Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 1486 (MP)

Yogiraj Sharma v. State of M. P.

2014-11-18

R.S.JHA

body2014
JUDGMENT : R.S. Jha, J.:- The petitioner has filed this petition being aggrieved by order dated 2-4-2013 by which the petitioner, who was working on the post of Director, Health and Family Welfare, M.P., has been dismissed from service as well as order dated 23-11-2013 by which the petitioner's appeal against the order of dismissal has been dismissed. The brief facts, leading to the filing of the present petition, are that the petitioner entered service of the respondents on 29-5-1982 as an Assistant Surgeon and was thereafter appointed afresh through the M.P. Public Service Commission as Chief Medical and Health Officer in the year 1991. On 2-12-1998, the petitioner was promoted as Director, Public Health and Family Welfare, M.P. On 10-12-2007, the petitioner was subjected to compulsory retirement against which he filed a writ before this Court, W.P. No. 386/2008, which was allowed by order dated 14.11.2008. The order passed in W.P. No. 386/2008 was assailed by the State by filing a Writ Appeal, W.A. No. 134/2009, which was disposed of by order dated 23-7-2009 granting liberty to the respondent/State to proceed further against the petitioner in accordance with law. It is stated that thereafter on 26-8-2009 the respondent/authorities issued a charge sheet to the petitioner levelling the following charges:-- The enquiry against the petitioner was concluded and the Inquiry Report was submitted by the respondent authorities on 5-10-2012 and thereafter, the impugned order of termination/dismissal of the petitioner from service was passed by the authorities on 2-4-2013. Writ Petition, W.P. No. 7618/2013, filed by the petitioner against the impugned order of termination, was withdrawn on 13-5-2013 with liberty to file an appeal before the authorities. Thereafter, the petitioner filed an appeal before the Appellate Authority, which has been dismissed by the second impugned order dated 23-11-2013. The petitioner, being aggrieved, has filed the present petition assailing the same. 2. It is contended by the learned Counsel for the petitioner that the entire enquiry initiated against the petitioner is vitiated on account of the fact that the charges levelled against the petitioner are vague and unsubstantiated; that the documents on the basis of which the charge sheet has been issued have not been supplied; that important witnesses have not been examined by the department; that three preliminary enquiry reports, which were conducted prior to initiation of disciplinary proceedings have not been considered; that charge Nos. 2 and 3 levelled against the petitioner have not been considered and decided in detail by taking into consideration the evidence adduced in the enquiry and; that charge No. 1 is held to have been proved in spite of the fact that there was no evidence in support thereof. 3. The learned Counsel for the petitioner has also contended that the enquiry report was not supplied to the petitioner and that proper show-cause notice before passing the impugned order of termination/dismissal was not issued to the petitioner nor was he informed that his past conduct and record would be taken into consideration while determining the quantum of punishment. It is also contended that though the respondents took advise from the Public Service Commission on the enquiry report, the same was not given to the petitioner in order to enable him to submit his response thereto before taking a decision in the disciplinary enquiry and passing the impugned order of termination. All these issues have been raised by the petitioner in the present petition and several decisions of the Supreme Court have been cited in support thereof. 4. Having heard the learned Counsel for the petitioner at length, this Court proposes to take up the issue of non-supply of enquiry report and non-issuance of show-cause notice before termination for decision, as the first issue, as they go to the root of the matter. 5. The learned Dy. Advocate General appearing for the respondents/State was specifically asked as to the response of the State in respect of these two issues. The learned Dy. Advocate General, in response, submitted that though there are note sheets and letters on record to indicate that orders to supply the inquiry report to the petitioner were made, however, there is no specific proof of service of inquiry report upon the petitioner though the modes of service have been prescribed in the Rules and nothing in respect of this aspect has been clarified or stated by the respondents in the return whereas it appears from the document filed by the petitioner in the petition itself that the report was supplied to the petitioner when he sought for the same under the Right to Information Act vide covering memo dated 7-6-2013. 6. Having heard the learned Dy. 6. Having heard the learned Dy. Advocate General on this issue, it becomes evident that admittedly, the inquiry report was furnished to the petitioner on 7-6-2013 after issuance of the impugned order of punishment dated 2-4-2013. 7. As far as the issue relating to the issuance of a show-cause notice for punishment is concerned, the learned Dy. Advocate General, on the basis of the reply and affidavit filed by the State and after perusing the petition, fairly states that there is nothing on record to indicate that a show-cause notice was ever issued to the petitioner before passing the impugned order of punishment as required under the procedure prescribed by the M.P. Civil Services (Classification, Control & Appeal) Rules, 1966 (hereinafter referred to as "the Civil Service Rules"). 8. From the aforesaid analysis, it is clear that apparently, the inquiry report was not supplied to the petitioner and no show-cause notice was issued to him prior to issuance of the impugned order of punishment dated 2-4-2013. It is also clear that the respondents have also not complied with the provisions of Rule 32 of the Civil Service Rules or given any opportunity to the petitioner to respond to the advise of the Commission as required by the provisions of law as well as the decision of the Supreme Court rendered in the cases of S.N. Narula vs. Union of India and others, (2011) 4 SCC 591 and Union of India and others vs. R.P. Singh, (2014) 7 SCC 340 . It is also evident that the respondents did not inform the petitioner that his past conduct would be considered while deciding the punishment to be imposed upon him. 9. In view of the aforesaid facts and circumstances, it is clear that the impugned order of dismissal and punishment has been passed by the respondent/authorities without supplying the inquiry report and without giving a show-cause notice to the petitioner before issuing the impugned order of punishment as required by the provisions of the Rules. 9. In view of the aforesaid facts and circumstances, it is clear that the impugned order of dismissal and punishment has been passed by the respondent/authorities without supplying the inquiry report and without giving a show-cause notice to the petitioner before issuing the impugned order of punishment as required by the provisions of the Rules. Had the petitioner been given such an opportunity, he would have taken up all the issues that he has taken up before this Court in his reply thereto, which would have been duly examined by the authorities before taking a decision in this regard and in such circumstances, I am of the considered opinion that the non-supply of the inquiry report and non-giving of show-cause notice has seriously prejudiced the rights of the petitioner to defend himself. 10. The procedure required to be followed in such cases has been prescribed and provided by a five-Judges Bench decision of the Supreme Court in the case of Managing Director, ECIL, Hyderabad and others vs. B. Karunakar and others, (1993) 4 SCC 727 , which is to the following effect:-- "30. (v) The next question to be answered is, what is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an 'unnatural expansion of natural justice', which in itself is antithetical to justice. 31. Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short cuts. Since it is the Courts/Tribunals, which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal Appellate or Revisional Authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law." 11. The same view has also been reiterated on several occasions including in the decision rendered in the case of R.P. Singh (supra). 12. From a perusal of the aforesaid law laid down by the Supreme Court, it is clear that in case the Court decides to set aside the punishment on account of non-supply of the inquiry report and non-issuance of the show-cause notice after recording a finding that it would have made a difference to the result of the case, the relief that is required to be given to the petitioner is to direct his reinstatement with liberty to the authorities/management to proceed with the inquiry by placing the employee under suspension and continuing the enquiry from the stage of furnishing him with the report. The Supreme Court has further held that the question whether the employee would be entitled to back wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending upon the final outcome and the authority would also be at liberty to decide according to law, how it would treat the period from the date of dismissal till the date of reinstatement and to what benefits, if any, and the extent of the benefits to which he would be entitled. The Supreme Court has further held that the reinstatement in such cases should be treated as a reinstatement for the purpose of holding fresh inquiry from the stage of furnishing the report and no more where such fresh inquiry is held. 13. In view of the findings recorded by this Court in the present case and in view of the law laid down by the Supreme Court in the case of B. Karunakar (supra), as well as keeping in mind the provisions of Rule 9(4) of the Civil Service Rules, the petition filed by the petitioner is allowed to the extent of setting aside the impugned order of punishment dated 2-4-2013 as well as the appellate order dated 23-11-2013 and the matter is remitted back to the Disciplinary Authority for proceeding further from the stage of furnishing of the enquiry report and thereafter, strictly following the procedure prescribed by the provisions of the Civil Service Rules as well as by the Supreme Court in the cases of Managing Director, ECIL, Hyderabad and others (supra) and R.P. Singh (supra), and the Government instructions issued from time to time in this regard including instructions regarding the steps to be taken after obtaining the opinion and advise of the Public Service Commission. It is further ordered that while the matter is remitted back for the aforesaid purpose, the petitioner would be reinstated in service and would be treated to have been placed under suspension from the date of the impugned order of dismissal. It is further ordered that while the matter is remitted back for the aforesaid purpose, the petitioner would be reinstated in service and would be treated to have been placed under suspension from the date of the impugned order of dismissal. It is further ordered that the authority while taking a final decision in the matter shall also take a decision regarding the consequential benefits, if any, to which the petitioner would be entitled including payment of the period under suspension, back wages, etc. as held by the Supreme Court in the above cited cases. 14. It is further made clear that this Court has not expressed any opinion on any of the other issues raised by the petitioner before this Court and, therefore, the petitioner would be at liberty to take up all these issues before the authority as well as in any subsequent proceedings taken up by him. In other words, as I propose to set aside the impugned order only upon the grounds stated above, I do not think it necessary to advert to the other issues and grounds raised by the petitioner in the present petition, which are left open to be decided at the appropriate stage. With the aforesaid observation and direction, the matter is remitted back to the authorities after setting aside the impugned orders, dated 2-4-2013 and 23-11-2013 and the petition, filed by the petitioner, stands allowed to the extent indicated above. There shall be no order as to the costs.