Chattisgarh High Court
Gupteshwar Prasad Sinha vs ) State Of Madhya Pradesh on 21 July, 2008
Author: Satish K Agnihotri
Bench: Satish K Agnihotri
HIGH COURT OF CHATTISGARH AT BILASPUR
M C C S No 36 of 2005
Gupteshwar Prasad Sinha
...Petitioners
Versus
1) State of Madhya Pradesh
2) Collector, District Sarguja
...Respondents
! Shri K R Nair, with Shri MK Sinha, counsel for the petitioner
^ Shri Y S Thakur, Deputy Advocate General for the State
Honble Mr Satish K Agnihotri,J
Dated: 21/07/2008
: Judgment
(Application for Review of the order dated 24/6/1998)
JUDGMENT
(Passed on 21st day of July, 2008) This is a review petition, seeking review of the order dated 24-6-1998, whereby the Transfer Application No.1349 of 1988 was dismissed by the State Administrative Tribunal.
2) The brief facts, in nutshell, as projected by the petitioner are that the petitioner working as Patwari in Revenue Circle Pilkha, Tehsil Surajpur, District Sarguja, was suspended by order dated 27-10-1981 (Annexure P/1). Thereafter, memo of charge was issued to the petitioner on 23-1-1982 (Annexure P/2). There were eight charges leveled against the petitioner. Charge No.1, 2, 3, 6 and 7 relates to preparation of a compensation cases in the name of one Narmedeshwar Prasad and sending the same to the Colliery for compensation. It was alleged that the petitioner manipulated the revenue records. Charge No.4 relates to recording of name of the said Narmedeshwar Prasad in respect of the land in the year 1976-77 without orders. Charge No.5 pertains to division of Khasras without proper orders of the competent authority. Charge No.8 pertains to preparation of B(1) form in 1980-81 and for not preparing the same in the year 1976-77 to 1979-80. The petitioner submitted his reply to the charge-sheet on 20-4-1982 (Annexure P/3) and 30-4-1982 (Annexure P/4). The departmental enquiry was initiated and conducted by the Sub- Divisinal Officer, Surajpur. The petitioner made an application to the Enquiry Officer for supply of certain documents on 23-6-1982 (Annexure P/5). The date of enquiry was fixed on 31-8-1982. The enquiry could not be conducted as Enquiry Officer was not present in the office. The petitioner was told by the clerk of the Enquiry Officer that next of date of hearing would be intimated to him. Without intimating the next date of hearing i.e., 15-9-1982 and without affording an opportunity of hearing to put forward his case by adducing evidence and cross examining the witnesses, the Enquiry Officer held all the charges proved in the interim order passed on 13-10-1982 (Annexure P/6). The petitioner submitted his reply on 24-11-1982 (Annexure P/7) stating that on 15-9-1982 enquiry was not conducted and he was informed by the clerk that next date of hearing would be intimated subsequently. The Enquiry Officer passed a final order on 27-12-1982, dismissing the petitioner from service (Annexure P/8).
3) The petitioner preferred an appeal before the Collector, Durg, Sarguja, which was dismissed by order dated 18-1-1984 (Annexure P/9) holding that the petitioner ought to have taken steps for setting aside the ex parte interim report dated 13-10-1982.. The Collector further held without considering the application of the petitioner that no application was made for supply of certain documents.
4) Being aggrieved, the petitioner filed a civil suit for declaration in the Court of Civil Judge, Class II, Ambikapur, questioning the legality and validity of the enquiry report, the dismissal order dated 27-12-1982 (Annexure P/8) and the order dated 18-1-1984 (Annexure P/9) passed in appeal by the Collector.
5) Learned counsel appearing for the petitioner submits that before the Tribunal the following grounds were raised.
"a That the documents pertaining to the ) charges were not supplied to him'
b) That the inquiry was illegally proceeded ex parte against him on 15-9-1982;
c) That opportunity of defence was not given to him in the inquiry; and
d) That the appellate order is based on documents not supplied to him.
e) That the finding of enquiry officer are perverse."
The petitioner further submitted that the Enquiry Officer had not complied with the mandatory provisions of Rule 14 (11) of the MP/CG Civil Services (Classification Control and Appeal )Rules, 1966 (for short, "Rules, 1966).
6) The original civil suit was filed for declaration in the Court of Civil Judge, Class-II, Ambikapur. On creation of M.P. State Administrative Tribunal, the matter was transferred to the M.P. State Administrative Tribunal and numbered as Transfer Application No. 1349 of 1988. The Tribunal having heard counsel for the parties, held at para 7 and 8 which read as under:
"7. From the above discussion, it is clear that the petitioner has not proved that he had submitted any application to the S.D.O. for supplying copies of any documents to him. In arriving at this conclusion, we have taken note of his propensity for devious behaviour which has been mentioned above. The petitioner has relied on Kashinath Dikshita vs. Union of India & others (AIR 1986 SC 2118), in which it has been held that non supply of copies of statements of witnesses and copies of documents as relied upon by the disciplinary authorities violates the principles of natural justice when government failed to show that no prejudice was occasioned to the employee. This authority is not applicable in the present case because the applicant did not submit any application to the S.D.O. for supply of documents.
8. As regards the evidence in the case, the Supreme Court has held in 1998 (L&S) 363 that the Tribunal cannot re-appreciate the evidence and Supreme Court has also held in Union of India Vs. B.K. Shrivastava (AIR 1998 SC 300) that "the Tribunal could not sit in an appeal against the orders of the disciplinary and appellate authorities in exercise of its power of judicial review". It is therefore, clear that the Tribunal's role regarding evidence is confined to seeing that no one should be punished in a case of no evidence. We have seen the record and find that this is not such a case and relevant evidence has been recorded by the S.D.O. in the course of the disciplinary proceedings."
7) Being aggrieved, the petitioner preferred a writ petition being Writ Petition No. 4157 of 1998 in the High Court of Judicature at Jabalpur. Learned Division Bench of the High Court declined to interfere under Article 227 of the Constitution of India, granting liberty to the petitioner to approach the Tribunal in review or clarification of the order. Thus, this review petition.
8) Mr. Nair, learned counsel appearing for the petitioner submits that the Tribunal has failed to consider the following contentions raised before the Tribunal.
"( Setting the petitioner ex-parte on 15-9-82
i) in the departmental proceeding was without assigning any reason and therefore it was illegal and (i The Enquiry Officer held the enquiry in
i) violation of the substantive provisions of law as contained in Rule 14(11) of the Civil Services (Classification Control and Appeal) Rules 1966."
Thus, there is apparent error on the face of record. The petitioner accordingly seeks review of the order dated 24-6-1998 as the legal contention with regard to non- following of statutory provisions of law as enshrined under Rule 14 (11) of the Rules 1966, was not considered. He further submits that under the provisions of Rule 14 (11) of the Rules, 1966, the inquiring authority is under an obligation to adjourn the case to a later date not exceeding thirty days, after recording an order that the Government servant, may for the purpose of preparing his defence and inspect within five days of the order or within such further not exceeding five days as the enquiring authority may allow, the documents specified in the list on his behalf. The case was closed on 15-9-1982 and no opportunity was afforded to the petitioner to cross examine Naib Tahsildar who was produced and examined by the Government. Thus, the enquiry is ex parte and the same deserves to be quashed on the ground that there was no proper enquiry.
9) Mr. Nair, learned counsel appearing for the petitioner relies on a decision of the Supreme Court in the matter of Madhura Prasad Vs. Union of India and others1.
10) Per contra, Mr. Y.S. Thakur, learned Deputy Advocate General appearing for the State submits that the Collector in appeal has already held that there was no application for supply of documents. The petitioner was present before the Enquiry Officer on 31-8-1982 and he was intimated the next date of hearing i.e., 15-9-1982. The petitioner failed to appear and cross examine the Naib Tahsildar, who was produced and examined by the Presenting Officer on 15-9- 1982. The petitioner has kept himself away deliberately, thus, the enquiry is proper and justified.
11) Having heard learned counsel for the parties, perused the pleadings and documents appended thereto, it is apparent that in the original application filed before the Civil Judge, Class II, Ambikapur, being Civil Suit No.151-A/84, the petitioner raised the points of non-supply of documents pursuant to his application dated 23-6-1982. it was further stated that there was serious procedural irregularity in the conduct of the enquiry without stating specific provisions of Rule 14 (11) of the Rules 1966.
12) The respondent No.2/State has not submitted any reply to the contention of the petitioner with regard to non compliance of the provisions of Rule 14 (11) of Rules 1966. The Tribunal, in its order dated 24-6-1998, which is sought to be reviewed in this petition, has not discussed the procedural irregularity to the extent that the mandatory provisions of Rule 14 (11) of the Rules 1966, was not followed. It appears to be a serious error apparent on the face of record as this is a legal provision which ought to have been considered. The complaint is non compliance of the mandatory provisions of Rule 14 (11) of the Rules 1966. The entire enquiry appears to be vitiated for non compliance of the provisions of the Rule 14 (11) of the Rules 1966.
13) Rule 14 (11) of the M.P/CG Civil Services (Classification, Control and Appeal) Rules 1966 reads as under:
"Rule 14 (11) The inquiring authority, shall, if the Government servant fails to appear within the specified time or refuses or omits to plead, require the Presiding Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the Government servant may, for the purpose of preparing his defence-
(i) inspect within five days of the order or within such further time not exceeding five days as the inquiring authority may allow, the documents specified in the list referred to in sub rule (3).
(ii) submit a list of witnesses to be examined on his behalf.
Note.- If the Government servant applies orally or in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in sub-
rule (3), the inquiring authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority.
(iii) Give a notice within ten days of the order or within such further time not exceeding ten days as the inquiring authority may allow, for the discovery or production of any documents which are in the possession of Government but not mentioned in the list referred to in sub-
rule (3).
Note.- The Government servant shall indicate the relevance of the documents required by him to be discovered and produced by the Government."
14) Admittedly, the Naib Tahsildar was examined at the back of the petitioner. The petitioner was not supplied documents even on the request made by the petitioner on 23- 6-1982. Thus, the enquiry cannot be held proper. The enquiry is accordingly vitiated and consequential orders i.e., dismissal order dated 27-12-1982 (Annexure P/8) and the appellate order dated 18-1-1984 (Annexure P/9) deserve to be quashed.
15) The Supreme Court in the matter of Mathura Prasad (supra) cited by learned counsel appearing for the petitioner, observed that the procedures laid down under Rules are required to be strictly followed in following terms:
"19. When an employee, by reason of an alleged act of misconduct, is sought to be deprived of his livelihood, the procedures laid down under the sub- rules are required to be strictly followed. It is now well settled that a judicial review would lie even if there is an error of law apparent on the face of the record. If statutory authority uses its power in a manner not provide for in the statute or passes an order without application of mind, judicial review would be maintainable. Even an error of fact for sufficient reasons may attract the principles of judicial review."
16) The case of Kashinath Dikshita Vs. Union of India and others2 cited by Mr. Thakur, the Supreme Court observed as under:
"13. In view of the pronouncements of this Court it is impossible to take any other view. As discussed earlier the facts and circumstances of this case also impel us to the conclusion that the appellant has been denied reasonable opportunity to defend himself. In the result, we are of the opinion that the impugned order of dismissal rendered by the disciplinary authority is violative of Article 311 (2) of the Constitution of India inasmuch as the applicant has been denied reasonable opportunity of defending himself and is on that account null and void."
17) The case of Union of India and others Vs. K. Shrivastava,3 cited by Mr. Thakur to the effect that the Tribunal could not sit in appeal against the orders of the Disciplinary and Appellate Authorities in exercise of its powers of judicial review, is not applicable to the facts of the present case. If there is serious error apparent on the face of record, by not following the substantial procedure in the inquiry, the judicial review is permissible. Their Lordships observed that "it is no part of the function of the Tribunal to substitute its own decision when enquiry is held in accordance with rules and punishment is imposed by the circumstances and which it is entitled to impose." In the case on hand, the enquiry was irregular as the provision of Rule 14 (11) of Rules 1966 was not followed.
18) The facts in the case of Pepsu Road Transport Corporation Vs. Rawel Singh4 cited by Mr. Thakur, are different to the facts of the present case. In that case the delinquent employee knew the date of hearing. In the case on hand, the disciplinary authority without intimating the date of hearing and without following the statutory provisions of Rule 14 (11) of Rules 1966, proceeded ex parte. Thus, the Enquiry Officer committed an error of law and the enquiry proceedings.
19) Applying well settled principles of law in respect of enquiry procedure to the facts of the present case, wherein despite an application made to the enquiring authority, the documents were not supplied, the petitioner was told that the next date of hearing would be intimated to him, no notice was given to him, the Enquiry Officer without intimating the delinquent employee examined the Naib Tahsildar n 15-9-1982 at the back of the petitioner, without affording an opportunity of hearing to cross examine closed the case, passed the order and submitted the Enquiry Report, the entire enquiry procedure was vitiated on account of the fact that mandatory provisions of Rule 14 (11) of the Rules, 1966 was not followed.
20) For the reasons mentioned hereinabove, the review petition as well as the Transfer Application are allowed. Accordingly, the dismissal order dated 27-12-1982 (Annexure P/8) and the order dated 18-1-1984 (Annexure P/9) passed in appeal are quashed. The respondent-authorities are at liberty, if so advised, to initiate fresh enquiry. The petitioner shall be entitled to consequential benefits flowing from this order. No order asto costs.
JUDGE