Madhya Pradesh High Court
Ambreesh Kumar Mishra vs The State Of Madhya Pradesh on 7 December, 2017
1 W.P.No.1800/2016
Ambreesh Kumar Mishra Vs. State of M.P. & Ors.
07.12.2017
Shri Alok Katare, learned counsel for the petitioner.
Shri B.M. Patel, learned Govt. Advocate for the
respondents/State.
With consent heard finally.
Present petition under Article 226 of Constitution of India has
been preferred against the order dated 29-04-2014 passed by the
Commandant, 26th Battalion Guna whereby the petitioner has been
inflicted with the major penalty of stoppage of one increment with
cumulative effect. Petitioner is also aggrieved by the order dated
05-06-2014 passed by the Inspector General of Police whereby the
appeal preferred by the petitioner has been dismissed. He is further
aggrieved by the order dated 01-06-2015 passed by the Director
General in mercy appeal whereby the same has been dismissed.
Precisely stated facts of the case are that petitioner was
appointed in the post of constable on 15-01-1998. Later on
promoted to the post of Head Constable on 23-12-2008. During the
course of service, petitioner was served with a charge-sheet dated
24-10-2013 wherein the charge has been levelled against the
petitioner regarding misbehaviour with one of his seniors Nathu
Singh Bhadoriya, Company Commander. Preliminary enquiry was
conducted by the preliminary enquiry officer, who later on become
prosecution witness in the impugned departmental enquiry.
Statement of complainant i.e. Company Commander Nathu Singh
was recorded and preliminary enquiry officer found the charge
proved against the petitioner. Thereafter, charge-sheet as referred
above has been issued.
During the course of the enquiry, prosecution i.e. department
adduced seven witnesses out of which, five witnesses did not state
anything against the petitioner and only witness No.5 -Pratap
Bhanu Singh in his chief examination stated against the petitioner,
however in cross examination he made statement in favour of
petitioner regarding conduct of petitioner. Complainant, Company
2 W.P.No.1800/2016
Commander Nathu Singh also made statement in favour of
petitioner in a way that he purportedly misunderstood utterance of
petitioner as derogatory whereas it was actually not because at the
relevant point of time, petitioner was suffering pain and agony of
accident of his daughter and therefore, after clarification of position,
complainant realized actual mental status of petitioner. It appears
that during the course of departmental enquiry when prosecution
fumbled on the basis of statement of witnesses, therefore, to cover
up and substantiate the case of prosecution, disciplinary authority
again directed enquiry officer to collect additional evidence for
implication of petitioner and thereafter additional evidence was
produced in enquiry. Still additional evidence could not reach home
and could not establish the ground for implication of petitioner.
Be that as it may, when enquriy report with the opinion of
enquiry officer received by the disciplinary authority then it
disagreed with the enquiry report submitted by enquiry officer and
held the petitioner guilty on the basis of earlier finding given in the
preliminary enquiry. Thereafter, impugned order has been passed.
Learned counsel for the petitioner raised the ground that once
the complainant himself pleaded about innocence of petitioner and
did not support the case of prosecution then disciplinary authority
has caused arbitrariness and illegality in implicating the petitioner.
No case was made out against petitioner, even then the
respondents/authorities were hell bent upon implication of
petitioner. This smacks illegality. Petitioner could not have been
implicated on the basis of preliminary enquiry. He relied upon the
judgment of Hon'ble Apex Court in the matter of Nirmala J. Jhala
Vs. State of Gujarat and another, 2013 AIR SCW 1800 and
submitted that on the basis of preliminary enquiry, petitioner could
not have been implicated because preliminary enquiry is initial fact
finding enquiry and conclusiveness can only be attained after
witnesses are examined in departmental enquiry. He also pressed
over procedural lapse caused by the disciplinary authority when he
ordered for gathering additional evidence by the prosecution
3 W.P.No.1800/2016
because same was not permissible as clarified by the Hon'ble Apex
Court in the case of Kanailal Bera Vs. Union of India and others,
(2007) 11 SCC 517 and submitted that second enquiry cannot be
done. Here, under the garb of gathering additional evidence, second
enquiry was ordered.
Learned counsel for the respondents opposed the prayer
made by the petitioner and submitted that some witnesses have
made statement against the petitioner and therefore, the petitioner
has been fastened with the liability of punishment as inflicted by
the impugned order. He relied upon the judgment of Hon'ble Apex
Court in the matter of Kendriya Vidyalaya Sangathan and
another Vs. Satbir Singh Mahla, (2008) 4 SCC 445 and also relied
upon the judgment of Division Bench of this Court in the matter of
Union of India and others Vs. Dinesh Singh Bhadoria, 2010 (3)
MPHT 253 and submits that behaviour of petitioner warrants such
punishment. He supported the impugned orders and prayed for
dismissal of writ petition.
Heard learned counsel for the parties at length and perused
the documents.
Facts of the case indicates that petitioner was suffering from
mental trauma due to accident of his daughter. Petitioner has taken this ground in his defence and therefore, he used high pitch (of voice) in conversation with Company Commander, right from Alto to Tenor, because of circumstances and trauma under which he was going. Company Commander who happened to be the complainant, after considering the background which compelled the petitioner to raise his voice, realized the situation in right earnest, therefore, did not support the case of prosecution in any manner. Although in preliminary enquiry, complainant took a stand apparently against the petitioner but in the departmental enquiry he relaxed the stand and did not support the case of prosecution. Even when second enquiry conducted at the instance of enquiry officer, even then he stood to the version of innocence of petitioner. Therefore, disciplinary authority erred in relying upon 4 W.P.No.1800/2016 the testimony of some other witnesses who were neither complainant nor eye witnesses. Here, in the present case testimony of complainant assumes importance.
Disciplinary authority passed the impugned order relying upon the finding of preliminary enquiry which is not permissible in view of the law laid down by the Hon'ble Apex Court in the matter of Nirmala J. Jhala (Supra) as evidence recorded in preliminary enquiry cannot be used in regular enquiry because delinquent is not associated with it and no opportunity of hearing is granted in preliminary enquiry to the delinquent to cross examine the witnesses in the preliminary enquiry. Purpose of preliminary enquiry is to ascertain prima facie about initiation of regular departmental enquiry. Therefore, preliminary enquiry cannot be a ground to fasten the liability over the petitioner when he appears to be exonerated in the regular departmental enquiry. This fact assumes further significance when eqnuiry officer himself has given opinion about exoneration of petitioner. Therefore, substitution of view in the present fact situation by the disciplinary authority appears to be erroneous and perverse.
Similarly, once disciplinary proceeding has been initiated then same must be brought to its logical end and if during pendency of departmental enquiry, disciplinary authority directs enquiry officer to gather further evidence then it is not permissible. This would amount to harassment to the petitioner. Dictum of Hon'ble Apex Court as mandated in the case of Kanailal Bera (supra) can be profitably referred to in the present set of facts.
In the present case, petitioner was subjected to enquiry twice because during pendency of first enquiry, disciplinary authority again ordered for collection of fresh additional evidence. This order was passed purportedly to implicate the petitioner at any cost whereas matter was not of such grave misconduct. Police regulation 226 also talks about lenient view to be taken in respect of Constables and Head Constables when they are subjected to enquiry for the first time. Here, as per submission of petitioner (not 5 W.P.No.1800/2016 rebutted by respondents in specific terms), petitioner faced the departmental enquiry for the first time and for the first time he received such punishment for misbehaviour thus, lenient view is required to be taken.
Therefore, in the cumulative analysis, it appears that impugned orders have been passed contrary to fact situation of the case. Authorities were required to take lenient view in the fact situation of the case which they did not and caused illegality and arbitrariness. Thus, the impugned orders 29-04-2014 (Annexure P/1), 05-06-2014 (Annxure P/2) and 01-06-2015 (Annexure P/3) are hereby set aside.
Petition stands allowed and disposed of accordingly.
(Anand Pathak)
Anil* Judge
ANIL KUMAR
CHAURASIYA
2017.12.13 17:55:52
+05'30'