Madhya Pradesh High Court
R.R.Mahajan vs The State Of Madhya Pradesh on 2 September, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2024:MPHC-JBP:63234
1 WP-5185-2008
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 2 nd OF SEPTEMBER, 2024
WRIT PETITION No. 5185 of 2008
R.R.MAHAJAN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri N.K.Sharma - Advocate for the petitioner.
Shri Jubin Prasad - Panel Lawyer for the respondents/State.
ORDER
The present petition has been filed assailing the order dated 20.07.2007 passed by the respondent No.2 and order dated 11.04.2008 passed by the respondent No.1 whereby the petitioner's services has been dispensed with after holding the regular departmental enquiry under Rule 14 of the M.P. Civil Services (Classification, Control and Appeal) Rules,1966. 2 It is the case of the petitioner that the petitioner was working as Assistant Civil Supply Officer in the Department of Food, Civil Supply and Consumer Protection Government of M.P. and was posted at Seoni-Malwa in District Hoshangabad. He started his career as a Food and Civil Supply Inspector in the year 1974 and was promoted on the post of Assistant Civil Supply Officer in the year 2003. He has rendered 34 years of blotless service. Petitioner has not suffered with any minor or major penalty during his entire service career. While he was working as Assistant Civil Supply Officer at Seoni Malwa District Hoshangabad a local News channel Etv Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 24-12-2024 18:14:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:63234 2 WP-5185-2008 (Madhya Pradesh) broadcasted alleged sting operation wherein petitioner was allegedly seen receiving bribe from one Dayal Singh Banjara. The said sting operation was broadcasted on 17.04.2007. On the said date, the petitioner was on earned leave which was duly sanctioned by the Collector much before the said incident. The Collector vide letter dated 17.04.2007 asked the Bureau Chief of Etv to submit the original CD of the said operation to enable them to take appropriate action against the petitioner. The original CD was never submitted. However, the original CD containing said episode was alleged supplied to the Collector by the News Contributor Itarsi. Considering the gravity of the matter, the Collector Hoshangabad directed the Sub Divisional Officer to conduct an enquiry and to submit the report.
The Sub Divisional Officer, Seoni Malwa conducted a fact finding enquiry wherein the statement of Deo Kumar Vaidya and said Shri Dayal Singh Banjara from whom the petitioner has allegedly received bribe was recorded. The statement of petitioner was recorded by the Sub Divisional Officer on 25.04.2007. The report was submitted to the Collector on 24.04.2007 specifically stating therein that the attempt has been made to falsely implicate the petitioner by conducting the sting operation in a fraudulent circumstances. The petitioner obtained copy of the enquiry report submitted by the Sub Divisional Officer under the Right to Information Act. The same was supplied to him on 14.08.2007 which is Annexure P-1. The Food Officer, Hoshangabad has again conducted an enquiry wherein the petitioner was again called to submit his statement. The Deputy Collector-cum-Food Officer, Hoshangabad submitted his report to the Collector on 18.05.2007.
Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 24-12-2024 18:14:23NEUTRAL CITATION NO. 2024:MPHC-JBP:63234 3 WP-5185-2008 The same has been obtained by the petitioner under the Right to Information Act and is submitted as Annexure P-2. The enquiry report submitted by the Food Officer along with CD supplied by the News Contributor Itarsi was forwarded to the Commissioner Food, Civil Supplies and Consumer Protection M.P. by Collector vide memo dated 03.05.2007. The Commissioner without considering the enquiry report submitted by the authorities and without application of mind placed the petitioner under suspension vide order dated 17.05.2007. On the same day, a charge sheet was issued to the petitioner with a solitary charge to the effect that on 17.04.2007 a news was broadcasted on Etv Madhya Pradesh Channel wherein the petitioner was shown as receiving bribe of Rs.23,000/- from Shri Dayal Singh Banjara and the said act of the petitioner amounts to misconduct under Rule 3 of MP Civil Services (Conduct) Rules, 1965. Along with the charge sheet, statement of imputation and documents on the basis whereof were supplied to the petitioner. He was supplied with the list of documents. The charge sheet was served to the petitioner on 18.05.2007 and was asked to file his reply within seven days. The petitioner thereafter filed an application on 21.05.2007 to the Collector requesting to supply the documents enlisted with the charge sheet to enable him to file reply to the charge sheet. The said application was forwarded to the Commissioner by fax on 21.05.2007. The petitioner submitted that the document demanded were essential to file effective reply to the charge sheet as without having recourse to the CD and the statement made by the person involved in the sting operation, it was not possible for the petitioner to explain his conduct. No action was taken on the Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 24-12-2024 18:14:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:63234 4 WP-5185-2008 said application. The petitioner was not supplied with copy of the documents enlisted in the charge sheet nor he was granted any opportunity to inspect the same. He again submitted an application seeking supply of the documents on 24.05.2007. Without providing any reasonable opportunity to the petitioner to inspect the documents or to file reply to the charge sheet, the Enquiry Officer and the Presenting Officer were appointed and they were directed to complete the enquiry within 20 days and to submit the report vide order dated 28.05.2007. From the aforesaid, it was apparent that the respondent No.2 has already made up his mind to hold the petitioner guilty of charges because he has directed for completion of the departmental enquiry in a hurried manner. The petitioner was not informed any date of hearing in the said enquiry. In fact no enquiry was contemplated under Rule 14 of the Rules of 1966 and the enquiry officer without granting any opportunity of hearing to the petitioner submitted the report to the disciplinary authority on 26.06.2007. The respondent No.2 issued a show cause notice to the petitioner on 26.06.2007 based upon the enquiry report asking him why the penalty of removal of service be not inflicted upon him. It is submitted that if the enquiry report is considered then no enquiry was carried out by the authorities. The report submitted by the Deputy Collector-cum-Food Officer, statement of Dayal Singh Banjara and CD supplied by the News Contributor Itarsi and the statement of the petitioner recorded on 25.04.2007 were considered and on the basis of the said material, the Enquiry Officer held that the charges levied against the petitioner were fully established. No regular departmental enquiry has been conducted in terms of the procedure Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 24-12-2024 18:14:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:63234 5 WP-5185-2008 prescribed under Rule 14 of Rules of 1966. Therefore, the entire enquiry is per se illegal. The final enquiry report submitted by the authorities is based upon the preliminary enquiry is totally impermissible. 3 . The petitioner under compelling circumstances has filed a reply to the show cause notice specifically contending that no opportunity of hearing was granted to the petitioner to file reply to the charge sheet as the document enlisted in the charge sheet was never supplied to him despite his repeated requests. The authorities thereafter passed a final order on 20.07.2007 imposing penalty of dismissal from service. Appeal preferred by the petitioner to the State Government in terms of Rule 23 of the Rules of 1966 along with the application for stay on the order of dismissal but as the Appellate Authority has not considered the application for stay a writ petition was preferred before this Court being Writ Petition No.12379 of 2007 which was disposed off on 19.09.2007 directing the respondent No.1 to decide the petitioner's appeal within three months. In pursuance thereof, the appeal was not decided by the authorities. The petitioner served legal notice through his counsel seeking compliance of order dated 19.09.2007 passed in the writ petition. He again sent a reminder on 05.03.2008 after expiry of more than six months vide order dated 11.04.2008, the appeal filed by the petitioner was rejected and orders dated 20.07.2007 was upheld. The order dated 11.04.2008 is being passed without application of mind in a mechanical manner. The grounds taken by the petitioner in an appeal was never considered by the Appellate Authority. It was specifically pointed out that in the departmental enquiry no witnesses were examined. No evidence was Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 24-12-2024 18:14:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:63234 6 WP-5185-2008 collected and no statements were recorded. The petitioner was not given any opportunity to defend himself and the entire proceedings were completed behind the back of the petitioner. Despite petitioner's repeated efforts asking for the documents on the basis of which the charges have been levied against the petitioner, the same will not supply to him at any point of time. Therefore, the orders impugned are unsustainable. Hence, this petition.
4. On notice being issued, the reply has been filed by the respondents No.1 and 2 denying all the petitioners averments. It is contended that a detailed enquiry was conducted by the authorities. The petitioner failed to controvert the evidence recorded in the camera and even the witnesses corroborated that the petitioner has accepted the bribe of Rs.23,000/- in two installments which clearly points out the gravity of misconduct. Issuance of charge sheet is not disputed by the petitioner. He has failed to file any response to the charge sheet despite receiving the same on 18.05.2007, therefore, ex parte enquiry was completed and the charges levied against the petitioner was found to be proved by the Enquiry Officer. Thus, once the petitioner himself chosen not to participate in the departmental enquiry, no relief can be extended to the petitioner. The order impugned is just and proper does not call for any interference in the present writ petition. In departmental enquiry matters the scope of interference is limited as has been held by the Hon'ble Supreme Court in the case of Union of India and others Vs. P.Gunasekaran reported in (2015) 2 SCC 610 . Therefore, he has prayed for dismissal of the writ petition.
5. This Court vide order dated 18.02.2021 has directed the authorities to Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 24-12-2024 18:14:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:63234 7 WP-5185-2008 call for the entire record pertaining to the departmental enquiry. The same has been produced before this Court. From the perusal of the record, it is seen that the original CD of the sting operation despite being asked by the Collector has not been supplied to him. The CD of the episode recorded was supplied by the News Contributor Itarsi on the basis of which the matter was taken up into investigation. The statement of the complainant was recorded wherein he has pointed out that the petitioner demanded Rs. 25,000/- every month from Dayal Singh Banjara the complainant failing which threatening was given to cancel the fair price shop and he was further threatened to send jail, owing to which a sting operation was carried out. The information of the aforesaid was given to Etv News Contributor Itarsi. The statement of the petitioner was also recorded. The enquiry report submitted dated 26.06.2007 shows that a charge sheet was issued to the petitioner levying following charges against him:-
" दनांक- 17-4-2007 को ई.ट .वी. म य प े श के चैनल पर िसवनी मालवा म पद थ साहायक आपूित अिधकार ी आरआर हाजन को ी दयाल िसंह बंजारा बंधक साईनाथ उपभो ा भ डार िसवनी मालवा से र त लेते हुए दखाया गया है । इस संबंधे म ड ट कले टर एवं भार अिधकार खा होशंगाबाद ी िनयाज अहमद खान ारा इस करण क जाँच क गई है । ई.ट .वी. के यूज का यूटर इटारसी ी मोद पगारे ने अपने प ददनौक 17-4-2007 म टं ग आपरे शन क सीड तुत क है । प म थाई कैमरे से ी महाजन को पय 13,000/- तथा पय 10.000/- के र त लेते हुए टं ग ऑपरे शन कया गया है ।
ी दयाल िसंह बंजारा बंधक साईनाथ उपभो ा भ डार िसवनी मालवा जला होशगाबाद ने अपने कथन म कहा है क ी आरआर महाजन के ारा ितमाह पय 25000/= क मांग क जा रह थी नह ं दे ने पर मुझे धमक द गई रह थी। ी बंजारा से ी महाजन ने दनांक-13-7-07 को दोपहर 2.30 बजे तहसील थत कायालय म पय - 13:000 िलये तथा ी महाजन से वयं के िनवास पर दनांक 13.4.07 को शाम 8.०० बजे पये - 10,000/- िलये तथा ी महाजन दारा पेय 2,000/- कम है यह अपने कथन म कहा है ।
इस कार क आर आर महाजन का उ कृ य म० ०िस वल Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 24-12-2024 18:14:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:63234
8 WP-5185-2008 सेवा आचरण िनयम-1965 के िनयम-3(1) के उप िनयम (एक एक) (दो) के वपर त है अतएव ी महाजन के व म० ० िस वल सेवा (वग करण िनयं ण तथा अपील िनयम-1988 के अनुशासना मक कायवाह क जानी ता वत है ।"
6. The enquiry report further shows that he was asked to submit reply to the charge sheet within seven days. No reply was filed by the petitioner within time granted by the authorities. The enquiry report shows that as no reply has been filed by the authorities, thus it is clear that the allegations levied against him are duly accepted by him. The enquiry officer considered the record sent by the Collector, Hoshangabad and considering the material that is the enquiry report on the earlier occasion along with the statement of Dayal Singh Banjara, Manager Sainath Upbhokta Bhandar dated 17.04.2007 and 18.04.2007 and the CD provided by Bureau Chief Etv Channel, coupled with the statement of the petitioner recorded on 25.04.2007, the charges levied against the petitioner were found to be proved by the Enquiry Officer. The report was sent to the Commissioner who has issued a show cause notice to the petitioner.
7 . It is a specific stand of the petitioner that the documents on the basis of which the said charge sheet has been issued has never been supplied to the petitioner. The petitioner has demanded the said documents time and again to enable him to file a consolidated reply to the charge sheet. It is the specific stand of the petitioner that he was not permitted to go through the documents. The entire enquiry report is based upon the previous preliminary enquiry being conducted by the authorities. The enquiry officer has considered the statement of the complainant, the Manager of the Society and the Fair Price shop and also the statement of Etv reporter. They have placed Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 24-12-2024 18:14:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:63234
9 WP-5185-2008 reliance upon the CD supplied by the Bureau Chief, Etv Channel. The fact remains that the record does not reflect that any documents were supplied to the petitioner at any point of time to enable the petitioner to file effective reply to the charge sheet. It is the specific stand of the petitioner that Sub Divisional Officer, Seoni-Malwa has conducted a fact finding enquiry in the matter and the report dated 24.04.2007 was submitted wherein it is categorically held as under :-
"अतः उ त य से ऐसा तीत होता है क ी आर.आर.
महाजन सहायक आपूित अिधकार िसवनी मालवा को कपटपूण प र थितय के आधार पर टं ग आपरे शन कया जाकर फसाने का यास कया गया है । करण के संबंध म ितवेदन आव यक कायवाह हे तु सादर े षत है ।"
The said report has been supplied to the petitioner under the Right to Information Act.
8 . Another enquiry was conducted by the Deputy Collector-cum-Food Officer, Hoshangabad who has submitted his report to the Collector on 18.05.2007 has observed as under :-
" दनांक 17.04.07 को ई.ट .वी. म के चैनल पर िसवनीमालवा म पद थ सहायक आपूित अिधकार ी आर.आर. महाजन को ी दयालिसंह बंजारा बंधक साईनाथ उपभो ा भंडार िसवनीमालवा से र त लेते हुए दखाया गया है । इस संबंध म जांच हे तु ीमान ारा िनदश दए गए।
िनदश के तारत य म मने र त दे ते हुए दखा गए ी दयालिसंह बंजारा को नो टस दे कर सम म बुलाया एवं कथन अं कत कए। टं ग आपरे शन म दखाए गए अ य य दे वकुमार वै को भी बुलाकर कथन अं कत कए गए।
ई.ट .वी. के यूज कं यूटर इटारसी ी मोद पगारे ने सम ने उप थत होकर ीमान के नाम एक प एवं टं ग आपरे शन क सी.ड . तुत क जो ितवेदन के साथ संल न है । सी.ड .को मने दे खा। जसम ी आरआर महाजन को र त लेते दखाया गया है । सी.ड . दे खने के प ात अ य त य के संबंध म पुनः दनांक 18.04.07 को ी दयालिसंह बंजारा के कथन अं कत कए। सी.ड . क मा टर कापी ई.ट वी. के मु यालय भोपाल म है जसे ा करने हे तु ीमान के िनदशानुसार प िलखा गया है ।
ी दयालिसंह बंजारा बंधक सांईनाथ उपभो ा भंडार Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 24-12-2024 18:14:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:63234 10 WP-5185-2008 िसवनीनालवा ने र त दे ने के संबंध म शपथ प भी तुत कया है जो क ितवेदन के साथ सल न है । जांच ितवेदन के त य िन नानुसार है :-
1. ी दयालिसंह बजारा जो क िसवनीमालवा नगर थत सांईनाथ उपभो ा भंडार के बंधक ह ने अपने कथन म बताया क सहायक आपूित अिधकार ी आर.आर. महाजन ारा मुझसे ितमाह 25,000 /- पए क माग क जा रह थी, नह ं दे ने पर मुझे धमक द जा रह थी। " तु हार शासक य उिचत मू य दकु ान िनलं बत कर दगे, जेल पहुच ं ा दगे और तु हारे खलाफ कड़ कायाह करगे। इसी डर के कारण मुझे टं ग परे शन कराना पड़ा। इसक सूचना मने ई.ट .वी. के यूज कं यूटर इटारसी ी मोद बगारे को द । उ ह ने मेरे साथ कैमरामेन जसका नाम म नह ं जानता को दनांक 13.04.07 को मेरे साथ भेजा। ी दयालिसंह बंजारा ने बताया क उ ह ने रािश दे ने हे तु उ कैमरामेन के साथ अपरा ह 2:30 पर सहायक आपूित अिधकार के तहसील थत कायालय गया। वहां पर मने ी महाजन को 13,000/- पए दए। ी महाजन ारा शेष रािश क मांग क गई जस पर मने कहा क शेष रािश लाकर दे रहा हू।ं ी दयालिसंह बंजारा ने बताया क वे उसी दन शाम को 5:00 बजे ी महाजन के िनवास पर गए और वहां पर 10,000/- पए दए। ी महाजन ने कहा क 2000/- पए कम है मुझे पूरे पैसा चा हए तो मने कहा क 2000/- पए बाद म दे दग ंू ा। ी दयालिसंह ने कथन दए क टं ग आपरे शन म जस य को पैसा िगनते दखाया गया है वह कैमरामेन है । उसे मने अपने पास से पैसे दए थे। टं ग आपरे शन म वह ं पैसे िगनते हुए दखाया गया है ।
2. टं ग आपरे शन म एक अ य य दखाया गया है जसका नाम ी दे वकुमार वै है , जो नंदरवाड़ा (िसवनीमालवा) म सहायक लीड बंधक है । उसे भी नो टस दे कर सम म बुलाया गया एवं कथन दज कए गए। ी दे वकुमार वै ने अपने कथन म बताया क दनांक 17.04.07 को ई.ट .वी. पर सहायक आपूित अिधकार ी आर.आर. महाजन ारा र त लेने के संबंध म जानकार मुझे दो त ने द थी। मने टं ग आपरे शन को दे खा।
टं ग आपरे शन म मुझे भी दखाया गया है । टं ग आपरे शन के जस य म मुझे दखाया गया है वह ी महाजन के आवास का कमरा है । जो रािश ी महाजन को लेते हुए दखाया गया है उस समय म वहां उप थत नह ं था। ी दे वकुमार वै ारा इस संबंध म अनिभ ता कट क है ।
3 ई.ट .वी. के यूज कं यूटर ी मोद पगारे के ारा सम म
उप थत होकर ीमान के नाम से एक आवेदन प एवं टं ग
आपरे शन क सी.ड . तुत क गई। उ सी.ड . मेरे ारा दे खी
गई है जसम उपरो उ ले खत थित का वणन है । सी.ड .
जांच ितवेदन के साथ संल न है ।"
wherein it is clearly mentioned that in the sting operation the person who was seen counting the money was a camera man. Dayal Singh Banjara in his statement has accepted that he himself has given amount to the cameraman. Both these reports were sent to the Commissioner who has taken a decision Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 24-12-2024 18:14:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:63234 11 WP-5185-2008 to initiate a departmental enquiry against the petitioner. Thereafter, the departmental enquiry was carried out. The learned Commissioner has also directed the enquiry officer to complete the enquiry within 20 days and submit the report.
9. From the perusal of the entire record it is seen that the entire proceedings are being carried out in a hurried manner. The procedure as provided under Rule 14 of Rules of 1966 is important and is required to be seen which is as under :-
14. Procedure for imposing penalties :- (1) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 10 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and Rule 15 or in the manner provided by the Public Servants' (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act.
(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to Inquire into the truth thereof.
Explanation. - Where the disciplinary authority itself holds the inquiry, any reference in sub-rule (7) to sub-rule (20) and in sub-rule (22) to the inquiring authority shall be construed as a reference to the disciplinary authority.
(3) Where it is proposed to hold an inquiry against a Government servant under this rule and Rule 15, the disciplinary authority shall draw up or cause to be drawn up-
(i) the substance of the imputation of misconduct or misbehaviour into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain :-
(a) a statement of all relevant facts including any admission or confession made by the Government servant;
(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained. (4) The disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the article of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which article of charge is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 24-12-2024 18:14:23
NEUTRAL CITATION NO. 2024:MPHC-JBP:63234 12 WP-5185-2008 (5) (a) On receipt of the written statement of defence, the disciplinary authority may itself inquire into such of the articles of charge as are not admitted or, if it considers it necessary so to do, appoint, under sub-rule (2), an inquiring authority for the purpose; and where all the articles of charges have been admitted by the Government servant in his written statement of the defence the disciplinary authority shall record its finding on each charge after taking such evidence as it may think fit and shall act in the manner laid down in Rule 15;
(b) If no written statement of defence is submitted by the Government servant, the disciplinary authority may itself inquire into the articles of charge or ma;, if it considers it necessary to do so, appoint, under sub- rule (2), an inquiring authority for the purpose;
(c) 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. (6) The disciplinary authority shall, where it is not the inquiring authority, forward to the inquiring authority-
(i) a copy of the articles of charge and the statement of the imputations of misconduct and misbehaviour;
(ii) a copy of the written statement of defence, if any, submitted by the Government servant;
(iii)a copy of the statements of witnesses, if any, referred to in sub-rule (3);
(iv) evidence providing the delivery of the documents referred to in sub-rule (3), to the Government servant; and a copy of the order appointing the "Presiding Officer".
(7) The Government servant shall appear in person before the inquiring authority on such day and at such time within ten working days from the date of receipt by him of the articles of charge and the statement of the imputations of misconduct or misbehaviour, as the inquiring authority may,by a notice in writing specify in that behalf, or within such further time, not exceeding ten days, as inquiring authority may allow.
(8)The Government servant may take the assistance of any other Government servant to present the case on his behalf, but may not engage a legal practitioner, for the purpose unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits.
(9)If the Government servant who has not admitted any of the articles of charge in his written statement of defence or has not submitted any written statement of defence, appears before the inquiring authority, such authority shall ask him whether he is guilty to any of the articles of charge, the inquiring authority shall record the plea, sign the record and obtain the signature of the Government servant thereon. (10)The inquiring authority shall return a finding of guilt in respect of these articles of charge to which the Government servant pleads guilty. (11)The inquiring authority, shall, if the Government servant fails to appear within the specified time or refuses or omits to plead, require Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 24-12-2024 18:14:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:63234 13 WP-5185-2008 the Presiding Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the Government servant may, for the purpose of preparing his defence-
(i) inspect within five days of the order or within such further time not exceeding five days as the inquiring authority may allow, the documents specified in the list referred to in sub-rule (3);
(ii)submit a list of witnesses to be examined on his behalf. Note.-If the Government servant applies orally or in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in sub-rule (3), the inquiring authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority.
(iii)Give a notice within ten days of the order or within such further time not exceeding ten days as the inquiring authority may allow, for the discovery or production of any documents which are in the possession of Government but not mentioned in the list referred to in sub-rule (3).
Note. - The Government servant shall indicate the relevance of the documents required by him to be discovered and produced by the Government.
(12)The inquiring authority shall, on receipt of the notice for the discovery or production of documents forward the same or copies thereof to the authority in whose custody or possession the documents are kept, with a requisition for the production of the documents by such date as may be specified in such requisition :
Provided that the inquiring authority may, for reasons to be recorded by it in writing, refuse requisition to such of the documents as are, in its opinion, not relevant to the case.
(13)On receipt of the requisition referred to in sub-rule (12), every authority having the custody or possession of the requisitioned documents shall produce the same before the inquiring authority :
Provided that if the authority having the custody or possession of the requisitioned documents is satisfied for reasons to be recorded by it in writing that the production of all or any of such documents would be against the public interest or security of the State, it shall inform the inquiring authority accordingly and the inquiring authority shall, on being so informed, communicate the information to the Government servant and withdraw the requisition made by it for the production or discovery of such documents.
(14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge arc proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit. (15)If it shall appear necessary before the close of the case on behalf of Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 24-12-2024 18:14:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:63234
14 WP-5185-2008 the disciplinary authority, the inquiring authority may, in its discretion, allow the Presenting Officer, to produce evidence riot included in the list given to the Government servant or may itself call for new evidence or recall and re-examine any witness and in such case the Government servant shall be entitled to have if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the enquiry is adjourned. The inquiring authority shall give the Government servant an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the Government servant to produce new evidence, if it is of the opinion that the production of such evidence is necessary in the interest of justice.
Note. - New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally. (16)When the case for the disciplinary authority is closed, the Government servant shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Government servant shall be required to sign the record, in their case, a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed.
(17)The evidence on behalf of the Government servant shall then be produced. The Government servant may examine himself in his own behalf if he so prefers. The witnesses produced by the Government servant shall then be examined and shall be liable to cross- examination, re-examination and examination by the inquiring authority according to the provisions applicable to the witnesses for the disciplinary authority.
(18)The inquiring authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him.
(19)The inquiring authority may, after the completion of the production of evidence, hear the Presenting Officer, if any, appointed, and the Government servant or permit them to file written briefs of their respective case, if they so desire.
(20)If the Government servant to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex-parte.
(21)(a)Where a disciplinary authority competent to impose any of the penalties specified in clauses (i) to (iv) of Rule 10 (but not competent to impose any of the penalties specified in clauses (v) to (ix) of Rule
10); has itself inquired into or the articles of any charge and that Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 24-12-2024 18:14:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:63234 15 WP-5185-2008 authority, having regard to its own finding or having regard to its decision on any of the findings of any inquiring authority appointed by it, is of opinion that the penalties specified in clauses (v) to (ix) of Rule 10 should be imposed on the Government servant, that authority shall forward the records of the inquiry to such disciplinary authority as is competent to impose the last mentioned penalties.
(b)The disciplinary authority to which the records are so forwarded may act on the evidence on the record or may, if it is of the opinion that further examination of any of the witnesses if necessary in the interests of justice, recall the witness and examine, cross-examine and re-examine the witness and may impose on the Government servant such penalty as it may deem fit in accordance with these rules. (22)Whenever any inquiring authority, after haying heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein, and is succeeded by another inquiring authority which has, and which exercises, such jurisdiction, the inquiring authority so succeeding may act on the evidence so recorded by its predecessor, or partly recorded by itself :
Provided that if the succeeding inquiring authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, it may recall, examine, cross-examine and re-examine any such witnesses as hereinbefore provided.
(23)(i) After the conclusion of the inquiry, a report shall be prepared and it shall contain-
(a)the articles of charge and the statement of the imputations of misconducts or misbehaviour;
(b)the defence of the Government servant in respect of each articles of charge;
(c)an assessment of the evidence in respect of each article of charge; and
(d)the finding on each article of charge and the reasons therefor.
Explanation. - If in the opinion of the inquiring authority the proceedings of the inquiry establish an article of charge different from the original articles of the charge, it may record its finding on such article of charge :
Provided that the finding on such article of charge shall not be recorded unless the Government servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.
(ii)The inquiring authority where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry which shall include-
(a)the report prepared by it under clause (i);
(b)the written statement of defence, if any, submitted by the Government servant;
(c)the oral and documentary evidence produced in the course of the inquiry;
(d)written briefs, if any, filed by the Presenting Officer or the Government servant or both during the course of inquiry; and
(e)the orders, if any, made by the disciplinary authority and the Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 24-12-2024 18:14:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:63234
16 WP-5185-2008 inquiring authority in regard to the inquiry."
10. The material which is being relied upon in the charge sheet has not been supplied to the petitioner at any point of time despite repeated requests being made by the petitioner which is reflected from letters dated 21.05.2007, 24.05.2007 but despite of the best efforts made by the petitioner the same was not supplied to him. Thus, the procedure which was required to be followed by the authorities while carrying out the departmental enquiry has not been followed in the present case. The Hon'ble Supreme Court in the case of P. Gunasakeran (supra) has held as under:-
"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 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;Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 24-12-2024 18:14:23
NEUTRAL CITATION NO. 2024:MPHC-JBP:63234 17 WP-5185-2008
(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."
11. This court in the case of Dr. Rashmi Rekha Mishra vs. State of M.P. and another (W.P.No.9657 of 2023) dated 11.10.2023 has considered the aspect of application of mind by the authorities prior to issuance of chargesheet and it is held as under:-
"10. The next question is regarding availability of alternative remedy. No doubt, as per M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (CCA Rules) the order of suspension is appealable. In the instant case, the respondents in order dated 3rd May, 2023 (Annexure R-3) mentioned about the allegations/reasons on the strength of which action has been taken against the petitioner. One such reason is that the Hon'ble Minister, Aayush has directed to place the petitioner under suspension. In this backdrop, the question whether the petitioner should be relegated to avail the appellate remedy is ponderable. The suspension order is issued by Deputy Secretary, Ayush Department of Government of M.P. As per Rule 9 of the CCA Rules. The competence of said authority is not questioned. However, the one of the reasons assigned in order dated 3rd May, 2023 shows that specific directions to suspend the petitioner have been issued by the Minister concerned. Thus, there is no manner of doubt that the competent authority has not issued the suspension order by independent application of mind.
Instead, he issued the order under the dictate of the concerned Minister. This is well settled that when a statutory authority is empowered to take a decision, the said authority must take that decision independently within the statutory framework. If he takes the decision on the dictate of higher authority, the order under challenge becomes vulnerable.
11. In several cases, the Courts have emphasized that a statutory authority must exercise its own mind in deciding a matter before it and not act under direction from any quarter. Thus, in R. Rodrigues Vs. W.G. Ronadive, AIR 1970, Goa 94, the High court quashed a decision by a Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 24-12-2024 18:14:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:63234 18 WP-5185-2008 mamlatdar acting under S.7 of the Goa, Daman and Diu Agricultural Tenancy Act, 1964, on the ground that he had reached the decision mainly because the Chief Minister had decided in that way."
12. The Hon'ble Supreme Court in the case of Siemens Ltd. vs. State of Maharashtra and others reported in (2006) 12 SCC 33 has held as under :-
"9. Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of Uttar Pradesh v. Brahm Datt Sharma and Anr. AIR 1987 SC 943, Special Director and Another v. Mohd. Ghulam Ghouse and Another, (2004) 3 SCC 440 and Union of India and Another v. Kunisetty Satyanarayana, 2006 (12) SCALE 262], but the question herein has to be considered from a different angle, viz, when a notice is issued with pre-meditation, a writ petition would be maintainable. In such an event, even if the courts directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose." [See K.I. Shephard and Others v. Union of India and Others (1987) 4 SCC 431 : AIR 1988 SC 686]. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter affidavit as also in its purported show cause.
10. The said principle has been followed by this Court in V.C. Banaras Hindu University and Ors. v. Shrikant [2006 (6) SCALE 66], stating: "48. The Vice Chancellor appears to have made up his mind to impose the punishment of dismissal on the Respondents herein. A post decisional hearing given by the High Court was illusory in this case.
49. In K.I. Shephard & Ors. etc. etc. v. Union of India & Ors. [AIR 1988 SC 686], this Court held : "It is common experience that once a decision has been taken, there is tendency to uphold it and a representation may not really yield any fruitful purpose." [See also Shri Shekhar Ghosh v. Union of India & Anr. 2006 (11) SCALE 363 and Rajesh Kumar & Ors. v. D.C.I.T. & Ors. 2006 (11) SCALE 409].
11. A bare perusal of the order impugned before the High Court as also the statements made before us in the counter affidavit filed by the respondents, we are satisfied that the statutory authority has already applied its mind and has formed an opinion as regards the liability or otherwise of the appellant. If in passing the order the respondent has already determined the liability of the appellant and the only question which remains for its consideration is quantification thereof, the same does not remain in the Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 24-12-2024 18:14:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:63234 19 WP-5185-2008 realm of a show cause notice. The writ petition, in our opinion, was maintainable."
13. The Hon'ble Supreme Court further in the case of Manohar Lal (Dead) By LRs. vs. Ugrasen (dead) By Lrs. and others reported in (2010) 11 SCC 557 has held as under :-
"23. Therefore, the law on the question can be summarised to the effect that no higher authority in the hierarchy or an appellate or revisional authority can exercise the power of the statutory authority nor the superior authority can mortgage its wisdom and direct the statutory authority to act in a particular manner. If the appellate or revisional Authority takes upon itself the task of the statutory authority and passes an order, it remains unenforceable for the reason that it cannot be termed to be an order passed under the Act."
14. It is true that this Court under the review jurisdiction could not go into the evidence part of the departmental enquiry. However, the fact remains that whether the procedure as provided to carry on the departmental enquiry is followed by the authorities or not can always be looked into by this Court. Admittedly, the procedure has not been followed. The entire proceedings have been carried out ex parte. Despite repeated request of the petitioner to supply the documents to enable him to file reply to the charge sheet, no documents have been supplied to him, in fact the enquiry report submitted to the Commissioner by the Enquiry officer reflects that virtually no independent departmental enquiry is being carried out. The entire enquiry report is being prepared based upon the previous statements of the complainant and other witnesses, no opportunity to cross examine the said witnesses was ever provided to the petitioner. Under these circumstances, the entire departmental enquiry is vitiated. The impugned order is based upon the Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 24-12-2024 18:14:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:63234 20 WP-5185-2008 enquiry report submitted by the enquiry officer is also unsustainable. Under these circumstances, the petition is allowed. The order of termination of the petitioner as well as the enquiry report are hereby quashed.
15. The matter is relegated to the authorities from the stage of issuance of the charge sheet. The authorities are required to provide all the documents to the petitioner relied upon by them in the charge sheet, give some time to the petitioner to file reply to the charge sheet and thereafter to proceed with the departmental enquiry, if they so desire. The entire exercise be completed within a period of 60 days from the date of receipt of certified copy of this order. In case, the authorities does not take any action against the petitioner within the aforesaid period, then they are directed to reinstate the petitioner. 1 6 . With the aforesaid observations, the petition stands allowed and disposed off.
17. The record is handed over to the Government Advocate.
(VISHAL MISHRA) JUDGE AM Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 24-12-2024 18:14:23