Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 302 (MP)

Sanjay Kumar Pathak v. Government of M. P.

2016-04-12

ANAND PATHAK

body2016
ORDER : Anand Pathak, J. With the consent of parties matter is finally heard. The present petition has been preferred by the petitioner against the order dated 15-04-2013 passed by respondent No.3 whereby the charge-sheet has been issued and departmental enquiry has been directed to be instituted against the petitioner on the allegations contained in the charge-sheet. 2. The petitioner has rushed to this Court challenging the issuance of charge-sheet based upon certain previous acts and exchange between the petitioner and respondent No.3. Petitioner is working as Lower Division Clerk (LDC) in the Government Arts and Commerce College, Mohna District Gwalior where respondent No.3 is working as Principal of the said college. Because of instructions of the Commissioner, Higher Education Department, Bhopal, certain compliances have been directed to be observed by respondent No.3 in respect of teachers and staff members of college. Therefore, for complying the procedural aspect, it seems that petitioner has suggested the measures to respondent No.3 which were not accepted by respondent No.3 and as per the allegations of the petitioner, respondent No.3 started holding grudges against the petitioner. Several correspondences have been annexed by the petitioner vide different Annexures in the writ petition demonstrating about the fact that petitioner and respondent No.3 were at loggerheads and were not sharing the common platform. 3. Further allegation of the petitioner is that respondent No.3 has lodged a false complaint in Police Station, Mohna against the petitioner and his colleague Rohit Shrivastava on 07-03-2013 and the matter was investigated by the police and after investigation no plausible facts or truth was found in the police report. Thereafter, the petitioner was placed under suspension vide order dated 08-03-2013. Being aggrieved by the said order of suspension, petitioner preferred a writ petition which was disposed of vide order dated 22-03-2013 (Annexure P/5). 4. As per pleadings of the petition, respondent No.3 has lodged an FIR at Police Station, Thatipur District Gwalior on 19-03-2013 about the conduct of petitioner of threatening him with dire consequences. The petitioner has in fact pleaded the plea of bias qua respondent No.3 as according to him respondent No.3 holds grudges against him for various incidents narrated in the petition memo and thus, at the instance of respondent No.3 whole proceedings have been started. 5. The petitioner has in fact pleaded the plea of bias qua respondent No.3 as according to him respondent No.3 holds grudges against him for various incidents narrated in the petition memo and thus, at the instance of respondent No.3 whole proceedings have been started. 5. Further contention of the petitioner is that respondent No.3 holds bias and grudges against the petitioner and he is complainant of police report (made earlier by him), therefore, he cannot issue the charge-sheet to the petitioner and he cannot act as a witness in the departmental enquiry. He also contended that respondent No.3 is not competent authority in respect of petitioner and therefore, initiation of departmental proceeding is bad in law. According to him respondent No.2 is appointing authority who can only issue the charge-sheet. 6. Per contra, the respondents have filed their reply and contested the case. According to the respondents entire exercise of petitioner is premature as he has rushed to the Court at the initial level of departmental enquiry and no interference in the departmental proceeding at the stage of issuance of charge-sheet can be made. 7. According to the respondents, the authority i.e. respondent No.3 is competent to issue charge-sheet and the said charge-sheet has been issued at the instance of appropriate authority, the Commissioner, Higher Education. Interference in the charge-sheet cannot be made at this stage. Other allegations of petitioner were also denied. Respondents sought dismissal of the writ petition. 8. Heard learned counsel for the parties and with their assistance perused the record of the case. 9. Before considering the contention of learned counsel for the parties, it would be appropriate to consider the scope and extent of judicial review and interference in charge-sheet permissible under Article 226 of Constitution of India as specified and laid by the Hon'ble Supreme Court in a series of decisions. In the case of Union of India and another v. Kunisetty Satyanarayana, (2006) 12 SCC 28 , the Hon'ble Supreme Court has held as under: “13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh and others, [ (1996) 1 SCC 327 ], Special Director and another v. Mohd. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh and others, [ (1996) 1 SCC 327 ], Special Director and another v. Mohd. Ghulam Ghouse and another, [ (2004) 3 SCC 440 ], Ulagappa and others v. Divisional Commissioner, Mysore and others, [ 2001 (10) SCC 639 ], State of U.P. v. Brahm Datt Sharma and another, [ (1987) 2 SCC 179 ], etc. 14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance. 15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet. 16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.” 10. The issuance of charge-sheet was also considered by the Division Bench of this Court in the matter of Jagdish Baheti v. High Court of M.P. and others, 2015 (3) MPHT 172. In the said case, the question of interference just after initiation of departmental enquiry has been dealt with elaborately by the Court. 11. The issuance of charge-sheet was also considered by the Division Bench of this Court in the matter of Jagdish Baheti v. High Court of M.P. and others, 2015 (3) MPHT 172. In the said case, the question of interference just after initiation of departmental enquiry has been dealt with elaborately by the Court. 11. Counsel for the petitioner has placed reliance over the judgment rendered by the Hon'ble Supreme Court in the matter of State of Punjab v. V.K. Khanna, (2001) 2 SCC 330 on the point of quashment of charge-sheet. Further, the petitioner has also placed reliance over the decision rendered by this Court in the matter of Rajbahadur Khare v. Madhya Bharat Gramin Bank Pradhan Karyalaya, Sagar & Ors., ILR (2012) MP 2436. The judgment rendered in the case of State of Punjab (supra) operates in different realm. Facts and circumstances of the said case cannot be borrowed here for seeking parity. Here, the petitioner was under constant scanner because of his activities. 12. Similarly the plea of bias as raised by the petitioner and seeking parity vis-a-vis Rajbahadur Khare's case (supra), that parity cannot be claimed because in the case of Rajbahadur Khare, Chairman of Gramin Bank was the complainant, he was the competent authority and he was the witness, all in one. The malice or bias was apparent and writ large. Here, in the present case, the charge-sheet has been issued at the instance of the Commissioner, Higher Education and therefore, no direct allegation of bias can be held to be existing against the petitioner. There must be reasonable likelihood of bias and mere suspicion of bias is not sufficient. Three types of bias can be alleged; one Personal Bias, another Subject Matter Bias and third Pecuniary Bias. Manner of adjudication of allegation of bias should be realistic, pragmatic and flexible. The Hon'ble Apex Court in the matter of Union of India and others v. Sanjay Jethi and another, (2013) 16 SCC 116 has discussed in detail the concept of bias and its fallout. The present case does not fall in any of the categories of bias as discussed in the matter referred (supra). Department enquiry is at its inception, therefore, the plea of bias cannot be substantiated at this juncture nor it can gain any ground. In the present case, although the Principal has issued the charge-sheet but at the instance of Commissioner, Higher Education. Department enquiry is at its inception, therefore, the plea of bias cannot be substantiated at this juncture nor it can gain any ground. In the present case, although the Principal has issued the charge-sheet but at the instance of Commissioner, Higher Education. 13. Departmental enquiry is at the preliminary stage, therefore, unless the enquiry is completed, proceedings cannot be considered to be vitiated in respect of procedural bias. 14. Thus, the contention of petitioner does not reach home so as to accept the plea of bias in totality. However, the allegation of bias raised by the employee, even after the conclusion of proceedings, some how and some what erodes the sheen of the respondents as a Model Employer and Welfare State. Therefore, it is imperative for the employer to act in such an objective manner so that every employee should feel satisfied about the decision making process. Therefore, it is expected from the respondents that they will conduct the departmental enquiry in a fair, transparent and unbiased manner while affording adequate and proper opportunity of hearing to the petitioner and no element of subjectivity would prevail while deciding the case of the petitioner. 15. Thus, the petition fails in totality of circumstances and thus hereby dismissed. No order as to costs.