Madhya Pradesh High Court
Rajnesh Singh Bhadoriya vs The State Of Madhya Pradesh Thr on 28 August, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2024:MPHC-GWL:14602
1 WP-2339-2016
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 28th OF AUGUST, 2024
WRIT PETITION No. 2339 of 2016
RAJNESH SINGH BHADORIYA
Versus
THE STATE OF MADHYA PRADESH THR AND OTHERS
Appearance:
Shri Alok Katare - Advocate for petitioner.
Shri Man Singh Jadon - Government Advocate for respondents/State.
ORDER
Assailing the order dated 20.03.2012 (Annexure P/1) passed by the respondent No.3 whereby punishment of removal from services was imposed on the petitioner as well as the order dated 07.05.2012 and the order passed in mercy appeal dated 28.10.2015 affirming the punishment order of removal from services, the present petition has been preferred.
2. It is the case of the petitioner that he was appointed on the post of Constable on 29.04.2003. He continued in service with utmost devotion and sincerity till the order of removal from service was passed. He was issued a charge-sheet on 21.01.2011 imposing certain charges. A detailed reply to the aforesaid has been submitted before the disciplinary authority. Without considering the contents of the reply, the authorities have taken a decision to conduct a departmental enquiry against the petitioner. The enquiry officer was appointed. After conclusion of the departmental enquiry, the report was Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 8/31/2024 7:54:34 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:14602 2 WP-2339-2016 submitted by the enquiry officer on 31.10.2011 finding all the charges proved against the petitioner. It is submitted that during the course of the departmental enquiry, the presenting officer has not been appointed. The enquiry officer himself conducted the departmental enquiry against the petitioner. He himself has cross-examined the witness during the course of the enquiry as a prosecutor. He has handed over the written questionnaire to the witnesses and on that basis, he has cross-examined them and concluded the departmental enquiry.
3. It is argued that the procedure which has been adopted by the enquiry officer is contrary to the judgment passed by this Court in the case of Ram Prakash Singh vs State of M.P. and others : WP No.414 of 2002 decided on 16.11.2009 which has been affirmed in Writ Appeal being WA No.200 of 2010 vide order dated 23.04.2010. It is submitted that the procedure which has been adopted by the enquiry officer is contrary to the provisions as enumerated under the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. There is specific provision in the Regulation 226 of the M.P. Police Regulations to the effect that the employees holding the post of Constable or Head Constable if the first charge sheet is issued, they should be given the minimum punishment but in the present case, the respondent No.3 has imposed the major punishment of removal from services. He has placed heavy reliance upon Regulation 226 of the M.P. Police Regulations. It is argued that the Division Bench of this Court in the case of Ganesh Kumar Sharma vs State of M.P. and others : WA No.398 of 2012 decided on 08.02.2013 has considered the aforesaid Regulation and has set aside the Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 8/31/2024 7:54:34 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:14602 3 WP-2339-2016 punishment order of removal from service. The matter of Ganesh Kumar Sharma has travelled upto the Hon'ble Supreme Court and the order passed by this Court dated 08.02.2013 was affirmed and Special Leave to Appeal (C) No.28646 of 2013 was dismissed vide order dated 03.07.2014.
4. It is submitted that facts of the present case are identical to that o f Ganesh Kumar Sharma (supra) as well as Ram Prakash Singh (supra), therefore, prays for quashment of the impugned order. He has drawn attention of this Court to Annexure P/1 to substantiate his arguments pointing out the fact that the enquiry officer has himself conducted cross- examination of the witnesses which is clearly reflected from Annexure P/1.
5. Per contra, counsel appearing for the respondents has vehemently opposed the contentions and supported the impugned order stating that the petitioner who has participated in the departmental enquiry has never raised such objection before the authorities. It is only after conclusion of the departmental enquiry and passing of the punishment order, such objection was taken for the first time in this writ petition. It is argued that the interference with respect to departmental enquiry is limited to the extent that there cannot be any reappreciation of evidence at this stage. In this regard, certain parameters have been provided in the judgments passed by the Hon'ble Supreme Court with respect to interference in the cases of departmental enquiry. Placing reliance upon the judgment passed in the case of Union of India and others vs. P. Gunasekaran reported in (2015) 2 SCC 610, he has prayed for dismissal of the writ petition.
6. Heard learned counsels for the parties and perused the record.
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 8/31/2024 7:54:34 PMNEUTRAL CITATION NO. 2024:MPHC-GWL:14602 4 WP-2339-2016
7. From the perusal of the record, it is clear that no presenting officer was appointed during the course of departmental enquiry. The enquiry officer himself has cross-examined the witnesses which is reflected from the impugned order (Annexure P/1). The relevant extracts are reproduced below :
जांचकता अिधकार ारा वभागीय जांच म १४ अिभयोजन सा य के कथन आरोपी क उप थित म िल पब कये गये, उनसे ३० दश प को मा णत कराया गया। वभागीय जांच के दौरान जांचकता अिधकार ारा आरोपी का कूट पर ण भी कया गया।
...
अत: स पूण वभागीय जांच न ती एवं आरोपी आर क के सेवा अिभलेख के अवलोकन करने के पशचात ् म, डॉ0 राजे साद, भापुसे, सेनानी १४ वीं वा हनी वसबल वािलयर आरोपी आर0 ६६९ रजनेश िसंह 'बी' क पनी १४ वीं वा हनी वसबल के ऊपर अिधरो पत उपरो ानुसार आरोप पूणत: मा णत पाये जाने से आदे श दनांक से ''सेवा से पृथक'' कये जाने के द ड से द डत कया करता हू ँ तथा आर क क िनलंबन अविध दनांक ०३-१०-११ से ०३-११-११ तक का िनकाल िनलंबन म शुमार कया जाता है ।
8. From the perusal of the aforesaid, it is apparently clear that the enquiry officer himself has acted as a prosecutor in the case and has cross-examined the witnesses which is not permissible in law. The aforesaid aspect was considered in the case of Ram Prakash Singh (supra) wherein the case of Union of India vs K.D. Pandey reported in (2002) 10 SCC 471 was taken note of and it has been held as under :
In the present case, no Presenting Officer was appointed by the disciplinary authority and the subsequent enquiry officer himself has acted as Presenting Officer, meaning thereby, as a prosecutor. The enquiry officer has handed over the written questionnaire to the witnesses and on the basis of written questionnaire, the enquiry has been concluded in the matter. ....
8. The Apex Court in the case of Union of India vs K.D. Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 8/31/2024 7:54:34 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:14602 5 WP-2339-2016 Pandey and another (2002) 10 SCC 471 in paragraph 5 has held as under -
5. Learned counsel for the appellant contended that in this case the Board had examined the material on record and come to the conclusion that four of the six charges could be proved on the available material, which had not been properly examined in the earlier inquiry. In fact from the order made by the Railway Board as well as from that part of the file where the inquiry report made earlier is discussed, it is clear that specific findings have been given in respect of each of the charges after discussing the matter and, if that is so, we fail to understand as to how there could have been a remit to the inquiry authority for further inquiry. Indeed this resulted in second inquiry and not in a further inquiry on the same set of charges and the material on record. If this process is allowed the inquiries can go on perpetually until the view of the inquiry authority is in accord with that of the disciplinary authority and it would be abuse of the process of law. In that view of the matter we think that the order made by the High Court affirming the order of the Tribunal is just and proper and, therefore, we decline to interfere with the same. The appeal is dismissed accordingly.
11. Keeping in view the aforesaid judgments, as it is evident in the present case that the enquiry officer has acted as a prosecutor in the subsequent enquiry conducted in the matter and therefore, the same deserves to be and is hereby quashed. Resultantly, the writ petition is allowed with the following directions :
(a) The impugned order of compulsory retirement dated 03.11.2001 and the order passed by the appellate authority dated 28.02.2002 are hereby quashed.
(b) The respondents are directed to reinstate the petitioner back in service forthwith. The respondents are directed to grant the consequential benefits to the petitioner i.e. annual increments, 50% back wages and subsequent promotions, in case any junior has been considered and promoted to the next higher post.
(c) The aforesaid exercise of granting back wages, notional fixation of salary, increments, consequential promotion, if any, shall be concluded within a period of six months from the date of receipt of a certified copy of this order.
9. The similar is the situation in the present case. Therefore, the impugned order is unsustainable as the enquiry officer has acted as a prosecutor and cross-examined the prosecution witnesses.
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 8/31/2024 7:54:34 PMNEUTRAL CITATION NO. 2024:MPHC-GWL:14602 6 WP-2339-2016
10. Adverting to the other argument with regard to Regulation 226 of the M.P. Regulations, it may apposite to reproduce the relevant extracts which reads thus :
226. Punishments - Offences for which given.- The following rules should be observed in determining what penalty should be awarded for any particular offence :
xxx
(iv) Withholding of increment either temporary or permanent (or grade reduction in the case of head constables), is a suitable punishment for all cases of serious dereliction of duty. It may also be inflicted for culpable ignorance of police procedure, laziness or apathy in conducting the work of the police station, and the like. Fair warning should be given in every instance and opportunity for amendment afforded before the punishment is awarded.
In the case of a constable, the period of deprivation shall not exceed a year, nor is it advisable that a constable should be deprived of more than one increment at a time. If, after a departmental enquiry for a subsequent offence, it is found advisable to inflict this punishment on a constable already under reduction, the proper order to pass is one extending the reduction by a period not exceeding one year.
xxx
(vi) Fine is an appropriate punishment for repeated carelessness and disobedience of orders, unpunctuality and the like. Fines should be moderate in amount; the loss of half a month's pay is the utmost that should ever be inflicted, save in very exceptional circumstances. The fining of constables is prohibited."
11. The aforesaid aspect was considered by this Court in the case of Ganesh Kumar Sharma (supra) wherein it has been observed as follows :
3- However we find some substances in the submission of learned counsel for the appellant that since the appellant was serving on the lowest post of Constable, therefore, before passing the order of extreme punishment of dismissal from service, provisions of Regulation 226 of the Police Regulations and particularly clauses (iii) and (v) should have been taken into consideration.
...
If the aforesaid provision is kept in juxtaposition to Clause 64(iv) of M.P. Police Regulations for which appellant was charged, it would reveal that despite there Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 8/31/2024 7:54:34 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:14602 7 WP-2339-2016 is provision in Regulation Clause 64(iv) which pertains to maintain discipline, to observe sub-ordination and to obey lawful orders promptly, even then Clauses (iii) and
(v) have been farmed in Regulation 226 which are applicable to Constables and which pertains to the penalty to be awarded to a Constable, Indeed, by keeping in mind Clause 64(iv) of the said Regulations, the charges were framed in regard to disobeying lawful orders of the superiors and, therefore, before passing the extreme order of punishment of removal from service, according to us, clauses (iii) and (v) of Regulation 226 ought to have been seen by the Disciplinary as well as by the Appellate Authority. Learned Dy. Additional General has submitted that earlier the appellant was warned by the authorities but fairly states from the record that his work was appreciated and several times he was also awarded by suitable awards. According to us, since clauses (iii) and (v) of Regulations 226 was not taken into account by the Disciplinary and Appellate Authority therefore, we hereby direct the Disciplinary Authority, Commandant, 26th battalion, SAF, Guna (respondent no.3) to examine the case of the appellate vis-à-vis to Regulation 226 of M.P. Police Regulations and by paying heed to clauses (iii) and (v) of Regulation 226, fresh order in accordance to the law may be passed.
12. The aforesaid order has been affirmed by the Hon'ble Supreme Court as the Special Leave to Appeal (C) No.28646 of 2013 filed by the State Government was dismissed vide order dated 03.07.2014.
13. The case of the petitioner is squarely covered by the judgment passed in the aforesaid cases. The counsel appearing for the respondents/State could not dispute the aforesaid fact and fairly submits that the enquiry officer himself has acted as a prosecutor in the matter and conducted the cross- examination of the witness which is not permissible. Apart from the aforesaid, he has admitted the fact of imposition of major punishment is contrary to Regulation 226 of M.P. Police Regulations.
14. On both these grounds, the impugned order dated 20.03.2012 is Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 8/31/2024 7:54:34 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:14602 8 WP-2339-2016 unsustainable and the same is hereby quashed.
15. The petition stands allowed to the extent above. No order as to costs.
(VISHAL MISHRA) JUDGE VV Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 8/31/2024 7:54:34 PM