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2024 DIGILAW 784 (MP)

Om Prakash Dhakad v. State of Madhya Pradesh

2024-12-13

SANJAY DWIVEDI

body2024
ORDER : SANJAY DWIVEDI, J. Since pleadings are complete and counsel for the parties are ready to argue the matter finally, therefore, it is finally heard. 2 . By the instant petition filed under Article 226 of the Constitution of India, the petitioner is questioning validity of orders dated 26.07.2017 (Annexure P/6) and 04.07.2018 (Annexure P/9) passed by the Disciplinary authority as well as the Appellate authority whereby after issuing the charge-sheet and conducting departmental enquiry, punishment of removal from service was inflicted upon him. The petitioner is assailing the orders mainly on the ground that the reply submitted by him to the charge-sheet issued and stand taken therein was not considered by the Disciplinary authority and also by the Appellate authority. 3 . Counsel for the petitioner has submitted that there was only one charge levelled against the petitioner alleging misappropriation of fund relating to construction of toilets under the scheme of the Government. He has submitted that petitioner has filed the reply and taken a stand therein that the charge levelled against him was without any foundation and he has not committed any misappropriation of fund. As per the reply, whatever amount was sanctioned has been spent and as such, nothing was misappropriated. He has further submitted that petitioner got transferred from Gram Panchayat, Sewasani to Gram Panchayat, Baroda on 19.08.2014 but he was held responsible for the delay and illegality committed in the construction work which was continued even after transferring him to some other Gram Panchayat. He has further pointed out that in the enquiry though he has been held responsible for committing illegality and misappropriation of fund but the said amount i.e. Rs.26,200/- was returned by the then Sarpanch that too, after transferring the petitioner. 4 . The Disciplinary authority while passing the final order has taken a different stand not relating to the charge levelled against the petitioner. 4 . The Disciplinary authority while passing the final order has taken a different stand not relating to the charge levelled against the petitioner. According to him, the petitioner has been held responsible and charge found proved against him only because payment of Rs.55,000/- was made to one Aakash Traders on 10.05.2014 but even after 110 days, the construction of toilets was not completed and petitioner did not take any action to adjust the amount and the said amount of Rs.26,200/- though returned by the then Sarpanch after transferring the petitioner from that Gram Panchayat but that does not mean that petitioner could be given a clean chit to observe that he was not involved in the alleged irregularity. The Disciplinary authority has also observed in its order that though then Sarpanch of Gram Panchayat has returned the amount of Rs.26,200/- vide Cheque No.013815 dated 28.01.2016 but that cheque was never deposited in the account of Gram Panchayat, Sewasani. He has submitted that all these transactions were not part of the charge and return of the amount i.e. Rs.26,200/- by the then Sarpanch in a proceeding initiated under Section 92 of the PANCHAYAT RAJ ADHINIYAM , 1993. He has further submitted that return of the said amount by the then Sarpanch was considered to be foundation of committing alleged irregularity even by the petitioner but this is neither sufficient nor cogent to substantiate the charge proved against the petitioner. According to him, no action was taken against the then Sarpanch and then Secretary of the respective Gram Panchayats. 5 . Counsel for the petitioner has further submitted that punishment of removal in view of the facts and circumstances of the case, that too when petitioner was not found involved and no cogent evidence was produced by the Department to substantiate the charge levelled against him, is exorbitant and it is not in consonance with the charge levelled and in the manner it is proved against the petitioner. In support of his contention, he has placed reliance upon the judgments passed in case of Prabhu Dayal Bansal Vs. State of M.P. and another reported in 2013 SCC Online MP 5417, Laxmi Devi Sugar Mills Limited Vs. Shri Nand Kishore Singh reported in AIR 1957 SC 7 , M.V. Bijlani Vs. Union of India and others reported in (2006) 5 SCC 88 and in case of Jai Kumar Bajpai (dead) through Lrs. State of M.P. and another reported in 2013 SCC Online MP 5417, Laxmi Devi Sugar Mills Limited Vs. Shri Nand Kishore Singh reported in AIR 1957 SC 7 , M.V. Bijlani Vs. Union of India and others reported in (2006) 5 SCC 88 and in case of Jai Kumar Bajpai (dead) through Lrs. Smt. Chandrakanta Vs. Chairman-cum- Managing Director, Madhya Pradesh State Electrical Board, Rampur reported in 2022(3) M.P.L.J. 603 . All these judgments are based upon the ground that a person cannot be punished for the charge and conduct for which he has not been charge-sheeted. 6 . On the other hand, learned counsel appearing for the respondents/State has opposed the submission made by counsel for the petitioner and relied upon the stand taken by them in their reply and submitted that the Disciplinary authority has rightly observed that the deposit/transfer of Rs.55,000/- was made to one Akash Traders in respect of construction of toilets on 10.05.2014 by the then Sarpanch of Gram Panchayat but the toilets were not constructed even till the date of transfer of the Sarpanch i.e. 19.08.2024 and even after almost 110 days of making payment, the petitioner did not made any attempt to adjust the said amount and to get refund from the said trader and, therefore, it is found that he was involved in the alleged irregularity and as such, he has rightly been punished by the respondents. 7 . After hearing learned counsel for the parties and on perusal of record, it is clear that petitioner has challenged the orders passed by the Disciplinary authority and also by the Appellate Authority mainly on the ground that the charge-sheet was issued by the Disciplinary authority so as to ascertain the charge levelled against him. As per counsel for the petitioner, reply to the said charge- sheet was filed by the petitioner but the Disciplinary Authority did not consider the same in an appropriate manner and passed the order of punishment taking into account the facts not relating to the charge. Petitioner has tried to establish a case that the charge levelled against the petitioner was different that that of material considered by the Disciplinary Authority to hold him guilty. Petitioner has tried to establish a case that the charge levelled against the petitioner was different that that of material considered by the Disciplinary Authority to hold him guilty. As per counsel for the petitioner, the foundation of punishment and cognizance taken by the Disciplinary Authority of the material so as to found charge proved not relevant but it can be easily gathered that the Disciplinary Authority had proceeded in a wrong direction and considered the charge which is not levelled against the petitioner. The judgments on which counsel for the petitioner has placed reliance and view taken by the Supreme Court and High Court in those judgments also give clear indication about the stand taken by the petitioner and, therefore, this Court has to answer the query raised by the petitioner and it is to be decided whether within the four corners of the submissions and grounds raised by the petitioner, the impugned orders are sustainable or not. 8 . In case of M.V. Bijlani ( supra ) on which counsel for the petitioner has placed reliance, the Supreme Court has observed as under:- “23. Evidently, the evidences recorded by the enquiry officer and inferences drawn by him were not commensurate with the charges. If it was a case of misutilisation or misappropriation, the appellant should have been told thereabout specifically. Such a serious charge could not have been enquired without framing appropriate charges. The charges are otherwise vague. We have noticed hereinbefore that the High Court also proceeded on the basis that the non-maintenance of diary amounted to misutilisation of copper wire. xxx xxx xxx 25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.” As per the observation made by the Supreme Court, it is clear that the Enquiry Officer during the course of enquiry should place the relevant material so as to prove the charges. The material produced during the course of enquiry should be commensurate with the charge levelled. It is also observed therein that the charge should be clear and if it is vague then it is difficult to decide what material is required to be placed to prove the said charge but the authority should not proceed and passed the order of punishment on the basis of surmises and conjectures. 9 . In case of Laxmi Devi Sugar Mill ( supra ), the Supreme Court has observed as under:- “17. The charge-sheet, however, only complained about the speech which he had made on the 10th June, 1952, wherein, among other defamatory remarks, he, the respondent, had instigated the workers to take steps for the removal of the General Manager. The enquiry which was held on the 4th August, 1952, also concentrated on this particular charge and the report which was made by the General Manager on the 24th October, 1952, also found that the respondent had made a speech exhorting the workers to pass the resolution for the removal of the General Manager. The acts of insubordination calculated to undermine the discipline in the factory which we have adverted to above were neither the subject-matters of the charge nor were they relied upon by the General Manager in his report as the grounds of misconduct entitling the management to dismiss the respondent from its employ. The passing of the resolution for the removal of the General Manager by itself was not, as already stated, an act subversive of discipline and would not entitle the management to dismiss him and we are of the opinion that, on the record as it stood, the Labour Appellate Tribunal was justified in refusing to the appellant the permission to dismiss the respondent from its employ. 18. 18. The charge-sheet which was furnished by the appellant to the respondent formed the basis of the enquiry which was held by the General Manager and the appellant could not be allowed to justify its action on any other grounds than those contained in the charge-sheet. The respondent not having been charged with the acts of insubordination which would have really justified the appellant in dismissing him from its employ, the appellant could not take advantage of the same even though these acts could be brought home to him. We have, therefore, come to the conclusion that the order made by the Labour Appellate Tribunal was correct even though we have done so on grounds other than those which commended themselves to it.” In the said case, the Supreme Court has observed that the material used in the Departmental enquiry by the prosecution should be relevant and related to the charge levelled and foundation of order of Disciplinary Authority should be the material used in the enquiry and to see whether that is relevant and commensurate with the charge levelled or not. 10 . In case of Prabhu Dayal Bansal ( supra ), the High Court has to see whether proper evidence was placed before the authority or not so as to prove the charge and if punishment is based upon no evidence or of perverse finding, the same is unsustainable. 11 . In case of Jai Kumar Bajpai ( supra ), this Court while considering the matter of disciplinary proceeding has observed that the disciplinary authority should be vigilant while passing the order of punishment and after application of mind and considering the material placed, the order should be passed. It is also observed by the Court that providing opportunity of hearing is not an empty formality. The Disciplinary authority and the Appellate authority both should take into account the defence taken by the delinquent and the authority has to meet out the defence taken by the delinquent. 12 . Here in this case, I do not find that the charge levelled against the petitioner was vague. The charge was very specific and as such, I do not accept the submission made by counsel for the petitioner that the charge carries some vengeance and, therefore, the order of punishment, based upon the same after using the material is not proper. Here in this case, I do not find that the charge levelled against the petitioner was vague. The charge was very specific and as such, I do not accept the submission made by counsel for the petitioner that the charge carries some vengeance and, therefore, the order of punishment, based upon the same after using the material is not proper. For the purpose of convenience, the charge levelled against the petitioner is reproduced hereinbelow:- 13 . From perusal of the charge itself, it is clear that the allegation made therein can be ascertained from the record available in the office of respective Department because it is all mathematical calculation and depends upon the physical verification. A reply to the charge-sheet is also available on record, that is simply a denial of the charge saying that the relevant information about execution of work is available in the office. The enquiry report does not contain any extra material which can be said to be irrelevant but only factual information is available in the record and that has been considered by the enquiry officer and has given finding about misappropriation of government money. The Disciplinary authority in its order dated 26.07.2017 had considered each and every aspect of the matter and also elaborated that the stand taken by the delinquent is not proper and for that, reason has also been assigned. A new fact with regard to payment to the construction agency has come but that is relating to the charge levelled and the disciplinary authority has clarified that though the construction agency had received the amount for constructing toilets and within specific time that was not done, therefore, it was the duty of the petitioner to get the money back. In my opinion, the said material cannot be said to be irrelevant and out of the charge levelled. Although, the Disciplinary Authority has observed that the amount of money which was withdrawn but not found utilized for the purpose of construction of toilets though returned by the Sarpanch by depositing the cheque but after verification of the account, the said amount was not found in the account and thus, I have no hesitation to say that there was nothing wrong committed by the Disciplinary Authority and no extra material which is irrelevant and relating to a new charge has been used. 14 . 14 . Looking to the charge levelled, it can be easily seen that the charge and the contents thereof can be verified from the record of the office because it was nothing but a mathematical calculation, based upon physical verification and that has been done by the authority and then only petitioner was found guilty. The judgments on which petitioner has placed reliance, in my opinion, are not helpful for him so as to substantiate that the orders of the Disciplinary Authority and the Appellate Authority are illegal. On the contrary, in my opinion, there is nothing illegal committed by the authority so as to punish the petitioner and there is no violation of the principles of natural justice. The Supreme Court in case of M.V. Bijlani ( supra ) itself has observed that jurisdiction of the Court in a matter of disciplinary proceedings and exercise of power of judicial review is very limited. The Court has also observed that in a matter of disciplinary proceeding, there should be some evidence to prove the charge. The Court has also observed that proving a charge in a matter of departmental proceedings is not like a criminal trial. The charges levelled has to be found proved on the basis of preponderance of probability considering the material available. Thus, it is clear that it is not a case in which the findings of Disciplinary authority and the Appellate authority are based upon surmises and conjectures. 15 . Looking to the limited scope of the powers of the High Court under Article 226 of the Constitution of India so as to exercise judicial review of orders of Disciplinary authority and Appellate authority, I do not find that it is a case in which the said power has to be exercised. Accordingly, I am of the opinion the material used by the authority to prove the charge and the manner in which enquiry conducted and orders passed by the authorities punishing the petitioner do not call for any interference by this Court in a petition under Article 226 of the Constitution of India. 16 . The petition, being sans merit is hereby dismissed.