Madhya Pradesh High Court
Anil Kumar Bhatnagar vs Union Of India on 10 January, 2019
1 Writ Petition No.5548/08
High Court of Madhya Pradesh
Bench at Gwalior
DIVISION BENCH : Hon.Shri Justice Sanjay Yadav &
Hon.Shri Justice Vivek Agarwal
Writ Petition No.5548/2008
Anil Kumar Bhatnagar ...... Petitioner
Vs.
Union of India & Ors. .....Respondents
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Shri Prashant Sharma, learned counsel for the petitioner. Shri Vivek Khedkar, learned Assistant Solicitor General for the respondents/Union of India.
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Whether approved for Reporting :
Order (Passed on this 10th day of January, 2019) Per Justice Vivek Agarwal :
This writ petition has been filed by the petitioner being aggrieved by order passed by the Central Administrative Tribunal, Jabalpur Bench, on 7th May, 2008 in O.A.No.669/2006, whereby challenge put forth by the petitioner to the order passed by the General Manager, Government Opium and Alkaloid Works, Neemuch, terminating his services as has been confirmed by the Chief Controller of Factories, New Delhi, in appeal, has not been entertained and OA has been dismissed.
2. Brief facts leading to the present case are that petitioner, who was working as a Technician Grade I at Government Opium and Alkaloid Works, Neemuch, was intercepted by the security official namely Lance Naik A.A.Khan deputed by Central Industrial Security Force (CISF) on 7th October, 1994 at about 7.00 pm and he was found in possession of 540 gms of SR Morphine from Nutch Filter of the production building. Charge against the petitioner was that he was attempting to commit theft and 2 Writ Petition No.5548/08 smuggle out such material and in doing so contravened the provisions of Rule 3 of the Central Civil Services (Conduct) Rules, 1964.
3. It is submitted by learned counsel for the petitioner that he has been falsely implicated in the case and in fact a criminal case was also registered against him and consequent to that he had faced said criminal case No.6/1995 before the Court of Second Additional Sessions Judge, Neemuch, wherein vide judgment dated 20.10.1996, Annexure P/4, petitioner has been acquitted for want of non-compliance of the provisions of Sections 50 and 55 of the NDPS Act.
4. Learned counsel for the petitioner further submits that as per Annexure-II to the Charge-sheet there is statement of imputation of misconduct of misbehaviour in support of articles of charges framed against the petitioner and the relevant portion of the said statement of imputation reads as under :-
"ARTICLE-1 That the said Shri Anil Kumar Bhatnagar, while functioning as Technician Grade-1 in the Govt. Opium and Alkaloid Works, Neemuch attempted to commit theft and smuggle out 540 gms of S.R. Morphine from Nutch Filter of the Production Building, Govt. Opium & Alkaloid Works, Neemuch. On 7.10.1994 No.7217344 Lance Naik Shri A.A.Khan, C.I.S.F. unit was on duty from 13.00 to 21.00 hours at Production Building exit gate. On duty Lance Naik Shri A.A.Khan checked Shri Anil Kumar Bhatnagar, Technician Grade -1 as per existing procedure of the plant and he found that he was taking out some materials concealed in his left side pant pocket and when questioned about the materials, Shri Bhatnagar tried to run away, but was caught by Lance Naik A.A.Khan and recovered 540 gms. S.R. Morphine and then blowed his whistle. On hearing the whistle No.922332409 Constable Sanjeev Kumar of RA Gate II and No.854370038 Constable C.F. Parihar of STP, Shri V.K.Harit Senior Scientific Officer and Shri G.Kumara Swami, Chemical Engineer who were on duty in Production 3 Writ Petition No.5548/08 building reached the spot. Meanwhile on getting information some other C.I.S.F. and employee/workers, shift incharge No.7021110 SI/Exe Birju Singh, No.701500010 SI/Exe R.C.Verma also reached the Production Building gate. In presence of them on enquiry about the material Shri Anil Kumar Bhatnagar stated he was stealing morphine and also stated that he collected it from Nutch Filter."
5. It is further submitted by the learned counsel for the petitioner that main prosecution witness in the case is Lance Naik Shri A.A.Khan, who had checked the petitioner as per existing procedure of the plant and had found that he was taking out such material concealing in his left side pant pocket. It is submitted that as per the statement of imputation Lance Naik A.A.Khan had recovered 540 gms of SR Morphine and then had blown the whistle, when other prosecution witnesses had gathered knowledge of such interception and recovery, and therefore, Shri A.A.Khan is the key prosecution witness who has not been examined by the prosecution and has been given up. All other prosecution witnesses are hearsay witnesses.
6. Enquiry Officer vide his enquiry report dated 8.12.1999 proved the charges on the basis of evidence of prosecution witness, namely Shri V.K.Harit, In-charge SSO, who deposed that search was made in front of him and in the search such morphine was recovered from the pocket of the petitioner. Attention of this Court is specifically invited to questions No.8 & 9, which were put to the aforesaid prosecution witness, and its answer, which reads as under :-
Þiz'u&8 vkidks vfuy HkVukxj ls ekjQhu cjken djus dh fjiksVZ fdlus nh \ mRrj& vfuy dqekj HkVukxj dh tsc ls inkFkZ esjs le{k cjken fd;k x;k] ftls Jh vfuy dqekj th- vks- }kjk ekjQhu gksuk crk;kA iz'u& 9 pktZ eseks ds mica/k&2 vkfVZdy&1 esa iafDr 7 ls 'kq: gksus okys okD; esa iafDr 12 ls ;k Li"V gksrk gS fd cjkenxh ekjQhu vkids xsV ij igqWpus ls igys gh ykUl 4 Writ Petition No.5548/08 uk;d Jh ,-,-[kku us djyh FkhA mlds izdk'k esa vkidk D;k dFku gS\ blds izdk'k esa vkids mij okys iz'u ds mRrj dks D;ks u vlR; ekuk tkos \ mRrj& pktZ eseksa ds mica/k&2 vkfVZdy 1 ds bUVjfiVslu ds laca/k esa eq>s dqN ugha dguk gS] ijarq Jh vfuy dqekj HkVukxj ls ekjQhu dh cjkenxh esjs le{k gqbZ Fkh ,oa iwoZ ds iz'u dk esjs }kjk fn;k x;k mRrj lgh gSA ß
7. In this context, attention is also invited to question No.8 and its answer given by Shri V.K.Harit and it is pointed out that Shri V.K.Harit is not a witness of seizure, and therefore, evidence given by Shri V.K.Harit is not sufficient to prove charges against the petitioner. It is submitted that when as per the imputation of charges Lance Naik A.A.Khan had blown the whistle after making search and recovery from the person of the petitioner, then there was no occasion for making second search & recovery from the petitioner specifically when as per the imputation of charges all the persons including Shri V.K.Harit had reached the gate of production building after getting intimation from other persons. It is pointed out that in examination-in-chief Shri V.K.Harit has admitted that on 7.10.1994 at about 7.05 pm one Constable of CISF had informed him that Anil Kumar (charged officer) was taking some suspicious material in the pocket of his pant and they wanted to carry out search in his presence, then he (Shri V.K.Harit) informed Production Manager Shri Vidya Prakash and then Vidya Prakash asked him to wait for some time as he wanted to inform the General Manager and during that period of waiting, he was called by the Assistant Commandant, C.I.S.F.G.O., Neemuch, when search was carried out.
8. It is submitted that since as per the imputation of charge Lance Naik A.A.Khan had already recovered suspicious material, therefore, in absence of any evidence led by Shri A.A.Khan, merely on the basis of evidence given by other prosecution 5 Writ Petition No.5548/08 witnesses who are either hearsay witnesses or tutored witnesses, charges against the petitioner could not have been proved, and therefore, it is a good case for acquittal from the charges and consequential quashing of the impugned orders of termination order passed in appeal by the Chief Controller of Factories, New Delhi, so also order passed by the Central Administrative Tribunal, rejecting the OA.
9. Learned counsel for the respondents on the other hand submits that mere dismissal of criminal case on technical ground will not throw out the case of the respondents and there are different parameters of evaluating evidence which is led in a criminal case and which is to be led in a departmental enquiry. It is submitted that in a criminal case the charge is to be proved beyond reasonable doubt, whereas in a departmental enquiry on the basis of preponderance of probabilities a charge can be established. It is also submitted that in fact in a criminal case the onus to prove a charge is on the prosecution, whereas in a departmental enquiry not only prosecution has to prove a charge, but also the charged officer has to show that charge framed against him is not correct. Reading extensively from the evidence given by prosecution witnesses, specially Shri V.K.Harit, SSO In- charge SRM Section, who has deposed in his examination-in- chief that during search from the person of Shri Anil Bhatnagar, some suspicious material was recovered from the pocket of his pant and at the same time, Manager Production and General Manager had also reached to the site, it is submitted that this statement of Shri V.K.Harit is supported by Shri C.P.Parihar, Constable CISF, Shri Sanjeev Kumar, Constable CISF, Shri Birju Singh, Sub-Inspector CISF and Shri R.C.Verma. Therefore, it is 6 Writ Petition No.5548/08 submitted that impugned orders of termination, as have been affirmed by the appellate authority and also the order of Central Administrative Tribunal do not call for any interference and the petition is liable to be dismissed and be dismissed as such.
10. Learned counsel for the petitioner on the other hand submits that evidence of prosecution witnesses is not without any blemish. He has drawn attention to the statement given by Shri V.K.Harit to police Station, Neemuch and pointed out that as per the statement given to the police, Shri Harit deposed that the charged officer was given an option that his search is to be carried out and he can give such search before a Gazetted officer or a Magistrate and thereafter Shri Mahesh Dubey, Sub-Inspector police, obtained his signatures so also signatures of one Mr. BKumar Swamy and Ranjeet Kumar Dey and thereafter Anil Bhatnagar gave his consent for such search and thereafter Shri Dubey and Shri Harit gave their search to Anil Bhatnagar. Panchnama was prepared and thereafter search from Anil Bhatnagar was made and from left pocket of Shri Anil Bhatnagar a green-blue polythene was recovered which was containing drenched black material which Shri V.K.Harit saw and found it to be morphine produced in the factory. It is pointed out that this is contrary to the imputation of charges as contained in article of charges attached alongwith the charge-sheet. Similarly, it is pointed out that Shri C.P.Parihar in his cross-examination has categorically deposed that when he reached the place of incident, then he saw that Birju Singh, B.L.Verma and Shri A.A.Khan alongwith other officers of the plant and Shri Anil Bhatnagar were standing there and some black colour material was lying in a blue colour polythene on the floor. He was not knowing what was the 7 Writ Petition No.5548/08 content of the polythene and no measurements were taken in front of him. Thereafter he was asked to proceed on his duty, and therefore, he proceeded on his duty.
11. Similarly, referring to the evidence of Sanjeev Kumar, another prosecution witness, it is pointed out that Shri Sanjeev Kumar in his examination-in-chief has categorically deposed that no search was carried out in front of him. Thereafter, he proceeded towards the Assistant Commandant and saw a polythene containing black/brown colour substance. He has further stated that no search was carried out in front of him. It is also pointed out that so called letter of confession was never produced in original and this fact is reflected from the objection which was raised on behalf of the defence Assistant to cross- examination of Shri V.K.Harit, therefore, such so called confessional statement being not produced in original has no value in the eyes of law. It is further submitted that Birju Singh, another prosecution witness, has also deposed that he had reached the place of incident where A.A.Khan had intercepted the petitioner upon receiving phone call from Sanjeev Kumar. Shri Sanjeev Kumar deposed that he had reached there on hearing emergency whistle blown by Shri A.A.Khan and Shri A.A.Khan had asked Sanjeev Kumar to inform the control room about intercepting Shri Anil Bhatnagar. Thus, it is pointed out that all the prosecution witnesses whether it be Sanjeev Kumar or Birju Singh or V.K.Harit, they all had collected there after whistle was blown by Lance Naik Shri A.A.Khan and since as per the imputation of charges, Lance Naik A.A.Khan had already recovered 540 gms of S.R. Morphine and had then blown his whistle, therefore, none of the prosecution witnesses are 8 Writ Petition No.5548/08 witnesses of seizure or recovery.
12. As per the provisions contained in Central Civil Services (Classification, Control and Appeal) Rules, according to which charge-sheet was issued and enquiry has been conducted, Rules 14(3), 14(11) and 14(14) are most relevant. They are reproduced as under :-
"14. Procedure for imposing major penalties (3) where it is proposed to hold an inquiry against a Government servant under this rule and Rule 15, the Disciplinary Authority shall draw up or cause to be drawn up-
(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain-
(a) a statement of all relevant facts including any admission or confession made by the Government servant;
(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
(11) The Inquiring Authority shall, if the Government servant fails to appear within the specified time or refuses or omits to plead, require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the Government servant may, for the purpose of preparing his defence-
(i) inspect within five days of the order or within such further time not exceeding five days as the Inquiring Authority may allow, the documents specified in the list referred to in sub-rule (3);
(ii) submit a list of witnesses to be examined on his behalf;
Note.- If the Government servant applies orally or in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in sub-rule (3), the Inquiring Authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the Disciplinary Authority.
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(iii) give a notice within ten days of the order or within such further time not exceeding ten days as the Inquiring Authority may allow, for the discovery or production of any documents which are in the possession of Government but not mentioned in the list referred to in sub-
rule (3).
Note.- The Government servant shall indicate the relevance of the documents required by him to be discovered or produced by the Government.
(14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the Disciplinary Authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the Inquiring Authority. The Inquiring Authority may also put such questions to the witnesses as it thinks fit."
13. Rule 14(3) (ii) provides that the statement of the imputations of misconduct or misbehaviour in support of each article of charge shall contain -(a) a statement of all relevant facts including any admission or confession made by the Government servant. Similarly, sub-rule 11 of Rule 14 provides that if the Government servant fails to appear within the specified time or refuses or omits to plead, then Inquiring Authority shall require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge.
Sub-rule 14 of Rule 14 provides that oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the Disciplinary Authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant.
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14. A conjoint reading of the aforesaid three sub-sections clearly reveals that statement of imputation of misconduct contains statement of all relevant facts, therefore, as per Annexure II enclosed with the charge-sheet, the relevant fact is that-
"On 7.10.1994 No.7217344 Lance Naik Shri A.A.Khan, C.I.S.F. unit was on duty from 13.00 to 21.00 hours at Production Building exit gate. On duty Lance Naik Shri A.A.Khan checked Shri Anil Kumar Bhatnagar, Technician Grade
-1 as per existing procedure of the plant and he found that he was taking out some materials concealed in his left side pant pocket and when questioned about the materials, Shri Bhatnagar tried to run away, but was caught by Lance Naik A.A.Khan and recovered 540 gms. S.R. Morphine and then blowed his whistle."
15. Thus, in the light of such relevant fact as per the provisions contained in sub-rule 11 of Rule 14 the Presenting Officer was required to produce the evidence by which he proposed to prove the article of charge and as per sub-rule 14 of Rule 14 was required to produce oral and documentary evidence by which the articles of charges are proposed to be proved on behalf of the Disciplinary Authority, but in the present case, prosecution witnesses have been arbitrarily believed by the enquiry officer, Disciplinary Authority, so also the Appellate Authority as if recovery was made in front of them, whereas it is apparent from the chronology of facts narrated above that all the witnesses examined by the prosecution had gathered after hearing the whistle or being informed thereafter by Mr. Sanjeev Kumar, Constable of RA Gate 2, who was asked by Shri A.A.Khan to call for the officers, therefore, evidence of Shri V.K.Harit, Shri Vidya Prakash, Shri C.P.Parihar, Shri R.C.Verma and Shri Birju Singh is not in support of article of charge, but is contrary to the article of 11 Writ Petition No.5548/08 charge. The only witness who could have deposed in support of article of charge as he had allegedly made recovery of 540 gms of SR Morphine from the pocket of the petitioner before blowing his whistle has been strangely not examined by the prosecution and as is apparent from the proceedings in the departmental enquiry was given up by the prosecution on 31.8.1999, therefore, in fact there is no evidence led by the prosecution on behalf of the Disciplinary Authority to prove the charge that any seizure of contraband material was made by Shri A.A.Khan, and therefore, this Court is of the opinion that enquiry officer has wrongly proved the charges without there being any evidence in support of imputation of charge. In fact, even the learned Central Administrative Tribunal has though referred to admission of the petitioner, but has failed to advert to the fact that neither there was any report of chemical analyst exhibited before the departmental enquiry officer to show that material allegedly seized was morphine, nor there was any evidence on record to point out that any seizure was made from the person of the petitioner in front of prosecution witnesses on the basis of whose deposition petitioner has been dismissed. It is true that acquittal in a criminal case cannot be a ground for discharge in departmental enquiry as has been discussed by the Central Administrative Tribunal, but at the same time, misconduct of a Government servant is required to be proved in terms of the article of charge. As per the provisions contained in Rule 14(3), the articles of charges are statements of facts and such statements of facts were required to be proved by the prosecution through cogent evidence. There is no material on record and Shri Vivek Khedkar, learned Assistant Solicitor General for the Union 12 Writ Petition No.5548/08 of India, admits that no such material was produced before the enquiry officer so to point out that why so called letter of confession was not produced in original by the Presenting Officer and what prevented the authority from production of such original document. It is also true that in the name of such letter of confession no detailed preliminary enquiry was conducted. It is also true that departmental authorities are not like Civil Courts and only documentary evidence, copies of which were supplied to the petitioner, can be the basis of the findings, as has been held by the Supreme Court in the case of Tara Chand Vyas Vs. Chairman and Disciplinary Authority as reported in (1997) 4 SCC 565, but in the present case, it is apparent from the list of documents alongwith the charge-sheet that even such confessional letter allegedly written by the charged officer has not been made part of the charge-sheet, therefore, without proving such document, no inference could have been drawn in regard to such alleged confession. Thus, in the opinion of this Court, since imputation of charges which are in the form of statements of facts have not been proved by the prosecution as the prosecution is required to prove such facts and evidence to be led to support such facts and it is not vice versa that imputation of facts are to be fitted into evidence led by the prosecution, it is a good case for allowing the petition and setting aside the impugned orders of termination.
16. As it is informed by Shri Vivek Khedkar, learned ASG, that petitioner has since attained the age of superannuation, we direct that he shall be entitled to notional reinstatement with payment of notional benefits including back-wages and other consequential benefits. Let such amount be paid within three months from 13 Writ Petition No.5548/08 today, failing which such amount shall carry interest at the rate of 8% per annum.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
ms/-
MADHU
SOODAN
PRASAD
2019.01.10
18:51:34 +05'30'