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Madhya Pradesh High Court · body

2013 DIGILAW 874 (MP)

Kamlesh Korku Aadiwasi v. State of M. P.

2013-07-29

SUJOY PAUL

body2013
JUDGMENT : Petitioner has challenged the appellate order dated 5.10.2012 (Annexure P/1). The petitioner was served with a charge-sheet dated 23.4.2010 (Annexure P/8). She filed reply to the said charge sheet. The department appointed an enquiry officer. The enquiry officer in his report dated 29.9.2011 found the charges as proved. The report was furnished to the petitioner and his representation was obtained. Thereafter the disciplinary authority by Annexure P/15 dated 9.2.2012 inflicted the punishment of dismissal from service. Against this order the petitioner preferred an appeal before the Commissioner, Revenue Division. The said authority by impugned order dated 5.10.2012 (Annexure P/1) partly allowed the appeal and set aside the order of the Collector dated 9.2.2012 and remitted the matter back to the Collector to conduct further enquiry by giving adequate opportunity to the petitioner. 2. Criticizing the said order, Shri D.K. Katare, learned counsel for the petitioner submits that the appellate authority has no power to remit the matter back. In support of this, he relied on (2002) 10 SCC 471 Union of India vs. K.D.Pandey and another; (2007) 11 SCC 517 , Kanailal Bera vs. Union of India and others; and, (2009) 2 SCC 570 , Roop Singh Negi vs. Punjab National Bank and others; Apart from this, Shri Katare submits that after the remand order, the Collector has passed the order dated 2.3.2013 which is also bad in law. By taking this Court to the order sheets/proceedings of the domestic enquiry, Shri Katare submits that the defence assistant was not provided to the petitioner by the enquiry officer. He submits that there was no evidence against the petitioner and, therefore, question of punishment does not arise. 3. I have heard learned counsel for the parties and perused the record. 4. Earlier petitioner's services were terminated by order dated 3.7.2008 without holding any enquiry. This Court in WP No. 2996/2008, decided on 15.1.2010, set aside the said punishment by reserving liberty to the respondents to hold enquiry. Accordingly, the charge sheet dated 23.4.2010 was issued by the department, which resulted into issuance of punishment order, Annexure P/15. 5. A bare perusal of the charge sheet (Annexure P/8) shows that it is alleged against the petitioner that she secured employment on the basis of a class-5th mark sheet of Vaidik Convent Primary School, Gwalior, issued in the year 1984. 5. A bare perusal of the charge sheet (Annexure P/8) shows that it is alleged against the petitioner that she secured employment on the basis of a class-5th mark sheet of Vaidik Convent Primary School, Gwalior, issued in the year 1984. However, on verification it was found that she did not appear in the examination of 1984 from that institution. Accordingly, it was alleged that the petitioner's mark sheet is fake. It is important to note here that the petitioner in her reply (Annexure P/9) took a stand that in the mark sheet because of a clerical error the year is mentioned as “1984”, which may be treated as “1985”. Any action against the petitioner may be taken after examining the record of 1985 only. Apart from this, the petitioner stated that in the year 1984 the-then Prime Minister of India was assassinated and because of that, in fact examinations were not conducted and the students were given 'en bloc' upgradation to the next class. 6. The enquiry officer and disciplinary authority considered the record of 1984 only because, admittedly, the mark sheet on its forehead contains the year as “1984”. The enquiry, finding and order of disciplinary authority is based on the basis of scrutiny of record of 1984. The petitioner's stand was appreciated by the appellate authority, who opined that since the relevant record of 1985 is not examined, the enquiry officer and disciplinary authority needs to apply mind on this aspect by conducting further enquiry. 7. The question is whether the appellate authority has power to do the same. It is apt to quote the enabling provision, i.e., Rule 27 of M.P.Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter called as “CCA Rules”). The relevant rule reads as under:- “27. 7. The question is whether the appellate authority has power to do the same. It is apt to quote the enabling provision, i.e., Rule 27 of M.P.Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter called as “CCA Rules”). The relevant rule reads as under:- “27. Consideration of appeal.--(1) xxx xxxx (2) In the case of an appeal against an order imposing any of the penalties specified in Rule 10 or enhancing any penalty imposed under the said rule, the appellate authority shall consider :- (a) whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice; (b) whether the findings of the disciplinarya uthority are warranted by the evidence on the records; and (c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe, and pass orders— (i) xxx xxx (ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case; ” 8. A bare perusal of the power of appellate authority aforesaid makes it clear that he can examine the procedural part of the enquiry, findings of the disciplinary authority and then may decide to either confirm, enhance, reduce or set aside the punishment or may remit the matter to the authority which imposed the punishment or to any other authority with such direction as it may deem fit in the circumstances of the case. The powers are very wide. The enquiry has to be conducted on the correct aspect. Since petitioner herself contended in her reply that enquiry must be conducted with regard to mark sheet by treating it to be of a 1985 mark sheet, the appellate authority can always examine whether the enquiry so conducted is with regard to the proper aspect or not. He can also examine whether conduct of enquiry has resulted into any failure of justice. The powers are therefore very wide. As per petitioner's stand in her reply (page 39) (Annexure P/9) she actually passed the examination in 1985 and 1984 is wrongly mentioned in the mark sheet, the enquiry has to be conducted qua 1985. The petitioner herself requested the same in the reply (page 39). The powers are therefore very wide. As per petitioner's stand in her reply (page 39) (Annexure P/9) she actually passed the examination in 1985 and 1984 is wrongly mentioned in the mark sheet, the enquiry has to be conducted qua 1985. The petitioner herself requested the same in the reply (page 39). The order of the appellate authority is in tune with the stand of the petitioner. 9. In the considered opinion of this Court, a plain reading of Rule 27 of CCA Rules leaves no room for any doubt that the appellate authority can direct for further enquiry to secure the ends of justice or prevent failure of justice. His direction depends as per the facts and circumstances of each case. On the basis of this rule, I am unable to hold that the appellate authority had no authority to direct further enquiry. In the opinion of this Court, the appellate authority has not directed to conduct a de novo enquiry. He only directed to conduct further enquiry on the basis of his observation made in the last but one paragraph of his order, Annexure P/1. 10. The judgment in Roop Singh Negi (supra) cited by Shri Katare is not based on this enabling provision applicable to appellate powers and, therefore, the said judgment is of no assistance. The judgment in Kanailal Bera (supra) has no application because in that case second enquiry on the same charge was conducted. In the present case, it is further enquiry and is not a fresh enquiry. The judgment in K.D. Pandey (supra) is also not applicable in the facts and circumstances of the case. In the said case the disciplinary authority exercised his powers which were called in question before the Court and not the order of appellate authority. This judgment has also no application and the power of the appellate authority has to be traced from the enabling provision, i.e., Rule 27 of the CCA Rules. 11. The other contention of Shri Katare is about not providing him the defence assistant and proper opportunity in the earlier enquiry. In my opinion, said contention has no relevance now. In the opinion of this Court, the appellate authority has rightly exercised its power on 5.10.2012 by Annexure P-1. The matter is remitted back for further enquiry. 11. The other contention of Shri Katare is about not providing him the defence assistant and proper opportunity in the earlier enquiry. In my opinion, said contention has no relevance now. In the opinion of this Court, the appellate authority has rightly exercised its power on 5.10.2012 by Annexure P-1. The matter is remitted back for further enquiry. What happened in earlier enquiry with regard to 1984 mark-sheet has lost its complete shine and any violation thereof has presently no impact because that enquiry stood wiped out pursuant to Annexure P/1. 12. Shri Katare criticized the later order dated 2.3.2013 passed by the Collector. However, this order is not under challenge in this petition. I am afraid, it cannot be gone into in this writ petition. 13. For the reasons stated above, I find no illegality, infirmity or jurisdictional error in the order, Annexure P/1. Resultantly, petition is dismissed. No costs.