Madhya Pradesh High Court
K.K. Dohare vs The State Of Madhya Pradesh on 13 March, 2025
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
W.P.Nos.7296/2017 & 6064/2017
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 13th OF MARCH, 2025
WRIT PETITION NO.7296/2017
R.K. DOHARE
VS.
STATE OF MADHYA PRADESH
&
WRIT PETITION NO.6064/2017
VIJAY RAJU
VS.
STATE OF MADHYA PRADESH
------------------------------------------------------------------------------------------
Appearance:
Petitioners by Shri K.C. Ghildiyal - Senior Advocate with Ms Warija
Ghildiyal - Advocate.
Respondent/State by Shri Alok Agnihotri - Government Advocate.
................................................................................................................................................
Reserved on : 09.12.2024
Pronounced on : 13.03.2025
ORDER
Pleadings were complete and with the consent of learned counsel for the parties, the matters were heard on 09.12.2024 and today the order is being pronounced. Notably, these two writ petitions involve similar issue as in both the petitions, although the petitioners are 2 W.P.Nos.7296/2017 & 6064/2017 different and posted on different posts, but they have been inflicted similar punishment of dismissal from service arising out of departmental enquiry in which they faced the similar charge of causing pecuniary loss to the government. For the sake convenience, the facts of W.P.No.7296/2017 are taken into consideration.
2. By the writ petition filed under Article 226 of the Constitution of India, the petitioner is challenging the order dated 09.12.2015 (Annexure-P/9) passed by the disciplinary authority inflicting punishment of dismissal from service after conducting a regular departmental enquiry and by order dated 12.04.2017 (Annexure- P/12), the appeal preferred by the petitioner has also been dismissed.
3. The challenge is founded mainly on the ground that it is a case of 'no evidence'. In the matter of departmental enquiry, although strict rules of evidence are not applicable, but still it is the duty of the prosecution to prove the charge and produce some cogent evidence against the delinquent, but it is not done and there is no evidence available on record or produced by the prosecution during the course of enquiry so as to draw inference that the charge levelled against the petitioner is found proved. According to the petitioner, the order of disciplinary authority deserves to be set aside and in consequence thereto, the order of appellate authority would automatically topple.
4. By filing a reply, the respondent-State has taken a stand that the disciplinary authority on the basis of material available on record has drawn an inference and held that the petitioner was guilty of misappropriation of government money by making a payment to the work done by the contractor without verifying whether the work was actually done or not and as such the monetary loss has been caused to the government. Therefore, nothing wrong has been committed by the 3 W.P.Nos.7296/2017 & 6064/2017 authorities. Learned counsel for the respondent-State has tried to establish that in the matters of departmental enquiry, scope of interference by the High Court under Article 226 of the Constitution is very limited. It is pointed out that during the course of enquiry, two witnesses namely Sumati Kumar, Divisional Accounts Officer, PWD and Shri D.P. Tiwari, Draftsman, PWD, Dindori were examined and enquiry report (Annexure-P/5) contains as to how the charge levelled against the petitioner has been found proved and therefore the disciplinary authority did not commit any illegality in passing the order of removal from service and recovering the amount of loss caused to the government. Relying upon the decision of the Supreme Court in the case of B.C. Chaturvedi v. Union of India (1995) 6 SCC 749, learned counsel submitted that only in case of violation of principles of natural justice or any statutory rules, the interference is permissible by the High Court under Article 226 of the Constitution, but not otherwise. He further submitted that the writ court exercising power under Article 226 of the Constitution of India, is not hearing the appeal and cannot act as appellate authority to re-appreciate the evidence and as such no interference is called for. The petition, according to the respondent-State deserves to be dismissed.
5. I have heard the submissions of the learned counsel for the rival parties and meticulously perused the record.
6. To fathom the depth of the arguments advanced by the learned counsel for the parties on the face of available factual and legal position, it is expedient to explore the facts of the case, in a nutshell, as under:-
"The petitioner was serving as Sub Engineer in Public Works Department and when he was posted in Sub Division Dindori, the 4 W.P.Nos.7296/2017 & 6064/2017 construction of road via Rusa-Barnai-Medhakhar-Parkrisondha under the Sub Division Dindori, was given to a Contractor namely Shri Kailash Singh. The said road was laid and was duly supervised by the petitioner. For the first time, the government took a decision to engage a private agency viz. Theme Engineering Services Private Limited (Consultant Agency) for bills supervision and quality control consultantcy and the company was hired for the same in the month of December, 2012. It was incumbent upon the Contractor to insist the Consultant Agency for supervising the work and after getting its measurement with regard to work carried out by the contractor in the RFI form, the said form would be signed by the contractor, Field Engineer, the Assistant Road Engineer and the Resident Engineer of the Consultant Agency and after such formalities, the payment of bills submitted by the contractor was made. As per the averments made in the petition, after due verification of the work done by the contractor, payments were made to him. However, it was noticed that some excess payment was made to the contractor and therefore that excess amount paid to the contractor was deducted from his 4th running bill, but the contractor was not satisfied with the same and then a joint inspection was done in presence of representatives of Consultant Agency and thereafter it was found that the objection raised by the contractor was having substance and as such the amount deducted earlier was paid to the contractor on 05.05.2014 through his 7th running bill. Although a report was submitted on 01.06.2013 by the Consultant Agency pointing out deficiencies in earth-work and work of road-cutting and also alleged that excess payment was made to the contractor. A charge-sheet was issued to the petitioner on 26.08.2023 levelling one charge. The charge was proposed on the ground that the petitioner had failed to ensure 5 W.P.Nos.7296/2017 & 6064/2017 proper standard of work by the contractor and was instrumental in excess payment to the contractor to the tune of Rs.58,44,723/- thereby caused loss to the State. The petitioner submitted his reply to the charge- sheet. Thereafter, the departmental enquiry was initiated, in which, two witnesses namely Shri Sumati Kumar, Divisional Accounts Officer, PWD, Dindori and Shri D.P. Tiwari, Draftsman, PWD were examined. The enquiry officer recorded a finding that the petitioner failed to prove his innocence. Copy of the enquiry report is available as Annexure-P/5. Thereafter, a notice was issued to the petitioner to show cause as to why the major penalty of dismissal from service be not imposed and amount of loss be not recovered. The petitioner submitted his reply on 23.07.2015. Thereafter, on 09.12.2015 the disciplinary authority passed the order inflicting punishment of dismissal from service. Then the petitioner preferred an appeal and when it was languishing to see its fate, he filed a writ petition bearing W.P.No.4656/2016, in which, a direction was issued for deciding the pending appeal of the petitioner. Pursuant thereto, the appeal was decided vide order dated 12.04.2017 affirming the order passed by the disciplinary authority. Then this writ petition was filed and the respondent-State also filed its reply."
7. Now, it is necessary to go-through the enquiry report (Annexure-P/5), whereunder, the enquiry officer has considered the statement of witnesses adduced by the prosecution. As per the statement of witness Sumati Kumar, he was on casual leave and as such the payment vouchers were not produced before him. Except this, nothing more has been stated by this witness. Second witness Shri D.P. Tiwari, Draftsman, has stated during the course of enquiry, which is reproduced in the enquiry report also and it is reproduced hereinunder as well:-
6W.P.Nos.7296/2017 & 6064/2017 dk;Z izkjaHk djus ds igys vks-th-,y-fy;k x;k rFkk feV~Vh dk dk;Z gksus ds i'pkr ekxZ esa eq[; vfHk;ark tcyiqj }kjk dUlyVsaV fu;qDr fd;k x;k vkSj viuk vks-th-,y- vyx ls izLrqr fd;k x;kA nksus esa fHkUurk gksus ds dkj.k dk;Z es a varj vk;k ftldh Lohd`fr v/kh{k.k ;a=h ,o eq[; vfHk;ark }kjk varj lekIr dj fn;k x;k gSA dk;Z lgh ik;k x;k gSA
8. Shri Sumati Kumar was also cross-examined by the delinquent and in cross-examination he has not said anything against the delinquent nor supported the charge levelled but conversely, he supported the stand of the delinquent. Likewise, Shri D.P. Tiwari has also supported the stand of delinquent. The cross-examination of the petitioner was also done by the enquiry officer, although it was the duty of the presenting officer to cross-examine the delinquent, but even from cross-examination nothing adverse is palpable. On the basis of examination and cross-examination, the enquiry officer has given his opinion in the following manner:-
II) fu"d"kZ ,oa vk/kkj%& vipkjh Jh ds-ds-nksgjs] mi;a=h ds fo:) vkjksis ds fLFkfrA 7 W.P.Nos.7296/2017 & 6064/2017 vkjksi dza- 1 %& Jh nksgjs ds fo:) vkjksfir vkjksi dza- eq[;r% bl vfHkdFku ij vk/kkfjr gS fd buds }kjk ,sls dk;Z dk Hkqxrku izLrkfor fd;k x;k tks fd eq[; vfHk;ark ds fujh{k.k esa ik;k x;k fd 'kklu }kjk fu;qDRk lqijohtu ,o a DokfyVh dUVªksy dUlyVsUV }kjk vuqeksfnr ugh Fkk ,oa blds vFkZodZ ds foLr`r estjesUV ugh fy;s x;s Fks rFkk VsLV fjtYV ugh izkIr fd;s x;s FksA fu;qDr dUlyVsUV }kjk mDr dk;Z dk daLVªD'ku fu/kkZfjr ekin.M vuqlkj ugh ik;k x;k A tkap esa vFkZodZ dh ek=k 70080 ?ku ehVj ds LFkku ij 30670 ?ku ehVj rFkk jksM dfVax dh ek=k 5]900 ?ku ehVj d s LFkku ij 2870 ?kuehVj ikbZ xbZ bl izdkj 5844723@& : dk vf/kd Hkqxrku fd;k x;k A mijksDr leLr rF; vfHkys[kksa a ls izekf.kr ik, x, gS tcfd vipkjh 'kkldh; lsod }kjk foijhr fl} djus ds fy, dksbZ lk{;
izLrqr ugha fd;k x;kA ,slh fLFkfr es a vkjksi dzekad&1 iw.kZr% fl} ik;k x;k gSA ftlesa foRrh; vfu;feRrk ds vfrfjDr Bsdsnkj dks vukf/kd`r ykHk igqapk;k tkuk fl} ik;k x;k gSA ftlesa foRrh; vfu;feRrk ds vfrfjDr Bsdsnkj dks vukf/kd`r ykHk igqapk;k tkuk fl) ik;k x;k III) tkap fu"d"kZ %& vipkjh 'kkldh; lsod ds fo:) vkjksfir ,dy vkjksi fl) ik;k x;k gSA
9. From perusal of the enquiry report and opinion drawn therein by the enquiry officer, I find that his opinion is precarious inasmuch as in the course of enquiry, nothing adverse was produced against the petitioner. Although, the charge was levelled, but neither any documents got exhibited nor any witnesses of prosecution have uttered against the delinquent. Thus, on the basis of lopsided, rather absurd, opinion, stamp of approval cannot be given. On the fulcrum of lame enquiry report, the disciplinary authority inflicted the punishment of dismissal from service, which was later-on affirmed by the appellate authority merely reiterating the flawed view of the disciplinary authority.
10. At this juncture, it is imperative to go-through the legal position. This Court in W.P.No.4767/2018 (Ravi Saxena v. State of M.P. 8 W.P.Nos.7296/2017 & 6064/2017 & Ors.) decided on 24.03.2023 while considering various decisions of the Supreme Court, has observed as under:-
"11. Further, the Supreme Court in case of Degala Suryanarayana (supra) has also observed that though strict rules of evidence are not applicable to departmental enquiry proceedings but the allegation levelled against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. The Supreme Court as such observed as under:-
"11. Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. In Union of India v. H.C. Goel [AIR 1964 SC 364 :
(1964) 4 SCR 718] the Constitution Bench has held:
"[T]he High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not.""
12. Further in case of Roop Singh Negi (supra), the Supreme Court has observed as under:-
"14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function.9
W.P.Nos.7296/2017 & 6064/2017 The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence."
13. The Supreme Court in case of Saroj Kumar Sinha (supra) has observed that departmental enquiry against the government servant cannot be treated as a casual exercise and held as under:-
"30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service." .
14. Considering the facts and circumstances of the case and taking note of the subsequent development, I am of the opinion that it is a case of no evidence. The report of enquiry officer holding the charge proved is nothing but a perverse finding and the order passed in the appeal preferred by the Contractor reveals that the report of the Enquiry Officer and finding given thereof is illegal because the payment made to the Contractor as per the revised sanction and under the head of escalation when found in accordance with law and as per rules, then petitioner cannot be punished for the same saying that he was guilty of submitting the revised bill or for payment of escalation price.
15. Counsel for the respondent/State although placed reliance upon several decisions referred hereinabove, but those are not applicable in the present case for the reason that facts of the present case are not similar to those cases. In maximum cases, the scope of interference in the matter of departmental 10 W.P.Nos.7296/2017 & 6064/2017 enquiry has been laid down by the Supreme Court and confined to the extent that interference is permissible only when there is any violation of principles of natural justice in decision making process and substituting the opinion of disciplinary authority based upon the evidence adduced during the course of departmental enquiry. However, in the present case, as has been discussed in the preceding paragraphs, this case is of no evidence and the authority of the respondent/department has also realised this fact that the petitioner was not at fault so as to suffer major punishment."
11. Following the trail and reproducing almost the whole order passed in case of Ravi Saxena (supra), this Court in W.P.No.13390/2017 (Dhanesh Kumar Arkhel v. The State of Madhya Pradesh) decided on 06.09.2023 has observed as under:-
"7. This Court has also heard the present case at length and could not find any distinguishable feature with the case of Ravi Saxena (Supra).
8. Accordingly, the impugned orders dated 23.05.2016 passed by respondent in File No.17-09/2013/Establishment/2019 and order dated
12.04.2017 passed by respondent in File No.17-09/2013 are hereby set aside.
9. The matter is remanded back to the disciplinary authority to take into account the recommendation made by Engineer- in-Chief and 16 W.P. No.13390/2017 modify the major punishment inflicted upon the petitioner into a minor punishment, if so requires. It is further made clear that if the disciplinary authority comes to the conclusion that in view of subsequent event and recommendation made by the Engineer-in-Chief, no further punishment is required to be inflicted upon the petitioner, then the order in this regard may also be passed."
12. On a mature consideration after testing the case from all the angles, be it - factual or legal, I am of the firm opinion that this is a case of 'no evidence'. Accordingly, these petitions are allowed. The impugned orders passed by the disciplinary authority and the appellate 11 W.P.Nos.7296/2017 & 6064/2017 authority are hereby set aside. The respondent-department is directed to reinstate the petitioners of both the writ petitions in service treating as if no departmental enquiry was ever conducted against them. The petitioners shall be entitled to all consequential benefits, however, wages to the extent of 50% from the date of removal till date of passing of this order shall be paid to the petitioners. The entire exercise shall be completed within a period of 30 days from the date of pronouncement of this order.
13. The writ petitions are allowed and disposed of with the aforesaid directions.
(SANJAY DWIVEDI)
JUDGE
sudesh Digitally signed by SUDESH KUMAR
SUDESH SHUKLA
DN: c=IN, o=HIGH COURT OF
MADHYA PRADESH, ou=HIGH
COURT OF MADHYA PRADESH,
KUMAR
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bbe2c4bc3916264aec736f7c5f58852
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st=Madhya Pradesh,
serialNumber=7D462390C18350EF7
SHUKLA C40811B12AB45D82AF1259878762
BAC356DCFA877F02654,
cn=SUDESH KUMAR SHUKLA
Date: 2025.03.13 16:17:36 +05'30'