Research › Search › Judgment

Madhya Pradesh High Court · body

2019 DIGILAW 452 (MP)

Chhutan Lal kalawat v. State of M. P.

2019-06-27

S.A.DHARMADHIKAR

body2019
ORDER 1. The petitioner is aggrieved by order dated 28.7.2009 (Annexure P-1) passed by Commissioner, Gwalior Division, Gwalior in appeal No. 65/07-08, whereby the appeal filed by the present petitioner has been dismissed. The petitioner is further aggrieved by the order dated 24.10.2007 (Annexure P-2) passed by the Collector, District Ashoknagar whereby the appeal preferred by the petitioner against the order of SDO, Mungawali has been dismissed. The petitioner is basically disgruntled by the order 26.9.2006 (Annexure P-3) passed by the Sub-Divisional Officer Revenue, Mungawali, District Ashoknagar, whereby services of the petitioner has been terminated. 2. The brief facts leading to filing of this case are that petitioner while holding the post of Patwari was put under suspension in the pending departmental enquiry against him. Before his suspension, he was posted in Halka No. 33 of Village- Beelakhera of Tahsil- Mungawali, District- Ashoknagar. Thereafter, the petitioner was served with the charge-sheet (Annexure P-5) enumerating therein eight charges. Main charge against the petitioner is that while, he was posted in Village Rampur Mohal, the petitioner certified possession in Khasra relating to Samvat 2055 and 2057 in column No. 12 and recorded the name of one -Dharamveer and 16 other persons which was incorrect and extended the benefit of settlement of land in favour of ineligible persons. He also did not notify the certificates and put his own signatures on the notice, thereby not followed the procedure. Charge No. 2 is in respect of Village Chamrai wherein it is alleged that in respect of land allotment case No. 50A19/2002-3 Khasra of Samvat 2056-2058 in column No. 12 in which the name of the applicant is not recorded whereas the petitioner by incorrect mode inserted the name of Raghuveer S/o Lal Sahab and 20 others and certified the same. No certificate was notified and nature of land was also not described. Charge No. 3 relates to the Village- Beelkheri in case of land allotment No. 50A-19/2002-03 Khasra Samvat 2057-2058 in column No. 12 in which nobody name was recorded despite that, he certified the possession of certain ineligible persons and accordingly land allotment was made. Similar allegations have been levelled in respect of various others villages. 3. Respondent No. 5-Radheyshyam Shrivastava, Tahsildar, Tahsil- Mungawali, District- Ashoknagar was appointed as Enquiry Officer to enquire into the charges against the petitioner. Similar allegations have been levelled in respect of various others villages. 3. Respondent No. 5-Radheyshyam Shrivastava, Tahsildar, Tahsil- Mungawali, District- Ashoknagar was appointed as Enquiry Officer to enquire into the charges against the petitioner. The petitioner objected the appointment of Enquiry Officer by filing application before Sub-Divisional Officer, Revenue, Mungawali who is disciplinary authority with the request to change the Enquiry Officer in order to provide fair trial to the petitioner. However, Enquiry Officer was not changed and the application remain pending. Enquiry Officer conducted enquiry against the petitioner without issuing notice and without giving him opportunity to cross-examine prosecution witnesses. Again, the petitioner moved an application before the disciplinary authority seeking change of Enquiry Officer on 21.8.2006 on the ground that respondent No. 5 was earlier working along with the petitioner as Patwari in the same Tahsil and after his promotion and appointment as Tahsildar, he is having personal grudge and jealousy with the petitioner therefore, he did not expect justice from him. Enquiry Officer was never changed. The enquiry report was submitted on 17.7.2006. 4. Being aggrieved by the same, the petitioner filed an appeal before the Collector, District Ashoknagar. Since appeal not being decided, the petitioner filed Writ Petition No. 5009/2006 (S) before this Court which was disposed of with direction to the Collector, District Ashoknagar to decide the appeal as expeditiously as possible. Appeal was dismissed vide order dated 24.10.2007 (Annexure P-2). 5. After that, the petitioner filed an appeal before the Commissioner, Gwalior Division, Gwalior which was also dismissed without considering the arguments raised and without considering the fact that the charges have not been proved. 6. Learned counsel for the petitioner contended that orders passed by the Commissioner as well as Collector are absolutely contrary to the law since both the authorities lost sight of the fact that petitioner was not found guilty during the course of enqiury and perverse finding was recorded by the Enquiry Officer to the effect that all the charges have been proved, therefore, order of termination could not have been passed. Enquiry conducted is not in consonance of procedure prescribed under the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 for conducting the departmental enquiry for imposition of major penalty. No opportunity to crossexamination was granted. Enquiry conducted is not in consonance of procedure prescribed under the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 for conducting the departmental enquiry for imposition of major penalty. No opportunity to crossexamination was granted. Authorities refused to change the Enquiry Officer that too after submitting the application by the petitioner and enquiry report dated 17.7.2006 has been submitted, therefore, on this ground, alone proceedings stand vitiated. 7. The apex Court in the case of State of U.P. and ors. v. Saroj Kumar Sinha [ (2010) 2 SCC 772 ] has held as under : "An inquiry Officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, the same cold not have been taken into consideration to conclude that the charges have been proved against the respondents. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in a punishment being imposed on the employee. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service." 8. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service." 8. The apex Court also in the case of State of U.P. v. Shatrughan Lal and another [ (1998) 6 SCC 651 ] has held as under : " If the appellant-State did not intend to give copies of documents to the respondent, it should have been indicated to the respondent in writing that he might inspect those documents. Merely saying that the respondent could have inspected the documents at any time is not enough. He has to be informed that the documents, of which copies were asked by him, may be inspected. Access to records must have been assured to him. 9. Per contra, return has been filed by the respondents supporting the impugned orders and submitted that all the charges have been proved against the petitioner, therefore, disciplinary authority had no option but to pass punishment order of termination after giving opportunity of hearing. 10. Heard learned counsel for the parties and perused the record. 11. From the above discussions and perusal of the documents on record, admittedly, application to change the Enquiry Officer was decided on 23.8.2006 after submission of enquiry report on 17.7.2006. No opportunity of cross-examination was granted to the petitioner, due to which, serious prejudice has been caused and principles of natural justice were also not followed. Authorities ought to have changed the Enquiry Officer looking to the fact that Enquiry Officer had personal bias against the petitioner inasmuch as he was working along with the petitioner at some point of time and later on, he was promoted on the post of Tahsildar. Accordingly, respondents failed to conduct enquiry in accordance with the provisions of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. Resultantly, the impugned orders dated 28.7.2009 (Annexure P-1), 24.10.2007 (Annexure P-2) and 26.9.2006 (Annexure P-3) are hereby set-aside. However, the respondents are at liberty to take appropriate steps to proceed afresh in accordance with law, if so advised. 12. Accordingly, the petition stands allowed to the extent indicated hereinabove.