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2014 DIGILAW 1141 (MP)

Yogiraj Sharma v. State of MP

2014-09-11

ANIL KUMAR SHARMA, RAJENDRA MENON

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JUDGMENT : 1. Calling in question tenability of an order dated 15.1.2014 passed by the Writ Court in W.P.No.550/2014, appellant has filed this writ appeal. 2. Appellant was working as a Director in the Public Health & Family Welfare Department. A charge-sheet was issued to him under the provisions of M.P. Civil Services (Classification, Control & Appeal) Rules 1966 (hereinafter referred to as the 'Rules 1966') and, thereafter, a departmental enquiry was conducted and it seems that the enquiry officer submitted a report giving his finding. After the enquiry was concluded, it seems that based on certain investigation and enquiry conducted by the Lokayukt also, a show cause notice, under Rule 10 (3) of the Rules 1966, was issued to the appellant on 24.9.2013. The appellant was directed to give his say in the matter within seven days. When the aforesaid notice was issued, appellant submitted a reply and sought for the report of the enquiry officer to enable him to submit his reply. 3. However, when nothing was done and no communication was made, on 2.11.2013 asking him to submit his reply, again a show cause notice was issued to the appellant. The appellant again sought a copy of the enquiry report and specifically stated in the same that he has been informed that he was exonerated in the departmental enquiry and, therefore, he wants the report of the enquiry officer to give his say in the matter. However, when nothing was done, the writ petition was filed for quashing the show cause notice. 4. The writ petition was registered as W.P.No.550/2014 and the learned Writ Court having dismissed the petition on the ground that as only a show cause notice is issued, no interference into the matter is called for, this writ appeal has been filed under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005. 5. 4. The writ petition was registered as W.P.No.550/2014 and the learned Writ Court having dismissed the petition on the ground that as only a show cause notice is issued, no interference into the matter is called for, this writ appeal has been filed under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005. 5. Shri Siddharth Gupta, learned counsel took us through the show cause notice issued as contained in the communication dated 24.9.2013 and 2.11.2013, the findings recorded by the learned Writ Court on 15.1.2014 and tried to emphasize that even though the communication dated 24.9.2013 is indicated as a show cause notice but in Paragraph-1, 2 & 3, a decision is taken by the State Government to hold the appellant guilty and to impose the punishment of recovery and as the show cause notice is issued after taking such a procedure, the issuance of show cause notice is nothing but an empty formality, the learned Writ Court has dismissed the writ petition. 6. That apart, Shri Siddharth Gupta, learned counsel argues that when the appellant has specifically come out with a case that he has been exonerated in the department enquiry, respondent should have atleast forwarded to the appellant a copy of the enquiry report to enable him to submit his explanation to the show cause notice. Shri Siddharth Gupta, learned counsel finally argues that supplying a copy of the enquiry report is the requirement of the principle of natural justice and without the said finding of the enquiry officer, the appellant is handicapped to submit his explanation to the show cause notice. 7. Accordingly, Shri Siddharth Gupta, learned counsel argues that in dismissing the writ petition without considering all these vital serious infirmities, the learned Writ Court has committed an error. 8. Referring to certain subsequent developments that have taken place as is evident from I.A.No.9421/2014, Shri Siddharth Gupta, learned counsel argues that the appellant having been exonerated in the enquiry report dated 16.4.2013, now the communication Annexure-A3 has been issued to the appellant on 9.4.2014 asking him to show cause as to why the finding of the enquiry officer should not be rejected, why the disciplinary authority should not record a disagreement of the same and record the appellant's guilt. Accordingly, on these counts, Shri Siddharth Gupta seeks for interference into the matter. 9. Accordingly, on these counts, Shri Siddharth Gupta seeks for interference into the matter. 9. Shri Rahul Jain, learned Deputy Advocate General submits that as only the show cause notices have been issued to the appellant, at this stage, interference by the Writ Court and this Court in the appeal is not called for. The appellant should submit his reply to the show cause notice and only after final order is passed, the cause of action would accrue to the appellant. 10. We have considered the contentions advanced and we find that the a show cause notice under Section 10(3) of the Rules 1966 proposing certain punishment to be imposed along with the proposal for recovery of certain amount was proposed to be taken. However, along with these show cause notices, the finding of the enquiry officer and the report of the Lokayukt was never supplied to the appellant. Be it as it may be, the subsequent developments that have come on record now go to show that the enquiry officer in his enquiry report dated 16.4.2013 has held that the charges are not proved and disagreeing with this finding, a show cause notice was issued for recording a disagreement by the disciplinary authority after hearing the appellant. Neither while issuing the notice under Section 10 (3) of the Rules, 1966 nor while issuing the notice based on the report of the enquiry officer Annexure-A3 dated 9.4.2014, the finding of the enquiry officer is granted to the appellant. 11. Once the action is proposed to be taken against the appellant based on a report submitted by the enquiry officer in a departmental enquiry conducted and when a disciplinary authority proposes to take action either for punishing the employee based on the report of the enquiry officer or to proceed to disagreeing with the finding of the enquiry officer, the basic requirement and the principle of natural justice is that the report against the appellant, based on which the action is proposed to be taken, should be communicated to the appellant and the appellant should be given liberty to give his say on the report of the enquiry officer and it is only thereafter that the action can be taken. In this case, neither along with the show cause notice dated 24.9.2013, nor along with the subsequent note of disagreement Annexure-A3 dated 9.4.2014, report of the enquiry officer is supplied to the appellant. Non- supply of the report of the enquiry officer, in the facts and circumstances of the case, is not proper and it amounts to non- grant of proper opportunity and is in violation of the provisions of natural justice. 12. That being so, we propose to dispose of this writ appeal with the following directions : In case, the State Government wants to proceed with the show cause notice issued under Section 10(3) of the Rules, 1966 dated 24.9.2013 or the show cause notice Annexure-A3 dated 9.4.2014, then the State Government is required to supply to the appellant, the enquiry reports based on which the show cause notices have been issued and after giving the appellant the adequate opportunity to submit his reply/ explanation or defense to both the show cause notices and after following the procedure as per rule, the action on the show cause notices can be undertaken. The appellant's request for supply of the report of the enquiry officer is to be acceded to as a pre-condition for proceeding further in both the show cause notices. It is further directed that after receipt of appellant's explanation to the show cause notices, based on the action taken, as indicated herein above, without being influenced by the findings recorded with regard to guilt in the earlier notices, action shall be taken by the departmental authorities in accordance with law. 13. With the aforesaid, this appeal stands allowed and disposed of. 14. Certified copy as per rules.