Chattisgarh High Court
Sheo Narayan Dansena vs The Registrar General, High Court Of ... on 11 December, 2023
Author: Rajani Dubey
Bench: Rajani Dubey
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 4657 of 2012
Order reserved on : 08/09/2023
Order passed on :11/12/2023
Sheo Narayan Dansena, S/o Lt. Ishwar Chandra Dansena, Aged
About 50 Years, R/o Palace Road, Koshta Para (Near Saraswati
Pratima), Raigarh, Tahsil and District- Raigarh C.G.
---- Petitioner
Versus
1. The Registrar General, High Court of Chhattisgarh,
Bilaspur C.G.
2. The District and Sessions Judge, Raigarh, District : Raigarh,
Chhattisgarh
3. The Additional Registrar (D.E.), High Court of Chhattisgarh,
Bilaspur C.G.
4. Chhattisgarh Madhyamik Shiksha Mandal, Raipur, Through: its
Secretary, Pension Bada, Raipur C.G.
5. M.P. Madhyamik Shiksha Mandal, Bhopal Through: its Secretary,
Bhopal, Madhya Pradesh.
---- Respondents
For Petitioner : Mr. Shikhar Sharma, Advocate For Respondents No.1 to 3 : Mr. R.S. Marhas, Advocate For Respondents No. 4 & 5 : Mr. R. S. Patel, Advocate Hon'ble Smt. Justice Rajani Dubey CAV Order
1. The petitioner has filed this petition challenging the order dated 22.02.2010 (Annexure P/2) passed by respondent No.2 whereby the service of the petitioner was terminated and he is also 2 aggrieved with the order dated 20.07.2012 (Annexure P/1) passed by respondent No.1 whereby the appeal preferred by the petitioner was also dismissed.
2. Brief facts of the case as projected by the petitioner, are that the petitioner was initially appointed in the District and Sessions Court, Raigarh (C.G.) on 17.11.1988 as Lower Division Clerk. On 22.11.1988, the petitioner joined and since then, he performed his duties with sincerity and in due course of time, he was promoted to the post of Assistant Grade-II. On 01.10.2008 (Annexure P/3), an order of suspension came to be served upon the petitioner, preferring to a preliminary enquiry held by the competent authority on the basis of complaint by one Shri Gopal in the year 2005 stating that as per respondent No.4 the Higher Secondary School Certificate furnished by the petitioner was not found correct on verification which amounts to a serious misconduct on the part of the petitioner.
3. In furtherance to the above, a charge sheet dated 17.10.2008 (Annexure P/4) was issued against the petitioner wherein it was alleged that the petitioner had furnished a fake higher secondary school mark sheet for securing the employment. Subsequent to which, a letter dated 03.11.2008 (Annexure P/5), the petitioner denied the charges inflicted upon him and requested for personal hearing. Thereafter, the enquiry proceeding was initiated against the petitioner and through a letter dated 03.02.2010 (Annexure P/8) enclosing the copy of the enquiry report dated 02.02.2010, the petitioner was proposed to show cause within 15 days. Pursuant to the same, the petitioner gave his reply dated 19.02.2010 (Annexure P/9). Thereafter, the disciplinary authority passed an order of major punishment of dismissal from service vide impugned order dated 22.02.2010 (Annexure P/2) and further held that the petitioner would not be entitled for any pension, death-cum-retirement gratuity, leave encashment and balance medical bills.
34. Against the said order of termination from service, the petitioner preferred an appeal before the respondent No.1 which was dismissed vide order dated 20.07.2012 (Annexure P/1). Hence, the present petition has been filed by the petitioner for the following reliefs:-
10.1. The Hon'ble Court may kindly be pleased to quash/set aside the impugned order dated 20.07.2012 (Annexure P/1) passed by respondent No.1 and the impugned order dated 22.02.2010 (Annexure P/2) passed by respondent No.2.
10.2. Any appropriate writ, direction or order may also kindly be passed in favour of the petitioner, which this Hon'ble Court deems fit in the circumstances of the case.
5. Learned counsel for the petitioner submits that the charge imputed against the petitioner was vague by itself. It was alleged against the petitioner that at the time of appointment, he furnished a fake marksheet which was misconduct. The marksheet filed by the petitioner was alleged to be false as the same was not tallied with its counter in the office of the Board of Raipur. For this reason only, the marksheet filed by the appellant was considered as a fake document. The authorities below should have appreciated that the marksheet submitted by the petitioner was given to him by the Board of Bhopal duly signed and in proper format on passing the exam through revaluation and tabulation in the year 1983. The petitioner should not have been forced to bear consequences for unavailability of counter part of the marksheet having being filed by him in the records of Board of Bhopal/Raipur.
6. The enquiry report was perverse as no finding was recorded at all in the enquiry in respect of format of the marksheet put forth by the petitioner. The conduct of the enquiry officer was perverse as the mark sheet (Ex.P.1(A) relied upon by him, which was counter part of the marksheet showing the present petitioner has supplementary in two subjects did not bear any seal and signature 4 of the authority and therefore, was not admissible in evidence. This fact was admitted by P.W.1- Shri Bhaiyaji Sahare, Asstt. Secretary, Board of Raipur, but the appellate authority failed to consider the same.
7. The conduct of the enquiry officer was perverse as referring to the mark sheet (Ex.P.1A) only, the marksheet advanced by the petitioner herein could not be discarded or doubted, without specifically proving the later a false document. The marksheet furnished by the petitioner was never declared as fake or fabricated. The disciplinary authorities rejected the application dated 15.12.2009 calling the Secretary, Board of Bhopal as a defense witness, was rejected by the Enquiry Officer which caused great injury to establish his defense which the appellate authority failed to consider the same. From perusal of the impugned order, it is clear that no proper opportunity to lead defense witness was granted to the petitioner during the departmental enquiry. The disciplinary authority plainly concurred with the findings recorded by the enquiry officer and failed to assign any reason for doing so. The authorities below have considered that P.W.1- Shri Bhaiyaji Sahare, Asstt. Secretary, Board of Raipur clearly stated that on passing supplementary exam the roll number remained the same, however the serial number of the marksheet changed. Therefore, the mark sheet furnished by the petitioner herein bearing No. 083306 having not declared specifically as fake or fabricated by the Board of Bhopal or Raipur, may not be refused to be correct and proper.
8. P.W.-1 Shri Bhaiyaji Sahare also stated that in case of issuance of marksheet after revaluation and tabulation, the serial number of the same gets changed. Therefore, without proving the marksheet submitted by the petitioner a false one specifically on basis of its contents, the petitioner could not have been put to such a major penalty, which the appellate authority failed to consider the same. D.W.-2- Ravi Prakash Choudhari, in charge Principal, Law College Raigarh stated that the marksheet having been issued after 5 revaluation and tabulation, is sent directly to the address of the candidate (the petition herein) and no record of the same may be available in the institution's record as the same is not sent to it. On making an application under Right of Information Act, the P.W.-2 R.P. Sidar also admitted the same facts.
9. It is further submitted that the petitioner was appointed in the year after due verification of his marksheet by the then District and Sessions judge, Raigarh and therefore, his case could not have been reopened at the instance of an unknown person. Therefore, impugned orders dated 20.07.2012 (Annexure P/1) & 22.02.2010 (Annexure P/2) are liable to be set aside.
10. Learned counsel for the respondents strongly opposes the prayer of the petitioner and submits that the petitioner filed the instant petition under Article 226 of the Constitution of India and jurisdiction of the High Court, therefore is supervisory and not appellate and the present petition is filed in form of appeal. During departmental enquiry, ample opportunity was given to the petitioner and before awarding penalty, show-cause-notice was issued to the petitioner. The petitioner alleges that he had got his papers re-evaluated and re-totalled but the said fact was not supported by any documentary and oral evidence that he had passed the examination in second division after revaluation and re-totalling in the year 1983. No such documentary evidence produced by the petitioner at any stage of the departmental proceedings and department has proved all the charges against the petitioner by oral and documentary evidence and disciplinary authority passed the order on detailed enquiry report. Appellate authority also considered all the grounds of the petitioner and dismissed the appeal hence, this petition being without any merit is liable to be dismissed.
11.Reliance has been placed on the judgments of the Hon'ble Supreme Court in the matters of Shama Prashant Raje Vs. Ganpatrao and others reported in (2000) 7 SCC 522, Sub- Divisional Officer, Konch Vs. Maharaj Singh reported in (2003) 6 9 SCC 191 & State Bank of India and others Vs. Narendra Kumar Pandey reported in (2013) 2 SCC 740.
12.Heard counsel for the parties and perused the material placed on record.
13. It is an admitted fact in this case that the petitioner was appointed in the District and Sessions Court, Raigarh on 17.11.1988 as a Lower Division Clerk and he joined his service on 22.11.1988. It is also not disputed that on a complaint, a preliminary enquiry was conducted against the petitioner and after this enquiry, departmental enquiry was initiated against him and major penalty of removal from service was imposed upon him.
14. In the rejoinder, the petitioner submits that under Right to Information Act, the petitioner was informed that there is no document relating to revaluation or tabulation concerning to the examination of the year 1983, therefore, it is evident that without any document against the petitioner, the allegation has been made.
15. Petitioner and the respondents filed all documents of enquiry and statements of the witnesses. Petitioner also raised several grounds in the enquiry but he did not raise the ground that during departmental enquiry, he was not granted any opportunity of being heard or there was any violation of principles of natural justice.
16.Hon'ble Apex Court in the matter of Shama Prashant Raje Vs. Ganpatrao and others reported in (2000) 7 SCC 522 held in para 5 as under:-
"5.........Undoubtedly, in a proceeding under Articles 226 and 227 of the Constitution the High Court cannot sit in appeal over the findings recorded by a competent tribunal. The jurisdiction of the High Court, therefore, is supervisory and not appellate. Consequently Article 226 is not intended to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or order to be made. But notwithstanding the same on a mere perusal of the order of an inferior Tribunal 7 if the High Court comes to a conclusion that such tribunal has committed manifest error by misconstruing certain documents, or the High Court comes to the conclusion that on the materials it is not possible for a reasonable man to come to a conclusion arrived at by the inferior Tribunal or the inferior Tribunal has ignored to take into consideration certain relevant materials or has taken into consideration certain materials which are not admissible, then the High Court will be fully justified in interfering with the findings of the inferior tribunal."
17. Hon'ble Apex Court in the matter of Sub-Divisional Officer, Konch Vs. Maharaj Singh reported in (2003) 9 SCC 191 held in para 5 as under:-
5. In view of the submissions made at the Bar, we have scrutinised the impugned order of the High Court. A bare perusal of the same makes it crystal clear that the High Court in exercise of its jurisdiction under Article 226 has reappreciated the entire evidence, gone into the question of burden of proof and onus of proof and ultimately did not agree with the conclusion arrived at by the enquiring officer, which conclusion was upheld by the disciplinary authority as well as the U.P. Public Service Tribunal. It has been stated by this Court on a number of occasions that the jurisdiction of the High Court under Article 226 is a supervisory one and not an appellate one, and as such the Court would not be justified in reappreciating the evidence adduced in a disciplinary proceeding to alter the findings of the enquiring authority. In the aforesaid premises, we have no hesitation to come to the conclusion that the High Court exceeds its jurisdiction under Article 226 in interfering with the findings arrived at by the enquiring authority by reappreciiation of the evidence adduced before the said enquiring authority. We, therefore, set aside the impugned order of the High Court and the writ petition filed stands dismissed. This appeal is allowed.8
18. It is held by Hon'ble Supreme Court in the matter of State Bank of India and others Vs. Narendra Kumar Pandey reported in (2013) 2 SCC 740 in paras 23 & 24 as under:-
23. The Inquiring Authority has examined each and every charge levelled against the charged officer and the documents produced by the presenting officer and came to the conclusion that most of the charges were proved. In a departmental inquiry, the disciplinary authority is expected to prove the charges on preponderance of probability and not on proof beyond reasonable doubt. Reference may be made to the judgments of this Court reported in Union of India v. Sardar Bahadur; (1972) 4 SCC 618 and R.S. Saini v. State of Punjab and Others; (1999) 8 SCC 90. The documents produced by the Bank, which were not controverted by the charged officer, supports all the allegations and charges levelled against the charged officer. In a case, where the charged officer had failed to inspect the documents in respect of the allegations raised by the Bank and not controverted it is always open to the Inquiring Authority to accept the same.
24. In Bank of India v. Apurba Kumar Saha ; (1994) 2 SCC 615, this court held:
"4.......A Bank employee who had refused to avail of the opportunities provided to him in a disciplinary proceeding of defending himself against the charges of misconduct involving his integrity and honesty, cannot be permitted to complain later that he had been denied a reasonable opportunity of defending himself of the charges levelled against him and the disciplinary proceeding conducted against him by the bank employer had resulted in violation of principles of natural justice of fair hearing".
19.It is clear from all the documents that ample opportunity was given to the petitioner for producing his defence and enquiry officer prepared report after considering oral and documentary evidence and disciplinary authority also after issuing notice to the petitioner and after receiving the reply, imposed major penalty. Further, the 9 appellate authority also considered all the grounds of the petitioner and dismissed the appeal.
20. Considering the facts and circumstances of the case, the act committed by the petitioner, the manner in which the departmental enquiry conducted against the petitioner where he was affirmed reasonable opportunity of hearing/defence and also considering the order dated 20.07.2012 whereby the appellate authority taking into account the grounds raised by the petitioner, by a reasoned and a speaking order dismissed his appeal, the aforesaid guidelines of Hon'ble Supreme Court, this Court finds no scope for interference in the impugned order. Accordingly, the instant petition being without any substance is liable to be and is hereby dismissed.
Sd/-
(Rajani Dubey) Judge Ruchi