Madhya Pradesh High Court
Sunil Singh Tomar vs The State Of M.P. on 7 January, 2020
Equivalent citations: AIRONLINE 2020 MP 222
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
(1) W.P. No.1635/2011
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
W.P. No.1635/2011
Sunil Singh Tomar
Vs.
State of M.P. & Others
Coram:
Hon. Shri Justice S.A.Dharmadhikari
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Shri D.P.Singh, Advocate for the petitioner.
Shri Vijay Sundaram, Panel Lawyer for the
respondent/State.
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ORDER
07/1/2020 In this petition, under Article 226 of the Constitution of India, petitioner has assailed the order dated 17/10/2006 (Annexure P/1) passed by the disciplinary Authority/respondent no.5 imposing major penalty of dismissal from service; order dated 16/4/2007 (Annexure P/2) whereby the appeal filed by the petitioner against the order dated 17/10/2006 has been rejected, as well as, the orders dated 25/6/2007 and 15/4/2008 (Annexures P/3 and P/4 respectively) passed by the Appellate Authority whereby petitioner's mercy appeals have also been dismissed.
2. The facts necessary for disposal of this petition lie in (2) W.P. No.1635/2011 narrow compass. Petitioner was appointed on the post of Constable on 7/11/1983 and, at the relevant point of time, was posted in Traffic Police, City Centre, Gwalior when charge- sheet was issued to him in the year 2005 on the following charges:-
1- fnukad 12-4-05 ls 30-4-05 rd 18 fnu rd fcuk lwpuk ,oa fcuk vuqefr ds 'kkldh; dRrZO; ls vukf/kd`r :i ls vuqifLFkr jgdj dRrZO; ds izfr ?kksj ykijokgh] mnklhurk ,oa vuq'kklughurk iznf'kZr djuk 2- fnukad 16-6-05 ls fld ij tkuk rFkk mlds ckn fu;ekuqlkj dksbZ lwpuk ,oa esfMdy izek.k&irz izLrqr u dj 'kkldh; dRrZO; ds izfr euekuk joS;k iznf'kZr djuk 3- vius dRrZO; ls ckj&ckj vuqifLFkr jgus dk vkfn gksuk Petitioner filed reply to the charge-sheet and denied the allegations. Upon consideration of the reply, the disciplinary Authority decided to appoint Enquiry Officer for conducting the enquiry. However, no Presenting Officer was appointed.
Thereafter the enquiry was held and the charges framed against the petitioner were found to be proved. Subsequently, petitioner was dismissed from services vide order dated 17/10/2006 (Annexure P/1). Being aggrieved, the petitioner preferred an appeal and vide order dated 16/4/2007 (Annexure P/2), the same was dismissed. Thereafter the petitioner preferred two mercy appeals and both of them have also been (3) W.P. No.1635/2011 dismissed vide orders dated 25/6/2007 (Annexure P/3) and 25/4/2008 (Annexure P/4).
3. Learned counsel for the petitioner has raised the following contentions:-
(i) The impugned orders (Annexures P/1 to P/4) are contrary to law, being violative of Article 14 of the Constitution of India.
(ii) The Enquiry Officer has not applied his mind to the facts in hand while passing the impugned order (Annexure P/1). The enquiry officer traveled beyond the charge while appreciating the evidence. No Presenting Officer was appointed. The Enquiry Officer examined the witnesses and, therefore, the enquiry stood vitiated.
For this, reliance has been placed on decision in the case of Ram Prakash Vs. State of M.P. and others (2008 (II) MPWN 59).
(iii) The appellate Authority has not applied its mind to the facts in hand while passing the impugned orders (Annexures P/2 to P/4). In this regard, reliance has been placed on decision in the case of Kranti Associates (P) Ltd. v. Masood Ahmed Khan ((2010) 9 SCC 496)
(iv) Regulations 216 and 217 of the M.P.Police Regulations have not been followed while imposing the (4) W.P. No.1635/2011 punishment.
(v) Even otherwise, by applying the Wednesbury principles of reasonableness and doctrine of proportionality, the punishment of dismissal from service is disproportionate to the allegations leveled against the petitioner. It is submitted that for the same offence, he has already been punished. The Authorities have not taken into consideration the measure, magnitude and degree of misconduct and further that no element of motive or mens rea or moral turpitude was involved. In this regard, reliance has been placed upon judgment of the Apex Court in the cases of Chennai Metropolitan Water Supply And Sewerage Board and Others Vs. T.T. Murali Babu ((2014)2 SCC 108) and Om Kumar and Others Vs. Union of India ((2001)2 SCC 386).
(vi) The charges are vague in nature and no evidence was brought on record against the petitioner. In support of his contention, he has relied on decision of the Apex Court in the case of Shri Shekhar Ghosh vs Union Of India ((2007)1 SCC 331).
(vii) The findings on charge no.3 are based on no evidence. The disciplinary Authority has travelled (5) W.P. No.1635/2011 beyond charge. To buttress his contention, he has relied on decision in the case of M.V.Bijlani Vs. Union of India and Others ((2006)5 SCC 88).
4. Per contra learned Panel Lawyer submitted that disciplinary Authority/respondent no.5 has power to impose major penalty including dismissal from service. The disciplinary Authority and the appellate Authority both have applied their minds to the evidence on record, as well as, contentions raised by the petitioner and thereafter passed the impugned orders and all the contentions of the petitioner have been considered while passing the said orders. Considering the gravity of charges amounting to dereliction of duty and serious misconduct, the punishment of dismissal from service, by no stretch of imagination, can be said to be disproportionate. Consequently, it is submitted that the petition sans merit and be dismissed.
5. Heard, learned counsel for the parties.
6. Evidently, no Presenting Officer has been appointed in this case. A Division Bench of this Court in the case of Union of India through its Secretary, Ministry of Railway, New Delhi and others Vs. Mohd. Naseem Siddiqui (2005 (1) LLJ
931) in paragraph 16 has held as under:-
(6) W.P. No.1635/2011
"(i) The Inquiry Officer, who is in the position of a Judge shall not act as a Presenting Officer, who is in the position of a prosecutor.
(ii) It is not necessary for the Disciplinary Authority to appoint a Presenting Officer in each and every inquiry.
Non- appointment of a Presenting Officer, by itself will not vitiate the inquiry.
(iii) The Inquiry Officer, with a view to arrive at the truth or to obtain clarifications, can put questions to the prosecution witnesses as also the defence witnesses. In the absence of a Presenting Officer, if the Inquiry Officer puts any questions to the prosecution witnesses to elicit the facts, he should thereafter permit the delinquent employee to cross-examine such witnesses on those clarifications.
(iv) If the Inquiry Officer conducts a regular examination-in-chief by leading the prosecution witnesses through the prosecution case, or puts leading questions to the departmental witnesses pregnant with answers, or cross-examines the defence witnesses or puts suggestive questions to establish the prosecution case employee, the Inquiry Officer acts as prosecutor thereby vitiating the inquiry.
(v) As absence of a Presenting Officer by itself will not vitiate the inquiry and it is recognised that the Inquiry Officer can put questions to any or all witnesses to elicit the truth, the question whether an Inquiry Officer acted as a Presenting Officer, will have to be decided with reference to the manner in which the evidence is let in and recorded in the inquiry.
Whether an Inquiry Officer has merely acted only as an Inquiry Officer or has also acted as a Presenting Officer depends on the facts of each case. To avoid any allegations of bias and running the risk of inquiry being declared as illegal and vitiated, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases. Be that as it may.
(Emphasis supplied)
7. Issue of similar kind was considered by a coordinate Bench of this Court in the case of Ram Prakash Gaya Prasad Vs. (7) W.P. No.1635/2011 State of M.P. and others, 2008(4) MPLJ 35 and Ramesh Chand Rathore V. State of M.P. and others, 2010 (II) MPWN 80, relevant paras of which are reproduced below:-
Ram Prakash Gaya Prasad Vs. State of M.P. and others:
11. In the present case, it is evident from a perusal of the enquiry proceedings that no Presenting Officer was appointed by the disciplinary authority. The evidence on behalf of the disciplinary authority has been presented by the Enquiry Officer, by conducting a regular examination-if-chief of prosecution witnesses by taking them through the prosecution case. The Enquiry Officer has also conducted in the present case regular cross-examination of the defence witnesses.
The Enquiry Officer has also conducted the cross- examination of the delinquent government servant. It is not a case where the Enquiry Officer in the absence of the Presenting Officer has simply put clarificatory questions to the delinquent government servant. Ramesh Chand Rathore V. State of M.P. and others:
6. Keeping in view the judgment delivered by this Court and also keeping in view the record relating to Departmental Enquiry Proceedings, it is evident that the Inquiry Officer has in the present case conducted regular cross-examination of witness and he has also conducted the crossexamination of the delinquent government servant. It is not a case where the Inquiry Officer has simply asked clarificatory questions to the delinquent government servant. Meaning thereby, the Inquiry Officer, has assumed the role of the prosecutor while acting as a judge in the departmental enquiry proceedings."
8. In this case, no Presenting Officer was appointed. The evidence on behalf of the Disciplinary Authority has been presented by the Inquiry Officer, by conducting regular examination-in-chief of prosecution witnesses by taking them (8) W.P. No.1635/2011 through the prosecution case. The Inquiry Officer has also conducted regular cross-examination of the defence witnesses. It is not a case where the Enquiry Officer in the absence of the Presenting Officer has simply put clarificatory questions to the delinquent Government Servant. In the present case, the Enquiry Officer has acted as a Presenting Officer which is evident from the departmental proceedings. As such, the procedure adopted by the Enquiry Officer vitiates the enquiry. That apart, the findings of the Enquiry Officer are self contradictory. In paragraph 2 of the enquiry report, the Enquiry Officer has acknowledged the fact that the petitioner had proceeded on sick leave on 16/6/2005 after apprising R.I, Gwalior and after returning from leave medical papers had been submitted by petitioner. Despite it, charge no.2, as indicated above, has been found to be proved.
9. So far as the proportionality of punishment is concerned, the Hon'ble Supreme Court in the case of Om Kumar and others Vs. Union of India ((2001)2 SCC 386) has lucidly explained the distinction between scope of interference in judicial review of administrative action where challenge is made on the ground of discrimination under Article 14 of the Constitution and where challenge is made to an administrative action as arbitrary, irrational or unreasonable. The Courts (9) W.P. No.1635/2011 apply the principle of primary review known as doctrine of proportionality where the administrative action is challenged under Article 14 as being discriminatory and in such case the question before the Courts is to consider the correctness of the level of discrimination applied and whether it is excessive and whether it has nexus with the objective intended to be achieved by the administrator. In paragraph 28 of the aforesaid judgment, the Hon'ble Apex Court has elucidated the concept of proportionality as under:-
"28. By 'proportionality', we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the Court will see that the legislature and the administrative authority 'maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve'. The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the Court. That is what is meant by proportionality."
In paragraphs 66 to 68, the concept of primary and secondary review and the applicability of Wednesbury test therein has been couched by the Apex Court in the following words:-
"66. It is clear from the above discussion that in India where administrative action is challenged (10) W.P. No.1635/2011 under Article 14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the Constitutional Courts as primary reviewing Courts to consider correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the administrator. Here the Court deals with the merits of the balancing action of the administrator and is, in essence, applying 'proportionality' and is a primary reviewing authority.
67. But where, an administrative action is challenged as 'arbitrary' under Article 14 on the basis of Royappa (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is 'rational' or 'reasonable' and the test then is the Wednesbury test. The Courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. In G.B. Mahajan v. Jalgaon Municipal Council, [1991] 3 SCC 91, at
111. Venkatachaliah, J, (as he then was) pointed out that 'reasonableness' of the administrator under Article 14 in the context of administrative law has to be judged from the stand point of Wednesbury rules. In Tata's Cellular v. Union of India, [1994] 6 SCC 651 (at PP. 679-680); Indian Express Newspapers v. Union of India, [1985] 1 SCC 641 at 691), Supreme Court Employees' Welfare Association v. Union of India and Anr., [1989] 4 SCC 187, at. 241 and U.P. Financial Corporation v. GEM CAP (India) Pvt. Ltd, [1993] 2 SCC 299, at 307, while Judging whether the administrative action is 'arbitrary' under Article 14 (i.e. Otherwise then being discriminatory, this Court has confined itself to a Wednesbury review always.
68. Thus, when administrative action is attacked as discriminatory under Article 14, the principle of primary review is for the Courts by applying (11) W.P. No.1635/2011 proportionality. However, where administrative action is questioned as 'arbitrary' under Article 14, the principle of secondary review based on Wednesbury principles applies."
10. In view of the foregoing discussion, not only the enquiry is found to be vitiated, but the punishment is also on the excessive side. The impugned orders (Annexures P/1 to P/4), as such, could not withstand the scrutiny of law. The same are hereby set aside. Consequently, respondents are directed to reinstate the petitioner forthwith, though no backwages shall be payable to him on the principle of No work No pay.. However, the respondents shall be at liberty to conduct a free and fair de novo inquiry in the matter in accordance with law. In the event fresh enquiry is to be launched by the respondents, the same be concluded within a period of six months from the date of receipt of certified copy of this order.
Accordingly, the petition stands partly allowed.
(S.A.Dharmadhikari) Judge (and) ANAND SHRIVASTAVA 2020.01.08 11:13:45 +05'30'