Madhya Pradesh High Court
Ramnaresh Sharma vs The State Of Madhya Pradesh on 25 February, 2020
Equivalent citations: AIRONLINE 2020 MP 591
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
The High Court of Madhya Pradesh
WP 7634/2013
[Ramnaresh Sharma vs. State of MP and Ors.]
Gwalior, dtd. 25/02/2020
Shri DP Singh, counsel for the petitioner.
Shri SN Seth, Government Advocate for the respondents/ State.
This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-
''7(1) That, the Hon'ble Court may kindly be pleased to allow this Writ Petition;
(7-i-a). That, the letters dated 12.10.2011, 24.10.2011, 01.11.2011 and 02.12.2011 contained in Annexure-P/16, P/17, P/18 and P/20 may also be quashed, in the interest of justice.
7(ii) That, by issuance of the writ order or direction the order Annexure P/1 dated 31.3.2013 passed by the respondent no.4, order Annexure P/2 dated 22.4.2013 passed by the respondent no.3 and order Annexure P/3 dated 17.09.2013 passed by the respondent no.2 may kindly be directed to be set aside and the respondents may kindly be directed to reinstate the petitioner in service with all consequential and monetary benefits.
7(iii) That, any other just, suitable and proper relief, which this Hon'ble Court deems fit, may also kindly be granted to the petitioner. Costs be also awarded in favour of the petitioner. '' (2) The necessary facts for disposal of the present petition in short are that the petitioner was working on the post of Constable and was posted in Police Station Jhansi Road, Gwalior. At the relevant time, he was deployed in the PCR duty. An information was received by the Police Station that certain police officers are making illegal recoveries from the truck drivers. Accordingly, CSP, Shri Pradeep Patel, Jhansi Road, Gwalior along with other police personnel went to Vicky Factory Square and talked with some of the drivers of the truck, who made a verbal complaint that the police personnel posted at the particular point are illegally making recoveries and accordingly, a currency note of Rs.50/- was given to the driver of truck bearing Registration No.RJ11GA-4330 after preparing 2 Panchnama and the CSP went towards the place, in the truck itself. The petitioner, who was posted at a particular point, demanded money from the truck driver and the same currency note was given by the truck driver to the petitioner. The CSP carried out the search of the petitioner and the said currency note was recovered from the right pocket of his shirt. Accordingly, the petitioner was brought to the Police Station Jhansi Road, Gwalior. An information was given to the Superintendent of Police, Gwalior and the petitioner was placed under suspension. A charge-sheet was given to the petitioner along with copy of list of witnesses and documents.
(3) A reply was filed by the petitioner and Shri Neeraj Pandey, CSP, Gwalior was appointed as Inquiry Officer and Shri Nem Kumar Dixit was appointed as Presenting officer. On 12/10/2012, the petitioner submitted an application for granting permission to engage Shri Devendra Pal Singh Jadon as a Defence Assistant, but the said application was rejected. The Department examined the witnesses in the Departmental Enquiry and similarly, the petitioner examined Constable Yogendra Singh and Constable Rajveer Singh, in his defence. After completing the departmental enquiry, the Inquiry Officer submitted his enquiry report holding that charges are proved. A show cause notice was issued and objections were filed by the petitioner. However, by the impugned order dated 31/03/2013(Annexure P1), the petitioner was compulsorily retired from service. The appeal filed against the order of compulsory retirement was dismissed by order dated 22/04/2013 (Annexure P2). Thereafter, a mercy petition was filed before the respondent No.2 which too has been dismissed by order dated 17/09/2013 (Annexure P3).
(4) Challenging the impugned orders dated 31/03/2013 (Annexure P1), dated 3 22/04/2013 (Annexure P2) and dated 17/09/2013(Annexure P/3), it is submitted by the counsel for the counsel for the petitioner that in the Departmental Enquiry, CSP, Shri Pradeep Patel was examined and cross-examined. Thereafter, he was re-summoned to fill up the lacuna. A procedure which was adopted by the Inquiry Officer is unknown to the provisions of law. It is further submitted that the defence witnesses of the petitioner were cross-examined by the Inquiry Officer, therefore, the entire departmental enquiry is vitiated. Further, the driver of the truck who is alleged to have paid illegal gratification to the petitioner was not examined, therefore, the case is based on no evidence and the findings of fact recorded by the Inquiry Officer which were accepted by the Disciplinary Authority, are perverse.
(5) Per contra, the counsel for the State has supported the impugned order of compulsory retirement.
(6) So far as the contention of the counsel for the petitioner that after examining Shri Pradeep Patel, CSP, the Inquiry Officer should not have been re- summoned is concerned, it appears that Shri Pradeep Patel, CSP was examined and cross-examined on 13/06/2012 and his evidence was closed. Thereafter, Shri Pradeep Patel was re-summoned and his further evidence was recorded on 29/10/2012. It appears that there was some mistake with regard to number of currency note and in place of currency note number CSK 260864, the number of currency note was mentioned as CSK 260884 and accordingly, this witness was re-summoned for certain clarifications.
(7) Sub-rule (15) of Rule 14 of Madhya Pradesh Civil Service (Classification, Control and Appeal) Rules, 1966 [ in short ''CCA Rules, 1966''] reads as under:-
''(15) If it shall appear necessary before the close of the case on 4 behalf of the disciplinary authority, the inquiring authority may, in its discretion, allow the Presenting Officer, to produce evidence not included in the list given to the Government servant or may itself call for new evidence or recall and re-examine any witness and in such case the Government servant shall be entitled to have if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the enquiry is adjourned. The inquiring authority shall give the Government servant an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the Government servant to produce new evidence, if it is of the opinion that the production of such evidence is necessary in the interest of justice.
Note:- New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidencewhich has been produced originally.'' (8) From the plain reading of Rule 14(15) of CCA Rules 1966, it is clear that evidence may be called/recalled, only when there is an inherent lacuna or defect in evidence which has been produced originally. Therefore, the Inquiry Officer did not commit any mistake by re-summoning Shri Pradeep Patel, CSP, for seeking certain clarifications with regard to number of currency note.
Accordingly, the contention made by the counsel for the petitioner is hereby rejected, being misconceived and contrary to the Rules. (9) It is next contended by the counsel for the petitioner that since the defence witnesses were cross-examined by the Inquiry Officer himself, therefore, the entire Departmental Enquiry is vitiated. To buttress his contention, the counsel for the petitioner has relied upon the judgment passed by the Coordinate Bench of this Court in the case of Parmal Singh Tomar vs. State of MP and Others [Writ Petition No. 2918 of 2017], decided on 13/12/2018. The Coordinate Bench of this Court, after considering the judgment passed by the Division Bench of this 5 Court in the case of Union of India Vs. Mohd. Naseem Siddiqui, reported in 2005 (1) LLJ 931, has observed as under:-
''4. The petitioner placed reliance on the decision of the Division Bench of this Court in Union of India Vs. Mohd. Naseem Siddiqui, 2005 (1) LLJ 931 para 16 of which is relevant to emphasise the extent to which the Inquiry Officer can ask questions to different stakeholders in a departmental inquiry and as to when such questioning can become a legitimate cause for delinquent employees to the ground of bias on the part of Inquiry Officer. Relevant para 16 of the said judgment is reproduced below:-
We may summarise the principles thus:
(i) The Inquiry Officer, who is in the position of a Judge shall not act as a Presenting Officer, who is in the position of a prosecutor.
(ii) It is not necessary for the Disciplinary Authority to appoint a Presenting Officer in each and every inquiry.
Non-appointment of a Presenting Officer, by itself will not vitiate the inquiry.
(iii) The Inquiry Officer, with a view to arrive at the truth or to obtain clarifications, can put questions to the prosecution witnesses as also the defence witnesses. In the absence of a Presenting Officer, if the Inquiry Officer puts any questions to the prosecution witnesses to illicit the facts, he should thereafter permit the delinquent employee to cross-examine such witnesses on those clarifications.
(iv) If the Inquiry Officer conducts a regular examination-if-chief by leading the prosecution witnesses through the prosecution case, or puts leading questions to the departmental witnesses pregnant with answers, or cross-examines the defence witnesses or puts suggestive questions to establish the prosecution case employee, the Inquiry Officer acts as prosecutor thereby vitiating the inquiry.
(v) As absence of a presenting Officer by itself will not vitiate the inquiry and it is recognized that the Inquiry Officer can put questions to any or all witnesses to elicit the truth, the question whether an Inquiry Officer acted as a Presenting Officer, will have to be decided with reference to the manner in which the evidence is led in any recorded in the inquiry.
Whether an Inquiry Officer has merely acted only as an Inquiry Officer or has also acted as a Presenting Officer depends on the facts of each case. To avoid any allegations of bias and running the risk of inquiry being declared as illegal and 6 vitiate, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases.
5. Issue of similar kind was considered by a coordinate Bench of this Court in the case of Ram Prakash Gaya Prasad Vs. State of M.P. and others, 2008(4) MPLJ 35 and Ramesh Chand Rathore V. State of M.P. and others, 2010 (II) MPWN 80, relevant paras of which are reproduced below:-
Ram Prakash Gaya Prasad Vs. State of M.P. and others:
11. In the present case, it is evident from a perusal of the enquiry proceedings that no Presenting Officer was appointed by the disciplinary authority. The evidence on behalf of the disciplinary authority has been presented by the Enquiry Officer, by conducting a regular examination-if-chief of prosecution witnesses by taking them through the prosecution case. The Enquiry Officer has also conducted in the present case regular cross-examination of the defence witnesses. The Enquiry Officer has also conducted the cross-
examination of the delinquent government servant. It is not a case where the Enquiry Officer in the absence of the Presenting Officer has simply put clarificatory questions to the delinquent government servant.
Ramesh Chand Rathore V. State of M.P. And others:
6. Keeping in view the judgment delivered by this Court and also keeping in view the record crelating to Departmental Enquiry Proceedings, it is evident that the Inquiry Officer has in the present case conducted regular cross-examination of witness and he has also conducted the crossexamination of the delinquent government servant. It is not a case where the Inquiry Officer has simply asked clarificatory questions to the delinquent government servant. Meaning thereby, the Inquiry Officer, has assumed the role of the prosecutor while acting as a judge in the departmental enquiry proceedings.
7. The Inquiry Officer is an independent arbiter who ordinarily is supposed to remain aloof and not involve himself especially in the process of examination or crossexamination of any particular witness much less a defence witness. However, the Inquiry Officer is authorized to ask question on certain exceptional occasions where things have to be clarified or where Inquiry Officer feels that asking of question to a witness would be in the interest of justice and to ascertain the truth behind the charges. 7.1 In the instant case, Inquiry Officer has indulged in the act of cross-examining the defence witness which reflects his partisan character. The Inquiry Officer herein gives an impression that he is favourably inclined towards the prosecution and therefore, became biased against the defence.'' (10) The judgment passed by Division Bench of this Court in the case of 7 Mohd. Naseem Siddiqui (supra) was approved by the Supreme Court in the case of Union of India and Others vs. Ram Lakhan Sharma, reported in (2018) 7 SCC 670 and has held as under:-
''34. We fully endorse the principles as enumerated above, however, the principles have to be carefully applied in fact situation of a particular case..................'' (11) If the deposition sheet of the defence witnesses is concerned, then it is clear that the cross-examination done by the Inquiry Officer is clarificatory in nature. From the deposition sheet, it is clear that the Presenting Officer was also present at the time of departmental proceedings.
(12) Further, the counsel for the petitioner could not point out as to what prejudice was caused to him if clarificatory cross-examination was done by the Inquiry Officer. Accordingly, this Court is of the considered opinion that the cross-examination done by the Inquiry Officer is merely clarificatory in nature and he has not acted as a Prosecutor and did not act in any manner as if he was interested in eliciting evidence to punish the employee.
(13) The Supreme Court in the case of Kumaon Mandal Vikas Nigam Ltd.
Vs. Girja Shankar Pant and Others, reported in (2001)1 SCC 182 has held as under:-
''Since the decision of this Court in Kraipaks case [A.K. Kraipak v. Union of India:1969 (2) SCC 262] one golden rule that stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. What, however, does this doctrine exactly mean? Lord Reid about four decades ago in Ridge v. Baldwinf(1964 Appeal Cases 40) very succinctly described it as not being capable of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances - who then is a reasonable man - the man on the Clapham omnibus? In India, however, a reasonable man cannot but be a common man similarly placed. The effort of Lord Reid in Ridge v. Baldwin in not attributing a definite meaning to the doctrine but attributing it to be representing a fair 8 procedure still holds good even in the millennium year. As a matter of fact this Court in the case of .Keshav Mills Co. Ltd. v. Union of India[1973 (1) SCC 380] upon reliance on the attributes of the doctrine as above stated as below: (SCC p.387, para 8) ''8. The second question, however, as to what are the principles of natural justice that should regulate an administrative act or order is a much more difficult one to answer. We do not think it either feasible or even desirable to lay down any fixed or rigorous yard-stick in this manner. The concept of natural justice cannot be put into a straight jacket. It is futile, therefore, to look for definitions or standards of natural justice from various decisions and then try to apply them to the facts of any given case. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly. See, for instance, the observations of Lord Parker in H.K. (an infant), In re (1967) 2 QB 617. It only means that such measure of natural justice should be applied as was described by Lord Reid in Ridge v. Baldwin case (supra) as insusceptible of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances. However, even the application of the concept of fair-play requires real flexibility. Every thing will depend on the actual facts and circumstances of a case. As Tucker, L.J. observed in Russell v. Duke of Norfolk (1949) 1 All ER 109:
''The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject- matter that is being dealt with and so forth.''
2. While it is true that over the years there has been a steady refinement as regards this particular doctrine, but no attempt has been made and if we may say so, cannot be made to define the doctrine in a specific manner or method. Straight jacket formula cannot be made applicable but compliance of the doctrine is solely dependent upon the facts and circumstances of each case. The totality of the situation ought to be taken note of and if on examination of such totality, it comes to light that the executive action suffers from the vice of non-compliance of the doctrine, the law courts in that event ought to set right the wrong inflicted upon the concerned person and to do so would be a plain exercise of judicial power. As a matter of fact the doctrine is now termed as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action.'' 9 (14) It is next contended by the counsel for the petitioner that the main witness i.e. driver of the truck from whom demand was made and illegal gratification has been obtained, has not been examined by the Department, therefore, the findings given by the Inquiry Officer regarding guilt of the petitioner is erroneous. To buttress his contention, the counsel for the petitioner has relied upon the judgment passed by the Supreme Court in the case of Hardwari Lal vs. State of UP and Others, reported in (1999) 8 SCC 582.
(15) If the conclusion drawn by the Inquiry Officer is considered, then it is clear that the findings given by the Inquiry Officer are not based on no evidence but they are based on proper appreciation of evidence and this Court can not act as an appellate authority and cannot substitute its findings. (16) The Supreme Court in the case of Apparel Export Promotion Council vs. A. K. Chopra, reported in (1999) 1 SCC 759 has held as under:-
''16. The High Curt appears to have over-looked the settled position that in departmental proceedings, the Disciplinary Authority is the sole Judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in Writ Jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot normally speaking substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the Disciplinary or the Departmental Appellate Authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned Single Judge and the 10 Division Bench of the High Court, it appears, ignored the well- settled principle that even though Judicial Review of administrative action must remain flexible and its dimension not closed, yet the Court in exercise of the power of judicial review is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial Review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Lord Hailsham in Chief Constable of the North Wales Police v. Evans, (1982) 3 All ER 141, observed :
''The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized by law to decide for itself, a conclusion which is correct in the eyes of the court.'' The Supreme Court in the case of Divisional Controller, KSRTC (NWKRTC) vs. A.T. Mane, reported in (2005) 3 SCC 254 has held as under:-
''9.From the above it is clear once a domestic tribunal based on evidence comes to a particular conclusion normally it is not open to the appellate tribunals and courts to substitute their subjective opinion in the place of the one arrived at by the domestic tribunal. In the present case, there is evidence of the inspector who checked the bus which establishes the misconduct of the respondent. The domestic tribunal accepted that evidence and found the respondent guilty. But the courts below misdirected themselves in insisting on the evidence of the ticketless passengers to reject the said finding which, in our opinion, as held by this Court in the case of Rattan Singh (supra) is not a condition precedent. We may herein note that the judgment of this Court in Rattan Singh's (supra) has since been followed by this Court in Devendra Swamy v. Karnataka SRTC{ (2002) 9 SCC 644}.
10. Since the only ground on which the finding of the domestic tribunal has been set aside being the ground that concerned passengers are not examined or their statement were not recorded, in spite of there being other material to establish the misconduct of the respondent, we are of the opinion, the courts below have erred in allowing the claim of the respondent. In our opinion, the ratio laid down in the above case of Rattan Singh{(2002) 9 SCC 644} applies squarely to the facts of this case. '' (17) Thus, it is held that this Court cannot re-appreciate the findings of fact 11 recorded by Inquiry officer unless and until the same are based on no evidence.
Hence, the findings recorded by Inquiry Officer are based on evidence available on record and considering the degree of proof required in departmental proceedings, it is held that the findings of fact recorded by the Inquiry Officer cannot be quashed merely on the ground that the driver of the truck was not examined.
(18) No other argument is advanced by the counsel for the petitioner. (19) As the petitioner could not point out any discrepancy and perversity in the orders passed by the authorities below, this petition fails and is hereby dismissed.
(G.S.Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK 2020.03.03 14:58:43 +05'30' VALSALA VASUDEVAN 2018.10.26 15:14:29 -07'00'