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Madhya Pradesh High Court · body

2019 DIGILAW 830 (MP)

Sunil Kumar Jain v. State of M. P.

2019-11-29

SUJOY PAUL

body2019
ORDER 1. With the consent, finally heard. 2. This petition filed under Article 226 of the Constitution challenges the impugned order dated 28.2.2019 (Annexure P-5) and also the appellate order dated 14.11.2017 (Annexure P-3). 3. Learned counsel for the petitioner submits that on the basis of a preliminary inquiry conducted behind the back of petitioner, a show cause notice dated 1.8.2017 (Annexure P-1) was issued. The petitioner submitted his reply dated 10.8.2017 (Annexure P-2) and explained his conduct and denied the charges. Thereafter without holding any inquiry, the punishment of stoppage of two annual increments without cumulative effect is imposed on the petitioner. The appeal is erroneously rejected. The inquiry report (Annexure-P-9) on the strength of which show-cause notice was issued is not against the petitioner. No charge-sheet has been issued which is mandatorily required as per Rule 16 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as “the Rules of 1966”). 4. The prayer is opposed by Shri Rehman, learned Govt. Advocate. He submits that the reply of the petitioner (Annexure P-2) shows that he has admitted the guilt and accordingly the punishment order was issued. No inquiry is required. 5. No other point is pressed by learned counsel for the parties. 6. I have heard learned counsel for the parties at length and perused the record. 7. A plain reading of the reply of the petitioner (Annexure P-2) shows that the petitioner has given explanation in relation to the charges alleged against him. The petitioner also denied the allegations and requested to drop the complaint. This is trite that the admission of charge must be unconditional, unqualified and unequivocal. [See : 1961 JLJ 414 = AIR 1961 SC 1070 (Jagdish Prasad Saxena v. State of Madhya Bharat (Now M.P.), (1998) 1 SCC 756 (General Court Martial and others v. Col. Anitley Singh Dhaliwal)]. This Court in Ghanshyam v. State of M.P., 2013(1) MPWN 18 = 2013 (1) MPLJ 144 has held as under : “8. This is settled in law that unless the admission of guilt/charges is specific, unconditional, unqualified and unequivocal, enquiry cannot be dispensed with. In the present case, the petitioner has put forth his defence and made an effort to show that he is not responsible for the charges and the payment was made on the basis of attendance certified by subordinate employee. In the present case, the petitioner has put forth his defence and made an effort to show that he is not responsible for the charges and the payment was made on the basis of attendance certified by subordinate employee. Thus, it cannot be said that petitioner has admitted the charges in totality and without any explanation. In (1998)1 SCC 756 , General Court-Martial v. Co. Aniltej Singh Dhaliwal, it is held that an admission can be explained by the makers thereof. An admission is not conclusive as to the truth of the matter stated therein and it is only a piece of evidence, the weight to be attached to which must depend upon the circumstances under which it is made. In 1961 JLJ 414 = AIR 1961 SC 1070 , Jagdish Prasad Saxena v. State of Madhya Bharat (now Madhya Pradesh), a Constitution Bench of Supreme Court held as under : “Held that, as the statements made by the appellant did not amount to a clear or unambiguous admission of his guilt, failure to hold a formal enquiry constituted a serious infirmity in the order of dismissal passed against him, as the appellant had no opportunity at all of showing cause against the charge framed against him. Even if the appellant had made some statements which amounted to admission, it was open to doubt whether he could be removed from service on the strength of the said alleged admissions without holding a formal enquiry as required by the Rules.” 9. On the basis of aforesaid test laid down by the Supreme Court, if Annexure P-7 is tested it will show that petitioner has given explanation against show cause notice and there is no unequivocal, unconditional, unqualified and specific admission of guilt by the petitioner. Thus, in the considered opinion of this Court, the respondents have erred in treating Annexure P-7 as admission of guilt. Consequently, the respondents have committed an error in not conducting the enquiry. On the basis of aforesaid analysis, Annexures P-1 and P-2 are liable to be set aside and I do so. Accordingly, Annexures P-1 and P-2 are set aside.” 8. The reply Annexure P-2, by no stretch of imagination, amounts to admission of charges and, therefore, I am unable to hold that no inquiry was required. 9. On the basis of aforesaid analysis, Annexures P-1 and P-2 are liable to be set aside and I do so. Accordingly, Annexures P-1 and P-2 are set aside.” 8. The reply Annexure P-2, by no stretch of imagination, amounts to admission of charges and, therefore, I am unable to hold that no inquiry was required. 9. The apex Court in (2001) 9 SCC 180 (O.K. Bhardwaj v. Union of India and others) opined that where allegations are factual in nature and the delinquent employee has denied the same while filing reply, no punishment should be imposed without holding an inquiry. A careful reading of rule 16 of the Rules of 1966 also shows that the Disciplinary Authority is required to conduct an inquiry in such matters where allegations are factual and delinquent employee has not admitted the same. The punishment order shows that reply of the petitioner has not been considered at all. Rule 16 aforesaid further mandates that the Disciplinary Authority is bound to assign reasons for the conclusion arrived at by him. For these cumulative reasons, in my opinion, the decision making process adopted by the department is erroneous and runs contrary to the principles of natural justice and rule 16 of the Rules of 1966. 10. Resultantly, the punishment order dated 14.11.2017 (Annexure P-3) and the appellate order dated 28.2.2019 (Annexure P-5) are set aside. The liberty is reserved to the respondents to proceed against the petitioner in accordance with law. The petition is allowed to the extent indicated above. .............