Madhya Pradesh High Court
Pushpraj Tiwari vs The State Of Madhya Pradesh on 27 January, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2025:MPHC-JBP:24061
1 W.P. No.15025/2020
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLESHRI JUSTICE VISHAL MISHRA
ON THE 27th OF JANUARY, 2025
WRIT PETITION No. 15025 of 2020
PUSHPRAJ TIWARI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
............................................................................................................................................
Appearance:
Shri Vipin Yadav - Advocate for the petitioner.
Shri Prabhanshu Shukla - Government Advocate for the
respondents/State.
............................................................................................................................................
ORDER
The present petition has been filed assailing the order dated 03/12/2019 passed by respondent No.3, whereby the Appellate Authority has imposed the major penalty of withholding of amount from the salary equivalent to one increment with cumulative effect which will affect his future increments and pension and also challenged the order dated 18/02/2020 passed by respondent No.2, whereby the Appeal preferred against the order dated 03/12/2019 has been dismissed.
2. It is the case of the petitioner that on 03/07/2018 when the petitioner was about to take accused for production before the Magistrate but owing to some delay in writing work of case diary, he requested the concerned Sub Inspector Ku. Vandana Sharma to expedite the writing work of case diary so that the Magistrate may not get angry for bringing the accused with delay in the Court, then complainant Vandana Sharma scolded him badly and thereafter made a complaint Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 19-05-2025 18:47:12 NEUTRAL CITATION NO. 2025:MPHC-JBP:24061 2 W.P. No.15025/2020 against the petitioner regarding his misbehavior and indiscipline. On which, a preliminary enquiry was conducted and after getting the report, decision was taken to conduct a departmental enquiry against the petitioner. The Superintendent of Police, Rewa issued a charge-sheet to the petitioner levying two charges. Reply to the charge-sheet was filed. Being dissatisfied with the reply, departmental enquiry was initiated. Seven witnesses were examined during the departmental enquiry. Petitioner was permitted to participate in the departmental enquiry proceedings. On conclusion of the proceedings, enquiry report was submitted to the Superintendent of Police and thereafter, notice was issued to the petitioner asking for a reply. After considering the reply, Disciplinary Authority imposed the punishment of stoppage of one increment without cumulative effect and such punishment will not affect his future increments. He preferred departmental appeal on 30/10/2019 before DIG Rewa Division Rewa. The Appellate Authority suo moto exercised the power under Section 270 of Police Regulation and issued a show cause notice to the petitioner that why the punishment be not increased converting the same from minor to major punishment. Petitioner submitted a detailed reply to the show cause notice pointing out the fact that notice is not maintainable in view of Rule 29(4) of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (in short „Rules, 1966‟). Thereafter, the Appellate Authority has passed the final order dated 03/12/2019 enhancing the punishment from minor to major and imposed punishment of stoppage of one increment with cumulative effect and it will affect his future increments and pension. He again preferred an Appeal before Inspector General of Police, Rewa Zone Rewa who had dismissed the Appeal vide order dated 18/02/2020.
Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 19-05-2025 18:47:12NEUTRAL CITATION NO. 2025:MPHC-JBP:24061 3 W.P. No.15025/2020 Now being aggrieved by all the orders passed by the Authorities, this petition has been preferred.
3. It is argued that the procedure which has been adopted for imposition of punishment upon the petitioner is per se illegal. It is argued that the Appellate Authority should have assigned reasons for enhancing the punishment and converting the punishment from minor to major punishment. Rule 29 of Rules, 1966 has not been followed. Rules 14 and 15 of Rules, 1966 to the extent that reasons must be recorded in writing showing the disagreement should be followed. He has placed reliance upon the judgment passed in the case of Nathaniel Ghosh Vs. Union Territory of Arunanchal Pradesh reported in 1980 (2) SLR 733 and in the case of C. Pitchiah Vs. Andhra University reported in AIR 1961 AP 465 to substantiate the arguments regarding full and fair opportunity being granted to the employee. It is further argued that looking to the allegations levied against the petitioner, the same does not fall under the category of misconduct as the petitioner has never misbehaved with the Sub Inspector. He has only asked to expedite the proceedings and to complete the case diary within time so that there may not be any delay in producing the accused before the Magistrate. He has also relied upon the order passed in the case of Nahood Ali Khan, Inre AIR 1958 AP 116 to substantiate the arguments that misconduct means an act done willfully with a wrong intention and as applied to profession people. It also means a dereliction or a deviation from the duty but in the present case, there was neither any intention of the petitioner to do a wrongful act or there was any deviation from the duty. The Appellate Authority while enhancing the punishment has not Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 19-05-2025 18:47:12 NEUTRAL CITATION NO. 2025:MPHC-JBP:24061 4 W.P. No.15025/2020 even assigned the reasons for enhancing the same, therefore this petition has been filed.
4. On notice being issued, a detailed reply has been filed by the Authorities supporting the impugned orders. It is argued that interference in the case of departmental enquiry is limited to the extent as pointed out in the judgment passed by Hon‟ble Supreme Court in the case of Union of India and others Vs. P. Gunasekaran reported in (2015) 2 SCC 610. It is argued that petitioner has participated and was given full opportunity in the departmental enquiry. It is not a case where proper opportunity was not extended to the petitioner. However, the main ground which is taken by the petitioner is that the reasons should be recorded by the Appellate Authority while enhancing the punishment and proper opportunity should be granted to the petitioner. A notice was issued to the petitioner asking him why his punishment should not be enhanced. Petitioner has replied to the show cause notice which is reflected from document Annexure-P/9. After going through the reply submitted by the petitioner, the Authorities have arrived at a conclusion that the punishment imposed by the Disciplinary Authority deserves to be enhanced and accordingly, the order was passed. On Appeal being preferred, the same was also dismissed. The enquiry report clearly shows that the charges levied against the petitioner were found to be proved. Therefore, no interference is called for. He has prayed for dismissal of the Writ Petition.
5. Heard learned counsel for the parties and perused the record.
6. The record indicates that the charge-sheet was issued levying following two charges against the petitioner:-
Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 19-05-2025 18:47:12NEUTRAL CITATION NO. 2025:MPHC-JBP:24061 5 W.P. No.15025/2020 "1@ fnukad 03-07-2018 dks mi fujh{kd canuk "kekZ ds lkFk vHknzrk ,oa ?kksj vuq"kklughurk dj iqfyl jsxqys"ku ds iSjk dzekad 64 ds fcUnq dzekad 04 esa mfYyf[kr "krksZa dk mYya?ku djukA 2@ ofj'B vf/kdkfj;ksa ds funsZ"kksa dk ikyu u dj ?kksj LosPN;kpkfjrk dk izn"kZu djuk ,oa iqfyl jsxqys"ku ds iSjk dzekad 64 ds fcUnq dzekad 1]2]3 ,oa 5 esa mfYyf[kr "krksZ dk mYya?ku djukA"
7. Petitioner has filed his reply to charge-sheet and thereafter departmental enquiry was initiated. He duly participated in the departmental enquiry and submitted his reply. The enquiry report was prepared and charge No.1 levied against the petitioner was found proved and charge No.2 was found to be partially proved. The same was placed before the Disciplinary Authority who has passed an order imposing punishment of stoppage of one increment with non-cumulative effect and the same will not affect the future increment of the petitioner. The same was put to challenge by filing an Appeal. However, the Appellate Authority being dissatisfied with the imposition of minor punishment has issued notice to the petitioner and after receiving reply, has passed the final order enhancing the punishment from minor to major and converting it to stoppage of one increment with cumulative effect and the same will also affect the future increments and pension and the Appeal was dismissed. Thereafter another Appeal was preferred before the Inspector General of Police which was also dismissed affirming the order passed by the First Appellate Authority. The ground which has been raised by the petitioner is that if the Appellate Authority was dissatisfied with the punishment imposed upon the petitioner, then the reasons should be recorded in writing showing the dissatisfaction which is not reflected from the show cause notice. The show cause notice Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 19-05-2025 18:47:12 NEUTRAL CITATION NO. 2025:MPHC-JBP:24061 6 W.P. No.15025/2020 issued to the petitioner dated 11/11/2019 shows reiteration of the facts and only in one paragraph it has been mentioned that witnesses have supported the charges levied against the petitioner, therefore he is of the opinion that the punishment which was imposed by the Superintendent of Police, Rewa is on the lower side. The relevant of which reads as under:-
"mijksäkuqlkj çdj.k esa ihfM+rk m-fu- canuk 'kekZ }kjk vkids fo:) vkjksiksa dk leFkZu fd;k gS] lkFk gh dbZ lkf{k;ksa }kjk Hkh vkjksiksa dh iqf"V dh xbZ gSA foHkkxh; tkap uLrh ds vcyksdu ls iqfyl v/kh{kd] jhok }kjk fn;k x;k n.M vkids --R; ds vuqikr esa vR;f/kd de gSA vr% vkids }kjk çLrqr vihyh; vH;kosnu fujLr ;ksX; gS] lkFk gh vkids fo#) ;g iqujhf{kr dkj.k crkvks uksfVl bl vk"k; dh tkjh djrk gwW fd mDr d`R; ds fy, vkidks osru ls ,d osruo`f) ds cjkcj dh /kujkf'k lap;h çHkko ls de djrs gq, nh?kZ'kkfLr D;ksa u vf/kjksfir dj nh tk, \"
8. From the perusal of the aforesaid, it is clear that the same does not reflect the reasons for issuance of notice to the petitioner for enhancing the punishment. The enquiry officer found the charge No.1 proved against the petitioner and charge No.2 partially proved against the petitioner. The Superintendent of Police has imposed minor punishment considering the enquiry report. The same has been re-iterated by the Appellate Authority, however no reasons are assigned for dissatisfaction from the punishment imposed by Superintendent of Police. Even the Appeal preferred against the order passed by the Appellate Authority enhancing punishment was dismissed without considering the aforesaid aspect of the matter.
9. It is the settled proposition of law that in cases the disciplinary authority is disagreeing with the findings recorded by the enquiry officer then he has to specifically give reasons for the disagreement and it is only Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 19-05-2025 18:47:12 NEUTRAL CITATION NO. 2025:MPHC-JBP:24061 7 W.P. No.15025/2020 after providing opportunity of hearing to the delinquent employee the order of punishment could have been passed. The Hon'ble Supreme Court in the case of Punjab National Bank & Ors. Vs. Kunj Behari Misra reported in (1998) 7 SCC 84 has considered the aforesaid aspect of the matter and has held as under:-
"17. These observations are clearly in tune with the observations in Bimal Kumar Pandit case [AIR 1963 SC 1612 : (1964) 2 SCR 1 : (1963) 1 LLJ 295] quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the enquiry officer had given an adverse finding, as per Karunakar case [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 :
(1993) 25 ATC 704] the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority.
18. Under Regulation 6, the enquiry proceedings can be conducted either by an enquiry officer or by the Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 19-05-2025 18:47:12 NEUTRAL CITATION NO. 2025:MPHC-JBP:24061 8 W.P. No.15025/2020 disciplinary authority itself. When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of enquiry as explained in Karunakar case [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] .
19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 19-05-2025 18:47:12 NEUTRAL CITATION NO. 2025:MPHC-JBP:24061 9 W.P. No.15025/2020 disciplinary authority records its findings on the charges framed against the officer.
20. The aforesaid conclusion which we have arrived at is also in consonance with the underlying principle enunciated by this Court in the case of Institute of Chartered Accountants [(1986) 4 SCC 537 : (1986) 1 ATC 714] . While agreeing with the decision in Ram Kishan case [(1995) 6 SCC 157 : 1995 SCC (L&S) 1357 : (1995) 31 ATC 475] we are of the opinion that the contrary view expressed in S.S. Koshal [1994 Supp (2) SCC 468 : 1994 SCC (L&S) 1019 : (1994) 27 ATC 834] and M.C. Saxena [State of Rajasthan v. M.C. Saxena, (1998) 3 SCC 385 : 1998 SCC (L&S) 875] cases do not lay down the correct law."
10. The aforesaid judgment was subsequently followed in the case of State Bank of India and others Vs. Mohammad Badruddin reported in (2019) 16 SCC 69 which is reflected from para 25 of the judgment and also in the case of Union of India and others Vs. Vishwas Nimgaonkar reported in 2021 1 Supreme 650.
11. The Hon'ble Supreme Court in the case of National Fertilizers Ltd. Vs. P.K. Khanna, (2005) 7 SCC 597 wherein it has been held as under :
"9. Apart from misreading the enquiry officer's report, the High Court also misapplied the law. The various decisions referred to in the impugned judgment make it clear that the disciplinary authority is required to give reasons only when the disciplinary authority does not agree with finding of the enquiry officer. In this case the disciplinary authority had concurred with the findings of the enquiry officer wholly. In Ram Kumar v. State of Haryana [1987 Supp SCC 582] the disciplinary authority after quoting the content of the charge-sheet, the deposition of witnesses as recorded by the enquiry officer, the finding of the enquiry officer and the explanation submitted by the employee passed an order which, in all material respects, is similar to the order passed by the disciplinary authority in this case. Learned counsel appearing on behalf of the respondent sought to draw a distinction on the basis Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 19-05-2025 18:47:12 NEUTRAL CITATION NO. 2025:MPHC-JBP:24061 10 W.P. No.15025/2020 that the disciplinary authority had, in Ram Kumar case [1987 Supp SCC 582] itself quoted the details of the material. The mere quoting of what transpired would not amount to the giving of any reasons. The reasons were in the penultimate paragraph which we have said virtually used the same language as the impugned order in the present case. This Court dismissed the challenge to the order of punishment in the following words:
"8. In view of the contents of the impugned order, it is difficult to say that the punishing authority had not applied his mind to the case before terminating the services of the appellant. The punishing authority has placed reliance upon the report of the enquiry officer which means that he has not only agreed with the findings of the enquiry officer, but also has accepted the reasons given by him for the findings. In our opinion, when the punishing authority agrees with the findings of the enquiry officer and accepts the reasons given by him in support of such findings, it is not necessary for the punishing authority to again discuss evidence and come to the same findings as that of the enquiry officer and give the same reasons for the findings. We are unable to accept the contention made on behalf of the appellant that the impugned order of termination is vitiated as it is a non-speaking order and does not contain any reason. When by the impugned order the punishing authority has accepted the findings of the enquiry officer and the reasons given by him, the question of non- compliance with the principles of natural justice does not arise. It is also incorrect to say that the impugned order is not a speaking order."
We respectfully adopt the view. The position is further clarified by Rule 33 of the Employees (Conduct, Discipline and Appeal) Rules. It reads as follows:
"1. The disciplinary authority, if it is not itself the enquiring authority may, for reasons to be recorded by it in writing remit the case to the enquiring authority for fresh or further enquiry and report and the enquiring authority shall Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 19-05-2025 18:47:12 NEUTRAL CITATION NO. 2025:MPHC-JBP:24061 11 W.P. No.15025/2020 thereupon proceed to hold further enquiry according to the provisions of Rule 32 as far as may be.
2. The disciplinary authority shall, if it disagrees with the findings of the enquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.
3. If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Rule 29 should be imposed on the employee shall, notwithstanding anything contained in Rule 31, make an order imposing such penalty.
4. If the disciplinary authority having regard to its findings on all or any of the articles of charge, is of the opinion that no penalty is called for, it may pass an order exonerating the employee concerned."
10. It is apparent from sub-rule (2) that the disciplinary authority is not required to record its reasons if it concurs with the enquiry officer's findings in contradiction with the situation in which the disciplinary authority disagrees with the findings of the enquiring authority. Only in the latter case does sub-rule (2) expressly mandate that the disciplinary authority shall, if it disagrees with the findings of the enquiry officer record its reasons for such disagreement as well as its own findings on such charges.
11. The respondent's reliance on the decision in M.D., ECIL v. B. Karunakar [(1993) 4 SCC 727] is misplaced. That decision relates to the right of a delinquent officer to a copy of the enquiry officer's report. In the course of the judgment, the Court had no doubt said that the report of the enquiry officer is required to be furnished to the employee to make proper representation to the disciplinary authority before such authority arrives at its own finding with regard to the guilt or otherwise of the employee and the punishment, if any, to be awarded to him. By Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 19-05-2025 18:47:12 NEUTRAL CITATION NO. 2025:MPHC-JBP:24061 12 W.P. No.15025/2020 using the phrase "its own finding" what is meant is an independent decision of the disciplinary authority. It does not require the disciplinary authority to record separate reasons from those given by the enquiry officer. The concurrence of the disciplinary authority with the reasoning and conclusion of the enquiry officer means that the disciplinary authority has adopted the conclusion and the basis of the conclusion as its own. It is not necessary for the disciplinary authority to restate the reasoning."
12. The Hon'ble Supreme Court in the case of Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570 has held as follows :
"23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."
13. It is not in dispute that suo moto power can be exercised even by the Appellate Authority, however, the fact remains that the reasons for Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 19-05-2025 18:47:12 NEUTRAL CITATION NO. 2025:MPHC-JBP:24061 13 W.P. No.15025/2020 dis-satisfaction from the punishment which has been imposed should be recorded in writing. The same has not been done in the present case.
14. Even otherwise, looking to the charges which have been levied against the petitioner as well as the fact that the observations made by the Appellate Authority in the show cause notice does not reflect any grave misconduct which has been committed by the petitioner. There is no use of any abusive language by the petitioner as is reflected from the complaint or the observations made by the enquiry officer or the Appellate Authority. There appears to be some altercation between the petitioner and SI Vandana Sharma owing to completion of case diary for production of accused before the Magistrate. Petitioner has only asked to expedite the work of the case diary so that the accused be produced before the Magistrate without any delay on which there was altercation. However, the language which has been used does not reflect that any abusive language was used.
15. Under these circumstances, the punishment which has been imposed by the Disciplinary Authority being minor appears to be just and proper. Even otherwise, there are no reasons assigned by the Appellate Authority for enhancing the punishment. In absence of any reasons which have been assigned for enhancement of the punishment, the order impugned passed by the Appellate Authority is unsustainable. Accordingly, the same is quashed. The subsequent order passed by the second Appellate Authority is also quashed as there is no consideration of the grounds raised by the petitioner therein.
16. As far as order passed by the Disciplinary Authority is concerned, the enquiry officer has found charge No.1 proved against the petitioner and found charge No.2 partially proved against the petitioner. There is Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 19-05-2025 18:47:12 NEUTRAL CITATION NO. 2025:MPHC-JBP:24061 14 W.P. No.15025/2020 nothing on record to show that procedure for completion of the departmental enquiry was not followed by the Authorities. In absence of any flaw that can be pointed out in completion of departmental enquiry, no interference as far as imposition of punishment by the disciplinary Authority, can be made. Even otherwise, the Disciplinary Authority has only imposed minor punishment of stoppage of one increment with non- cumulative effect.
17. Under these circumstances, the petition is partially allowed. The orders dated 03/12/2019 and 18/02/2020 passed by respondent No.2 and respondent No.3 (First and Second Appellate Authority) are hereby quashed. The order passed by the Disciplinary Authority imposing minor punishment on the petitioner is affirmed. No order as to costs.
(VISHAL MISHRA) JUDGE Shbhnkr Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 19-05-2025 18:47:12