Madhya Pradesh High Court
Smt. Sunita Sikarwar vs State Of M.P. on 22 February, 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 22 nd OF FEBRUARY, 2024
WRIT PETITION No. 1307 of 2010
BETWEEN:-
SMT. SUNITA SIKARWAR WD/O LATE GYAN
SINGH SIKARWAR, AGED ABOUT 45 YEARS,
OCCUPATION: HOUSEWIFE, RESIDENT OF
LAXMAN TALAIYA, SHINDE KI CHHAWANI,
LASHKAR, DISTRICT GWALIOR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI D.S. RAGHUVASNHI - ADVOCATE)
AND
1. STATE OF M.P. THROUGH ITS
PRINCIPAL SECRETARY, DEPARTMENT
OF HOME, VALLABH BHAVAN, BHOPAL
(MADHYA PRADESH)
2. THE DIRECTOR GENERAL OF POLICE,
PHQ, BHOPAL (MADHYA PRADESH)
3. THE INSPECTOR GENERAL OF POLICE
(SAF), SAF GROUND GWALIOR (MADHYA
PRADESH)
4. THE COMMANDANT, 29TH B.N. SAF,
DATIA (MADHYA PRADESH)
.....RESPONDENTS
(SHRI P.S. RAGHUVNASHI - GOVERNMENT ADVOCATE FOR
STATE)
This petition coming on for hearing/orders this day, the court passed
the following:
Signature Not Verified
Signed by: PAWAN KUMAR
Signing time: 27-02-2024
06:32:45 PM
2
ORDER
Vide order dated 22.01.2018, this Court had allowed I.A.No.5728 of 2017 [an application for taking on record the legal representative of the petitioner, who during the pendency had died on 30.07.2017] and had directed to carry out the necessary amendment in the memo of the petition.
2. The present petition, under Article 226/227 of the Constitution of India, has been filed by the petitioner being aggrieved by the order dated 29.04.2006 passed by Respondent No.4 imposing a major penalty of removal from service of the original petitioner under the provisions of Rule 23(b) of the Madhya Pradesh Civil Services (Conduct) Rules, 1965 and subsequent orders dismissing the appeal and mercy petition by the Higher Authorities whereby the order terminating the services of the petitioner, were affirmed.
3. Short facts of the case are that the original petitioner was working as Constable in the District Police Force, Datia (M.P.) at the relevant point of time and while he was posted at Kumbh Mela in Ujjain, he fell sick. The the original petitioner was charge-sheeted on 02.06.2004 whereby total three (3) charges were leveled against him which are as under:-
आरोप
1. िदनांक 10.4.04 क दर यानी राि थाना अंकपात म राि ग त बताये जाने पर शराब के नशे म होकर िडयट ू ी जाने से मना करने एवं क पनी कमा डर ी एम.एल. राय 23 व वािहनी के प उ जैन के साथ अभ ता का यवहार कर घोर अनुशासनहीनता एवं उ डता का आचरण दिशत कर म० ० सिवल सेवा (आचरण) िनयम 1965 के िनयम 23 (ख) का उ ंघन करना।
2. िदनांक 10.04.04 को संह थ िडयट ू ी के दौरान शराब का सेवन करने व मदहोश होने पर मेडीकल परी ण हेतु भेजे जाने पर थाना अंकपात से अना धकृत प से अनुप थत होकर अनुशासनहीनता का आचरण दिशत करना।
3. पूव म शराब का सेवन करने एवं व र अ धका रय के साथ द ु यवहार मारपीट करने के फल व प द डत िकये जाने के बावजूद भी म कोई Signature Not Verified Signed by: PAWAN KUMAR Signing time: 27-02-2024 06:32:45 PM 3 सुधार न कर शराब का सेवन कर उ डता का आदी होना एवं िव.स. बल क सेवा के अयो य होने का आचरण दिशत करना।
4. After issuance of the charge-sheet, the original petitioner duly submitted his reply to the aforesaid charges and denied the charges levelled against him therein. An inquiry was conducted against the original petitioner and on the basis of the aforesaid inquiry, a notice of proposed penalty was issued to him, to which he again submitted his reply stating that the Inquiry Officer has not given proper opportunity of hearing and the aforesaid three charges levelled against him were not proved on facts and accordingly, prayed for setting aside of the inquiry proceedings.
5. On the basis of the above inquiry, the Respondent No.4/ Commandant 29th B.N. SAF, Datia passed an order dated 29.04.2016 terminating the services of the petitioner, to which the original petitioner preferred departmental appeal before Respondent No.3/I.G. SAF, which was also dismissed. Lastly, the original petitioner preferred a mercy petition before the Government, the order of which, he had received through communication under Right to Information Act, vide letter dated 17.02.2010 by which the original petitioner came to know about the dismissal of the mercy petition. Aggrieved by the aforesaid orders, the present petition has been filed.
6. 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 matter of Ramesh Chand Rathore vs. State of M.P. & Others reported in 2010 (3) Signature Not Verified Signed by: PAWAN KUMAR Signing time: 27-02-2024 06:32:45 PM 4 MPHT 32 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.
7. 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.
8. 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 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 original petitioner, as he was not given opportunity to produce the defence witnesses and the enquiry was conducted in hurry and haste manner.
9. It was further submitted that the respondent No.4 had directed Shri J.P. Raikwar to call for the defence witnesses and issue notice to the petitioner. The original petitioner had also submitted three applications for calling the defense witness but as they were all government employees, he was not in a position to produce them, therefore, a request was made to the Inquiry Officer to call those defence witnesses but they were not called which adversely affected in the inquiry proceedings. During the conduction of the inquiry, no Presenting Officer was appointed and the Enquiry Officer himself proceeded to Signature Not Verified Signed by: PAWAN KUMAR Signing time: 27-02-2024 06:32:45 PM 5 examine the prosecution witnesses as well as defence witnesses and thereafter submitted an inquiry report, in which the charges were found to be proved and on the basis of which, the original petitioner was confronted with the order of penalty terminating his services, which was bad, so also during the course of departmental inquiry, the original petitioner was required to undergo kidney stone surgery to which he was referred to J.A.H, Gwalior from Datia. In support of which, he had submitted the medical documents from where it was reflected that he was under regular treatment of Dr. Yogendra Pradhan. On this count also, the Enquiry Officer without taking note of medical papers had held him to be guilty which was bad.
1 0 . 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.
11. Apart from that, a Government employee who has served for a decade or more than a decade expects at least a reasonable guarantee from the Government that it shall come forward straight away, offer the benefits being a Welfare State and take necessary steps so that the family of a person who has died may not starve. Further as we are living in a democratic, a socialistic, in a welfare country and it is duty of the Government to think in a way that there should be no starvation of the family of the employee on account of death.
12. 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 Signature Not Verified Signed by: PAWAN KUMAR Signing time: 27-02-2024 06:32:45 PM 6 employee is also entitled for family pension.
13. On the basis of the above arguments, it was prayed that the order dated 29.04.2006 passed by Respondent No.4 terminating the services of the petitioner and subsequent orders dismissing the appeal and mercy petition by the Higher Authorities be set aside and directions may be issued to the respondents authorities to pay the arrears of the original petitioner to his legal representative i.e. his wife as her name was incorporated in the petition in place of his husband who was died on 30.07.2017 and also to consider the case of the petitioner with regard to family pension from the date on which the petitioner's husband had expired.
14. Per contra, Shri Pavan Singh Raghuvanshi - Government Advocate appearing for the State has submitted that cause of petitioner which arose in 2006 was not further agitated by him by filing any petition before this Court for nearby 04 years before filing of this petition and the present cause raised in this petition is vitiated hopelessly by delay and latches which are unexplained.
15. 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. State of M.P. & Others [W.P. No.3761 of 2017] and Utkarsh Upadhyay vs. State of M.P. & Others [W.P.No.12906 of 2023] , 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.
16. 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 Signature Not Verified Signed by: PAWAN KUMAR Signing time: 27-02-2024 06:32:45 PM 7 Constitution of India. There is no violation of principles of natural justice. 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 petitioners cannot be said to be disproportionate looking to serious allegations leveled against the petitioners in the charge shee
17. Heard counsel for the parties and perused the record.
18. 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 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.
19. This Court in the case Ram Prakash Gaya Prashad (supra) in Para 8, 9, 10 and 11 has held has under:-
Signature Not Verified Signed by: PAWAN KUMAR Signing time: 27-02-2024 06:32:45 PM 8"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 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 Signature Not Verified Signed by: PAWAN KUMAR Signing time: 27-02-2024 06:32:45 PM 9 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 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. "
20. 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 Signature Not Verified Signed by: PAWAN KUMAR Signing time: 27-02-2024 06:32:45 PM 10 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."
21. 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.
22. Accordingly, the impugned orders stand quashed. The benefits withheld on the strength of impugned orders herein shall be released to the petitioner and also considered the case of the petitioner - Sunita Sikarwar with regard to family pension from the date on which the petitioner's husband had expired i.e. 30.07.2017. Let this exercise be done by the respondents authorities within a period of three months from the date of production of certified copy of this order.
23. 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: 27-02-2024 06:32:45 PM