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Madhya Pradesh High Court · body

2017 DIGILAW 77 (MP)

Amit Kumar Singh Raghuvanshi v. State of M. P.

2017-01-13

ANAND PATHAK

body2017
ORDER 1. The present writ petition under Article 226 of the Constitution of India has been filed by the petitioner challenging the order dated 25.5.2016 (Annexure P-1) passed by respondent No.1/Principal Secretary, Ministry of Law and Legislative Affairs Department, Bhopal, whereby petitioner who was working as Additional Public Prosecutor/Additional Government Advocate, District Guna has been removed from the said post before his probation period of one year. 2. According to learned counsel for the petitioner, petitioner has been appointed as Additional Government Advocate/Additional Public Prosecutor vide order dated 4.10.2014 and from time to time, his roster has been changed by the District Magistrate/respondent No.2. Vide order dated 7.1.2015, 16.11.2015 and 2.4.2016, petitioner has been assigned the work in the Courts of Forth Additional Sessions Judge, District-Guna, Second Civil Judge, Class-I, Guna and Third Civil Judge, Class-II, Guna. He submits that during his tenure, a case was being instituted before Third Civil Judge, Class-II, Guna and for appearance in that Court, vakalatnama which was sent by the office of the Collector/respondent No.2 was not received by the petitioner and instead of petitioner, another Additional Government Advocate namely-Smt. Asha Kiran Kaur has taken the vakalatnama and erased the name of petitioner by applying fluid over the vakalatnama and wrote her name over it and filed the vakalatnama on behalf of the State as if she was representing the case on behalf of the State Government. 3. As per the allegation, Smt. Asha Kiran Kaur (Additional Government Advocate) filed the written statement favouring the cause of the plaintiffs and causing loss to the State Government. Later on, an inquiry was held, wherein it was found that Smt. Asha Kiran Kaur has taken the possession of the vakalatnama on her own without being assigned for the job and the present petitioner could not be vigilant enough to take care of the Government cases and after inquiry conducted by the Collector on dated 6.4.2016, the impugned order has been passed. 4. According to counsel for the petitioner, the impugned order is stigmatic in nature and has been passed without affording any opportunity of hearing to the petitioner. He also pleaded innocence as according to him, no elements of mens rea can be attributable to his conduct. 4. According to counsel for the petitioner, the impugned order is stigmatic in nature and has been passed without affording any opportunity of hearing to the petitioner. He also pleaded innocence as according to him, no elements of mens rea can be attributable to his conduct. With the malafide intention of other Additional Government Advocate Smt. Asha Kiran Kaur, the said incident has happened and the petitioner was not abreast with the development undertaken in the case. Neither he filed the vakalatnama nor the written statement, therefore, no case exists against the present petitioner causing any loss to the State Government. He also pleaded on the ground that order impugned is stigmatic in nature and harsh and excessive and would be detrimental for his future prospects. As far as his ouster from the penal of the Additional Government Advocate/Additional Public Prosecutor is concerned, he is not making any challenge to it but confines his prayer for seeking relief for expungment of the stigmatic remarks, on which the impugned order has been passed. 5. On the other hand, learned Government Advocate for the State has filed reply and on the basis of reply submits that no case for interference is made out. According to counsel for the State, the Collector, Guna/respondent No.2 has conducted an inquiry, in which petitioner was given opportunity of hearing, thereafter the impugned order has been passed. 6. Heard the learned counsel for the parties and with their assistance perused the record. 7. Sections 24 and 25 of the Code of Criminal Procedure, 1908 envisages for the appointment of the Public Prosecutor/Assistant Public Prosecutor. The Government Pleader/Public Prosecutor and Additional Government Pleader/Additional Public Prosecutor are being appointed as per procedure of Law Department Manual. Relevant paras are 15, 17, 18 and 19, which reads as under :- “15. Appointment- All appointments of Public Prosecutors and Additional Public Prosecutors shall be made by Government. Government may call for recommendations for these posts from the District Magistrate at the headquarters of the sessions division of other area concerned. The District Magistrate shall then consult the District and Sessions Judge demi-officially and submit the latter's opinion along with his own and also a list of pleaders practicing in his district to Government. 17. Government may call for recommendations for these posts from the District Magistrate at the headquarters of the sessions division of other area concerned. The District Magistrate shall then consult the District and Sessions Judge demi-officially and submit the latter's opinion along with his own and also a list of pleaders practicing in his district to Government. 17. Probation and confirmation- (1) Every Government pleader or Additional Government Pleader shall be considered to be on probation for a period of one year from the date of his taking charge. At the end of that period, the District Magistrate shall submit a report through the District and Sessions Judge to Government upon his conduct and ability. Should his work prove to have been unsatisfactory, his services may be dispensed without notice, should the report be satisfactory he shall be confirmed. For any sufficient reason Government may extend the period of probation. (2) The District Magistrate shall, by the 15th January each, submit a report to Government through the District and Sessions Judge upon the conduct and ability of the Public Prosecutor or the Additional Public Prosecutor who has been confirmed under sub-rule (1). The report shall marked confidential. 18. Term of office- A Government Pleader or Additional Government Pleader shall be appointed for a period of three years, excluding the period of his probation and may be reappointed for further periods not exceeding three years at a time. Ordinarily no person will be appointed a Government Pleader or an Additional Government Pleader after he attains the age of sixty two years or continued in that office after he attains that age. Notwithstanding the expiry of the period, a Government Pleader or Additional Government Pleader shall continue as such, until he is reappointed or his successor is appointed. 19. Termination of term- (1) Government may, at any time and without assigning any reason, dispense with the services of a Public Prosecutor or an Additional Public Prosecutor after giving him one month's notice. (2) A Public Prosecutor or an Additional Public Prosecutor may resign his appointment after giving one month's notice.” 8. The aforesaid provisions provides that the State Government for the appointment of Public Prosecutor and Additional Public Prosecutor shall call the recommendation from the District Magistrate at the Headquarter of Sessions Division or other area concerned. (2) A Public Prosecutor or an Additional Public Prosecutor may resign his appointment after giving one month's notice.” 8. The aforesaid provisions provides that the State Government for the appointment of Public Prosecutor and Additional Public Prosecutor shall call the recommendation from the District Magistrate at the Headquarter of Sessions Division or other area concerned. The District Magistrate after consultation with District and Sessions Judge demi officially submit his letter of opinion to the State Government. From the list prepared by the District Magistrate in this regard, the Government Pleader or the Additional Government Pleader (as the case may be) shall be appointed initially on probation for a period of one year from the date of his taking charge. At the end of the period of probation, the District Magistrate shall submit a report through the District and Sessions Judge to the State Government about his conduct and ability. If his working is not found satisfactory, his services may be dispensed with. If the work is found satisfactory, then the Government pleader shall be appointed for a period of 3 years excluding the period of his probation and he may be further reappointed for further period not exceeding 3 years at a time. The Government has power at any time to dispense with the services of a Public Prosecutor or an Additional Public Prosecutor after giving him one month's notice without assigning any reason. 9. The question of termination of District Government Counsel was considered by the Hon'ble apex Court in the matter of Shrilekha Vidhyarthi v. State of U.P. [ AIR 1991 SC 537 ], State of U.P. v. Johri Mal [2004 AIR SCW 3888], as well as the Division Bench of this Court in the matter of Debiprasad Sharma v. State of M.P. and others, (M.P. No.3325 of 1990 decided on 16.9.1992) and also the Single Bench of this Court in the matter of Rajendra Tiwari v. State of M.P. [ 2005(2) JLJ 79 = 2005(1) MPLJ 204 ]. 10. According to the Hon'ble apex Court, appointment is not at the sweet will of the Government which can be terminated at any time, even without the existence of any cogent reason during the subsistence of the term. 11. 10. According to the Hon'ble apex Court, appointment is not at the sweet will of the Government which can be terminated at any time, even without the existence of any cogent reason during the subsistence of the term. 11. From perusal of the impugned order as well as reply filed by the State, it appears that petitioner has been removed allegedly on the basis of the conduct of another Additional Government Advocate/Public Prosecutor Smt. Asha Kiran Kaur. Neither the petitioner; could file the vakalatnama nor the written statement. He at best can be held guilty of carelessness/negligence, for which stigmatic punishment is excessive and harsh. For this purpose, inquiry has not been sufficiently detailed out so as to fasten this liability on the petitioner. 12. In the instant case, petitioner is mainly aggrieved by the tenor and texture of the impugned order wherein stigma is reflected while passing the impugned order, therefore, considering the inquiry report, facts situation of the case as well as the judicial pronouncements made in this regard, while maintaining the impugned order, rigors and vehemence of stigma are extracted out, meaning thereby the order of exclusion of the petitioner from the responsibility of the Additional Public Prosecutor, District Court, Guna shall remain intact but the stigmatic part wherein services of the petitioner has been dispensed with on the basis of ‘improper conduct’ would be removed from the impugned order. 13. By the effect of the said order, petitioner would not be able to perform his duties as Additional Public Prosecutor from the date of effect of impugned order; as if his term of one year (on probation) has not been extended for another three years. The impugned order is partly modified and this petition is partly allowed.