Madhya Pradesh High Court
M.P.Hastashilp Vikas Nigam Ltd. vs Isem Singh Morye on 6 May, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:21125
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SURESH KUMAR KAIT,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT APPEAL No. 453 of 2012
M.P. HASTASHILP VIKAS NIGAM LTD.
Versus
ISEM SINGH MORYE & OTHERS
Appearance:
Mr. H.K. Upadhyay - Advocate for appellant.
Mr. Naman Nagrath - Senior Advocate with Mr. Prabhanshu Chaturvedi -
Advocate for respondent No.1.
Mr. Anubhav Jain - Government Advocate for respondent No.5-State.
Reserved on : 20.03.2025
Pronounced on : 06.05.2025
ORDER
Per: Hon'ble Shri Justice Suresh Kumar Kait, Chief Justice This intra-court appeal has been filed by appellant - M.P. Hastashilp Vikas Nigam Ltd. challenging the order dated 06.03.2012 passed by the learned Single Judge in W.P. No.2859 of 2000 whereby writ petition filed by writ petitioner/respondent No.1 herein, against the order inflicting punishment of removal from service after conducting departmental enquiry and order affirming the punishment by the appellate authority, has been allowed.
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2. Briefly stated, the facts relevant to the issue involved in this appeal are that while the writ petitioner was working as Manager (Administration) with the appellant, he was issued a charge-sheet dated 30.01.1995 (Annexure P-14 to writ petition) alleging that he has obtained appointment by producing a false and fabricated domicile certificate and manipulated the record. To this effect, a case under Section 420 and 468 of the IPC was also registered against the petitioner. Thereafter, another charge-sheet was issued to him on 12.05.1995 (Annexure P-15 to writ petition) containing allegations with regard to misuse of his position and office on four occasions to secure appointment for his relatives. Role behind issuance of these charge-sheets was attributed by the petitioner to respondents No.2, 3 and 4, who are said to have manufactured false complaints against him when he did not succumb to their unjustified demands. Respondent No.4 was appointed as Enquiry Officer. Separate departmental enquiries were conducted against the petitioner. The Disciplinary Authority by order dated 10.11.1995 (Annexure P-18) considered both the enquiry reports together and concurring with the findings recorded by the Enquiry Officer holding the petitioner guilty of the charges, inflicted punishment of dismissal from services upon the petitioner. The appeal of the petitioner was also rejected by the Appellate Authority by order dated 13.04.2000 (Annexure P-22).
3. Both the orders were assailed by the petitioner by filing the writ petition relatable to this appeal, which has been allowed by the learned writ Court inter alia on the ground that none of the three charges levelled against the petitioner in the first charge-sheet dated 30.01.1995 is found to be established inasmuch as, the findings recorded by the Enquiry Officer and the Disciplinary Authority are only based upon the documents alleged to have been submitted by the petitioner before the Collector, Bhopal. The same documents were a subject matter of trial in criminal case, in which Signature Not Verified Signed by: SACHIN CHAUDHARY Signing time: 06-05-2025 17:15:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:21125 3 ultimately the petitioner has been acquitted by the learned Third Additional Sessions Judge vide judgment dated 20.07.2007 passed in Criminal Appeal No.334/2006 and further the appellants/respondents have failed to prove that submission of a domicile certificate was a requisite qualification for appointment and therefore, the petitioner could not have been punished on that count and hence, on these grounds the first charge-sheet has been quashed. So far as the charges levelled in the second charge-sheet are concerned, the conclusion drawn by learned writ court is that even if the entire allegations are found to be correct, since admittedly the petitioner is not the appointing authority and has only forwarded applications of some persons for appointment as daily wage employees and co-accused has been let off with a minor punishment of warning, therefore, punishment of dismissal from service being an extreme punishment, is not warranted against the petitioner. However, apropos of second charge-sheet, the matter has been remanded to the disciplinary authority for reconsidering the defence and objections of the petitioner and passing a fresh order and if he is found guilty alternative punishment except dismissal or removal may be imposed. Hence, this appeal has been filed by the appellant-employer.
4. Shri H.K. Upadhyay, learned counsel for the appellant submitted that the findings arrived at by the learned writ court with regard to first charge- sheet that acquittal of the petitioner in criminal case deserves to be given predominance over the findings recorded in the departmental enquiry and petitioner exonerated in disciplinary proceedings, is opposed to the settled principle of law that disciplinary proceedings and criminal case stand on different footing as the standard of proof required in both the proceedings is different. He submitted that the findings that are arrived at in disciplinary proceedings are based on preponderance of probability and not on strict proof beyond reasonable doubt and since the departmental enquiry against Signature Not Verified Signed by: SACHIN CHAUDHARY Signing time: 06-05-2025 17:15:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:21125 4 the petitioner was concluded way back in the year 1995 and the criminal case ultimately ended in acquittal of the petitioner in the year 2007 and that too by giving him benefit of doubt, therefore, subsequent acquittal in criminal case even though on same set of evidence, would not adversely affect the validity of finding of guilt in disciplinary proceedings which have been challenged by filing a writ petition after inordinate delay of more than four years and therefore, no judicial review of the decision of the Disciplinary Authority is warranted. To bolster his submissions, learned counsel has placed a heavy reliance upon the judgments of the Supreme Court in the case of State Bank of Bikaner and Jaipur vs. Nemi Chand Nalwaya (2011) 4 SCC 584, Divisional Controller, Karnataka State Road Transport Corporation vs. M.G. Vittal Rao (2012) 1 SCC 442, State of West Bengal and others vs. Sankar Ghosh Civil Appeal No.10729 of 2013 decided on 28.11.2013, State of Karnataka and another vs. N. Gangaraj, (2020) 3 SCC 423, State of Karnataka and another vs. Umesh (2022) 6 SCC 563, State Bank of India and others vs. P. Zadenga (2023) 10 SCC
675. Learned counsel further submitted that the learned writ Court ought to have appreciated that even though in the advertisement furnishing of domicile certificate was not a requisite condition but since the petitioner was a resident of Uttar Pradesh belonging to the scheduled caste, therefore, in order to get the benefit of the caste in Madhya Pradesh, a false and fabricated domicile certificate was obtained by the petitioner. Thus, the charge in this regard was rightly found to be proved in the disciplinary proceedings and thus, no interference in the impugned orders was warranted.
5. Learned counsel for the appellant further argued that direction given by the learned writ Court to the Disciplinary Authority to reconsider the matter on merits for imposing lesser punishment if the petitioner is found Signature Not Verified Signed by: SACHIN CHAUDHARY Signing time: 06-05-2025 17:15:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:21125 5 guilty of the allegations levelled in the second charge-sheet without holding the findings recorded by the Enquiry Officer to be perverse, runs contrary to the judgment of the Supreme Court in the case of Deputy Commissioner, Kendriya Vidyalaya Sangthan and others vs. J. Hussain,(2013) 10 SCC 106, wherein it is held that when the charge is proved, it is the Disciplinary Authority with whom the discretion with regard to imposition of punishment lies and the court while undertaking judicial review of the findings arrived at by the Disciplinary Authority is not expected to substitute its own opinion on reappraisal of facts. Learned counsel also submitted that the learned writ Court has completely lost sight of the fact that said Shri Shakya, who is said to have been given lesser punishment, was an accomplice of the petitioner in respect of one charge only and not for the remaining three charges and moreover, he was not the employee of the appellant.
6. On the other hand, Shri Naman Nagrath, learned senior counsel appearing for the respondent No.1 contended that the appellant has failed to point out any factual perversity or illegality in the order passed by the learned writ Court. The domicile certificate was neither a requirement of eligibility and appointment to the post in question nor was it annexed by the petitioner with the application form which was duly forwarded by his previous employer. It is only on the basis of record received from the office of the Collector, Bhopal which had no nexus with the employment of the petitioner that he was dragged into the controversy. The finding with regard to the first charge-sheet has been rendered by assigning cogent reasons. Once, on the same set of evidence, the petitioner has been acquitted in the criminal case and in the disciplinary proceedings no extra material or evidence was adduced against the petitioner to hold him guilty with regard to alleged production of false and fabricated domicile Signature Not Verified Signed by: SACHIN CHAUDHARY Signing time: 06-05-2025 17:15:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:21125 6 certificate, the acquittal in criminal case has been rightly given credence to quash the first charge-sheet especially because there has been absolutely no evidence against the petitioner to that effect to hold him guilty qua the first charge-sheet. Learned counsel further contended that with regard to second charge-sheet dated 12.05.1995 the departmental enquiry was conducted ex parte against him. On the same set of allegations of making recommendations for appointment in favour of his relatives, another Manager at Gwalior, Shri Dauji Ram Shakya was let off only by issuing warning and no departmental enquiry was proceeded against him whereas the petitioner was inflicted a major punishment. The persons mentioned in the note-sheet on the basis of which the allegations were made in the second charge-sheet were only appointed for a short period and were never continued thereafter. Moreover, the petitioner was not the appointing authority so that entire blame could be laid at his doors. The petitioner belonged to reserved category and being a Convener of SC/ST Employees Association of the appellant Corporation, at his insistence, backlog posts of SC/STs were filled in large scale. The petitioner has been victimized by the respondent No.2 only on suspicion of being instrumental in a complaint filed against respondent No.2 before the Lakayukt and soon thereafter, back to back charge-sheets were issued against the petitioner on false pretext. Thus, there is no evidence to connect the petitioner with the allegations levelled in the second charge-sheet and the petitioner deserves to be exonerated of all the charges levelled therein and at any rate, extenuating circumstances exists in favour of the petitioner which do not warrant imposition of such a major punishment upon the petitioner. Learned senior counsel also submitted that the entire action against the petitioner was initiated with mala fide intention which would also be apparent from the fact that in pursuance to order dated 01.05.2014 wherein on the basis of submissions made by the parties that an endeavour was Signature Not Verified Signed by: SACHIN CHAUDHARY Signing time: 06-05-2025 17:15:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:21125 7 being made for amicable settlement, opportunity was granted to the appellant to work out modalities of settlement but the Board of the appellant passed a resolution reiterating the punishment. In this background, it has been argued that the instant appeal be dismissed and the orders passed by the Disciplinary Authority and the Appellate Authority also deserves to be quashed.
7. Having heard rival submissions of the parties and after going through the relevant record, we are of the view that this appeal deserves to be dismissed inter alia on the grounds stated hereinafter.
8. The allegations against the petitioner in charges No.1 and 2 contained in the first-charge sheet dated 30.01.1995 (Annexure P-14) are that on 16.01.1992, he submitted an application in the office of the Collector, Bhopal enclosing therewith a false affidavit and false M.Sc. (Botany) marksheet to get a domicile certificate for the purposes of obtaining employment and in furtherance of the same, he obtained domicile certificate and employment in the appellant Corporation. The Enquiry Officer found these charges to be proved and the Disciplinary Authority and Appellate Authority also concurred with the same, however, the learned Single Judge has taken a contrary view based on the judgment of acquittal passed in criminal case which was initiated against the petitioner on the same set of charges and also on the basis that neither the furnishing of domicile certificate was required in the advertisement or the rules nor was that certificate produced by the petitioner for procuring appointment.
9. Contention of learned counsel for the appellant is that requirement of strict proof to bring home the charges in disciplinary proceedings is not same as that of criminal proceedings and therefore, the learned Single Judge has erred in quashing the first charge-sheet.
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10. In this regard, it is seen that there is no denial by the appellant that both the proceedings had not commenced on the same set of evidence, material and documents. The two witnesses examined in the course of departmental enquiry, namely, Shri Dinesh Jajwara and Shri P.K. Tripathi were only custodians of record held in the office of the Corporation. They produced the documents available in their records and the documents received from the office of the Collector, Bhopal. Apparently, they are not the independent witnesses whose evidence has been adduced in the departmental enquiry to bring home the charge against the petitioner. The same evidence was led in criminal case and on consideration of entire evidence, the petitioner has been ultimately acquitted.
11. We have gone through the ratio laid down in the judgments relied upon by the learned counsel for the appellant in the case of Nemi Chand Nalwaya (supra), M.G. Vittal Rao (supra), Sankar Ghosh (supra), Umesh (supra), P. Zadenga (supra) and N. Gangaraj (supra) and we take note of the settled law that the power of judicial review is restricted to decision- making process and the Court cannot act as an appellate authority over the findings recorded in disciplinary proceedings and re-appreciate the evidence on the basis of which the misconduct is found to be proved. It is also a settled law that disciplinary proceedings and proceedings in criminal case are different in many or all respects. They also have different objectives to achieve. The standard of proof required in criminal proceedings is different from the standard of proof required in departmental enquiry. In disciplinary proceedings misconduct is found to be proved even if there is some evidence available and, disproved if no evidence is found against the delinquent employee/officer. Whereas, in criminal case, it is must that the guilt of the accused is proved beyond a reasonable doubt in order to arrive at a finding that the charges are proved.
Signature Not Verified Signed by: SACHIN CHAUDHARY Signing time: 06-05-2025 17:15:00NEUTRAL CITATION NO. 2025:MPHC-JBP:21125 9 If criminal case and disciplinary proceedings arise out of the same act of the delinquent and eventually if the delinquent is acquitted in criminal case it is not imperative that he cannot be found guilty in disciplinary proceedings. Similarly, if the evidence adduced in departmental enquiry is altogether different than the one led in criminal case, the judgment of acquittal is not binding upon the disciplinary authority. However, if the charges levelled in both the proceedings are identical and the evidence led therefor is also same, it is not just and expedient to hold the delinquent guilty of the charges in disciplinary proceedings upon his acquittal in criminal case.
12. Keeping in view the aforesaid tests with regard to the law governing the controversy involved in the present case and given the facts and circumstances of the present case, it is apparent that the case of the petitioner falls under the aforesaid latter exception as the same material and evidence was relied upon in both the criminal and disciplinary proceedings. In this regard, reliance can be profitably placed upon a judgment of the Supreme Court in the case of Ram Lal vs. State of Rajasthan and others, (2024) 1 SCC 175 wherein, it is held that where charges in departmental enquiry and criminal court are identical, evidence, witnesses and circumstances are also same and where Court in exercise of judicial review finds that acquittal in criminal proceedings was after full consideration of prosecution evidence, and prosecution miserably failed to prove charge, Court can interfere with order passed by disciplinary authority where findings of disciplinary authority are found to be unjust, unfair and oppressive. The Supreme Court, however, further clarified that each case depends on its own facts. In the instant case, the very edifice of the evidence available against the petitioner with regard to false and fabricated domicile certificate and marksheet was demolished in criminal case and Signature Not Verified Signed by: SACHIN CHAUDHARY Signing time: 06-05-2025 17:15:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:21125 10 same evidence was available before the Enquiry Officer and the Disciplinary Authority to hold the petitioner guilty of the charges No.1 and 2 levelled in the first charge-sheet. Therefore, once the petitioner has been acquitted by a judicial pronouncement with the finding that the charges under Section 420 and 468 of the IPC were not proved, it would not be just and fair to uphold the findings recorded in disciplinary proceedings with respect to charge-sheet dated 30.01.1995 (Annexure P-14). Therefore, the judgment of the Supreme Court in the case of Ram Lal (supra) is squarely applicable in the present case. For the same reasons, therefore, we do not find any force in the argument advanced by learned counsel for the appellant that since the petitioner was a domicile of Uttar Pradesh and he had obtained domicile certificate of Madhya Pradesh, therefore, even if furnishing of domicile certificate was not a requisite condition as per advertisement would not lessen the guilt of the petitioner.
13. So far as reliance placed by learned counsel for the appellant on the judgment of the Supreme Court in the case of Nemi Chand Nalwaya (supra) is concerned, there is no dispute with regard to the ratio laid down therein that the judgment of acquittal is not binding upon the disciplinary authority. We have already observed above that if criminal case and disciplinary proceedings arise out of the same act of the delinquent and eventually if the delinquent is acquitted in criminal case it is not imperative that he cannot be found guilty in disciplinary proceedings. However, what is required to be seen is that in the said case, the High Court interfered with the finding recorded in course of the enquiry without expressly holding that the said finding of guilt was erroneous. Therefore, the Supreme Court held that there was no justification for the Division Bench to interfere with the finding of guilt. But, in the instant case, apart from what we have already noticed above with regard to sustenance of evidence relied upon in Signature Not Verified Signed by: SACHIN CHAUDHARY Signing time: 06-05-2025 17:15:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:21125 11 disciplinary proceedings in the wake of acquittal of the petitioner in criminal case based on same evidence, it is noted that the finding of guilt against the petitioner has also been arrived at on the basis of the documents received from the Registrar, Bhopal University which reveals that the marksheet of M.Sc. (Botany) was not issued to the petitioner and further document received from the office of the Collector, Bhopal wherein according to the Enquiry Officer it has been mentioned that petitioner was not a permanent resident of Bhopal (Madhya Pradesh). As regards the documentary evidence is concerned, firstly is the fact that the petitioner has been acquitted of these charges in criminal case wherein the same documents and the evidence of the officials in whose possession those documents had remained in the office of the Collector since when they were alleged to be submitted by the petitioner, was scrutinized and it was concluded that the prosecution had failed to prove beyond a reasonable doubt that the petitioner had forged those documents and secondly, there is nothing on record that the alleged false and fabricated documents have been used or sent by the petitioner for securing employment with the appellant. Not only that, it is nowhere stated or shown by the appellant that the application submitted by the petitioner for appointment had anywhere made mention of enclosure of domicile certificate of Madhya Pradesh issued by the Collector or the marksheet of M.Sc. (Botany), which were alleged to be forged and fabricated documents. Even otherwise, a perusal of the charges No.1 and 2 does not show that they have any nexus with the employment of the petitioner with the appellant. Therefore, by no stretch of imagination, the charges No.1 and 2 levelled in the first charge-sheet against the petitioner that he had obtained appointment by producing a false and fabricated domicile certificate, can be said to have been found proved. If the delinquent is acquitted of the same charges in criminal case then absence of independent material and evidence to prove the charge in Signature Not Verified Signed by: SACHIN CHAUDHARY Signing time: 06-05-2025 17:15:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:21125 12 disciplinary proceedings is certainly available for the court to look into. Therefore, since the material evidence that was available before the Enquiry Officer to hold the petitioner guilty of those charges was not sufficient, therefore, we find that the judgment rendered in Nemi Chand Nalwaya's case (supra) does not help the appellant.
14. The judgment in Nemi Chand Nalwaya's case (supra), with reference to para 10 therein, has been further relied upon by learned counsel for appellant to contend that the petitioner had allowed the findings in the enquiry and the punishment by the disciplinary authority to attain finality by non-challenge and after a lapse of nearly four years he challenged the order of dismissal passed in the year 1995 by filing a petition in the year 2000, therefore, the writ petition itself was barred by limitation. On a careful perusal of the material on record, we find that against the order of punishment dated 10.11.1995, the petitioner had preferred a departmental appeal before the Appellate Authority and since the same was not being decided, he approached the National Scheduled Caste & Scheduled Tribe Commission and thereafter, preferred a writ petition before this Court being W.P.No.4839 of 1999, which was disposed of by an order dated 19.11.1999 directing the Appellate Authority to take a final decision on the appeal within eight weeks. Thereafter, the appellant herein preferred a review petition being MCC No.51 of 2000, which was dismissed on 02.03.2000. In pursuance whereof, the appeal of the petitioner was decided by the Appellate Authority affirming the order of the Disciplinary Authority. Thereafter, assailing the orders of the Disciplinary Authority and the Appellate Authority writ petition relatable to this appeal was filed. Thus, it cannot be said that there was any delay in filing the writ petition.
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15. It has been further argued by learned counsel for the appellant that since the acquittal of the petitioner in criminal case was by giving benefit of doubt, therefore, no interference in the orders impugned in writ petition was warranted. Reliance has again been placed upon the judgments in the case of Nemi Chand Nalwaya (supra) with reference to para 10 thereof and Sankar Ghosh (supra) with reference to paras 14, 16, 17 and 18, wherein it is held that the fact that the criminal court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceedings invalid nor affect the validity of the finding of guilt or consequential punishment. However, considering the said contention and ratio laid down in the aforesaid judgments in the context of the present case, we are of the view that the term "honourable acquittal" has not been defined in the Criminal Procedure Code. In criminal cases, the burden of proof rests on the prosecution. The prosecution is duty bound and responsible to prove the guilt of the accused beyond a reasonable doubt by presenting evidence demonstrating the guilt of the accused. A person is presumed to be innocent if the guilt is not proved beyond a reasonable doubt. Therefore, if the prosecution fails to establish the guilt beyond a reasonable doubt, the accused is entitled to be acquitted. The Supreme Court in the case of G.M. Tank vs. State of Gujarat and others, (2006) 5 SCC 446, has observed that since the judicial pronouncement was made after a regular trial and on hot contest, and the criminal court on examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant, therefore, it would be rather oppressive to allow the findings recorded in the departmental proceedings to stand. Relevant para 30 of the said judgment is quoted as under:-
"30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the Signature Not Verified Signed by: SACHIN CHAUDHARY Signing time: 06-05-2025 17:15:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:21125 14 departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer Mr V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand."
(emphasis supplied)
16. This aspect of the matter has also received consideration by the Supreme Court in the case of Ram Lal (supra) wherein, referring to the judgment in G.M. Tank's case (supra) with profit, in para 28, it is held as under:-
"28. Expressions like "benefit of doubt" and "honourably acquitted", used in judgments are not to be understood as magic incantations. A court of law will not be carried away by the mere use of such terminology. In the present case, the Appellate Judge has recorded that Ext. P-3, the original marksheet carries the date of birth as 21-4- 1972 and the same has also been proved by the witnesses examined on behalf of the prosecution. The conclusion that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge can only be arrived at after a reading of the judgment in its entirety. The Court in judicial review is obliged to examine the substance of the judgment and not go by the form of expression used."
17. In the present case, a perusal of the judgment passed by the appellate court in Criminal Appeal No.334 of 2006 (Isem Singh Morya vs. State of Signature Not Verified Signed by: SACHIN CHAUDHARY Signing time: 06-05-2025 17:15:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:21125 15 M.P.) decided on 20.07.2007 whereby the petitioner has been acquitted, shows that he was acquitted of the charge under Section 420 of the IPC by the trial court and in appeal, the charge under Section 468 of the IPC was not found by the appellate court to have been established by the prosecution beyond a reasonable doubt. However, in the penultimate para 24 of the judgment, acquittal by giving benefit of doubt does not appear to be the basis of acquittal by the appellate court. As regards the reliance placed by learned counsel for the appellant in the case of Nemi Chand Nalwaya (supra) with regard to the contention that acquittal giving benefit of doubt cannot enure to the benefit of the appellant in disciplinary proceedings is concerned, firstly; it is gathered that in the said case, interference was made without expressly holding that the finding of guilt recorded in disciplinary proceedings was erroneous and secondly; the employee in the said case had allowed the findings in the enquiry and the punishment by the disciplinary authority to attain finality and the challenge was made only after several years when he was acquitted by the criminal court. Therefore, that ratio of the said judgment is also not helpful to the case of the appellant. Similarly, the judgment in the case of Sankar Ghosh (supra), is also distinguishable on facts simply because that was a case where the applicable service rules i.e. Regulation 4 of Chapter 19 of the Police Regulations of Calcutta, 1968, specifically provided that acquittal or discharge in a criminal proceeding shall not be a bar to award punishment in a departmental proceeding in respect of the same cause or matter. In the present case, that not being a specific rule, we do not find any substance in the contention of learned counsel for the appellant that the petitioner is not entitled to any benefit of the judgment of acquittal passed in criminal case.
18. This brings us to Charge No.3 contained in the first charge-sheet dated 30.01.1995 which was in relation to misuse of official capacity by Signature Not Verified Signed by: SACHIN CHAUDHARY Signing time: 06-05-2025 17:15:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:21125 16 the petitioner by manipulating and scoring off permanent residence address of his father in his personal record. The Enquiry Officer came to a conclusion that the address was stricken off by the petitioner after the application was submitted for appointment. The Disciplinary Authority also returned a finding that since the petitioner was residing at Bhopal, therefore, there was no necessity to remove the permanent address because local address was already mentioned in the application but despite coming to said conclusion only because manipulation of initial record was found, the charge against the petitioner was found to be proved. However, we find nothing on record as to what evidence was led with regard to proof of said allegation. In respect of the said charge, the conclusion drawn by both the authorities with regard to guilt of the petitioner rests only upon conjectures and surmises that the petitioner had an access to his personal file as he was posted as Manager. Therefore, we do not find any perversity in the finding recorded by the learned Single Judge that the allegation against the petitioner in respect of Charge No.(3) in the first charge-sheet is not found to be established.
19. In view of the aforesaid, the conclusion drawn by the learned Single Judge with regard to sustainability of the first charge-sheet issued to the petitioner is just and proper and therefore, we are of the considered view that the same has been rightly quashed by the learned Single Judge.
20. Next contention of learned counsel for the appellant is that the learned Single Judge without holding the findings recorded by the Enquiry Officer to be perverse has directed the disciplinary authority to reconsider the entire matter again and pass a fresh order and if it is found that some punishment is to be imposed with regard to the second charge-sheet, then any other alternative punishment except dismissal or removal from service Signature Not Verified Signed by: SACHIN CHAUDHARY Signing time: 06-05-2025 17:15:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:21125 17 be imposed. Learned counsel has placed heavy reliance on paras 7 and 14 of the judgment of the Supreme Court in the case of J. Hussain (supra).
21. Learned senior counsel appearing for respondent No.1 has vehemently opposed the said contention. It is contended by him that since the petitioner was working as Manager (Establishment), therefore, he only discharged his duties in forwarding the names of the suitable persons for appointment but the fact of the matter is that the names were finally approved by the competent authority and appointment was granted. These were temporary contractual appointments like the appointment of other contractual employees and were never continued beyond contract period. We find force in the contention of learned senior counsel for respondent No.1. The allegation in respect of second charge-sheet is relating to the period from 16.03.1994 to 22.06.1994 when he was posted as Manager (Establishment), however, surprisingly the charge-sheet in this regard was issued to the petitioner on 12.05.1995 i.e. after the first charge-sheet was issued to him. It is also a fact that in this regard an ex-parte departmental enquiry was conducted against the petitioner and further a lenient punishment of warning was imposed upon Shri Daujiram Shakya, the Manager who was posted at Gwalior office and was found to be responsible like the petitioner. In this connection, contention of learned counsel for appellant is that said Shri Shakya was an accomplice in respect of one charge only and that he was an employee of other department, therefore, no parity with him can be claimed by the petitioner. Contradicting the said contention, learned senior counsel for respondent No.1 submitted that even the petitioner would have been exonerated of said charges if he was an employee of other department because entire action was taken against the petitioner with mala fide intention. Be that as it may, the fact that the petitioner despite not being an appointing authority, was Signature Not Verified Signed by: SACHIN CHAUDHARY Signing time: 06-05-2025 17:15:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:21125 18 imposed with a punishment of removal from service, cannot be marginalized and this fact, apart from nature and gravity of the charges and the punishment being harsh and excessive, goes to the root of the matter in respect of all the charges levelled in the second charge-sheet. Law in this regard is well settled that if a punishment imposed upon a delinquent is shockingly disproportionate to the misconduct, the Court may order the disciplinary authority to reconsider the penalty or take any other appropriate action. Ergo, we do not find any error in the conclusion drawn by learned Single Judge in this regard also.
22. In the facts of J. Hussain's case (supra), which has been relied upon by learned counsel for appellant, the allegation against respondent therein was that he had forcibly in a fully drunken state entered into the office of the Principal where he was posted as Upper Division Clerk and the charge was admitted by him and medical examination also confirmed the same. In these circumstances, it was held that a host of factors go into the decision making while exercising such a discretion which include, apart from the nature and gravity of misconduct, past conduct, nature of duties assigned to the delinquent, responsibility of duties assigned to the delinquent, previous penalty, if any, and the discipline required to be maintained in the department or establishment where he works, as well as extenuating circumstances, if any, exist. Paras 7 and 14 of the judgment are reproduced as under:-
"7. When the charge is proved, as happened in the instant case, it is the disciplinary authority with whom lies the discretion to decide as to what kind of punishment is to be imposed. Of course, this discretion has to be examined objectively keeping in mind the nature and gravity of the charge. The disciplinary authority is to decide a particular penalty specified in the relevant Rules. A host of factors go into the decision making while exercising such a discretion which include, apart from the nature and gravity of misconduct, past conduct, nature of duties assigned to the delinquent, responsibility of duties assigned to the delinquent, previous penalty, if any, and the discipline required to be Signature Not Verified Signed by: SACHIN CHAUDHARY Signing time: 06-05-2025 17:15:00 NEUTRAL CITATION NO. 2025:MPHC-JBP:21125 19 maintained in the department or establishment where he works, as well as extenuating circumstances, if any exist.
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14. Thus, in our view entering the school premises in working hours i.e. 11.30 a.m. in an inebriated condition and thereafter forcibly entering into the Principal's room would constitute a serious misconduct. Penalty of removal for such a misconduct cannot be treated as disproportionate. It does not seem to be unreasonable and does not shock the conscience of the court. Though it does not appear to be excessive either, but even if it were to be so, merely because the court feels that penalty should have been lighter than the one imposed, by itself is not a ground to interfere with the discretion of the disciplinary authorities. The penalty should not only be excessive but disproportionate as well, that too to the extent that it shocks the conscience of the court and the court is forced to find it as totally unreasonable and arbitrary thereby offending the provision of Article 14 of the Constitution. It is stated at the cost of the repetition that discretion lies with the disciplinary/appellate authority to impose a particular penalty keeping in view the nature and gravity of charge. Once it is found that the penalty is not shockingly disproportionate, merely because in the opinion of the Court lesser punishment could have been more justified, cannot be a reason to interfere with the said penalty."
23. Considering the aforesaid, we find that present is a case where some extenuating circumstances existed in favour of petitioner as he was not the appointing authority of the persons alleged to have been appointed as daily wage employees on temporary basis and discrimination was practised against him while letting off Shri Shakya who was also found to have granted appointment and was equally held responsible like the petitioner in respect of one charge levelled against the petitioner. Therefore, the judgment in J. Hussain's case (supra) is distinguishable on facts.
24. In view of the foregoing reasons, we do not find any illegality or perversity in the order passed by learned Single Judge warranting any interference. The writ appeal sans merit and is accordingly dismissed. No order as to costs.
(SURESH KUMAR KAIT) (VIVEK JAIN)
CHIEF JUSTICE JUDGE
S/
Signature Not Verified
Signed by: SACHIN
CHAUDHARY
Signing time: 06-05-2025
17:15:00