Madhya Pradesh High Court
Kamlesh Prasad vs High Court Of Madhya Pradesh on 27 September, 2012
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Petition No : 4346 of 2008(S)
Kamlesh Prasad
- V/s -
High Court of MP and another
Present : Hon'ble Shri Justice Rajendra Menon.
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Shri Manoj Sharma, counsel for the petitioner.
Shri Rohit Jain, counsel for respondent No.1.
Shri P.K. Kaurav, counsel for respondent No.2.
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Whether approved for reporting: Yes / No.
ORDER
27/09/2012 Challenging the order-dated 20.1.2006 - Annexure P/1 passed by respondent No.2 imposing punishment of dismissal from service after departmental inquiry; the order-dated 27.12.2006 - Annexure P/2 passed by the High Court rejecting the appeal of the petitioner; and, the order-dated 21.2.2003 - Annexure P/3 rejecting the review application, petitioner has filed this writ petition. 2- Facts that have come on record indicates that petitioner joined the services on 10.1.1979 as a LDC and was designated as Assistant Grade II, he was appointed in the establishment of District & Sessions Judge, Ujjain and was given the charge of Naib Nazir in the Court at Khachrod, District Ujjain. While the petitioner was so posted as Naib Nazir between the period 19.8.2003 to 13.12.2004, it is indicated that various acts of commission and omission were done by him as a result a charge-sheet Annexure P/4 dated 8/11.2.2005 was issued to him. In the charge-sheet in question, in all six allegations with regard to 2 irregularities committed by the petitioner in the discharge of his duties were pointed out. Petitioner submitted his reply, denied the allegations levelled in the charge-sheet vide Annexure P/5 and, therefore, an inquiry was ordered into the matter as is evident from the material available on record. The Enquiry Officer one Shri Yogesh Chandra Gupta, an Additional District & Sessions Judge, conducted the inquiry and submitted his report - Annexure P/6 to the competent authority on 14.11.2005. The Enquiry Officer found that the charges levelled against the petitioner vide Charges No. 1, 2 and 4 as mentioned in the charge- sheet Annexure P/4 are proved; and, the allegations with regard to Charges No. 3, 5 and 6 were not established. Based on the report submitted by the Enquiry Officer, show-cause notice was issued to the petitioner and in view of the same punishment of dismissal from service was imposed upon the petitioner. Challenging the impugned action, petitioner has filed this writ petition.
3- Shri Manoj Sharma, learned counsel for the petitioner, took me through the charges as levelled in the charge-sheet; the evidence and material that came on record; the findings recorded by the Enquiry Officer; and, emphasized that with regard to Charge No.1, the main allegation against the petitioner is that he has defalcated a sum of `17,663/-, but with regard to this charge the finding recorded by the Enquiry Officer is that defalcation of `4,411/- is only established. Accordingly, the first ground of attack is that as the allegations levelled in the charge-sheet and the misconduct proved are totally different, therefore, no action could be taken for the said act of misconduct which did not form part of the allegations in the charge-sheet. 4- Thereafter, Shri Manoj Sharma - learned counsel, took me through the rejoinder as filed, the documents enclosed therewith as Annexures R-J/1 and R-J/2, and emphasized that even with regard to the aforesaid defalcation of `4,411/-, the material produced by the petitioner indicates that the entire amount was kept in a different bag, it was available in the Almirah in question, but it was the controlling authority one Shri K.S. Bhandari, who did not take note of this while the 3 procedure for seizure was held and, therefore, the action is taken. Emphasizing that even with regard to the aforesaid defalcation the procedure followed by Shri K.S. Bhandari, the Incharge Judge of the Nazrat, was not correct, he has committed an error in preparing the Panchnama and without taking note of the fact that even this amount was available in a bag kept, wherein a sum of `3,041/- was available Shri Manoj Sharma emphasized that the action taken for punishing the petitioner for this mis-conduct is unsustainable and without taking note of the totality of the facts and circumstances and the defence of the petitioner, the impugned action is unsustainable. 5- Thereafter, learned counsel for the petitioner by referring to the communication made by one Shri Arun Jagtap, filed alongwith the rejoinder at page 10, emphasized that at best if the allegations are taken on its face value, it would only result in some negligence on the part of the petitioner in the discharge of his duty and for the said negligence punishment of dismissal from service is too extreme and, therefore, on the ground of dis-proportionate punishment being imposed for the negligence, interference into the matter is sought for. Learned counsel submits that the matter of imposing punishment has not been properly considered and, therefore, on the ground of punishment being too harsh it is argued that the same be substituted and some other punishment be imposed upon the petitioner. Accordingly, Shri Manoj Sharma emphasized that in the facts and circumstances, the petition be allowed and appropriate orders passed.
6- Shri Rohit Jain, learned counsel for respondent No.1, refuted the same and submitted that it is a case where petitioner who was holding the post of Naib Nazir has committed grave act of misconduct and for the said act, which is proved in a properly conducted departmental inquiry, action is taken by the competent authority and the same cannot be interfered with by this Court on the grounds indicated by Shri Manoj Sharma. It is stated by Shri Rohit Jain that keeping in view the allegations levelled against the petitioner, the findings recorded by the Enquiry Officer, the employer has lost confidence in the employee 4 and once the allegations levelled with regard to integrity of an employee working in the establishment of the District Court is established, he cannot be granted any benefit. In support thereof, he invites my attention to the judgments rendered by the Supreme Court in the following cases:
Air India Corporation, Bombay Vs. V.A. Rebello and another, AIR 1972 SC 1343; M/s Francis Klein and Company Pvt. Ltd. Vs. The Workmen and another, AIR 1971 SC 2424; and, Bharat Heavy Electricals Limited Vs. M. Chandrasekhar Reddy and Others, AIR 2005 SC 2769.
7- Shri Rohit Jain, learned counsel, thereafter took me through the findings of the Enquiry Officer and argued that the allegations levelled against the petitioner in the charge-sheet was with regard to defalcation of `17,663/-. As a detailed inquiry was conducted and on assessment of the evidence the Enquiry Officer found that more than `13,000/- were available and accounted for and, therefore, the defalcation to the tune of `4,411/- was found established. Even for this defalcation as petitioner is guilty, it is stated that the punishment imposed is proper and appropriate and the same does not call for any interference.
8- Inviting my attention to the law laid down by the Supreme Court in various cases, with regard to scope of judicial review into such matter, the grounds on the basis of which interference can be made on the quantum of punishment, Shri Rohit Jain argues that it is not a case where interference by this Court is called for and in support of the aforesaid submission be brings to the notice of this Court various judgments alongwith a written note submitted by him. 9- I have heard learned counsel for the parties and perused the records.
10- Facts as have been narrated hereinabove are not in dispute. It is a fact that the employee concerned has been proceeded against, a departmental inquiry conducted and the impugned action taken on the basis of finding of guilt recorded in a departmental inquiry. The procedure followed in the matter of conducting departmental inquiry is 5 not challenged and no illegality or irregularity in the matter of conducting the departmental inquiry is brought to the notice of this Court. It is only with regard to the finding of the Enquiry Officer and the question of imposing the punishment that challenge is made before this Court.
11- If the charges levelled against the petitioner as is made out from the charge-sheet are taken note of, it would be seen that six allegations are levelled against the petitioner in the charge-sheet issued. The first allegation is with regard to defalcation of `17,663/-. With regard to this charge, even though the entire allegation of defalcation is not proved, the finding recorded is that defalcation to the tune of `4,411/- is established.
12- The second charge is with regard to mis-appropriation of certain material deposited in the Court as indicated in the annexures to the charge-sheet. The third allegation is with regard to the non- accounting of a country made pistol, which was deposited in a criminal case vide Deposit No.197/95. The fourth allegation is again with regard to non-accounting with certain amount which has been received by Money Orders to the tune of `220/-. Similar is the fifth allegation with regard to non-accounting of certain amount to the tune of `620/-. Finally, the sixth charge is with regard to non-submission of proper report to a subordinate officer and mis-placement of property in the office.
13- As indicated hereinabove in the inquiry conducted, only three charges namely - Charge Nos. 1, 2 and 4 are found to be 'proved'. The main contention advanced by Shri Manoj Sharma, learned counsel for the petitioner, was that with regard to Charge No.1, even though the allegation levelled is that there is defalcation of `17,663/-, but the Enquiry Officer has found defalcation 'proved' to the extent of `4,411/- only. Accordingly, it was the case of the petitioner that the allegation levelled in the charge-sheet is different from the one that was found 'proved' in the departmental inquiry. Even if the aforesaid factual assertion made by Shri Manoj Sharma is correct, it does not make any 6 difference for the simple reason that in the charge-sheet which was issued to the petitioner and the allegation levelled against him for which inquiry was conducted is that he has committed defalcation. On a preliminary inquiry the amount defalcated was initially found to be `17,663/-, but on a detailed inquiry the amount came to `4,411/-. The purpose of holding a departmental inquiry is to ascertain the correct facts and the allegation initially levelled in the charge-sheet are based on the material that came on record on a prima facie assessment. If on detailed inquiry the charges as framed are found to be not correct, but some allegation which also amounts to misconduct are proved, this Court cannot ignore the fact and hold that the charges are not proved. It is a case where initially on preliminary inquiry the allegation was with regard to defalcation of more than `17,000/-, but on a detailed inquiry defalcation of `4,411/- is established. Even defalcation of `4,411/- by a ministerial staff working in the Establishment of District & Sessions Judge is a serious misconduct and cannot be ignored by this Court. 14- That apart, contention of Shri Manoj Sharma that the allegations levelled in the charge-sheet and the misconduct found 'proved' in the inquiry are entirely different will not make any difference, for the simple reason that the allegation was with regard to defalcation of money and the allegation proved in the inquiry is also with regard to defalcation of money arising out of the same incident. Merely because there is some change in the quantification of the amount of defalcation, that does not make any material difference. Defalcation of whatever magnitude, it may amount to defalcation and, therefore, on the ground that the allegations levelled in the charge-sheet and the charges 'proved' are different, I see no reason to interfere into the matter.
15- Thereafter, Shri Manoj Sharma had tried to emphasize by referring to certain documents filed alongwith the rejoinder that when the entire incident took place and when the Almirah in which the amount was kept was seized by Shri K.S. Bhandari and when the Panchnama was prepared, the entire amount was available in different bags. It is 7 emphasized by him that if all these bags were seized and one bag in coins amounting to `3,041/- is also taken note of, there would be no defalcation. By referring to the report in this regard submitted by Shri K.S. Bhandari as contained in Annexure R/J/1 and the communication made by Shri Arun Jagtap as contained in the documents filed alongwith rejoinder, Shri Manoj Sharma tried to emphasize that this defence of the petitioner has not been taken note of and, therefore, there is perversity in the finding recorded by the Enquiry Officer.
16- It may be taken note of that after the appeal filed by the petitioner was dismissed, these grounds were again raised by the petitioner in the review application under Rule 29 of the MP Civil Services (Classification, Control and Appeal) Rules and the competent reviewing authority has gone into all these questions and it has been held that this is a defence raised by the petitioner for the first time after the departmental inquiry. Such a defence was never put forth by him in the departmental inquiry nor was any suggestion in this regard made when Shri K.S. Bhandari was examined as a defence witness. The following finding recorded by the reviewing authority in this regard may be taken note of:
"... These facts which are for the first time projected in the review application do not find part of the defence of the delinquent. He had no way stated at the time of the inquiry that a sum of `3,041/- was returned by him by Mr. Bhandari. His statement were recorded by the inquiry officer but even in his statements dated 17.10.2005 he did not say that Mr. Bhandari had returned him a sum of `3,041/-. The witnesses who were examined by the department were also not suggested that a sum of `3,041/- was returned unofficially by Mr. Bhandari.
Present appears to be a concocted defence. Taking into consideration the scope of the review and the findings earlier recorded by the enquiry officer, the disciplinary authority and the appellate authority, I do not find any 8 illegality in the appellate order. The review petition deserves to be and is accordingly rejected."
17- Accordingly, as all these factors have already been considered by the reviewing authority and the contention of the petitioner is found to be unsustainable, I see no reason to take a different view now.
18- It is a case where the allegations levelled against the petitioner are found proved in a properly conducted departmental inquiry and merely on the grounds as are being canvassed herein, no case is made out for any interference. This Court while exercising jurisdiction in a petition under Article 226 of the Constitution, particularly with regard to departmental action taken does not act as an appellate authority and reviews the entire decision. What is open for review before this Court is the decision making process and not the decision itself. It is a well settled principle of law that judicial review of an administrative action is limited to reviewing the process of decision making and not the decision itself. The decision itself can be reviewed only if it is found to be perverse or illegal to such an extent that under the given set of circumstances no prudent man would come to such a conclusion. The case in hand is not a case where the action taken and the findings recorded by the Enquiry Officer fall in the category of being a perverse action or perverse finding recorded in total disregard to the evidence or material available on record. It is a reasonable finding based on due appreciation of the material available on record and, therefore, this Court cannot now sit over the same as if it is exercising further appellate jurisdiction and take a different view.
19- The aforesaid principle is clear if the judgments relied upon by Shri Rohit Jain are taken note. Kanhaiyalal Agrawal and Others Vs. Factory Manager, Gwalior Sugar Company Limited, AIR 2001 SC 3645; State Bank of India and Another Vs. Bela Bagchi, AIR 2005 SC 3272; M/s Pearlite Liners Private Limited Vs. Manorama Sirsi, AIR 2004 SC 1373; Indian Airlines Limited Vs. Prabha D. 9 Kanan, AIR 2007 SC 548; and, UP State Road Transport Corporation Vs. Suresh Chand Sharma, (2010) 6 SCC 555. 20- That apart, the Supreme Court has laid down the principle in this regard in the following cases: B.C. Chaturvedi Vs. Union of India, 1995(6) SCC 749; Government of Tamil Nadu and another Vs. A. Rajapandian, AIR 1995 SC 561; State of MP and another Vs. Jagdish Prasad Yadav and another, (2006) 4 MPLJ 362; Union of India Vs. B.K. Shrivastava, AIR 1998 SC 300; and, Damoh Panna Sagar Rural Regional Bank and Another Vs. Munna Lal Jain, (2005) 10 SCC 84.
21- A combined reading of all these judgments indicate that the scope of judicial review in such matters is only confined to ensure that the employee proceeded against receives a fair hearing and based on the material that came on record, a reasonable finding is recorded in accordance to the theory of an approach to be adopted by a prudent man. It is not the duty of this Court to sit over the decision as if it is exercising further appellate jurisdiction over the matter. Once a reasonable finding is recorded after following a due procedure, meeting the requirements of the principles of natural justice, interference into the matter is not called for.
22- If the case in hand and the action taken is analysed in the backdrop of the aforesaid principle, I see no reason to interfere into the matter. It is a case where defalcation and mis-appropriation of certain property by the petitioner in the discharge of his duty is found to be established in a properly conducted departmental inquiry and there is nothing to indicate that in the procedure followed or in the decision taken any statutory rule, regulation is violated nor is any material available to show that the authorities concerned, who took action against the petitioner were biased or had any prejudice against him. Under such circumstances, I see no reason to interfere into the matter. 23- As far as the last ground canvassed by Shri Manoj Sharms with regard to the punishment being dis-proportionate to the act of misconduct is concerned, once the employer has taken action on the 10 basis of a misconduct proved in a departmental inquiry, the question of imposing the punishment is left to be decided by the employer. A Court, particularly a Writ Court, exercising jurisdiction under Article 226 of the Constitution interferes with the quantum of punishment only if the punishment imposed is such that it shocks the conscience of the Court and is found to be highly disproportionate. In this regard the principle laid down by the Supreme Court in the case of Union of India and others Vs. Dwarka Prasad Tiwari, 2006 (10) SCC 388; and, AP State Road Transport Corporation Vs. Raghuda Shiv Shankar Prasad, 2007(1) (L&S) SCC 151, may be taken note of. It is a well settled principle of law that a writ court can interfere with the quantum of punishment only if the punishment imposed is shown to be highly disproportionate or contrary to any statutory provision, impermissible under law or is such that it shocks the conscience of the Court. 24- If the act of the petitioner, the misconduct committed by him and the punishment imposed are evaluated in the light of the aforesaid requirement of law, I see no reason to interfere into the matter. The punishment imposed does not fall in the category of punishment as indicated hereinabove and, therefore, no interference into the quantum of punishment is warranted. It would be for the petitioner to submit a mercy petition, if advised, to the competent authority in this regard and it would be for the competent authority to consider the question of granting any relief in the punishment to the petitioner. The same being beyond the domain of judicial review of this court, on this count interference is not called for.
25- Accordingly, in the facts and circumstances of the case, finding no ground to interfere, the petition is dismissed.
( RAJENDRA MENON ) JUDGE Aks/-