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Madhya Pradesh High Court · body

2012 DIGILAW 300 (MP)

Bhawani Shankar Singhal v. State of M. P.

2012-03-15

SUJOY PAUL

body2012
ORDER 1. This petition is received on transfer from M.P. Administrative Tribunal, O.A.No. 1069/2000 was filed by the petitioner challenging the punishment order Annexure A-1 dated 29.1.2000. The petitioner was served with a charge sheet dated 8.12.1994 followed by a supplementary charge sheet dated 20.1.1995. In total eight allegations were made against the petitioner. The singular contention raised by Shri Kirar is that in the departmental enquiry adequate, sufficient and reasonable opportunity of defence was denied to him which runs contrary to the established principles of natural justice and against the mandatory provisions of M.P. Civil Services (Classification, Control & Appeal) Rules, 1966. To elaborate, Shri Kirar submits that the petitioner submitted his reply and denied the charges in toto. Thereafter, by order dated 7.1.1995 (Annexure A-15) the Presenting Officer and Enquiry Officer was appointed. The petitioner participated in the initial dates of the enquiry conducted by the enquiry officer. The petitioner by letter dated 29.3.1995 (Annexure A-41) informed the department that he is leaving the headquarter to attend “Durgapooja”. The same was followed by another communication Annexure A-42. The petitioner left the headquarter for Sabalgarh where he became sick. He sent information by way of telegram dated 15.4.1995 to Collector, Datia with simultaneous telegram dated 15.4.1995 to the Presenting Officer, Datia informing that he is unwell and prayed for time till he becomes fit. In Annexure A-43 and A-44 he made a request for postponing the departmental enquiry on the ground of his illness and the same was followed by two registered letters Annexure A-45 containing same request dated 21.4.1995 and Annexure A-6 dated 2.5.1995. 2. In turn, the enquiry officer fixed the matter on 18.4.1995. Since the petitioner was not available on that date, it is clear from enquiry report (internal page 2) that he proceeded ex-parte against the petitioner on 18.4.1995. The petitioner after becoming fit preferred a representation to the enquiry officer (Annexure A-49) dated 28.6.1995 and in that representation enclosed all the telegrams, registered letters and the medical certificates and made a request for recalling the ex-parte order and permit him to participate in the enquiry. However, no heed was paid to petitioner’s said representation because the enquiry officer had already prepared his enquiry report on 15.5.1995 and sent it to the disciplinary authority. However, no heed was paid to petitioner’s said representation because the enquiry officer had already prepared his enquiry report on 15.5.1995 and sent it to the disciplinary authority. In turn, when the enquiry officer’s report was provided to the petitioner for his comments by communication dated 14.1.1998 (Annexure A-52), the petitioner immediately submitted his detailed reply and apprised the disciplinary authority that ex-parte proceeding was bad in law and again made a request to recall the ex-parte order and permit him to participate in the enquiry so that he can adequately represent himself. This reply to I.O’s report dated 29.1.1998 was not accepted by the disciplinary authority, who passed the punishment order dated 29.1.2000 whereby imposing punishment of reduction of pay to the minimum for a period of five years without cumulative effect with further direction that during the currency of punishment petitioner shall not be paid any increments. It is held that the petitioner shall be entitled for subsistence allowance already paid and no further dues shall be payable to him for the intervening period i.e., from the order of suspension to the date of imposition of punishment. 3. Shri Kirar raised a singular contention that since the petitioner repeatedly informed the respondents by telegram and registered letters that he was unwell, in all fairness the enquiry should not have been proceeded ex-parte. He placed reliance on Rule 14 (11) and 14 (20) of M.P. Civil Services (Classification, Control & Appeal) Rules, 1966 in this regard. He also placed reliance on a judgment of Supreme Court in Dr. Ramesh Chandra Tyagi v. Union of india and others (1994) 2 SCC 416 and prays for holding that the enquiry was not in consonance with the principles of natural justice. 4. Per contra, Shri Newaskar supported the order and submits that the impugned order is appealable under M.P. Civil Services (Classification, Control & Appeal) Rules, 1966. Since statutory alternative remedy is available to the petitioner, no interference is warranted and petitioner may be given liberty to assail the order in appeal. 5. I have heard the learend counsel for the parties at length and perused the record. 6. The petitioner has specifically pleaded in para 4.2 of his petition regarding factum of his leaving headquarter and giving information in this regard to the departmental authorities. 5. I have heard the learend counsel for the parties at length and perused the record. 6. The petitioner has specifically pleaded in para 4.2 of his petition regarding factum of his leaving headquarter and giving information in this regard to the departmental authorities. He also categorically pleaded regarding sending of telegrams and other informations to the Presenting Officer, disciplinary authority and the enquiry officer. In the telegram the petitioner made a specific request for adjourning the enquiry on the ground of his illness. On becoming fit, the petitioner preferred a detailed representation pregnant with all aforesaid telegrams, medical certificate and registered letters and made yet another request for recalling the ex-parte order so that he can put forth his defence before the enquiry officer. The petitioner made yet another unsuccessful effort while preferring representation against the I.O.’s report. 7. Rule 14 (11) of M.P. Civil Services (Classification, Control & Appeal) Rules reads as under :- “14. Procedure for imposing penalties :- (11) The inquiring authority shall if the Government servant fails to appear within the specified time or refuses or omits to plead, require the Presiding Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the Government servant may for the purpose of preparing his defence -- (i) inspect within five days of the order or within such further time not exceeding five years as the enquiry authority may allow the documents specified in the list referred to in sub-rule (3); (ii) submit a list of witnesses to be examined on his behalf. Note -- If the Government servant applies orally or in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in sub-rule (3), the enquiry authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority. (iii) Give a notice within ten days of the order or within such further time not exceeding ten days as the inquiry authority may allow, for the discovery or production of any documents which are in the possession of Government but not mentioned in this list referred to in sub-rule (3). (iii) Give a notice within ten days of the order or within such further time not exceeding ten days as the inquiry authority may allow, for the discovery or production of any documents which are in the possession of Government but not mentioned in this list referred to in sub-rule (3). Note -- The Government servant shall indicate the relevance of the documents required by him to be discovered and produced by the Government (Emphasis Supplied.) 8. A bare perusal of this rule would show that if the delinquent employee fails to appear on the specified date, the enquiry officer shall require the presenting officer to produce the evidence by which he proposes to prove the allegations and shall adjourn the case to a later date. In the meantime, he will permit the Government servant to prepare his defence and shall further permit him to inspect the documents within certain time and permit him to furnish the list of witnesses to be examined in his behalf. 9. In the opinion of this Court, the principles of natural justice are codified in the shape of M.P. Civil Services (Classfication, Control & Appeal) Rules, 1966. Thus, it is not only principles of natural justice, it is statutory provisions which make it obligatory for the enquiry officer to act in a particular manner. This is settled in law that if law provides that a thing is to be done in a proper manner, it is to be done in the same manner or not at all. In other words, if rule prescribes a thing to be done in a particular manner, other methods are prohibited/forbidden. In Baru Ram v. Basawani ( AIR 1959 SC 93 ) the Apex Court has taken this view which was followed by the Supreme Court in Dhannjaya Reddy v. State of Karnataka (2001) 4 SCC 9 , CIT v. Anjum M.H. Ghaswala (2002) 1 SCC Page 633) and in a recent judgment of this Court in Satyanjay Tripathi and another v. Banarasi Devi 2011 (2) MPLJ 690 this view has been followed. 10. In Anil Kumar Das v. Senior Superintendent of Post Offices, Kamrup Division, Gauhati and others (AIR 1969 Assam and Nagaland 99), a Division Bench of the High Court examined Rule 14 (11) of the C.C.A. Rules, 1965. 10. In Anil Kumar Das v. Senior Superintendent of Post Offices, Kamrup Division, Gauhati and others (AIR 1969 Assam and Nagaland 99), a Division Bench of the High Court examined Rule 14 (11) of the C.C.A. Rules, 1965. I have examined Rule 14 (11) of the CCA Rules 1965 and in the considered opinion of this Court it is pari materia/provision with M.P. Rules of 66. The Division Bench has opined as under :- “Rule 14 indicates an elaborate enquiry in conformity with the rules of natural justice. If the procedure laid down under Rule 14 is complied with, there can be no complaint regarding violation of the principles of natural justice. The expression “as far as may be” in Rule 14 (1) may admit of some variation but not if such a variation leads to the prejudice of Government servant or results in an ineffective representation of his case before the authority. The very fact that the inquiring officer cannot conclude the enquiry on the date the Government Servant does not appear and even in such a case he has to adjourn the case as required under Rule 14 (11) clearly establishes that R. 14 (11) is a mandatory provision and its violation in not offering the right of inspection to the Government servant is a serious infirmity, fatal to the entire proceedings. The procedure of enquiry as laid down under Rule 14, does warrant a maintenance of an order-sheet showing the various orders passed from time to time. In absence of an order-sheet it is difficult to know whether the disciplinary authority had followed the procedure without prejudicing any of the rights of the Government servant. The elaborate procedure, is a great safeguard against any arbitrariness or injustice that Government servant may be required to complain against. An enquiry of the kind contemplated under Rule 14 affecting the security of a Government servant in his service, is not merely an empty formality. These rights, envisaged under 14 are substantial and must be recognised as such and any violation of these rights prejudicially affecting the defence of a Government servant, must be guarded against.” (Emphasis supplied). 11. The apex Court in Union of India and other v. I.S. Singh (1994 Suppl. These rights, envisaged under 14 are substantial and must be recognised as such and any violation of these rights prejudicially affecting the defence of a Government servant, must be guarded against.” (Emphasis supplied). 11. The apex Court in Union of India and other v. I.S. Singh (1994 Suppl. (2) SCC 518) has held that when a request for adjournment on medical ground is prayed for, the same should be accepted by the enquiry officer whether or not such a request is accompanied by a medical certificate (para 2). In the present case, the petitioner sent telegrams followed by registered letters and ultimately he produced the medical certificate also in support of his ailment. 12. The disciplinary authority while passing the impugned order stated that the enquiry was earlier fixed on 27.3.1995 and in presence of petitioner the next date was fixed on 18.4.1995. The telegram sent by the petitioner was belatedly received by the enquiry officer on 12.5.1995. It is stated that petitioner’s information was received belatedly by the enquiry officer after the date when enquiry was already proceeded ex-parte. On these reasons, the disciplinary authority upheld the decision of ex-parte enquiry. In the opinion of this Court, even assuming that the information sent by the petitioner is not received by the enquiry officer on 18.4.95, the enquiry officer was under a statutory obligation to conduct the enquiry as per M.P. Civil Services (Classification, Control & Appeal), Rules. Rule 14 (11) makes it clear that if on a particular date the delinquent employee does not appear, the enquiry officer has to adjourn the enquiry and in the meantime permit the delinquent employee to inspect the documents and furnish a list of witnesses. Admittedly, the enquiry officer has not followed such mandatory provision of the M.P. Civil Services (Classification, Control & Appeal) Rules. Thus, the decision of holding ex-parte enquiry dated 18.4.1995 runs contrary to the C.C.A. Rules and principles of natural justice. The petition deserves to succeed for yet another reason that petitioner has sent repeated representations, telegrams and communications pregnant with his medical report. The correctness, genuineness of his certificate and ailment was never put to douobt by the disciplinary authority. In that situation the action of the respondents in proceeding ex-parte and not recalling ex-parte order cannot be upheld. The petition deserves to succeed for yet another reason that petitioner has sent repeated representations, telegrams and communications pregnant with his medical report. The correctness, genuineness of his certificate and ailment was never put to douobt by the disciplinary authority. In that situation the action of the respondents in proceeding ex-parte and not recalling ex-parte order cannot be upheld. It appears that the disciplinary authority has already taken a hyper technical approach without examining Rule 14 (11) of the C.C.A. Rules. 13. In the result, the decision making process is vitiated and I have no hesitation to hold that the departmental enquiry is vitiated from the stage it was proceeded ex-parte. In the result, the punishment order Annexure A-1 dated 29.1.2000 is set aside. The matter is remanded back to the disciplinary authority to conduct further enquiry from the stage the enquiry was proceeded ex-parte by giving adequate opportunity to the petitioner and pass appropriate orders. 14. I will be failingly in my duty if I do not meet the argument of Shri Praveen Newaskar that the petitioner should be relegated to avail alternative remedy of appeal. In the opinion of this Court, it will be unfair if after more than a decade such course is adopted by the Court. This Court in a recent judgment followed the view taken by the Supreme Court that alternative remedy is not a bar when the petitioner was admitted way back in 2000. In the fitness of things, the matter may be decided on merits. More so, when there are no disputed question of facts. Documents produced by the petitioner are not disputed by the respondents. This Court in Vikram Sharma v. State Bank of Indore and others 2012 (1) MPLJ 172 (para 6) held as under :- “6. This objection is required to be overruled for yet another reason that this petition was admitted by this Court way back on 30.3.2009 and now the pleadings are complete. In catena of judgments it has been held that when no disputed questions of facts are involved and when petition was admitted long back, the petition should not be thrown technically to avail the alternative remedy. In 2002 (5) MPLJ 161, Rajendra Singh v. Jawaharlal Nehru Krishi Vishwavidyalaya, Jabalpur and others : (2003) 2 SCC 107 , Harbanslal Sahnia and another v. Indian Oil Corpn. In 2002 (5) MPLJ 161, Rajendra Singh v. Jawaharlal Nehru Krishi Vishwavidyalaya, Jabalpur and others : (2003) 2 SCC 107 , Harbanslal Sahnia and another v. Indian Oil Corpn. Ltd. and others; and 2008 (3) JLJ 84 = 2008 (4) MPLJ 173 = ILR ¼2008½ MP 1683, Bhuvneshwar Prasad @ Guddu Dixit v. State of M.P. and others this view was taken by various Courts. In the light of these legal pronouncements, there is no iota of doubt that in the facts and circumstances of this case it will not be proper to force the petitioner to avail the alternative remedy. Thus, the preliminary objection is overruled.” 15. On the basis of aforesaid analysis, Annexure A-1 is set aside. The respondents are given liberty to conduct further enquiry from the stage indicated above. The petition is allowed. No costs.