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2022 DIGILAW 935 (MP)

Rajendra Kumar Garg v. State of Madhya Pradesh

2022-07-14

RAVI MALIMATH, VISHAL MISHRA

body2022
JUDGMENT Vishal Mishra, J. - The present petition has been filed assailing the order dated 07.04.2004 passed by the respondent No.2, whereby the appeal filed by the petitioner has been dismissed. 2. The petitioner was employed in the establishment of the respondent - District and Sessions Judge, Satna vide order dated 16.11.1995 on the post of Assistant Grade-III. He joined the services on 20.11.1995. He worked in the Fast Track Court, Amarpatan, District Satna from 07.01.2001 to 04.10.2001 as a Deposition Writer. Thereafter, he was posted in the Court of Second Civil Judge, Class II, Amarpatan from 05.10.2001 to 08.03.2002. 3. The Presiding Officer of the Fast Track Court having ill will with the petitioner, has sent a report dated 07.09.2001 to the District and Sessions Judge, Satna. On this, an explanation was called from the petitioner vide letter dated 13.09.2001. A reply was submitted by the petitioner but thereafter there was no intimation to the petitioner regarding the outcome of the same. On 11.02.2002 the petitioner was served with a charge sheet for holding departmental enquiry. No documents were supplied to the petitioner along with charge sheet. On 19.02.2002, he filed an application for supply of the documents, on which, a copy of complaint dated 06.12.2001 was supplied to the petitioner; however, the other documents were not supplied to him. The Enquiry Officer was appointed on 14.06.2002. 4. It is pointed out that a preliminary enquiry was got conducted on the complaint of some advocates. The said enquiry was conducted behind the back of the petitioner and no proper opportunity was provided to him to defend his case. Thereafter, on 13.09.2001 he was transferred from the Court of Fast Track, Amarpatan to the Court of Second Civil Judge, Class-II, Amarpatan. On 21.09.2001, a D.O. was written by Second Civil Judge, Class-II, Amarpatan not to post the petitioner in his Court on any post. This shows that Shri Sheikh Salim, was prejudice with the petitioner, therefore, there was a fault in appointing him to conduct a preliminary enquiry. 5. It is argued that despite several representations and letters being submitted by the petitioner for supplying of the documents which have been relied upon by the disciplinary authority in the disciplinary enquiry, the same has not been supplied to him. No proper opportunity to defend was ever granted to him during the pendency of the departmental enquiry. 5. It is argued that despite several representations and letters being submitted by the petitioner for supplying of the documents which have been relied upon by the disciplinary authority in the disciplinary enquiry, the same has not been supplied to him. No proper opportunity to defend was ever granted to him during the pendency of the departmental enquiry. He was transferred to Chhindwara on 23.08.2002 and he was relieved on 28.08.2002 despite of the fact that he required to attend the proceedings of the departmental enquiry on 02.09.2002. The authorities with a pre-planned manner have transferred him during the pendency of the departmental enquiry. The departmental enquiry was conducted against the petitioner between 18.07.2002 to 05.09.2002 and during this period, the petitioner has been posted in different places, till the final order of termination was passed. 6. It is submitted that the charges which are levelled against the petitioner are so vague that no prudent man could have filed any response to the charge sheet as the charges could not have been established at any point of time by the respondents. Even otherwise, Shri C.L.Tiwari, Advocate on whose complaint the enquiry has been initiated against the petitioner has filed an application on 03.01.2002 requesting to withdraw the complaint. The same was duly forwarded and submitted by the President Bar Association to the respondent authorities but not being considered by the respondents and they continued with the departmental enquiry against the petitioner. This itself shows that the departmental proceedings have been conducted in a mala fide manner as the authorities were prejudiced with the petitioner. After transfer of the petitioner and after relieving him on 28.08.2002, he immediately submitted an application on 29.08.2002 to the respondents that he will not be in a position to attend the proceedings of 02.09.2002. Thereafter, a final order was passed on 05.09.2002. 7. During the departmental enquiry, the department has examined eight witnesses and from the perusal of their depositions, it is clear that they all are hearsay witnesses. A notice dated 25.03.2003 was served to the petitioner with an enquiry report, he has filed the reply and thereafter the final order was passed on 22.05.2003 whereby the services of the petitioner were terminated. An appeal to the Registrar High Court of Madhya Pradesh Jabalpur was filed raising several grounds but the appeal has been dismissed by a non-speaking order dated 07.04.2004. 8. An appeal to the Registrar High Court of Madhya Pradesh Jabalpur was filed raising several grounds but the appeal has been dismissed by a non-speaking order dated 07.04.2004. 8. It is argued that looking to the vagueness of charges levied against the petitioner, coupled with the fact that no proper opportunity of hearing was granted to him as no documents which have been relied upon by the prosecution were ever supplied to him, the services of the petitioner could not have been dismissed. He has placed reliance upon the judgments passed by the Hon'ble Supreme Court in the cases of Union of India & Others Vs. Gyan Chand Chattar reported in 2009 (12) SCC 78 and Anil Gilurker Vs. Bilaspur Raipur Kshetria Gramin Bank & Anr. reported in 2011 (14) SCC 379 on the aforesaid points. 9. It is argued that the charges against the petitioner are so vague that there is no possibility of filing of any proper response to the aforesaid charges. The plain reading of the charges and the statements of imputation, only vague allegations could be made against the petitioner. The charges do not disclose any specific complaint against him. The case in which the complaint is made against the petitioner, from whom and how much amount is taken by the petitioner and apart from the same, the affidavit was given by the complainant that he does not want to proceed with the complaint were never taken into consideration by the authorities. 10. He has further relied upon the judgment passed in the case of Nazir Khan vs. M.P. Rajya Bhandhar and Grah Nigam Madhyamik Shiksha Mandal Parisar Bhopal, reported in 1990 MPLJ 828 which deals with the manner in which the evidence has to be recorded by the prosecution and on the analysis of the evidence which have been recorded, clearly goes to show that it is a hearsay evidence and the conclusions are on the basis of conjecture and surmises. The punishment on the aforesaid evidence could not be made to the petitioner. He has further relied upon the judgment passed by the Hon'ble Supreme Court in the case of S. Parthasarathi vs State Of Andhra Pradesh reported in 1974 (3) SCC 459 which deals with non-supply of documents to the delinquent employee during the departmental proceedings amounts to violation of principles of natural justice. He has further relied upon the judgment passed by the Hon'ble Supreme Court in the case of S. Parthasarathi vs State Of Andhra Pradesh reported in 1974 (3) SCC 459 which deals with non-supply of documents to the delinquent employee during the departmental proceedings amounts to violation of principles of natural justice. In such circumstances, the entire departmental proceedings initiated against the petitioner are void. 11. He has further argued that the enquiry officer is duty bound to report the reasons for its findings with regard to each charge and the same has not been done in the present case. The order terminating the services of the petitioner is per se illegal. He prays for quashment of the same. 12. Counsel appearing for the respondent Nos. 2 and 3 has supported the impugned order and has argued that the petitioner has participated in the departmental proceedings; he has submitted his response to the charge sheet and thereafter filed reply to the enquiry report. He has also been supplied the copies of the documents as is being reflected from the order sheet dated 26.08.2002. The aforesaid order sheet also shows that no intimation with respect to transfer of the petitioner was brought to the knowledge of the authorities, rather he himself noted that next date of hearing to be 02.09.2002 for cross examination. It is further contended that in pursuance to the transfer order dated 23.08.2002, the petitioner was though relieved on 28.08.2002 but he has joined the transferred place on 09.09.2002. There is no justification or denial to the order sheet dated 26.08.2002. The documents which have been relied upon by the authorities were supplied including the copies of the witnesses. He himself remained absent on 02.09.2002, therefore, the authorities were having no other option except to proceed ex-parte and the final order was passed by the authorities, finding all the charges proved against the petitioner. It is not disputed that the copy of the enquiry report was supplied to him to which he has filed the response and considering the response filed by the petitioner, the final order was passed by the authorities terminating the services of the petitioner. 13. It is argued that in cases of departmental enquiry, the scope of interference in the impugned order is limited. The High Court cannot sit as an Appellate Authority to review the entire case. 13. It is argued that in cases of departmental enquiry, the scope of interference in the impugned order is limited. The High Court cannot sit as an Appellate Authority to review the entire case. Interference in departmental enquiry cases can only be made on the ground of lack of jurisdiction to the authorities is made out in the event of mala fides which can be proved or if there is any violation of any rules and regulations but in no condition the interference can be made by this Court. In support of the submissions, he has placed reliance on the judgments of Hon'ble Supreme Court in the cases of Union of India and others vs. Managobinda Samantaray (Civil Appeal Nos.1622- 1623 of 2022 decided on 24.02.2022), Pravin Kumar vs. Union of India reported in (2020) 9 SCC 471 and Union of India and others vs. P. Gunasekaran reported in (2015) 2 SCC 610 . In such circumstances, the order impugned is just and proper and does not call for any interference. He has prayed for dismissal of the writ petition. 14. Heard the learned counsel for the parties and perused the record. 15. On perusal of the record, it is seen that the challenge to the termination order is basically on three grounds; that (i) the charges which have been levied against the petitioner are vague to the extent that no prudent man can file reply and justify the same; (ii) that proper opportunity of hearing was not granted to the petitioner in the departmental enquiry despite application being filed for supply of documents, the same was never handed over to the petitioner and (iii) is the ground of mala fides alleged against the Enquiry Officer whereby, despite of the fact that the petitioner facing departmental enquiry was subjected to transfer and the factum of transfer being brought to the knowledge of the authorities. The petitioner was not accommodated for a genuine cause. 16. The petitioner was working in the establishment of the District Sessions Judge, Satna vide appointment order dated 16.11.1995 on the post of Assistant Grade-III. He joined the services on 20.11.1995. By issuance of a letter dated 13.09.2001, he was called for an explanation which was duly replied by the petitioner. Being dissatisfied with the explanation, a charge sheet was issued to him holding a departmental enquiry against the petitioner. He joined the services on 20.11.1995. By issuance of a letter dated 13.09.2001, he was called for an explanation which was duly replied by the petitioner. Being dissatisfied with the explanation, a charge sheet was issued to him holding a departmental enquiry against the petitioner. The charges which have been levied against the petitioner are as under:- ^^1 ;g fd vkidh in LFkkiuk dk;kZ- vkns’k dza 245@nks&11&12@99] fn- 13-09-2001 ds }kjk vknsf’kdk ys[kd ds in ij U;k;ky; f}rh; O;o- U;k;k- oxZ&2] vejikVu esa dh x;h FkhA vki vknsf’kdk ys[kd ds in dk dk;Z djrs gq;s vkius vknsf’kdk tkjh djus ds iwoZ vf/koDrkvksa ds i{kdkjksa ls 20&25@& izkIr dj ysuk] tks i{kdkj iSlk ugha nsrk] mlds izdj.k esa >wBk bUnzkt djuk fd leu tkjh fd;k x;k vkids bl d`R; ds dkj.k vf/koDrkvksa ds i{kdkjks dksa ijs’kkuh mBkuh iM+hA 2 ;g fd blds iwoZ vki QkLV VSªd U;k;ky; veuikVu esa lkys[kd dk dk;Z lEiknu djrs gq;s lcls igys ;g Kkr dj ysrs Fks fd fdl izdj.k esa dkSu lk{kh vk;s gS o ml izdj.k dk eqnnbZ vFkok oknh@izfroknh dkSu gS vkSj izdj.k ds i{kdkj ls voS/k :Ik ls jkf’k izkIr dj ysrs Fks rFkk lkf{k;ksa ds c;ku vfHk;qDrksa ls iSlk izkIr dj euekuh <ax ls Vkbi djrs FksA^^ 17. The charge No.1 relates to taking of money illegally Rs.20/- or Rs.25/- from the clients/parties to proceedings and in failure to make the payments, false entries regarding issuance of summons have been made in the records. The charge No.1 is very clear and specific reflecting conduct and working of the petitioner. The aforesaid charge was required to be defended by the petitioner during the departmental enquiry. The second charge is with regard to taking of unauthorized money from the clients and when they refused to make payments, he used to type the statements of witnesses in his own way. The second charge is specific with respect to working of the petitioner. The aforesaid could have been replied and countered by him in a specific manner but the petitioner has failed to establish that the charges levied against him are not made out, as he has chosen not to participate in the departmental enquiry on or after 26.08.2002. The second charge is specific with respect to working of the petitioner. The aforesaid could have been replied and countered by him in a specific manner but the petitioner has failed to establish that the charges levied against him are not made out, as he has chosen not to participate in the departmental enquiry on or after 26.08.2002. The ground which has been taken that the petitioner is being subjected to transfer malafidely by the respondents authorities knowing well that he is facing a departmental enquiry, the next date for his appearance and recording of evidence was given as 02.09.2002. 18. Counsel appearing for the respondents brought to the notice of this Court an order sheet dated 26.08.2002, wherein, the petitioner has marked his presence before the Enquiry Officer, and an application was filed by him for calling the witness for cross-examination. The copies of the statements of witnesses were provided to him and on his request, the summons were issued to the witnesses for their cross- examination and the next date was to be fixed as 02.09.2002. It was further brought to the notice of this Court that though the petitioner was transferred vide its order dated 23.08.2002 and relieved on 28.08.2002, but he has joined at his transferred place of posting on 09.09.2002. The order sheet dated 26.08.2002 does not reflect that any averment or any prayer was made by the petitioner for not fixing the date of hearing as 02.09.2002 owing to his transfer. The petitioner has not joined the transferred place of posting up to 09.09.2002 but he has chosen not to appear before the authorities on 02.09.2002. All the witnesses who were again called for cross-examination were present as is reflected from the order sheet dated 02.09.2002 but cross- examination could not be done as the petitioner was absent and there was no application filed by the petitioner. During the course of the proceedings on 02.09.2002 when the order sheet was already written by the Enquiry Officer subsequently a letter was received, send by the petitioner pointing out the fact that he has been transferred and relieved from District Satna, therefore, he has prayed for next date but the order sheet reflects that the aforesaid letter was silent about the date of transfer, the date of relieving as well as the date of joining at the transferred place. The petitioner has chosen not to appear before the authorities. No documents were annexed with the letter to show that he was transferred, relieved and joined at the transferred place therefore, he could not keep himself present. Hence, the authorities were left with no other option but to proceed against the petitioner ex- parte. 19. The petitioner has taken a ground that the documents were not supplied to him. The order sheet dated 26.08.2002 clearly reflects that the copies of the statements of the witnesses recorded were supplied to him. The documents which have been relied upon by the authorities of the department during the preliminary enquiry are not required to be supplied to the delinquent officer, as it was an inter se enquiry and after being satisfied regarding the allegations made against the petitioner in the preliminary enquiry, the charge sheet was issued to the petitioner. The petitioner was having full right and opportunity to file reply to the charge sheet and defend his case in the departmental enquiry but despite of the fact that he filed reply to the charge sheet has not chosen to participate in the departmental enquiry. Thus, the aforesaid grounds regarding vagueness of charges, non-supply of documents and opportunity of hearing are not available to the petitioner as he could not made out the same during the arguments. 20. As far as allegation of mala fide is concerned, the petitioner has not impleaded the person against whom the mala fides are alleged by name in the petition. As per the settled legal proposition of law, the person against whom the mala fides are alleged is required to be made a party to enable him to defend the allegations made against him. The factum of mala fides is required to be proved with the strong evidences. Merely stating that the Presiding Officer of the Fast Track Court was having some ill will against the petitioner as he happens to be from the native place of the petitioner, does not make a case of mala fides. Merely transfer of petitioner being one of the incidents of service cannot be termed that the transfer was made in a mala fide manner. In absence of any specific allegation of mala fides, the ground of mala fides is also not available to him. 21. Merely transfer of petitioner being one of the incidents of service cannot be termed that the transfer was made in a mala fide manner. In absence of any specific allegation of mala fides, the ground of mala fides is also not available to him. 21. The case laws which have been relied upon by the petitioner with respect to vagueness of charges are virtually on different facts and circumstances. In the present case, the charges were specifically reflecting the working of the petitioner. The statements of the witnesses which have been recorded clearly speak of the same and support the allegations made against the petitioner. The petitioner himself has chosen not to participate in the departmental enquiry after 26.08.2002 to defend those charges despite of the fact that the Enquiry Officer considered the request of the petitioner for calling the witnesses for cross-examination. 22. The law is well settled with respect to departmental proceedings as scope of interference in the case of departmental proceedings is very limited. Hon'ble Supreme Court in the case of Union of India and others vs. Managobinda Samantaray (Civil Appeal Nos.1622- 1623 of 2022 decided on 24.02.2022) has held as under: '9. Impugned judgment by the Division Bench is difficult to sustain as it equates appellate power under Rule 52 of the CISF Rules, 2001, with power of judicial review exercised by constitutional courts. Rule 523 of the CISF Rules, 2001 empowers the appellate authority to examine whether the penalty imposed is excessive, adequate or inadequate and pass consequential order confirming, enhancing, reducing or setting aside the penalty. Rule 52 - Consideration of appeals - (1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of rule 33 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly. Rule 52 - Consideration of appeals - (1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of rule 33 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly. (2) In the case of an appeal against the order imposing any of the penalties specified in rule 34, or enhancing any penalty imposed under the said rules, the appellate authority shall consider - (a) Whether the procedure laid down in these rules has been complied with and if not, whether such non- compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice; (b) Whether the findings of the disciplinary authority are warranted on the basis of the evidence on the record ; and (c) whether the penalty or the enhanced penalty imposed is excessive, or adequate, or inadequate and pass orders; (i) Confirming, enhancing, reducing or setting aside the penalty; or (ii) Remitting the case to the authority which imposed or enhanced the penalty, or to any other authority with such direction as it may deem fit in the circumstances of the case. (iii) No order imposing enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity as far as may be in accordance with the provisions of rule 37, of making a representation against such enhanced penalty. Provided that - (i) If such enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (i) to (v) of rule 34 and an Enquiry under rule 36 has not already been held in the case, the appellate authority shall, subject to the provisions of rule 39, itself hold such an Enquiry or direct that such Enquiry be held in accordance with rule 36 and thereafter on a consideration of the proceedings of such Enquiry make such orders as it may deem fit; and (ii) If the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clause (i) to (v) of rule 34 and an Enquiry under rule 36 has already been held in the case, the appellate authority shall make such orders as it may deem fit. In the present case, the procedure requiring issue of show-cause notice and compliance with the principles of natural justice is made. Quantum of punishment is within the discretionary domain and the sole power of the decision-making authority once the charge of misconduct stands proved. Such discretionary power is exposed to judicial interference if exercised in a manner which is grossly disproportionate to the fault, as the constitutional courts while exercising the power of judicial review do not assume the role of the appellate authority. Writ jurisdiction is circumscribed by limits of correcting errors of law, procedural error leading to manifest injustice or violation of principles of natural justice. The decision are also disturbed when it is found to be ailing with perversity. On the question of quantum of punishment, the court exercising the power of judicial review can examine whether the authority has been a reasonable employer and has taken into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and excluded irrelevant matters. In the context of quantum of punishment these aspects are examined to consider whether there is any error in decision making process. On merits of the quantum of punishment imposed, the courts would not interfere unless the exercise of discretion in awarding punishment is perverse in the sense the punishment imposed is grossly disproportionate.' 23. In the case of Pravin Kumar vs. Union of India reported in (2020) 9 SCC 471 , the Hon'ble Supreme Court has held as under: '28. It is thus well settled that the Constitutional Courts while exercising their powers of judicial review would not assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice. Put differently, judicial review is not analogous to venturing into the merits of a case like an appellate authority'. 24. In the case of Union of India and others vs. P. Gunasekaran reported in (2015) 2 SCC 610 , the Hon'ble Supreme Court has held as under: '12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re- appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re- appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether: (a) the enquiry is held by a competent authority; (b) the enquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i) the finding of fact is based on no evidence. 13. Under Article 226/227 of the Constitution of India, the High Court shall not: (i) re-appreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based; (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience.' 25. The Hon'ble Supreme Court has gone to the extent that the interference in the cases arising out of the departmental enquiry virtually amounts to a judicial review and the interference in the matter can be made only to the extent to correct the manifest errors of law or procedure, which might result insignificant injustice or violation of principles of natural justice. No such ground is available to the petitioner as the factum of mala fides could not be established and the authorities have followed the entire procedure in departmental enquiry granting ample opportunities of hearing to the petitioner. 26. Taking into consideration the overall facts and circumstances of the case and the fact that the authorities have followed the entire procedure of departmental enquiry, nothing could be established by the petitioner to show that there is any flaw in the procedure adopted by the authorities and the element of alleged mala fides could also not be proved, no interference in the impugned order passed by the authorities can be made out. 27. Petition sans merit and is hereby dismissed. No order as to costs.