Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 731 (MP)

Ramakant Gautam v. State of M. P.

2013-07-01

K.K.TRIVEDI

body2013
JUDGMENT : By this petition under Article 226 of the Constitution of India the petitioner ex-employee of the establishment of District and Sessions Judge, Satna, has assailed the order passed by the disciplinary authority, dismissing him from the service from the post of Executing Clerk and by subsequent orders dated 13-8-2008 and 16-7-2009 appeals preferred by the petitioner have been dismissed. 2. Brief facts of the case, giving rise to filing of this petition are, the petitioner who was working in the establishment of District and Sessions Judge, Satna on the post of executing clerk at the relevant time was assigned the duty in the Court of Additional Chief Judicial Magistrate, Satna. The petitioner was a reader assigned to look after the cases of jurisdiction. A list was made available to the petitioner by the Presiding Officer of the Court indicating that certain cases were to be withdrawn by the State Government and for the said purposes the application made by the State Government/prosecuting agency permission to withdraw the prosecution was granted. The petitioner was called upon to prepare the disposal of such cases and deposit the same in the record room of the Court. In one of the cases, after the type written order sheet dated 6-9-2005 certain interpolation were done by the petitioner and it was recorded as if the case was withdrawn and the same was to be deposited in the record room. However, later on the fact came to the notice of the authorities that such a case registered against one of the accused person was not to be closed withdrawn by the State Government as the evidence was available against accused person for commission of such offence and therefore such a prayer made by the State Government/prosecution agency was rejected. However, only because the order sheet was so written, duly signed by the Presiding Officer, the case was deposited in the record room. 3. When these facts came to the notice of the authorities, an inquiry was directed and the Fourth Additional District and Sessions Judge, Satna was ordered to conduct a preliminary inquiry. However, only because the order sheet was so written, duly signed by the Presiding Officer, the case was deposited in the record room. 3. When these facts came to the notice of the authorities, an inquiry was directed and the Fourth Additional District and Sessions Judge, Satna was ordered to conduct a preliminary inquiry. The said Judge conducted a preliminary inquiry submitted a report before the District and Sessions Judge, Satna that infact the Presiding Officer of the Court had refused the prayer of the prosecuting agency to grant permission to withdraw the prosecution in the said case but only because of interpolation made in the order sheet by the petitioner in his own hand writing, such a case was deposited in the record room as disposed of whereas the trial of the case was to be conducted. After receipt of this report the District and Sessions Judge, Satna issued him a charge sheet on 4-1-2008. Three charges were levelled against the petitioner which are translated in English by the Court for the purposes of convenience in following manner : - 1. That you Ram Gautam (petitioner) while was working as Executing Clerk on 6-9-2005 in the Court of Additional Chief Judicial Magistrate, Satna was in fact incharge of all criminal cases pending in the Court. 2. That in Criminal Case No. 1544/2002 (State of M. P. vs. Aslam) under section 25 of Arms Act the Presiding Officer of the Court has refused to grant permission to withdraw the prosecution as sought by the prosecution under section 321 of Criminal Procedure Code and passed an order on 6-9-2005 which was type written, directing that the case be put up on the date already fixed. 3. That you Ram Gautam (petitioner) added in the said order by ink on your own handwriting : "accused is discharged from the offence under section 25-B of Arms Act, the bail bonds of the accused are discharged, the result of the case be recorded and case be deposited in the record room". By this act you committed gross indiscipline and grave misconduct, unbecoming of a government servant. By this act you committed gross indiscipline and grave misconduct, unbecoming of a government servant. It was categorically said in the charge sheet that such a misconduct is covered by the provisions of Rule 3(1)(2)(3) of M. P. Civil Services (Conduct) Rules, 1965 and is punishable under the provisions of Rule 10 of M. P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as 1966 Rules for brevity). 4. On receipt of this charge sheet the petitioner submitted his reply and categorically stated in para 1 that the petitioner has received the documents referred in the charge sheet. In para 2 of his reply the petitioner mentioned that he is submitting reply to charge No. 1, 2 and 3 referred to hereinabove. In sub-para 1 of paragraph 2 of the reply the petitioner categorically admitted the charge No. 1. In sub-para 2 of paragraph 2 of reply the petitioner contended, that the petitioner has no knowledge about certain facts stated in the said charge. He even denied that order was passed by the Presiding Judge in the Criminal Case No. 1544/2002, State vs. Aslam registered under section 25-B of Arms Act. However, in the last line of this para he admitted the fact that the order so passed was type written. As far as the charge No. 3 is concerned in sub-para 3 of para 2 of reply the petitioner categorically contended that he had added the sentences, as have been translated hereinabove in the order sheet dated 6-9-2005. However, he said that this was not done by the petitioner on his own will but since the said case number was mentioned in the list duly sent by the Presiding Officer of the Court, after signature of the said Presiding Officer for depositing of the listed cases in the record room after recording the results, by mistake such addition was done by the petitioner in the order sheet dated 6-9-2005 and since this was not done with any deliberate intention, no misconduct or indiscipline was committed by the petitioner. The petitioner further explained such facts in his reply but ultimately he contended that this was done under a bona fide belief that by mistake such a direction as was contained in other cases was not recorded in the particular case referred to hereinabove and therefore under this belief such a fact was recorded by the petitioner. The petitioner further explained such facts in his reply but ultimately he contended that this was done under a bona fide belief that by mistake such a direction as was contained in other cases was not recorded in the particular case referred to hereinabove and therefore under this belief such a fact was recorded by the petitioner. He stated that it was not intentionally done and he could realize his mistake only when the Additional Sessions Judge, Satna conducted the preliminary inquiry and asked the petitioner about addition in the said order sheet dated 6-9-2005. After reading the said order the petitioner could realize that he has committed a mistake by making addition in the said order of the Court. He contended that this was done under the heavy pressure of work. The petitioner regretted for the said act and assure that he would not commit the said mistake in future. 5. When such reply was received by the disciplinary authority i.e. District and Sessions Judge, Satna the same was taken into consideration. The said authority came to the conclusion that once the petitioner has admitted the charge levelled against him regarding interpolation or addition in the order sheets of the Court, no further inquiry was required to be conducted. Even then the petitioner was called upon to appear before the disciplinary authority and after hearing the said person, recording these reasons the disciplinary authority passed the order holding that the petitioner has admitted his guilt that he has tampered with the Court record. If there was no such direction for depositing of the case in the record room, at least the petitioner was required to ask the Presiding Officer as to whether such direction was required to be added in the said order sheet or not. He was not competent to add anything or delete anything from the order sheet. In view of this, after reaching to such conclusion, the disciplinary authority impose the major penalty of dismissal from service against the petitioner vide order dated 11-3-2008. 6. Assailing this order the petitioner preferred an appeal before the Registrar General of the High Court. The appeal was considered by the Administrative Judge of this Court and while specifically dealing with such situation, it was categorically held that such an act of the petitioner was not justified in any manner. 6. Assailing this order the petitioner preferred an appeal before the Registrar General of the High Court. The appeal was considered by the Administrative Judge of this Court and while specifically dealing with such situation, it was categorically held that such an act of the petitioner was not justified in any manner. It was held that since the petitioner has already admitted the charge, no further proceedings were required to be conducted in accordance to Rule 14(5)(a) of the 1966 Rules. In view of this, the appeal filed by the petitioner was dismissed. The review application was filed by the petitioner before Hon'ble the Chief Justice of this Court under the provisions of Rule 29 of 1966 Rules but since the same has also been dismissed, the present writ petition is required to be filed. 7. Learned counsel for the petitioner vehemently contended that taking note of the provisions of Rule 14(5) of 1966 Rules even if the charge was admitted by the petitioner, evidence was required to be produced to show that there was justified reasons to level such a charge against the petitioner and the charge itself was amounting to a misconduct. It is contended by learned counsel for the petitioner that, admission as has been made by the petitioner with respect to certain facts stated in charge No. 3, will not constitute to admit the misconduct, and therefore without the proof of the misconduct penalty could not have been imposed on the petitioner. Further it is emphatically contended by learned counsel for the petitioner that words used in sub-rule 5 (a) of the Rule 14 of the 1966 Rules makes its application mandatory as it is categorically said that where all articles of charges have been admitted by the government servant in his written statement of defence, the disciplinary authority shall record its finding on each charge after taking such evidence as it may think fit and shall act in the manner laid down in Rule 15. It is contended that the finding in this respect have not been given by the disciplinary authority and as such the impugned order of penalty was not to be sustained in appeal. The appellate authority has not followed the procedure laid down under Rule 27 of the 1996 Rules wherein the procedure is prescribed for consideration of an appeal. It is contended that the finding in this respect have not been given by the disciplinary authority and as such the impugned order of penalty was not to be sustained in appeal. The appellate authority has not followed the procedure laid down under Rule 27 of the 1996 Rules wherein the procedure is prescribed for consideration of an appeal. It is contended that such an act was done under bona fide belief, and in view of the law laid down by the Apex Court in the case of Om Prakash vs. State of U. P., AIR 1960 SC 409 and in the case of Jagdish Prasad Saxena vs. State of Madhya Bharat (Now Madhya Pradesh), AIR 1961 SC 1070 , the admission alone was not enough to impose the punishment that too the maximum punishment of dismissal from service on the petitioner. Learned counsel for the petitioner has placed the reliance in the case of Union of India and another vs. Tulsiram Patel, AIR 1985 SC 1416 , and has submitted that in view of the law laid down by the Apex Court, on the basis of such contention of petitioner in his reply alone the petitioner could not be visited with such a penalty. 8. Per contra, learned Senior Counsel appearing for the respondents No. 2 and 3 contended that there was no requirement of recording any evidence as it depends on circumstances. The disciplinary authority is required to examine each and every case and if it is of the opinion that the guilt of the petitioner is by his own admission, no further evidence is required to be recorded. It is further contended by learned senior counsel for the respondents 2 and 3 that despite the fact that the petitioner has admitted the guilt, the disciplinary authority gave an opportunity of hearing to the petitioner by calling him before passing the order of penalty, though it was not necessary. Once the petitioner has admitted the charges, there was no requirement of conducting any further inquiry or getting facts proved by recording the evidence of any witness. The fact remains that the petitioner has himself admitted that he came to know during the preliminary inquiry that he committed a mistake in making interpolation/addition in the order sheet of the Court without any authority or direction of the Presiding Officer. The fact remains that the petitioner has himself admitted that he came to know during the preliminary inquiry that he committed a mistake in making interpolation/addition in the order sheet of the Court without any authority or direction of the Presiding Officer. This being a serious misconduct, the penalty was rightly imposed on the petitioner. It is further contended by learned senior counsel for the respondents No. 2 and 3 that the appellate authority has taken note of all these facts, and the administrative Judge of this Court has examined the every provisions of the rules and has rightly contended that there was no force in the appeal of the petitioner. If this was done in rightful manner, there is no violation of Rule 27 of the 1966 Rules and as such the orders impugned are not to be interfered with. Learned senior counsel for the respondents has relied on a decision of the Apex Court in the case of Chairman and Managing Director, VSP and others vs. Gopa Raju Sri Prabhakara Hari Babu, (2008) 5 SCC 569 and contended that the scope of judicial review in such a case, in exercise of power under Article 226 of the Constitution of India is very limited and the Court would not interfere in the order of penalty or the appellate order. Thus, it is contended that the petition is liable to be dismissed. 9. Heard learned counsel for the parties at length and perused the record. 10. Such a statement of the petitioner that it was a bona fide mistake, cannot be accepted at all. The petitioner was an executing clerk in the Court. He was having sufficient experience of 18 years working in the Court. If the petitioner was of the opinion that some directions were left out in the order in particular case which was included in the list of cases which were to be deposited in the record room of the Court, he was required to obtain the instructions from the Presiding Judge of the Court. At least these facts should have been pointed out to the Judge immediately. At any rate the petitioner was not authorized to write anything in the order sheet which was already type written, on his own handwriting. This being so, the seriousness of the misconduct of the petitioner cannot be ignored. At least these facts should have been pointed out to the Judge immediately. At any rate the petitioner was not authorized to write anything in the order sheet which was already type written, on his own handwriting. This being so, the seriousness of the misconduct of the petitioner cannot be ignored. What he tried to explain in his reply was that since the case in question was also included in the list of those cases which were to be deposited in the record room and since the list was duly signed by the Presiding Judge, the petitioner under the bona fide belief that by mistake some sort of direction regarding the depositing of the case in the record room was not type written, in particular order sheet of abovesaid particular case which was required to be deposited in the record room, he added such a direction on his own handwriting by pen. In fact, this was not to be done by the petitioner rather he was required to seek instructions from the Presiding Judge immediately and then only to act according to instructions. On his own nothing was required to be done by the petitioner. The fact as have been pointed out in the reply do not make out a case that the petitioner has not admit his guilt. Case remained in the record room for a long time because of such an act of the petitioner and therefore by no imagination could it be said that it was done on account of bona fide mistake. 11. The impugned order dated 17-3-2008 discloses each and every fact. The Disciplinary authority has taken note of each and every statement made in the charge sheet and has also taken into consideration the reply submitted by the petitioner with respect to the charges. Before recording the fact that the admission was made by the petitioner in his reply and simply imposing a penalty, the disciplinary authority thought it better to grant an opportunity of hearing to the petitioner and thereafter passed a detailed order therefore in the considered opinion of this Court, no inquiry whatsoever was required to be conducted under the provisions of Rule 14(5)(a) of 1966 Rules. The cases relied by learned counsel for the petitioner are not applicable in the facts and circumstances available in the present case. The cases relied by learned counsel for the petitioner are not applicable in the facts and circumstances available in the present case. In the case of Om Prakash (supra) the provisions of section 24 of Indian Evidence Act in context of provisions of section 161,164, 165 & 109 of Indian Penal Code and the provisions of section 537, 164 & 225 of the Code of Criminal Procedure were being looked into. The settled law is that hard and fast rules of evidence would not be attracted in domestic disciplinary inquiry which is infact a fact finding inquiry. Thus, there is no question of distinction between confession and admission, as was considered by the Apex Court in the said case. In the case of Jagdish Prasad Saxena (supra) the Apex Court was dealing with a situation where the inquiry was conducted against a delinquent employee after recording of his statement in a different departmental inquiry. In context of that, the Apex Court has said that admission of guilt could not be treated to be made by the delinquent, freely and therefore without holding any enquiry no penalty was to be imposed. In such circumstances, the same would be violative to Article 311(2) of the Constitution of India. Such are neither circumstances in the present case nor the petitioner is charge sheeted in the departmental inquiry on the basis of certain statement made by him. Therefore, the law laid down by the Apex Court in the aforesaid cases would not be attracted at all.