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Madhya Pradesh High Court · body

2013 DIGILAW 1336 (MP)

Naveet Kumar Shah v. State of M. P.

2013-11-01

Sujoy Paul

body2013
ORDER 1. By filing this petition under Article 226 of the Constitution of India, the petitioner, an Ex-Assistant Engineer, has called in question the legality, validity and propriety of the punishment order dated 28.9.2004 whereby the punishment of dismissal from service is inflicted on the petitioner. The petitioner was served with a charge sheet dated 31.7.2002 (Annexure P-6). In turn, the petitioner submitted his reply on 10.9.2002. The department was not satisfied with the reply of the petitioner and, therefore, by order dated 11.3.2003 (Annexure P-8), appointed an enquiry and presenting officer. The enquiry officer conducted the enquiry and submitted his report dated 14.1.2004. Out of six charges alleged against the petitioner, five are found proved and one charge (charge No.4) is found partially proved. In response to the show cause notice, petitioner submitted his detailed representation against the enquiry officer’s report. Thereafter, the disciplinary authority after taking approval from the M.P. Public Service Commission, passed the impugned order of punishment. 2. Shri D.K.Katare, learned counsel for the petitioner, assailed the disciplinary proceedings on following counts:- (i) The petitioner’s detailed representation and documents submitted along with reply were not considered in the departmental enquiry. (ii) The enquiry officer based his finding on certain documents which were never produced and proved in the enquiry. Thus, the finding is based on extraneous considerations. (iii) The representation against I.O.’s report is not considered by the disciplinary authority. (iv) By placing reliance on para 6.2 of the writ petition, it is further contended that the petitioner has not been given reasonable opportunity of defence. It is contended that the averments of said paragraph of writ petition are not specifically denied and, therefore, in view of (2008) 8 SCC 236 (State of Uttaranchal and others v. Kharak Singh), the petitioner’s assertion should be accepted. (v) Lastly, it is contended that as per enquiry report, there was joint responsibility and in that event, the other person should have also been punished. He relied on (2007) 7 SCC 206 (Bongaigaon Refinery & Petrochemicals Ltd. and others v. Girish Chandra Sarma) in this regard. 3. Per contra, Mrs. Patankar, learned Govt. Advocate submits that there is no flaw in the decision making process. By taking this Court to various paragraphs of the return, it is contended that the principles of natural justice were duly followed. 3. Per contra, Mrs. Patankar, learned Govt. Advocate submits that there is no flaw in the decision making process. By taking this Court to various paragraphs of the return, it is contended that the principles of natural justice were duly followed. The averments of paragraph 6.2 are denied and, therefore, by no stretch of imagination, it can be said that the averments went un-rebutted which amounts to admission of the averments. In addition, it is contended that the established charges against the petitioner are very grave. Full, reasonable and adequate opportunity of defence were provided to him. The averments of the return are not disputed by filling any rejoinder and, therefore, in the light of (2006)2 SCC 255 (T.N.C.S. Corporation Ltd. v. K.Meerabai), there is no scope of interference in this judicial review. 4. No other point is pressed by learned counsel for the parties. 5. I have heard the learned counsel for the parties and perused the record. 6. This is trite in law that the scope of interference in a disciplinary proceeding by this Court is limited. The judicial review must be confined to the decision making process and not to the decision (see (1999) 1 SCC 759 (Apparel Export Promotion Council v. A.K. Chopra). If in the decision making process, principles of natural justice are violated and such violation results into serious prejudice to the delinquent employee, interference can be made. If findings are perverse and based on no legal evidence, interference can be made. Punishment can be interfered with only if it is shockingly disproportionate. This Court in judicial review, cannot sit as an appellate authority to re appreciate the evidence. 7. The petitioner submitted reply to the charge sheet . The disciplinary authority was not satisfied with the reply and, therefore, appointed enquiry officer. In the enquiry, the prosecution witnesses entered the witness box and the petitioner was permitted to cross-examine those witnesses. This is not the case of the petitioner that he was not permitted to lead evidence. The petitioner was required to lead evidence to prove the documents which were allegedly filed by him along with the reply. The petitioner has not shown any prejudice if the said documents are not considered. Thus, no flaw can be found in the enquiry on this aspect. 8. The petitioner was required to lead evidence to prove the documents which were allegedly filed by him along with the reply. The petitioner has not shown any prejudice if the said documents are not considered. Thus, no flaw can be found in the enquiry on this aspect. 8. The petitioner has not pointed out in specific regarding the documents which are allegedly not produced in the enquiry and yet findings are given. In absence of demonstrating details about those documents with further proof of prejudice, no interference is warranted. 9. The petitioner’s representation against I.O.’s report was considered by the disciplinary authority. The disciplinary authority by order Annexure P-1 has based his finding on the enquiry report and the opinion of the P.S.C. Since the disciplinary authority agreed with the enquiry officer’s report which is very detailed in nature, no further detailed discussion was required. He has assigned reasons for agreeing with the enquiry officer’s report and opined that the petitioner’s representation cannot be accepted. The said decision is in accordance with law. 10. The averments of para 6.2 of the writ petition were denied by the respondents in their reply. The respondents devoted more than a page to reply the said averments. A perusal thereof shows that by no stretch of imagination it can be presumed that the respondents have admitted the averments in para 6.2. The contention is merit-less and is hereby rejected. 11. In the enquiry report, the enquiry officer at one place although stated that the petitioner’s predecessor was also responsible, however, this will not give clean chit to the petitioner and on this ground no interference is warranted. The judgments cited by Shri Katare are based on different facts and circumstances. No prejudice could be established by the petitioner on the basis of which any interference could have been made on decision making process. 12. In view of charges which are found proved against the petitioner, in my opinion, the punishment cannot be said to be harsh or disproportionate. On the basis of aforesaid analysis, I find no reason to interfere in this petition. Petition sans substance and is hereby dismissed.