Madhya Pradesh High Court
Santosh Sondhia vs The State Of M.P.And Anr. on 5 December, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 5th OF Dec., 2022
W.P. NO.1239 OF 2005
BETWEEN:-
SANTOSH SONDHIA S/O SHRI C.L.
SONDHIA AGED ABOUT 42 YEARS
APCD (REMOVED FROM SERVICE)
FROM THE OFFICE OF DIRECTOR,
PUBLIC PROSECUTION, MADHYA
PRADESH, BHOPAL
........PETITIONER
(BY SHRI O.P. MEENA - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH
THROUGH : THE PRINCIPAL
SECRETARY (HOME)
MANTRALAYA, VALLABH
BHAWAN, BHOPAL
2. THE DIRECTOR PUBLIC
PROSECUTION BHADBADA ROAD
BHOPAL
........RESPONDENTS
(SHRI SANJAY KUMAR SHARMA-GOVERNMENT
ADVOCATE FOR STATE)
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Reserved on : 28.11.2022
Delivered on : 5th-12-2022
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This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Court pronounced the following :
ORDER
This petition under Article 226/227 of the Constitution of India has been filed seeking following reliefs :
(i) Orders Ann.P/1 and Ann.P/2 be quashed as illegal, arbitrary and malafide.
(ii) Respondents be directed to reinstate the petitioner along with back wages. As the petitioner is not gainfully employed any where
(iii) Any other relief which may be suitable in the facts and circumstances of the present case may also be allowed in favour of the petitioners.
(iv) The cost of the petition may also be allowed in favour of the petitioner.
2. It is an unfortunate case which has suffered because of non- cooperation by the Advocates.
3. On 09.05.2007, the case was dismissed for want of prosecution. Thereafter, by order dated 13.08.2010, the case was restored. Again by order dated 13.03.2013, the case was dismissed on a statement made by counsel for petitioner that he has no instructions. The writ petition was again restored by order dated 22.09.2015. On 26.09.2022, when the case was taken up, a statement made by counsel for petitioner that the arguing counsel is on his legs before Division Bench of the Court and prayed for time and accordingly the case was adjourned and was directed to be listed in week commencing 31.10.2022. Thereafter, the case was taken up on 28.11.2022 and the counsel for petitioner made a statement that although he had filed his vakalatnama on 02.03.2021 but he has not prepared the 3 case and, accordingly, this Court may decide the case after going through the writ petition.
4. Be that whatever it may.
5. It is for the petitioner to decide as to whether he wants to take any action against his counsel or not.
6. The facts of the present case in short are that the petitioner was working on the post of APCD in the Office of Director, Public Prosecution, State of Madhya Pradesh. A departmental enquiry was initiated against him and ultimately by order dated 28.05.2003, he was removed from service. Being aggrieved by the said order, he preferred an appeal which too was dismissed by order dated 26.09.2004. It appears that thereafter the petitioner preferred a writ petition i.e. W.P (S) No. 796/2005 before the Principal Seat of this Court which was dismissed for want of territorial jurisdiction and accordingly, this petition has been filed before this Court.
7. It is the case of petitioner that petitioner was appointed on the post of APCD on 28.11.1990. In the year 2000, he was given a charge-sheet on two charges. The charge-sheet was probably based on the preliminary enquiry conducted by the Superintendent of Police, Vidisha. The petitioner submitted his reply to the charges and categorically denied the same. Accordingly, a departmental enquiry was instituted against him. The case of the petitioner is that the petitioner appeared before the enquiry officer and without recording the plea of the petitioner, the enquiry proceedings were initiated and the enquiry officer recorded the statement of the complainant as no presenting officer was appointed. During the pendency of the enqiury, the enquiry officer was changed and 4 one Shri Majid Khan was appointed as enquiry officer who took over the work of enquiry officer on 24.01.2001.
8. The enquiry officer did not bother to see as to whether the summons have been actually served to the petitioner or not and without considering the reasons for absence of petitioner, he proceeded ex-parte against petitioner. It is submitted that in fact the process server Surendra Singh had an enmity with petitioner and therefore he had given a false service report to the enquiry officer. The findings recorded by the enquiry officer are vitiated and are not based on proper appreciation of evidence. The statement of the witnesses have been accepted without any sound basis. After the enquiry report was submitted, the respondent No.2 issued a show cause notice dated 15.01.2003 and petitioner submitted his detailed reply but while passing the impugned order dated 28.05.2003, the respondent No.2 did not consider the submissions made by petitioner and thus the order passed by disciplinary authority is in clear violation of provisions of Rule 15 (3) of M.P. Civil Services (Classification, Control and Appeal) Rules 1966. Even the respondent No.2 had evaluated the complete service record of the petitioner while passing the final order, whereas it was not called for and was unwarranted. A preliminary enquiry was conducted by the Superintendent of Police Vidisha, whereas the Superintendent of Police Vidisha has no jurisdiction over the petitioner. The information regarding appointment of Shri Majid Khan as enquiry officer vide order dated 24.01.2001 was never communicated to the petitioner and the date of hearing was never communicated and the process server Shri Shri Surendra Singh had given a false service report.
9. Per contra, the petition is vehemently opposed by counsel for 5 respondents. The respondents have submitted their return. It is submitted that the Collector District Vidisha sent a parole letter to the office of District Prosecution Officer Vidisha. The said letter was received by the petitioner on 07.01.2000 and he kept with him up to 18.01.2000 and did not place it before the District Prosecution Officer and demanded Rs.200/- from the complainant and, accordingly, a complaint was made and a preliminary enquiry was conducted and a charge-sheet was issued to the petitioner for initiating the departmental enquiry. Vide order dated 11.07.2000, Shri K.V. Shrivastava was appointed as enquiry officer. However, on his allocation to Chattisgarh, Shri Majid Khad was appointed as enquiry officer by order dated 24.01.2001. The petitioner had given reply to the show cause notice and the charges, therefore, the question of recording the plea by the enquiry officer was not essential. Furthermore, since the enquiry officer had proceeded with enquiry clearly means that the charges were not admitted by the petitioner. It is not necessary that the presenting officer should be appointed and it is in the discretion of disciplinary authority. It has been denied that the petitioner was not served for attending the enquiry. The petitioner submitted his reply to show cause notice dated 28.06.2000 and on 11.08.2000, the complainant Mahesh Raghuvanshi was examined who was cross examined by the petitioner. On 30.08.2000, petitioner appeared before the enquiry officer and on 22.09.2000, he appeared but thereafter he absented himself from the enquiry and the enquiry officer issued notice on 20.08.2001 and fixed the date as 28.08.2001 but the petitioner refused to receive the notice, therefore, the notice was received back with the remark of refusal. The enmity of the petitioner with Surendra Singh 6 Process Server was also denied. As per Para 525 of Police Regulation, it is the duty of the APCD to work under the direction of District Prosecution Officer. From the statement of Nafees Khan, it is clear that it was the petitioner who misguided him for inwarding parole letter on 18.01.2000. The complainant Mahesh Raghuvanshi had specifically given a statement regarding the demand of illegal gratification of Rs. 200/- for placing the letter of parole before the District Prosecution officer. After the enquiry report was submitted, the show cause notice was issued to the petitioner which was duly replied by the petitioner. The order of termination was passed after considering the allegations made against the petitioner. It is submitted that the allegation of demand of illegal gratification is a serious allegation and, therefore, the punishment of removal from service cannot be said to be disproportionate to the charges levelled against the petitioner.
10. Heard learned counsel for the parties.
11. The first question for consideration is as to whether the departmental enquiry would vitiate on account of non appointment of presenting officer or not?
12. The said question is no more res integra. This Court by order dated 25.02.2020 passed in case of Ramnaresh Sharma Vs. State of M.P. and Ors. decided in W.P. No.7634/2013 has held as under :-
(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 7 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 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 8 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 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 9 Enquiry Officer has also conducted in the present case regular cross-examination of the defence witnesses. The Enquiry Officer has also conducted the crossexamination 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 10 therefore, became biased against the defence.'' (10) The judgment passed by Division Bench of this Court in the case of 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..................'' (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. Thus, merely because no presenting officer was appointed would not ipso facto vitiate the departmental enquiry. The petitioner has not pointed out as to how any prejudice was caused to him because of non appointment of presenting officer. It is not the case of the petitioner that the witnesses were cross examined by the enquiry officer. On the contrary, it appears that the complainant Mahesh had appeared before the enquiry officer and he was cross examined by the petitioner. There is no avernment in the petition that any leading question was put by the enquiry officer to the witness. Even otherwise, the enquiry officer cannot sit idly and he can ask certain questions for clarification. In absence of basic averment, it is difficult for this Court to hold that the non appointment of presenting officer has in any manner vitiated the enquiry.
14. It is next pleaded in the petition that the findings of guilt recorded 11 by the enquiry officer is erroneous.
15. It is well established principal of law that this Court cannot act as an appellate authority and findings of fact recorded by the enquiry officer and approved by the disciplinary authority cannot be interfered with until and unless the finding of fact is based on no evidence or is perverse.
16. It is the case of the petitioner himself that the witnesses have supported the allegations leveled in the charge. It is not mentioned in the writ petition as to how the finding of fact recorded by the enquiry officer are perverse or based on no evidence.
17. Furthermore, the scope of judicial review in a departmental enquiry is very limited and this Court can only look into the procedural aspect and cannot substitute its own finding of fact. It is well established principal of law that the departmental enquiry is to be decided on preponderance of probabilities and strict rule of evidence is not applicable. The Supreme Court in the case of Union of India and others vs. Subrata Nath decided on 23.11.2022 in Civil Appeal No.7939- 7940/2022 has held as under :
17. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya 7, a two Judge Bench of this Court held as below:
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not 12 interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C. Chaturvedi v. Union of India8, Union of India v. G. Ganayutham9, Bank of India v. Degala Suryanarayana10 and High Court of Judicature at Bombay v. Shashikant S. Patil11).
[Emphasis laid]
18. In Chairman & Managing Director, V.S.P. and Others v. Goparaju Sri Prabhakara Hari Babu12, a two Judge Bench of this Court referred to several 7 (2011) 4 SCC 584 8 (1995) 6 SCC 749 9 (1997) 7 SCC 463 10 (1999) 5 SCC 762 11 (2000) 1 SCC 416 12 (2008) 5 SCC 569 Civil Appeal Nos. ____ of 2022 @ SLP(C) No.3524 of 2022 precedents on the Doctrine of Proportionality of the order of punishment passed by the Disciplinary Authority and held that :
"21. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved."
19. Laying down the broad parameters within which the High Court ought to exercise its powers 13 under Article 226/227 of the Constitution of India and matters relating to disciplinary proceedings, a two Judge Bench of this Court in Union of India and Others v. P. Gunasekaran13 held thus :
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously 14 admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;
13 (2015) 2 SCC 610 Civil Appeal Nos. ____ of 2022 @ SLP(C) No.3524 of 2022
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
20. In Union of India and Others v. Ex.
Constable Ram Karan 14, a two Judge Bench of this Court made the following pertinent observations :
"23. The well-ingrained principle of law is that it is the disciplinary authority, or the appellate authority in appeal, which is to decide the nature of punishment to be given to the delinquent employee. Keeping in view the seriousness of the misconduct committed by such an employee, it is not open for the courts to assume and usurp the function of the disciplinary authority.
24. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the court, 15 normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the courts would frown upon. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/appellate authority to take a call and it is not for the court to substitute its decision by prescribing the quantum of punishment. However, it is only in rare and exceptional cases where the court might to shorten the litigation may think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority that too after assigning cogent reasons."
21. A Constitution Bench of this Court in State of Orissa and Others (supra) held that if the order of dismissal is based on findings that establish the prima facie guilt of great delinquency of the respondent, then the High Court cannot direct reconsideration of the punishment imposed. Once the gravity of the misdemeanour is established and the inquiry conducted is found to be consistent with the prescribed rules and reasonable opportunity contemplated under the rules, has been afforded to the delinquent 14 (2022) 1 SCC 373 Civil Appeal Nos. ____ of 2022 @ SLP(C) No.3524 of 2022 employee, then the punishment imposed is not open to judicial review by the Court. As long as there was some evidence to arrive at a conclusion that the Disciplinary Authority did, such an order becomes unassailable and the High Court ought to forebear from interfering. The above view has been expressed in Union of India v. Sardar Bahadur15.
22. To sum up the legal position, being fact 16 finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power to examine the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily reappreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P. Gunasekaran (supra). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re-consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefor.
18. So far as the ground raised by petitioner that after the appointment of Shri Majid Khan as enquiry officer, no information was given to him, is concerned, the same cannot be accepted. The petitioner has leveled an allegation of submitting false report by Shri Surendra Singh, Process Server.
19. It is the case of the department that after cross examining the complainant Mahesh Raghuvanshi, petitioner stopped attending the departmental enquiry and absented himself. Shri Majid Khan was appointed as as enquiry officer because earlier enquiry officer was 17 allocated the State of Chattisgarh. It appears that the fresh notice was issued by Shri Majid Khan but the petitioner refused to accept the same and Shri Surendra Singh submitted the process report with an endorsement that petitioner has refused to accept the same. In the writ petition, the petitioner has claimed that such endorsement made by Shri Surendra Singh was incorrect because he had an enmity with the petitioner. Thus, the petitioner has alleged malafide against Shri Surendra Singh. It is well established principal of law that if any malafide has been alleged against a person, then he should be made a party to the petition.
20. Shri Surendra Singh, Process Server has not been impleaded as respondent, therefore, any personal allegation against Surendra Singh cannot be considered by this Court in the writ petition.
21. Thus, it is clear that Shri Majid Khan after his appointment as enquiry officer sent a notice to the petitioner which was refused by him. Under these circumstances, Shri Majid Khan enquiry officer had no option but to proceed ex-parte against the petitioner. Furthermore, once the petitioner had entered appearance in the departmental enquiry, then the change of enquiry officer would not give him any right for any fresh notice for his appearance.
22. Viewed from every angle, the submission of the petitioner that he was not noticed by the subsequent enquiry officer cannot be accepted.
23. The allegations against the petitioner was that he had demanded illegal gratification for placing the paper of parole before the District Prosecution Officer. The receipt of paper of parole has been proved by department by examining the witnesses. The demand of illegal gratification is a criminal act and the petitioner could have been 18 prosecuted for the same under the Prevention of Corruption Act.
24. Under these circumstances, this Court is of the considered opinion that the punishment of removal from service, cannot be said to be disproportionate to the allegations made against the petitioner and accordingly, it is held that it is not shocking to the conscience of this Court.
25. Under these circumstances, no case is made out warranting interference. The petition fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE Aman ABHISHEK CHATURVEDI 2022.12.05 18:31:07 +05'30'