Madhya Pradesh High Court
K.C. Bhargava vs The State Of M.P on 17 July, 2012
Author: K.K. Trivedi
Bench: K.K. Trivedi
HIGH COURT OF MADHYA PRADESH : JABALPUR.
Writ Petition No.24146/2003
(O.A.No.59/1999)
K.C. Bhargava.
Vs
State of M.P. And others.
PRESENT :
Hon'ble Shri Justice K.K. Trivedi. J.
Shri Hemant Shrivastava, learned counsel for the
petitioner.
Shri Piyush Dharmadhikari, learned Govt. Advocate, for
respondents.
ORDER
(17.7.2012) 1: This petition was originally filed as Original Application in the M.P. Administrative Tribunal Bench at Bhopal. After closure of the Tribunal, the Original Application has been transmitted to this Court and has been registered as writ petition.
2: The petitioner in this petition has challenged the validity of order dated 7.1.1998, by which the appeal filed by the petitioner against the order of punishment has been dismissed as also the order of punishment dated 14.12.1996, by which the petitioner was compulsory retired after holding a departmental enquiry. Mainly, it is contended by the petitioner that while he was in service, working on the post of Motor Transport Officer, was assigned security duty in the convoy of the Chief Minister of the State. He suffered an injury on his left leg on account of accident, 2 while performing such duties and, was admitted in the hospital and was referred by the State Government to the Bombay Hospital where he was treated. The petitioner was advised to take complete rest. In fact, on account of such injury and infection, the petitioner suffered a permanent disability of shortening of the leg. He was not in physical condition to carry out the order of transfer issued in his respect. The fact that the petitioner was under treatment and was not physically fit to resume the duty, was well within the knowledge of the respondents, yet when an order of transfer was issued, even after submission of his application, instead of taking a proper action, a show cause notice was issued to him calling his explanation as to why he should not be punished for disobedience of the orders of the superior authorities. The reply to the show cause notice was submitted by the petitioner and instead of closing the matter, the charge sheet was issued to him and thereafter a departmental enquiry was conducted. The petitioner has made the application that the doctors who have treated him be called as defence witnesses for the purposes of proving his defence, but this was not done and without affording any opportunity in that respect, a severe penalty of compulsory retirement from service was imposed on the petitioner. The petitioner was not afforded the opportunity to prove his defence in appropriate manner. The enquiry itself was not conducted in appropriate manner, inasmuch as, the appointment of Presenting Officer was not done. The enquiry officer himself examined the witnesses which has caused prejudice to the petitioner. In fact, the statutory provisions of the relevant Act and the Rules were not complied with and an enquiry report was drawn. Though these facts were brought to the notice of the respondents authorities, yet instead of exonerating the petitioner, such a punishment 3 was imposed. The appeal preferred by the petitioner was not considered in accordance to the provisions of the Rules and, as such, the appeal of the petitioner was also not properly decided. On this count, it is contended that the orders impugned are bad in law and are liable to be quashed.
3: A return has been filed by the respondents in the Original Application before the Tribunal contending that the procedure as laid down under the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as CCA Rules of 1966 for short) was duly followed. It was proved that there was a non- compliance of the statutory provisions of the M.P. Civil Services (Leave) Rules, 1977 and, as such, the petitioner has committed a misconduct. Since such a misconduct was proved taking into account the gravity of the charges levelled on the petitioner, the order was rightly passed by the disciplinary authority. The appeal of the petitioner was appropriately considered and thereafter the order was passed by the appellate authority. It is further contended by the respondents that the scope of judicial review is restricted to the effect whether any bias was caused to the petitioner or not and since it has been held by this Court in catena of decisions, based on the decisions of the Apex Court, no prejudice or bias was caused to the petitioner on account of non-appointment of Presenting officer in the departmental enquiry. It is further contended that the petitioner was liable to bring his own defence witnesses as attempts were made by the enquiry officer to summon those witnesses for the purposes of examining the defence of the petitioner. Since the petitioner utterly failed to produce the witnesses, the evidence available on record was rightly appreciated by the enquiry officer. Since the 4 complete enquiry was conducted in accordance to the provisions of the CCA Rules, the order impugned has rightly been passed. There is no force in the claim made by the petitioner and his petition is liable to be dismissed.
4: As per the direction of the Tribunal and this Court, the record of the departmental enquiry is produced before this Court. Heard learned counsel for the parties at length and perused the record minutely.
6: The first and foremost question which is to be decided is whether there was really a misconduct committed by the petitioner for which the action was initiated against him in rightful manner ? Undisputedly, a show cause notice was issued to the petitioner asking him to join on the post in compliance of the order of transfer. The petitioner has submitted the reply to the said show cause notice and produced certain medical certificates. Undisputedly, the petitioner has suffered an injury while performing the duty in the convoy of Chief Minister of the State. This fact was well within the knowledge of the respondents that he was admitted in the hospital at Bhopal where he was operated. Since the treatment was not resulting in relief to the petitioner, he was referred with the sanction of the State Government for treatment out of the State at Bombay. Undisputedly, the petitioner was treated at Bombay and was not physically fit to resume the duty. Having this knowledge, where was question of issuing an order of transfer in respect of petitioner and why such an order of transfer was issued, has not been explained anywhere by the respondents. The charge sheet was issued to him on 22.2.1995 making three allegations that the petitioner even after transfer has not complied with the said order and thereby has shown disrespect to the senior officer, which 5 according to the respondents was a misconduct under the provisions of M.P. Police Act and the Regulations. The second charge was that the petitioner has shown indiscipline because of non-compliance of the order of the senior officer. The same was the third charge. The only reason of issuing the charge sheet was that the petitioner has not carried out the order of transfer. A detailed reply was submitted by the petitioner to this charge sheet in which he has categorically stated that he has suffered the injury on 14.5.1992. He was referred to Bombay Hospital vide memo dated 20.6.1992. He was treated there. He suffered the injury again because of a fall in the year 1994 and was continuously under treatment. Not only this, since the petitioner was incapable of moving on his own, the State Government has provided him assistance of one attendant excluding the attendant family member. Was it not the sufficient proof of the fact that the petitioner was not in a condition to resume the duties and, as such, where was the question of his transfer. Only because he could be carried to Bombay for the purposes of treatment, could it be said that the petitioner was fit to resume the duty, but was deliberately avoiding the orders of the superior authorities ?
7: For the purposes of proving of the charge, the disciplinary authority was required to appoint Enquiry Officer as also a presenting officer as is specifically provided under Clause (c) of Sub-rule (5) of Rule 14 of the CCA Rules. From the enquiry record, it is clear that on 22.2.1995, the charge sheet was issued to the petitioner. On 24.3.1995, the disciplinary authority, the Commandant 10th SAF Sagar, made over the file to Assistant Commandant for the purposes of conducting the enquiry against the petitioner, but did not appoint any Presenting 6 officer. The enquiry proceedings were started by the Enquiry officer on 27.3.1995. At no point of time, any Presenting Officer was appointed. The enquiry proceedings further indicates that on various dates, notices were sent or information was sent to the petitioner for his appearance in the enquiry. On 26.5.1995, the disciplinary authority appointed the adjutant as Enquiry Officer. On account of posting of the Enquiry Officer, the Assistant Commandant on election duty. Again no Presenting Officer was appointed. The proceedings indicates that the enquiry was initiated at Sagar, whereas, the petitioner had not carried out the order of posting at Sagar and this was the charge made in the charge sheet. The Enquiry Officer himself has recorded the statements of witnesses of the department and nothing has been indicated that what steps were taken for ensuring the attendance of the defence witnesses except sending certain summons to the said defence witnesses. Ultimately, it was recorded that since the defence witnesses were not produced by the petitioner, the statements of petitioner were recorded and thereafter the enquiry report was drawn. It will not be out of place to mention here that since the petitioner was not in a position to attend enquiry at Sagar with permission of superior officer, the enquiry officer has visited Bhopal and conducted the enquiry there.
8: As has been contended by the petitioner, a specific provisions is made for attendance of witnesses by an Act known as M.P. Vibhagiya Jaanch (Sakchhiyon Ka Hazir Karaya Jana Tatha Dastavejon Ka Pesh Karaya Jana) Adhiniyam, 1979 (hereinafter referred to as the Act of 1979 for short). Section 5 of the Act specifically authorises the enquiry authority to enforce attendance of witnesses by exercising the powers conferred on a Civil Court. The Rules 7 have been made under the provisions of the Act aforesaid in the year 1981, which prescribes issuance of the summon. If the witnesses are not coming forward even after issuance of the summon, provisions are made to enforce their attendance. However, the entire record indicates nothing whether this was rightly done or not and whether action was taken under the aforesaid Act and Rules or not. It appears that this was not done because it was thought by the enquiry officer that the responsibility was on the delinquent employee to produce the defence witnesses. This again cannot be said to be proper procedure adopted. The petitioner had very categorically contended that he was treated at Bombay and the doctors at Bombay have certified about his physical fitness and to prove such defence that he was not physically fit to resume the duty, examination of such witnesses was necessary. If the Acts are made and the Rules are framed, it is the duty of the Enquiry Officer to implement such provisions by exercising the powers conferred by the Act and Rules and not to shirk his responsibilities saying that the defence witnesses are required to be produced by the delinquent. Thus, in fact it was a denial of grant of proper opportunity of defence to the petitioner.
9: Apart from this aspect, it is to be seen whether any prejudice was caused to the petitioner or not if a Presenting Officer is not appointed. Though hard and fast Rules of Evidence are not applicable, but the enquiry being a fact finding enquiry, reasonable compliance of the Rules is required to be done. The role of the Presenting Officer in a departmental enquiry is to put up the case of the department or the disciplinary authority. In fact, he acts as a prosecutor. The Presenting Officer is required to examine the witnesses. If the Enquiry Officer acts as Presenting 8 Officer and put the question to the witnesses produced by the disciplinary authority, naturally they are to answer in the manner the questions are asked. This cannot be said to be a proper procedure as the Enquiry Officer may sometime ask the direct question even the leading question and the answer is bound to come in affirmative. This would naturally cause a prejudice to the delinquent as even after effective cross examination of that witness, it will not be deemed that such statements made are incorrect. Normally, if such questions are asked by the Enquiry Officer and the answers are given in affirmative, the Enquiry Officer would not look into the other aspects and would accept the evidence without further application of mind or without its appreciation with respect to the statements made in the cross examination by the very same witness. This being the reason, the provisions have been made under the statutory Rules for appointment of a Presenting Officer. Thus, to say that the prejudice was not caused to the petitioner by not appointing the Presenting Officer, is incorrect. Further, there seems to be no justification for issuing an order of transfer with respect to a person who is suffering from such injuries, is ailing for long and is granted the privilege of taking appropriate treatment out of the State by the State Government itself. This being so, in fact, the charge sheet itself was not issued in justified manner and the enquiry against the petitioner was not justified. This particular aspect is considered only because it has been said in the second show cause notice issued to the petitioner after closure of the departmental enquiry on 25.7.1996 that the plea raised by the petitioner that he was not physically fit to resume the duty could not be accepted as the petitioner was going to Bombay for taking treatment in the intervening period when the order of transfer was issued. Traveling to a place for taking treatment is quite 9 different than that of traveling to a place for resuming duty. If with the assistance of two persons, the petitioner could be moved to Bombay to take treatment, can it be said that he was such physically fit that he could have resumed the duty as well? This itself indicates that the respondents were bent upon to punish the petitioner.
10 : Learned counsel for the petitioner putting his reliance heavily in the case of Mohd. Yunus Khan Vs. State of Uttar Pradesh and others [(2010) 10 SCC 539], contended that in view of such facts, the bias of the authorities initiating disciplinary proceedings against the petitioner were proved. It is further submitted by learned counsel for the petitioner that imposing the punishment by holding a disciplinary proceedings is in fact in the nature of quasi judicial proceedings and though the technical Rules of Code of Civil Procedure and Evidence Act are not applicable, but the principles of natural justice are required to be observed. It is contended that there was flagrant violation of the Rules of natural justice and, as such, the order impugned was bad in law. Further, placing reliance in the case of Balveer Singh Vs. State of M.P. and others [2010(2) M.P.H.T. 374], it is contended that if there is violation of the provisions of the Rules and the Eqnuiry Officer has acted as Presenting Officer as well as Enquiry Officer, the enquiry proceedings are vitiated and, as such, the penalty could not have been imposed on the petitioner. This Court in the case of Balveer Singh(supra) has examined the procedure laid down under the Rules and has also examined whether could it be said that by not appointing the Presenting Officer any illegality was committed or not. Placing reliance in the case of Shishir Raizada Vs. Union of India and others [2008 (2) MPWN 59], this Court has held that the Presenting Officer 10 appointed under Rule 14(5)(c) of the CCA Rules, is in fact a person appointed like prosecutor and a person who has to prove the misconduct before the Enquiry Officer. It is the Presiding Officer, who conducts the chief examination of the prosecution witnesses as well as the cross examination of the defence witnesses. It is again the Presenting Officer, who conducts the cross examination of the delinquent Government servant in order to arrive at a finding of guilt. Thus, the opinion is expressed by this Court that in case the Presenting Officer is not appointed and the Enquiry Officer has conducted the chief examination and has conducted the cross examination of defence witnesses as well as cross examination of the delinquent Government servant, the Enquiry Officer in fact has played the role of the prosecutor. The principles laid down by the Division Bench of this Court in the case of Union of India through its Secretary Ministry of Railway, New Delhi and others Vs. Mohd. Nasim Sidduqui (2005 LLJ 331) are that the Enquiry Officer is in the position of a judge and shall not act as a Presenting Officer who is in the position of a prosecutor. However, it is not necessary for the disciplinary authority to appoint the Presenting Officer in each and every case and to ascertain whether the Enquiry Officer has in fact acted as the Presenting Officer or not, the proceedings of enquiry are required to be examined with reference to the manner in which the evidence is led and recorded in the enquiry.
11: For the aforesaid purposes, again the enquiry record is required to be examined. As has been referred hereinabove, the enquiry officer has noted down the fact relating to calling the petitioner to take part in the enquiry. As far as the evidence is concerned, it appears that examination in chief was done by the Enquiry Officer himself. The witness examined by the disciplinary 11 authority had proved the documents with respect to issuing the orders to the petitioner, but could not explain whether any communication was sent to the petitioner rejecting his application for grant of leave or not. Same was the situation with respect to the other person examined as a witness. The defence witnesses were examined by the petitioner and they were cross examined by the Enquiry Officer. This itself is enough to demonstrate that in fact the Enquiry Officer himself has acted as the prosecutor. The enquiry proceedings were thus vitiated.
12 : In view of the law laid down by the Division Bench of this Court in the case of Mohd. Nasim Siddiqui (supra), learned Govt. Advocate appearing for respondents has tried to wriggle out of the situation by saying that no prejudice was caused to the petitioner only because of non- production of some of the defence witnesses as has been held in the case of S.C. Mukherjee Vs. Chairman, State Bank of India and others [2010 (4) MPHT 266]. The situation in the present case is totally different than that of the case relied by learned Govt. Advocate. Here in the case in hand, the charges were made only because of non- compliance of an order of transfer. Whether such a fact of ailment of the petitioner was taken into consideration at the time when the order of transfer was issued or not and whether in such a circumstances an order of transfer could be issued or not were to be kept in mind. These were not the situation in the case of S.C. Mukherjee (supra) and, therefore, the prejudice in the present case caused to the petitioner is apparent.
13 : Lastly, for such a misconduct whether a penalty of compulsory retirement could have been imposed on the petitioner or not and could it be said that for such a 12 misconduct, even on proof of charges, a penalty of compulsory retirement from service was justified. The Apex Court in the case of B.C. Chaturvedi Vs. Union of India (AIR 1996 SC 484) has held that if a penalty is disproportionate to the allegations made and proved, it can be interfered by the Court in exercise of power of judicial review. Similar law was considered by the Apex Court in the case of Uttar Pradesh State Road Transport Corporation Vs. Mahesh Kumar Mishra (AIR 2000 SC 1151) and in the case of Y.P. Sarabhai Vs. Union Bank of India and another (AIR 2006 SC 2316). The charges against the petitioner though were three, but co-related to only one fact with respect to the transfer of the petitioner and not carrying out the order of transfer. As has been referred to hereinabove, ailment of the petitioner was not taken into consideration and the order of transfer itself was issued. If the petitioner was not in a position to carry out the order of transfer, merely because the disciplinary authority has given the opinion that if he could have travelled to Bombay for treatment, he could have also travelled to another place for joining the duty, without verification of the fact that the petitioner was physically fit for the said purpose or not, such a punishment should not have been imposed. On the other hand, a lenient view could have been taken on the basis of available evidence on record. Instead such a punishment has been imposed compulsory retiring the petitioner from service. It is to be seen that the injury was suffered by the petitioner while he was discharging the duty of security of the Chief Minister of the State. Therefore, in the considered opinion of this Court, the penalty imposed on the petitioner is grossly disproportionate to the misconduct alleged against him.
14 : Consequently, the writ petition is allowed. The order 13 of penalty dated 1.11.1996 as contained in Annx.A/6 as also the appellate order dated 7.1.1998 as contained in Annx.A/1 issued against the petitioner are hereby quashed. The petitioner be treated in service for the period of compulsory retirement and be paid the salary and allowances for the said period. The pension of the petitioner be also revised as he would have attained the age of superannuation by now and all the retiral dues be settled in favour of the petitioner, within a period of three months, from the date of receipt of certified copy of the order passed today.
15 : The writ petition stands allowed and disposed of to the extent indicated hereinabove. There shall be no order as to costs.
(K.K. TRIVEDI) Judge /7/2012 A.Praj.
14HIGH COURT OF MADHYA PRADESH : JABALPUR.
Writ Petition No.24146/2003(O.A.No.59/1999) K.C. Bhargava.
Vs State of M.P. And others.
ORDER
Post it for /7/2012
(K. K. Trivedi)
Judge
/07/2012