Madhya Pradesh High Court
Phool Chand Kasera vs The State Of M.P. & Ors on 27 November, 2012
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Writ Petition No : 3431 OF 1997
Phoolchand Kasera
- V/s -
State of Madhya Pradesh and Others
Present : Hon'ble Shri Justice Rajendra Menon.
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Smt. N.K. Mann, learned counsel for the petitioner.
Smt. D.K.Bohre, learned P.L. for Respondent Nos.1 and 3.
Shri Ashok Lalwani, learned counsel for Respondent No.4.
ORDER
(27/11/2012) Challenging the order dated 28.7.1997 passed by the Joint Director Public Instructions Jabalpur terminating the services of the petitioner for misconduct on the basis of certain allegations proved in a departmental enquiry, this writ petition has been filed.
2. The Kundan Das Higher Secondary School, Katni is a 100% added institute and it's establishment and is functioning under the Shanti Nagar Education Society, i.e. Respondent No.4. Petitioner was working as a Principal of the said school and on certain allegations, petitioner was suspended, thereafter, a charge-sheet was issued to the petitioner and on the basis of the findings of guilt recorded in a departmental enquiry conducted into the allegations levelled in the 2 charge-sheet, the impugned action is taken. Challenging the impugned action, this writ petition has been filed.
3. Smt. Mann, learned counsel for the petitioner took me through the documents and material available on record and tried to emphasize that the entire action taken against the petitioner is unsustainable and in support of her contention, the following submission were made :
4. The first ground canvassed is that the suspension of the petitioner vide order Annexure-P2 is illegal, as the same is not preceded by issuing a show cause notice. The second ground canvassed was that after the charge-sheet was issued to the petitioner vide Annexure-P6, petitioner sought for various documents and as these documents were not supplied to the petitioner, the departmental enquiry conducted without supplying the documents is illegal and in support of this contention, Smt. Mann invites my attention to the law laid down by the Supreme Court in the case of State of U.P Vs. Shatrughan Lal & Anr. 1998 AIR SCW 2897.
5. The third ground canvassed was that in the departmental enquiry, no witnesses were examined. The enquiry officer simply took note of the statement of the witnesses recorded in the preliminary enquiry and without conducting a proper enquiry by examination of witnesses, the action is taken which is wholly unsustainable.
6. The forth ground canvassed in that the report of the preliminary enquiry and the material thereof, is not supplied to the petitioner and, therefore, the action is illegal.
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7. Finally it is argued that the findings recorded by the enquiry officer is perverse and based on such a perverse findings, the action is taken, which is unsustainable. It is also emphasized that the requirement of Rule 14 (8) of the Civil Services (Classification, Control and Appeal) Rules have been violated and, therefore, the entire action stands vitiated on this count. In support of the aforesaid contention of the petitioner, reliance is placed on the following judgments :
8. Anil Kumar Vs. Presiding Officer & Anr. 1985 (3) SCC 378 to canvass the contention that the findings of the enquiry officer is perverse and as no reason is given and enquiry officer's report is without application of mind, the same is unsustainable. Sher Bahadur Vs. Union of India & Ors. AIR 2002 SC 3030 to canvass the contention that the findings recorded by the enquiry officer are perverse and that sufficient evidences are available to show that based on the same, misconduct is not proved. The next judgment cited was A.K. Kraipak & Ors. Vs. Union of India & Ors. AIR 1970 SC 150 to contend that the principles of natural justice is violated and the same vitiates the enquiry.
9. Finally, the reliance is placed on a judgment of a Supreme Court in the case of Messrs. Mahabir Prasad Santosh Kumar Vs. State of U.P. and Ors. 1970 (1) SCC 764 to say that the action taken by the unauthorized person namely the Joint Director is unsustainable. It is stated that the Joint Director is not competent enough to take action 4 against the petitioner. It is only the Directorate of Public Instructions, who can take action and, therefore, on this count, the entire action stands vitiated.
10. Respondents have refuted the aforesaid and contended that the entire contention of the petitioner is incorrect. Smt. D.K.Bohre learned counsel refers to the report of the enquiry officer Annexure-P8 and the findings recorded therein to contend that enquiry was conducted in a proper manner, opportunities was granted to the petitioner and as the petitioner did not avail of the opportunity granted with regard to the departmental enquiry, it is stated that in the enquiry, witnesses were examined and the petitioner himself having refused to participate in the enuiry, petitioner cannot make any complaint in the matter with regard to conduct a proper enquiry.
11. Smt Bohre, learned counsel invites my attention to the enquiry proceedings produced by her and points out that the entire action is taken against the petitioner in accordance with the provisions of Section 2 and 4 of the M.P. Ashashkiya Shikshan Sansthan Adhiniyam 1978 and the Statutory Appeal Rules framed thereunder and as under the appeal rules namely M.P. Ashaskiya Shikshan Shantha (Adhyapakon Tatha Anya Karmchariyon Ke Vetano Ka Sandaya) Adhiniyam 1978, statutory appeal is available to the petitioner under Rule 9 and Rule 10, therefore, a writ petition on disputed question of fact directly before this Court is not maintainable. 5
12. Smt. Bohre, learned counsel also invites my attention to the enquiry proceedings available and points out that the departmental enquiry commenced w.e.f. 6.5.1995, the date was informed to the petitioner and all the documents and material were supplied to the petitioner on 6.5.1995 and 7.5.1995. A receipt in this regard issued by the petitioner, Annexure-R3/1 has been produced to contend that all the relevant documents and material were supplied to the petitioner. Thereafter, reliance is placed on a letter dated 8.5.1995 Annexure- R3/2 submitted by the petitioner to contend that he has received the charge-sheet, photo-copy of the statements of the witnesses and evidence and is satisfied.
13. It is pointed out that after 6.5.1995, the next sitting of the enquiry was fixed on 1.8.1995 and vide communication Annexure- R3/3, the petitioner was informed about the same but he did not respond to the same and infact by filing document Annexure-R3/4, it is indicated that the petitioner and his family members refused to accept the letter dated 1.8.1995. It is pointed out that the enquiry officer supplied to the petitioner entire documents as is evident from Annexure-R3/2 and the petitioner in his letter Annexure-R3/5 admitted these facts.
14. It is submitted that thereafter the petitioner vide Annexure-R3/6 was directed to submit his reply but instead of submitting the reply, petitioner sought for challenging the enquiry conducted and raised various objections. It was refused vide Annexure-R3/7. Petitioner did 6 not submit his reply upto 6.12.1995 and, therefore, on 7.12.1995, the enquiry officer issued a quarry to the petitioner and directed to remain present on 9.12.1995. Letters in this regard were sent to the petitioner vide Annexure-R3/8 but inspite of the service, petitioner did not turn up.
15. Accordingly, an ex-parte proceedings were drawn and, thereafter, the report of the enquiry officer submitted and the petitioner was granted liberty to submit his reply but when nothing was done, the impugned action is taken.
16. Respondent No.4 Society concerned has also filed a detailed reply and from the said reply, also it is seen that they have tried to demonstrate before this Court that the departmental enquiry was conducted in accordance with rules. All the documents and the materials were supplied to the petitioner, inspite thereof, petitioner did not participate in the enquiry and did not avail of the opportunity and, therefore, ex-parte proceedings were held.
17. By filing the rejoinder, the petitioner has disputed issuance of notices and receipts issued by the petitioner with regard to acknowledging the documents received and the statements of the witnesses as indicated. Petitioner has refuted issuance of receipt Annexure-R3/1, letter dated 8.5.1995 Annexure-R3/2 and the communication made vide Annexure-R3/5.
18. I have heard learned counsel for the parties and perused the record. As far as the contention of the petitioner that the suspension of 7 the petitioner has been ordered without any show cause notice is concerned, the same is only unsustainable. There is no rule, regulation or statutory requirement which contemplates that before suspending an employee, a show cause notice and opportunity of hearing is to be granted. In the absence of any statutory rule in this regard, the contention of the petitioner cannot be accepted. The second and third contention of the petitioner was with regard to non-supply of documents demanded by the petitioner vide Annexure-P6 and the act of the respondents in not recording any witnesses and finally in not supplying the report of the preliminary enquiry.
19. If the documents available on record and the note-sheet produced by the department as indicated hereinabove are taken note of, it would be seen that on 6.5.1995, the enquiry commenced and on the said date, the petitioner was present and the communication made by the petitioner vide Annexure-R3/2 goes to show that all the documents have been made available to the petitioner and it is only based on these documents that the enquiry had commenced. Thereafter, records also indicate that inspite of the notices, petitioner did not appear, the witnesses appeared and gave approval of their statements recorded in the preliminary Enquiry and the entire action is taken based on these statements of witnesses.
20. However, as the petitioner was not present, the witnesses could not be cross examined. The petitioner has very serious disputed 8 receipt of notice with regard to date of the enquiry and the fact of service of notice on him.
21. On a close scrutiny of the record, it is clear that from the documents filed by the respondents, the contention of the petitioner that proper opportunity of hearing was not granted and the documents were not given seems to be incorrect and due to absence of the petitioner, conducting the enquiry ex-parte is established. However, the petitioner has disputed issuance of the receipts and acknowledgment and, there is serious dispute with regard to the enquiry being conducted in the matter as indicated hereinabove by the Department.
22. That being so, a fact finding enquiry into the matter is required and as the statutory provision and detailed procedure is available, the matter can be more adequately dealt with under the said statutory provisions.
23. Under the Appeal Rules 1978, a provision for appeal against the impugned action is contemplated, the appeal can be filed under Rule 3 and the Appellate Authority is given wide power even for staying the proceedings under the impugned action.
24. Under rule 9, the Appellate Authority is given full-fledged power for hearing the parties, examining the witnesses, conducting enquiry into the matter, thereafter, passing the order or setting aside the order or confirming the order in the appeal.
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25. Under Rule 10, the appellate authority while passing the order has to take note of various aspects of the matter and the decision taken is to be taken after considering all the factors as indicated in the said rule.
26. Various considerations have to be considered by the appellate authority as contemplated under Rule 10 of the Madhya Pradesh Ashashkiya Shikshan Sanstha (Adhyapakon Tatha Anya Karmachariyon Ke Vetano Ka Sandaya) Adhiniyam 1978. The same indicates that the entire department enquiry and it's procedure is subject to scrutiny by the appellate authority and the punishment is also to be scrutinized by the appellate authority. Therefore, the entire scheme of the Rules 1978 give wide power to the appellate authority to go into the each and every aspect of the matter and as a statutory appeal is available to the petitioner, it is not appropriate for this Court to interfere into the matter particularly, when prima-facie, material available on record goes to show that all opportunities were granted to the petitioner, but the petitioner having disputed the same, the matter has to be dealt with by a Fact Finding Authority, where a proper enuqiry can be conducted. Therefore, I see no reason to interfere into the matter.
27. Accordingly, finding no ground to interfere into the matter, this petition is dismissed with liberty to the petitioner to take recourse to the remedy of appeal available under the Rule 1978. 10
28. It is directed that if an appeal is filed within a period of 30 days' along with the certified copy of this order, the appellate authority shall after hearing the petitioner and the society concerned, decide the matter in accordance with law within a period of three months, thereof.
29. It is made clear that the observations made in this order with regard to conduct of the enquiry are based on the material produced before this Court, they are not conclusive. The appellate authority can record an independent finding without being influenced by the order passed today in the case in hand. The entire matter is open for fresh scrutiny by the Appellate Authority.
30. Accordingly, finding no case for interference, the petition is disposed of.
( RAJENDRA MENON ) JUDGE nd