Madhya Pradesh High Court
Ramsalona Pandey vs The State Of Madhya Pradesh on 2 September, 2024
NEUTRAL CITATION NO. 2024:MPHC-JBP:44285
1 WP-10532-2016
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 2 nd OF SEPTEMBER, 2024
WRIT PETITION No. 10532 of 2016
RAMSALONA PANDEY
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Ajeet Kumar Singh - Advocate for the petitioner.
Shri Sahil Sharma - Advocate for respondents No.1 to 4.
Shri Prabhanshu Shukla - Govt. Advocate for the respondents / State.
ORDER
The present petition has been filed challenging the order of termination (Annexure P-7) as well as the appellate order (Annexure P-10) dated 12.05.2016. By the penalty order (Annexure P-7) the petitioner was dismissed from service with recovery of amount of Rs.3,91,250/-. In the appellate order the recovery has been found to be a double jeopardy and by maintaining the dismissal from service, the recovery part has been set aside.
2. The learned counsel for the petitioner contends that petitioner was a Junior Engineer and the actual payment was to be made upon it being sanctioned by the Executive Engineer. The petitioner could not have been solely held responsible for the amount of improper execution of civil work of construction of drain. It is further contended that in the enquiry report it is clearly mentioned that the enquiry proceeded against the petitioner, Assistant Signature Not Verified Engineer, Executive Engineer as well as one Draftsman. However nothing Signed by: NAVEEN KUMAR SARATHE Signing time: 06-09-2024 10.40.23 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:44285 2 WP-10532-2016 has been placed on record that any enquiry report has been prepared against other three employees and the petitioner has been made a scapegoat in the matter.
3. It is further contended by referring to page 91 of the petition that it was the petitioner who submitted that the drain is falling off at various places and it is further contended by referring to the note-sheet attached at page 64 of the petition containing the note dated 13.06.2013 that the Executive Engineer Shri O.P. Nigam was the person who actually passed the bills for payment and therefore, the petitioner could not have been held solely liable. It is thus contended that after having let off the other three employees and officers, the petitioner was entitled to be treated at par and the department could not have singled out the petitioner in the matter of punishment.
4. Learned counsel for the petitioner further contended that work on the spot was found as per standard by Rewa Engineering College and by placing reliance on the document (Annexure-RJ2) filed along with the reply, it is contended that the contractor himself admitted to cure the defects. Thus, no loss has been caused to the Department. It is contended that the bills that were passed were only running account bills and if the work was substandard then the department was always at liberty to deduct the amount from the final bills. However, the department has held the petitioner to be guilty of wrongful execution of work whereas department was very well at liberty to deduct the said amount from the final bills of the contractor.
5. Per Contra, it is contended by learned counsel for the respondents Signaturethat the enquiry Not Verified proceeded against the petitioner as well as three other Signed by: NAVEEN KUMAR SARATHE Signing time: 06-09-2024 10.40.23 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:44285 3 WP-10532-2016 employees and only one employee i.e. Draftsman namely Anil Singh was exonerated in the enquiry and other two officers i.e. the Executive Engieer Shri O.P. Nigam and Assistant Engineer Shri Y.N. Lal were held guilty in the enquiry and enquiry record has been placed before this Court to submit that the enquiry officer found the other two officers also guilty. However, it is submitted that final order in the matter of those two officers was passed, could not be verified.
6. The learned counsel for the respondents further submits that as the report submitted by Engineer College Rewa was not found to be proper by the department, then the department got a fresh report prepared from Maulana Azad National Institute of Technology ( MANIT) Bhopal and in the report of MANIT various lapses in the construction work were found which the petitioner being posted as Junior Engineer failed to report and wrongly noted in the measurement book that the construction work is as per standard. It was only when the drain started collapsing at various places then it was detected that the work has been substandard but the petitioner did not note such below standard work in the measurement book on account of which the bills were kept on being forwarded for payment to the higher officers.
7. Heard.
8. Upon perusal of the enquiry report placed on record as (|Annexure P-6) it is evident that the charge against the petitioner is that the work was substandard but he did not make such notes in the measurement book and without making proper examination of the quality of work, he wrongly Signatureentered the work in the measurement book and thus did not discharge the Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 06-09-2024 10.40.23 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:44285 4 WP-10532-2016 duties assigned to him of supervising the work at the site. On account of these lapses in supervising the work, the contractor performed substandard work as a result of which excess payment was made to the contractor as compared to the quality of work which was actually executed at the spot.
9 . So far as the argument placed by the petitioner that other officers were exonerated in the enquiry is concerned, this Court has perused the enquiry report in respect of Shri O.P. Nigam Executive Engineer and Shri Y.N. Lal, Assistant Engineer. It is evident that both these officers have been found to be guilty in the enquiry proceedings. However, no punishment order of these two officers is available in the record. It is, however, seen that both these two officers had retired on the date of submission of enquiry report in the year, 2015 and the punishment of such retired officer must have been taken in terms of the pension rules as applicable to the respondent- corporation. The counsel for the respondents is not in a position to submit today that what ultimate punishment was awarded to these two officers but the fact remains that these two officers were also held guilty in the enquiry proceedings. Thus, it cannot be held that the petitioner has been wrongly held guilty while holding the other officers exonerated in the matter.
10. The petitioner who was the supervising authority at the spot being the Junior Engineer, the exact allegation against the petitioner was not carrying out proper supervision of work as a result of which the substandard work of the contractor was not reported and it was only when the drain started collapsing then it was found that there has been substandard work.
11. Signature Not Verified The argument that the department could have recovered the Signed by: NAVEEN KUMAR SARATHE Signing time: 06-09-2024 10.40.23 AMNEUTRAL CITATION NO. 2024:MPHC-JBP:44285 5 WP-10532-2016 amount from the final bills of the contractor pales into insignificance because the petitioner is alleged of not performing his duties to supervise the work at site. In what manner the amount can be recovered from the contractor is a different matter to be considered as per terms of the contract between the department and the contractor. The departmental officers cannot avoid their liabilities to properly supervise the work stating that the department can recover the amount from the contractor.
12. Various averments were made on facts before this Court to say that on facts the petitioner was not at fault and various notes in the note-sheet were pointed out to state that the Executive Engineer Shri O.P. Nigam had found the work as per standard and also that the work was indeed as per standard. However, the said contention is belied by the own note relied by the petitioner at page 91 of the petition dated 19.07.2012 wherein it is mentioned that the petitioner has reported that the drain is collapsing at various places. Thus, it is evident that work was indeed substandard and as considered by the authorities also the expert Engineers of MANIT have also found the work to be substandard.
13. Even otherwise, it is well settled in law that in exercise of its limited scope of writ jurisdiction in such matters the court cannot sit as an appellate authority against the findings of the departmental authority and the scope of interference is very limited. In the case of State of Karnataka v. N. Gangaraj, (2020) 3 SCC 423 the Supreme Court has held as under:-
"8. We find that the interference in the order of punishment by the Tribunal as affirmed by the High Court suffers from patent error. The Signature Not Verified Signed by: NAVEENpower of judicial review is confined to the decision-making process.KUMAR SARATHE Signing time: 06-09-2024 10.40.23 AM
NEUTRAL CITATION NO. 2024:MPHC-JBP:44285 6 WP-10532-2016 The power of judicial review conferred on the constitutional court or on the Tribunal is not that of an appellate authority.
9. In State of A.P. v. S. Sree Rama Rao [State of A.P. v. S. Sree Rama Rao, AIR 1963 SC 1723] , a three-Judge Bench of this Court has held that the High Court is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. The Court held as under : (AIR pp. 1726-27, para 7) "7. ... The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant : it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence."
10. In B.C. Chaturvedi v. Union of India [B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80] , again a three-Judge Bench of this Court has held that power of judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the court. The court/tribunal in its power of judicial review does not act as an appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. It was held as under : (SCC pp. 759-60, paras 12-13) "12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority Signature Not Verified Signed by: NAVEEN reaches is necessarily correct in the eye of the court. When an KUMAR SARATHE Signing time: 06-09-2024 inquiry is conducted on charges of misconduct by a public servant, 10.40.23 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:44285 7 WP-10532-2016 the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of the Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [Union of India v. H.C. Goel, (1964) 4 SCR 718 : AIR 1964 SC 364] , this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
11. In High Court of Bombay v. Shashikant S. Patil [High Court of Bombay v. Shashikant S. Patil, (2000) 1 SCC 416 : 2000 SCC (L&S) 144] , this Court held that interference with the decision of departmental authorities is permitted if such authority had held proceedings in violation of the principles of natural justice or in Signature Not Verified Signed by: NAVEEN violation of statutory regulations prescribing the mode of such enquiry KUMAR SARATHE while exercising jurisdiction under Article 226 of the Constitution. It Signing time: 06-09-2024 10.40.23 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:44285 8 WP-10532-2016 was held as under : (SCC p. 423, para 16) "16. The Division Bench [ Shashikant S. Patil v. High Court of Bombay, 1998 SCC OnLine Bom 97 : (2000) 1 LLN 160] of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution."
12. In State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya [State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya, (2011) 4 SCC 584 :
(2011) 1 SCC (L&S) 721] , this Court held that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be ground for interfering with the findings in departmental enquiries. The Court held as under : (SCC pp. 587-88, paras 7 & 10) "7 . It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be Signature Not Verified Signed by: NAVEEN grounds for interfering with the findings in departmental KUMAR SARATHE Signing time: 06-09-2024 enquiries. Therefore, courts will not interfere with findings of fact 10.40.23 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:44285 9 WP-10532-2016 recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C. Chaturvedi v. Union of India [B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80] , Union of India v. G. Ganayutham [Union of India v. G. Ganayutham, (1997) 7 SCC 463 : 1997 SCC (L&S) 1806] and Bank of India v. Degala Suryanarayana [Bank of India v. Degala Suryanarayana , (1999) 5 SCC 762 : 1999 SCC (L&S) 1036] , High Court of Bombay v. Shashikant S. Patil [High Court of Bombay v. Shashikant S. Patil, (2000) 1 SCC 416 : 2000 SCC (L&S) 144] .) ***
10. The fact that the criminal court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceeding invalid nor affect the validity of the finding of guilt or consequential punishment. The standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. This is more so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the criminal proceedings. The findings by the criminal court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the disciplinary authority to attain finality by non-challenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court has acquitted him."
13. In another judgment reported as Union of India v. P. Gunasekaran [Union of India v. P. Gunasekaran, (2015) 2 SCC 610 : (2015) 1 SCC (L&S) 554] , this Court held that while reappreciating evidence the High Court cannot act as an appellate authority in the disciplinary proceedings. The Court held the parameters as to when the High Court Signature Not Verified Signed by: NAVEEN shall not interfere in the disciplinary proceedings : (SCC p. 617, para KUMAR SARATHE 13) Signing time: 06-09-2024 10.40.23 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:44285 10 WP-10532-2016 "13. Under Articles 226/227 of the Constitution of India, the High Court shall not:(i) reappreciate 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."
14. On the other hand the learned counsel for the respondent relies upon the judgment reported as Allahabad Bank v. Krishna Narayan Tewari [Allahabad Bank v. Krishna Narayan Tewari, (2017) 2 SCC 308 : (2017) 1 SCC (L&S) 335] , wherein this Court held that if the disciplinary authority records a finding that is not supported by any evidence whatsoever or a finding which is unreasonably arrived at, the writ court could interfere with the finding of the disciplinary proceedings. We do not find that even on touchstone of that test, the Tribunal or the High Court could interfere with the findings recorded by the disciplinary authority. It is not the case of no evidence or that the findings are perverse. The finding that the respondent is guilty of misconduct has been interfered with only on the ground that there are discrepancies in the evidence of the Department. The discrepancies in the evidence will not make it a case of no evidence. The inquiry officer has appreciated the evidence and returned a finding that the respondent is guilty of misconduct.
15. The disciplinary authority agreed with the findings of the enquiry officer and had passed an order of punishment. An appeal before the State Government was also dismissed. Once the evidence has been accepted by the departmental authority, in exercise of power of judicial review, the Tribunal or the High Court could not interfere with the findings of facts recorded by reappreciating evidence as if the courts are the appellate authority. We may notice that the said judgment has not noticed the larger Bench judgments in S. Sree Rama Rao [State of A.P. v. S. Sree Rama Rao , AIR 1963 SC 1723] and B.C. Chaturvedi [B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 :
1996 SCC (L&S) 80] as mentioned above. Therefore, the orders passed by the Tribunal and the High Court suffer from patent illegality and Signature Not Verified thus cannot be sustained in law."Signed by: NAVEEN KUMAR SARATHE Signing time: 06-09-2024 10.40.23 AM
NEUTRAL CITATION NO. 2024:MPHC-JBP:44285 11 WP-10532-2016
14. Recently, the Hon'ble Apex Court in case of SBI v. A.G.D. Reddy, 2023 SCC OnLine SC 1064 has held as under:-
42. It is now well settled that the scope of judicial review against a departmental enquiry proceeding is very limited. It is not in the nature of an appeal and a review on merits of the decision is not permissible.
The scope of the enquiry is to examine whether the decision-making process is legitimate and to ensure that the findings are not bereft of any evidence. If the records reveal that the findings are based on some evidence, it is not the function of the court in a judicial review to re- appreciate the same and arrive at an independent finding on the evidence. This lakshman rekha has been recognized and reiterated in a long line of judgments of this Court.
15. Thus, this Court cannot re-appreciate the evidence which was adduced during the course of enquiry and which has been accepted by the enquiry officer, by the disciplinary as well as by the appellate authority. This Court cannot sit as an appellate Court over the technical findings in the matter relating to the work being executed which was substandard to the design of the work.
16. The counsel for the petitioner was not in a position to point out any grave infirmity in the departmental enquiry proceedings so as to hold that there was any substantial violation of principles of natural justice and petitioner could not properly defend his case during the course of enquiry. The petitioner cannot escape his liabilities in not properly supervising the work and not noting the lapses in the execution of work in the measurement book by saying that the department could recover the amount from the contractor. A substandard work which collapses is a national loss and the supervising employee cannot escape his liability saying that the department can recover the amount.
Signature Not Verified Signed by: NAVEENKUMAR SARATHE 17. Consequently, no ground is made out to interfere in the impugned Signing time: 06-09-2024 10.40.23 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:44285 12 WP-10532-2016 orders. Petition being devoid of merits stands dismissed.
(VIVEK JAIN) JUDGE nks Signature Not Verified Signed by: NAVEEN KUMAR SARATHE Signing time: 06-09-2024 10.40.23 AM