cause Annexure P-7 dated 8.7.2010 can be treated to be a clear admission of guilt. However, this is settled in service jurisprudence that when there is a clear admission of guilt, no departmental enquiry is required. The pivotal question is whether reply to show cause Annexure P-7 dated 8.7.2010 can be treated to be a clear admission of guilt. The relevant portion of Annexure P-7 reads as under:- ^^lsok esa lfou; fuosnu gS fd xzke iapk;r xlokuh eas ghjkyky ds uke ls tk¡p dkMZ gSA tkWo dkMZ/kkjh ds yM+ds oh: o vaxwjh iRuh ghjkyky us etnwjh dh FkhA mlds uke tkWc dkMZ ugha FkkA esa oh: dks O;fDrxr :i ls ugh tkurk FkkA esV }kjk oh: ds dk;Z dks ghjkyky ds tkWc dkMZ esa vafdr dj fn;k gSA eSaus esV }kjk gh xbZ mifLFkfr dks ekU; dj Hkqxrku i=d ij gLrk{kj dj fn, gSA ;fn Hkqxrku xyr gqvk gS rks esa mRrjnkbZ gw¡ vkSj Hkqxrku jkf’k tek djus dks rS;kj gw¡ os {kek izkFkZuk djrk gw¡ fd rsjh ln~Hkkouk iw.kZ xyrh ds fy;s eq>s nf.Mr ugha fd;k tkosA vr% fuosnu gS fd lwpuk i= ij dk;Zokgh u djus dh d`ik djsaA** 7. A microscopic reading of the reply of the petitioner shows that the petitioner has given certain explanation in reply to show cause notice. The petitioner has prayed for apology and further stated that if by mistake payment has been made, he is responsible and is ready to repay the amount. It is the specific stand of the petitioner that attendance was marked by the Mate and the petitioner has relied on such attendance recorded by the Mate and made the payment. Thus, petitioner has given explanation against the show cause notice and allegations mentioned therein. 8. This is settled in law that unless the admission of guilt/charges is specific, unconditional, unqualified and unequivocal, enquiry cannot be dispensed with. In present case, the petitioner has put forth his defence and made an effort to show that he is not responsible for the charges and the payment was made on the basis of attendance certified by subordinate employee. Thus, it cannot be said that petitioner has admitted the charges in totality and without any explanation. In (1998) 1 SCC 756 (General Court-Martial and others Vs. Co. Aniltej Singh Dhaliwal), it is held that an admission can be explained by the makers thereof. Thus, it cannot be said that petitioner has admitted the charges in totality and without any explanation. In (1998) 1 SCC 756 (General Court-Martial and others Vs. Co. Aniltej Singh Dhaliwal), it is held that an admission can be explained by the makers thereof. An admission is not conclusive as to the truth to the matter stated therein and it is only a piece of evidence, the weight to be attached to which must depend upon the circumstances under which it is made. In AIR 1961 SC 1070 (Jagdish Prasad Saxena Vs. The State of Madhya Bharat (now Madhya Pradesh), a Constitution Bench of Supreme Court held as under:- “Held that, as the statements made by the appellant did not amount to a clear or unambiguous admission of his guilt, failure to hold a formal enquiry constituted a serious infirmity in the order of dismissal passed against him, as the appellant had no opportunity at all of showing cause against the charge framed against him. Even if the appellant had made some statements which amounted to admission, it was open to doubt whether he could be removed from service on the strength of the said alleged admissions without holding a formal enquiry as required by the rules.” 9. On the basis of aforesaid test laid down by the Supreme Court, if Annexure P-7 is tested it will show that petitioner has given explanation against show cause notice and there is no unequivocal, unconditional, unqualified and specific admission of guilt by the petitioner. Thus, in the considered opinion of this Court, the respondents have erred in treating Annexure P-7 as admission of guilt. Consequently, the respondents have committed an error in not conducting the enquiry. On the basis of aforesaid analysis, Annexures P-7 and P-2 are liable to be set aside and I do so. Accordingly, Annexures P-1 and P-2 are set aside. However, liberty is reserved to the respondents to proceed against the petitioner pursuant to Annexure P-6 in accordance with law.