Madhya Pradesh High Court
Virendra Singh Sikarwar vs State Of M.P. on 6 March, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 6 th OF MARCH, 2024
WRIT PETITION No. 5205 of 2009
BETWEEN:-
VIRENDRA SINGH SIKARWAR S/O LATE LOCHAN
SINGH SIKARWAR, AGED ABOUT 54 YEARS,
OCCUPATION: EX.S.I.(M) OFFICE OF SUPERINTENDENT
OF POLICE DISTRICT GUNA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI D.S. RAGHUVANSHI - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH, THROUGH
SECRETARY, (HOME) POLICE DEPARTMENT,
VALLABH BHAWAN, BHOPAL (MADHYA
PRADESH)
2. THE DIRECTOR GENERAL OF POLICE, PHQ,
BHOPAL (MADHYA PRADESH)
3. INSPECTOR GENERAL OF POLICE CHAMBAL
RANGE, MORENA (MADHYA PRADESH)
4. D.I.G. CHAMBAL RANGE DISTRICT MORENA
(MADHYA PRADESH)
5. SUPERINTENDENT OF POLICE, DISTRICT
MORENA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI P.S. RAGHUVNASHI - GOVERNMENT ADVOCATE)
This petition coming on for hearing/orders this day, the court passed
the following:
ORDER
The present petition, under Article 226/227 of the Constitution of India, Signature Not Verified Signed by: PAWAN KUMAR Signing time: 30-05-2024 11:30:41 AM 2 has been filed by the petitioner being aggrieved by the order dated 12.09.2008 passed by Respondent No.4/DIG, Chambal Range imposing a major penalty of removal from service of the petitioner and subsequent orders dismissing the appeal and mercy petition by the Higher Authorities whereby the order terminating the services of the petitioner, was affirmed.
2. Short facts of the case are that initially, the petitioner was appointed on the post of ASI (M) in the respondent department at the relevant point of time and he was promoted on the post of Sub-Inspector (M) vide order dated 24.01.2003 (Annexure P/4). While he was posted as SI (M) in the office of respondent department, the petitioner was charge-sheeted on 27.07.2006 whereby following charge was leveled against him which is as under:-
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3. After issuance of the charge-sheet, an inquiry was conducted against the petitioner without giving proper opportunity of hearing and without taking his reply to the aforesaid charge and only on the basis of the statements of the witnesses. Enquiry Officer submitted the report, holding the charges to be proved. Thereafter, D.I.G., Chambal Range issued a show cause notice, which was never served upon the petitioner and on the basis of a false report submitted by the process server, the service of notice was held to be effected and an exparte order of punishment was passed on 12.09.2008, whereby service of the petitioner was directed to be terminated.
4. Against which, the petitioner had preferred a departmental appeal before Respondent No.3/I.G.P., Chambal Range, Gwalior, which was also dismissed vide order dated 02.06.2009. Lastly, he had preferred a mercy Signature Not Verified Signed by: PAWAN KUMAR Signing time: 30-05-2024 11:30:41 AM 3 petition before the Respondent No.2/D.G.P. which was dismissed vide order dated 13.10.2009. Aggrieved by the aforesaid orders, the present petition has been filed.
5. Learned counsel for the petitioner has submitted that the impugned orders are liable to be quashed, inasmuch as, in the present case, no Presenting Officer was appointed and the Enquiry Officer himself proceeded to examine the prosecution/defence witnesses and thereafter submitted the enquiry report.
Accordingly, as no Presenting Officer was appointed, the impugned orders are unsustainable in eyes of law as laid down by this Court in the matters of Ramesh Chand Rathore vs. State of M.P. & Others reported in 2010 (3) MPHT 32 and Dal Chand Ahirwar Vs. State of M.P. reported in I.L.R (2012) M.P.902 wherein this Court while dealing with the identical circumstances, quashed the impugned order of penalty. In this regard, he has also placed reliance on the decision of this Court in the matter of Ram Prakash Gaya Prashad vs. State of M.P. & Other reported in 2008 (4) MPLJ 35.
6. It was further submitted that prejudice had been caused to the petitioner by not appointing presenting officer and without presenting officer, Enquiry Officer himself has conducted the entire enquiry and has acted a judge of his own cause and had given the report holding the petitioner to be guilty in the aforesaid inquiry. Therefore, the entire enquiry stands vitiated and so the enquiry report holding him guilty of the misconduct. Thus, on this count alone, the impugned orders are liable to be quashed.
7. It was further submitted that since the enquiry had not been properly conducted and despite of fact that the charges levelled against the petitioner in Signature Not Verified Signed by: PAWAN KUMAR Signing time: 30-05-2024 11:30:41 AM 4 the charge-sheet were not proved on the basis of evidence collected during inquiry, the Disciplinary Authority had committed a grave error of law in terminating the services of the petitioner, as he was not given opportunity to produce the defence witnesses and the enquiry was conducted in hurried and haste manner.
8. It was further submitted that no misconduct whatsoever was attributed to the original petitioner so as to justify the impugned order of penalty and in the present case, the order was passed by the Disciplinary Authority in a most capricious, highhanded and callous manner.
9. While relying on the judgments passed by the Hon'ble Supreme Court in the matters of Vilet Issac vs. Union of India reported in (1991) 1 SCC 725 and Radhamony Amma Vs. State of Kerala reported in 2002(1) LLN 295, it was submitted that the petitioner being the widow of the deceased employee is also entitled for family pension.
10. On the basis of the above arguments, it was prayed that the present petition be allowed by quashing the impugned orders, the respondents be directed to give all the consequential benefits as per his entitlement in accordance with law.
11. Per contra, Shri Pavan Singh Raghuvanshi - Government Advocate appearing for the State has submitted that cause of petitioner which arose in 2003 was not further agitated by him by filing any petition before this Court for nearby 5-6 years before filing of this petition and the present cause raised in this petition is vitiated hopelessly by delay and latches which is unexplained.
12. While placing reliance on the decision of the Apex Court in the case of Union of India & others vs. P. Gunasekaran reported in 2015 (2) SCC 610 and the orders passed by this Court in the matters of Ratnesh Garg vs. Signature Not Verified Signed by: PAWAN KUMAR Signing time: 30-05-2024 11:30:41 AM 5 State of M.P. & Others [W.P. No.3761 of 2017]; Utkarsh Upadhyay vs. State of M.P. & Others [W.P.No.12906 of 2023] and Arun Prakash Yadav Vs. State of Madhya Pradesh and others reported in (2013) 3 MPLJ 508, it was submitted that no interference with the disciplinary proceedings is warranted in exercise of powers conferred under Article 226 of the Constitution of India.
13. It was further submitted that as interference with the disciplinary proceedings is limited, inasmuch as, it is not within the ambit of judicial review to re-appreciate the evidence, the adequacy and reliability of the evidence cannot be gone into in exercise of powers conferred under Article 226 of the Constitution of India. Since there is no violation of principles of natural justice and the conclusions drawn by the disciplinary Authority are neither arbitrary nor capricious so as to attract interference by this Court. It is also not a case of no evidence. Moreoever, even an error of fact howsoever grave, cannot be corrected in exercise of powers conferred under Article 226/227 of the Constitution of India. The penalty imposed upon the petitioner cannot be said to be disproportionate looking to serious allegations leveled against the petitioners in the charge sheet, thus, prayed for dismissal of the petition.
14. Heard counsel for the parties and perused the record.
15. Admittedly, the Inquiry Officer, so appointed, had proceeded to conduct the inquiry and no Presenting Officer was appointed to substantiate the charges against the petitioner and the Inquiry Officer himself ventured upon to examine all the prosecution as well as defence witnesses and later on, submitted the enquiry report, on the basis of which the impugned order has been passed by the Authority. It is evident that the Enquiry Officer himself examined the Signature Not Verified Signed by: PAWAN KUMAR Signing time: 30-05-2024 11:30:41 AM 6 prosecution as well as defence witnesses and concluded that the charges were proved against the petitioner. On perusal of the enquiry report, it is evident that the present petitioner was also examined by the Enquiry Officer exhaustively. Though the cross-examination is styled as examination-in-chief but it is evident that the petitioner/delinquent was examined as if he was being cross-examined in questions and answers form. It is a case where the Enquiry Officer has acted as the Presenting Officer, therefore, in the considered view of this Court, the enquiry in the present matter got vitiated.
16. Other ground which is being raised by the petitioner regarding non appointment of the Presenting officer in the matter, have been considered by this Court in the case of Dalchandra Ahirwar (supra) and it was held as under :
"9. When a law prescribes a procedure to be followed, then everything has to be done in accordance to the procedure prescribed under the law and anything contrary thereto being in contravention to the law stands vitiated being in nullity and therefore, cannot be given effect to. Under such circumstances this is a case where the initiation of departmental enquiry against the petitioner itself is found to be illegal being contrary to the statutory provisions and on that count this petition is liable to be allowed".
17. This Court in the case Ram Prakash Gaya Prashad (supra) in Para 8, 9, 10 and 11 has held has under:-
"8. Rule 14 of the CCA Rules of 1966 provides procedure for imposing penalties. Relevant Rule 14(5)(c) reads as under:-
"Where the Disciplinary Authority itself inquires into any article of charge or appoints an Inquiring Authority for holding an inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the "Presenting Officer" to present on its behalf the case in support of the articles of charge."
9. The Presenting Officer appointed under Rule 14(5) (c) of the Signature Not Verified Signed by: PAWAN KUMAR Signing time: 30-05-2024 11:30:41 AM 7 CCA Rules of 1966 is in fact is a person appointed like a prosecutor and the person has to prove the misconduct before the Enquiry Officer. It is the Presenting Officer who conducts the chief examination of the prosecution witnesses as well as cross-examination of the defence witnesses. It is again the Presenting Officer who conducts the cross-examination of the delinquent Government servant in order to arrive at a finding of guilt. In the present case, after going through the record minutely, it is evident that the Enquiry Officer has conducted the chief examination and he has conducted the cross-examination of the defence witnesses as well as cross-examined the delinquent Government servant. Thus, the Enquiry Officer himself has played the role of the prosecutor.
10. A Division Bench of this Court in the case of Union of India through its secretary, Ministry of Railway, New Delhi and others Vs. Mohd. Naseem Siddiqui, 2005(1) LLJ 931 in Paragraph 16 has held as under:- 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 o b tain 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 elicit 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-in-chief b y leading the prosecution witnesses through the prosecution 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 recognised that the Inquiry Officer can put questions to any or all witnesses to elicit the truth, the question Signature Not Verified Signed by: PAWAN KUMAR Signing time: 30-05-2024 11:30:41 AM 8 whether an Inquiry Officer acted as a Presenting Officer, will have to be decided with reference to the manner in which the evidence is let 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 ion the facts of each case.
To avoid any allegations of bias and running the risk of inquiry being declared as illegal and vitiated, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases. Be that as it may.
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-in-chief of prosecution witnesses by taking them through the prosecution case. The Enquiry Officer has also conducted in the present case regular cross-examination of the defence witnesses. The Enquiry Officer has also conducted the cross-examination of the delinquent Government servant. It is also case where the Enquiry Officer in the absence of the Presenting Officer has simply put clarificatory questions to the delinquent Government servant. "
18. The judgment of Ram Prakash Gaya Prashad (supra) was further considered by this Court in Ramesh Chand Rathore (supra), wherein this Court has held that in Para 6 as under :-
"6. Keeping in view the judgment delivered by this Court and also keeping in view the record relating to Departmental Enquiry proceedings, it is evident that the Inquiry Officer has in the present case conducted regular cross-examination of witnesses and he has also conducted the cross-examination 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."
19. The Hon'ble Supreme Court in Dwarika Prasad Vs. Nirmala reported in 2010 (2) MPLJ 245 considering it's earlier judgment rendered in the case of M.V.Bijlani Vs. Union of India and Others reported in (2006) 5 Signature Not Verified Signed by: PAWAN KUMAR Signing time: 30-05-2024 11:30:41 AM 9 SCC 88 has held as under :
"Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with".
20. If the impugned order is examined while keeping in view the law laid d o wn by this Court in the aforesaid cases, it is evident that the entire proceedings got vitiated on account of the fact that the Enquiry Officer himself acted as Presenting Officer and examined the prosecution as well as the petitioner, therefore as the said irregularity goes to the root of the matter, in the considered view of this Court, such proceedings could not have been ensued in passing of order of imposing a major penalty of removal from service of the original petitioner.
21. Accordingly, the impugned orders stand quashed. As the petitioner has already attained the age of superannuation, respondents are directed to treat the petitioner to have remained in service till the age of superannuation and treating him to have retired on attaining the age of superannuation, consequential benefits be paid to him. All arrears be paid to him after deducting post retiral benefits already granted to him. Let this exercise be done by the respondents authorities within a period of four months from the date of production of certified copy of this order.
Signature Not Verified Signed by: PAWAN KUMAR Signing time: 30-05-2024 11:30:41 AM 1022. With the aforesaid observations and directions, the present petition is allowed and disposed off finally.
(MILIND RAMESH PHADKE) JUDGE pwn* Signature Not Verified Signed by: PAWAN KUMAR Signing time: 30-05-2024 11:30:41 AM