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Madhya Pradesh High Court · body

2015 DIGILAW 794 (MP)

Parmanand Sharma v. State of M. P.

2015-08-03

SUJOY PAUL

body2015
ORDER : SUJOY PAUL, J. 1. This petition filed under Article 226 of the Constitution challenges the order (Annexure P/12) whereby the disciplinary authority directed for reinstitution of enquiry. The brief facts necessary for adjudication of present controversy are that the petitioner is an employee of respondent No. 2. He was served with a charge sheet (Annexure P/8) dated 28.12.2004. Petitioner submitted his reply. Thereafter an enquiry officer was appointed by the disciplinary authority. The said enquiry officer submitted his report dated 01.06.2005 (Annexure P/9). Petitioner was aggrieved by this report because he was not afforded with adequate opportunity of defence in the enquiry. Hence, he filed representation dated 11.07.2006 (Annexure P/10). It is prayed therein that re-enquiry be conducted so that he can put-forth his defence. The disciplinary authority, in turn, by order dated 21.07.2006 (Annexure P/11) appointed Shri Gajendra Sharma as enquiry officer and reinstituted the enquiry afresh. The said enquiry officer submitted his report on 24.07.2006. Shri S.K. Sharma submits that petitioner was exonerated in the said report. The disciplinary authority has committed an error in passing the order Annexure P/12 whereby enquiry report was disallowed and de novo enquiry is instituted. Critisizing this order, it is contended by Shri S.K. Sharma that the disciplinary authority has not assigned any reason as to why the said report was erroneous and unacceptable. The said authority has no power to institute de novo enquiry. Reliance is placed on (1997) 10 SCC 178 (Board of Management of S.V.T. Educational Institution and Anr. Vs. A. Raghupathy Bhat and Ors.) and (2012) 3 SCC 580 (Nand Kumar Verma Vs. State of Jharkhand and Ors. (2012) 3 SCC 580 ). 2. Per Contra, Shri Purushottam Sharma, Advocate for the respondent No. 2, supported the order. He submits that as per relevant service regulations, petitioner has alternative remedy of appeal. Against Annexure P/12, he can file an appeal. Hence, this petition be not entertained. In addition, it is submitted that disciplinary authority, on the request of petitioner, directed the re-enquiry. Thereafter Shri Gajendra Sharma conducted the enquiry wherein prosecution was not given any opportunity. As per service rules, it was first right of the prosecution to lead evidence and establish the charges, then comes the role of defence. The Enquiry officer Shri Gajendra Sharma adopted a methodology which is totally unknown to the established procedure of conducting domestic enquiry. Thereafter Shri Gajendra Sharma conducted the enquiry wherein prosecution was not given any opportunity. As per service rules, it was first right of the prosecution to lead evidence and establish the charges, then comes the role of defence. The Enquiry officer Shri Gajendra Sharma adopted a methodology which is totally unknown to the established procedure of conducting domestic enquiry. Considering the aforesaid, disciplinary authority disallowed his report and institute a fresh enquiry. This is in consonance with the principle of natural justice. No prejudice is caused to the petitioner. Lastly, it is contended that disciplinary authority is well within his power to pass such orders. Interestingly, Shri Purushottam Sharma also relied on the judgment of A. Raghupathy Bhat (supra). 3. No other point is pressed by the learned counsel for the parties. 4. I have heard learned counsel for the parties and perused the record. 5. The petitioner was admittedly served with a charge sheet. It contains serious allegations of financial irregularities, embezzlement or misappropriation. Initially the enquiry officer submitted his report on 01.06.2005 (Annexure P/8). Petitioner preferred representation dated 11.07.2006 contending that the said enquiry was an ex parte enquiry. He was not afforded with opportunity to put-forth his defence. The disciplinary authority by order dated 21.07.2006 (Annexure P/11) appointed Gajendra Singh Sharma as enquiry officer. This officer submitted his report on 24.07.2006. The disciplinary authority set aside his report and directed for conducting de novo enquiry. The bone of contention of Shri S.K. Sharma is that de novo enquiry is totally impermissible. 6. This is settled in law that in departmental enquiry, the initial burden to lead evidence and prove the charges lies on the shoulder of prosecution. Thus, the persecution is required to lead evidence first. When this burden is discharged by the prosecution, onus is shifted on the delinquent employee/defence. As per Zila Sahkari Kendriya Bank Karmchari Seva Niyam, (Niyam) the procedure to conduct enquiry is prescribed in Rule 58. Rule 58(1) provides that in cases of misconduct the delinquent employee will be served with a charge sheet. Sub-Rule 2 and 3 prescribe that the employee may prefer his reply to the charge sheet and may engage another employee of the bank to defend him. Sub-Rule 4 makes it clear that in cases where employee does not admit the allegations, the prosecution will lead evidence and employee will be entitled to cross-examine the prosecution witnesses. Sub-Rule 2 and 3 prescribe that the employee may prefer his reply to the charge sheet and may engage another employee of the bank to defend him. Sub-Rule 4 makes it clear that in cases where employee does not admit the allegations, the prosecution will lead evidence and employee will be entitled to cross-examine the prosecution witnesses. The evidence so recorded shall be reduced in writing as per Sub-Rule (5). 7. The pivotal question in this case is whether in the facts and circumstances of this case, de novo enquiry is permissible or not? This point requires serious consideration. In (1971) 2 SCC 102 (K.R. Deb Vs. The Collector of Central Excise, Shillong) five Judges bench of Supreme Court considered the question of permissibility of conducting de novo enquiry. The Apex Court opined that as per relevant rules, one enquiry is provided but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the enquiry or some important witnesses were not available at the time of enquiry or were not examined for some other reason, the disciplinary authority may ask the enquiry officer to record further evidence. The Apex Court in no uncertain terms made it clear that there is no provision in the rule for completely setting aside previous inquiry on the ground that the report of enquiry officer or officers does not appeal to the disciplinary authority. A plain reading of this judgment makes it clear that there is no absolute bar in ordering de novo enquiry by disciplinary authority. In cases where no proper enquiry has been conducted or enquiry is pregnant with serious procedural infirmity, re-enquiry may be ordered. 8. The Apex Court made it clear that re-enquiry cannot be ordered merely because enquiry officer's report does not find favour with the disciplinary authority. Thus, it is clear that in cases where there is serious procedural flaw, re-enquiry can be ordered from the stage defects have crept in. In (1997) 10 SCC 178 (Board of Management of S.V.T. Educational Institution and Anr. Vs. A. Raghupathy Bhat and Ors.) on which both the parties have placed reliance, it is held as under:- "it is settled law that the employer has power to conduct enquiry afresh from the stage at which the illegality in the proceedings is found vitiating the action. Vs. A. Raghupathy Bhat and Ors.) on which both the parties have placed reliance, it is held as under:- "it is settled law that the employer has power to conduct enquiry afresh from the stage at which the illegality in the proceedings is found vitiating the action. The High Court is, therefore, not right in foreclosing further enquiry after upholding the order of the Tribunal which has held that there is need for further enquiry and the order of removal was set aside because of non-payment of subsistence allowance." (Emphasis supplied) This judgment makes it clear employer has a right to conduct enquiry afresh from the stage at which the illegality is crept in. 9. In Nand Kumar Verma (supra) the Apex Court opined as under:- "On general principles, there can be only one enquiry in respect of a charge for a particular misconduct and that is also what the rules usually provide. If, for some technical or other good ground. procedural or otherwise, the first enquiry or punishment or exoneration is found bad in law, there is no principle that a second enquiry cannot be initiated. Therefore, when a completed enquiry proceedings is set aside by a competent forum on a technical or on the ground of procedural infirmity, fresh proceedings on the same charges is permissible." (Emphasis Supplied) As per ratio decidendi of the aforesaid judgments, it is clear that there is no bar in directing re-enquiry. The stage of such re-enquiry will be the stage from where illegality is crept in. 10. Respondents in their return have made it clear that the second enquiry officer Shri Gajendra Singh Sharma did not record the statements of prosecution witnesses and prepared the enquiry report on the basis of statement of delinquent employee/petitioner alone. At the cost of repetition, in my view, this is trite that in domestic enquiries the prosecution has to lead evidence first followed by the defence of delinquent employee. In the present case, the second enquiry officer did not permit the prosecution to lead evidence and directly recorded the statement of defence. Thus, second enquiry is vitiated from inception because first right of prosecution to establish the charges was taken away. Therefore, petitioner cannot raise eyebrows on the impugned order Annexure P/12. 11. Interestingly, in the first enquiry, the statement of prosecution witnesses were recorded but petitioner was deprived to take part in the enquiry. Thus, second enquiry is vitiated from inception because first right of prosecution to establish the charges was taken away. Therefore, petitioner cannot raise eyebrows on the impugned order Annexure P/12. 11. Interestingly, in the first enquiry, the statement of prosecution witnesses were recorded but petitioner was deprived to take part in the enquiry. Thus, on the petitioner's request, first enquiry was set aside and re-enquiry was ordered. The petitioner has taken benefit of it. If second enquiry in all circumstances is impermissible, Shri Gajendra Singh Sharma could not have been appointed as enquiry officer nor the first enquiry could have been set aside. The petitioner himself enjoyed the benefit on his request, pursuant to which first enquiry was set aside. This was done by the disciplinary authority in order to follow the principle of natural justice. Said principle needs to be followed for both i.e. prosecution and defence. 12. In view of law laid down by the Supreme Court, I am unable to hold that de novo enquiry is impermissible or cannot be held in any circumstances. In the present case, it is clear from return that order of disciplinary authority is based on relevant consideration. He was fully justified in directing re-enquiry because in the second enquiry prosecution evidence was not recorded and report is solely based on the deposition and stand of the petitioner. Thus, no fault can be found in the order (Annexure P/12) whereby enquiry was re-instituted. In view of aforesaid finding, there is no need to deal with the objection of the employer regarding availability of alternative remedy. As analyzed above, petition has no merits and is hereby dismissed. No costs.