Madhya Pradesh High Court
Abde Kasim Sheikh vs State Of M.P on 19 June, 2017
HIGH COURT OF MADHYA PRADESH : BENCH
INDORE
SINGLE BENCH : HON'BLE SHRI JUSTICE VIVEK RUSIA, J.
W.P. no. 5449/2006
Abde Kasim Sheikh S/o Shri Walee Mohd.
Vs.
State of M.P. and others.
__________________________________________________
Shri. M.I. Khan, counsel for the petitioner.
Shri Prasanna Bhatnagar, Dy.GA for the respondent /
State.
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ORDER
( Delivered on 19/06/2017 ) The petitioner has filed present writ petition being aggrieved by the order dated 12/07/205, by which, punishment of termination from service was passed, which has been modified by Appellate Authority by order dated 26/09/2005, to the extend of compulsorily retirement from service.
2 The facts of the case are as under :
The petitioner was initially appointed as LDC ( Asst. Sub-
Inspector ) on 17/11/1966, thereafter, he was promoted to the post of Sub-Inspector ( M) in the year 1984. The petitioner was further promoted to the post of Subedar ( M) by order dated 05/12/1998. In the year 2004, the petitioner was posted at Narcotic Wing, Indore as Head Clerk, and there, he was served with charge-sheet dated 11/11/2004 levelling two charges as follows :
â 1 okfguh dh v'kkldh; fuf/k ds'k cqd dks ekg 10@03 ls 02@09@04 rd lR;kfir u djkdj dk;Z ds izfr xaHkhj ykijokgh iznf'kZr djukA 2- dEiuh dek.Mj eq[; leok; dks pkyu uacj 65 fnukad 10-08-2004 ds }kjk ,d ckj v'kkldh; fuf/k ds'k cqd esa fnukad 10-08-2004- ,oa 16-08-2004 dks i`"V dzekad &68 ij vafdr dj :i;s 1000@& dk xcu dj xaHkhj foRRkh; vfu;ferk djukA â The petitioner submitted reply to the charge-sheet on 23/11/2004 by denying all the charges.
3 Inder Singh Kushwah, Asst. Commandant was appointed as Inquiry Officer by order dated 02/12/2004. It is important to mention here that the respondent did not appoint any Presenting Officer to conduct inquiry against the petitioner. The Inquiry Officer has assumed the charge of Presenting Officer and conducted departmental enquiry. During inquiry, vide letter dated 08/12/2004 and 17/12/2004, the petitioner demanded copies of non- government fund cash book from the period from 10/03/20004 to 02/09/2004. Photo copies of those documents were denied to the petitioner, but he was permitted to inspect the same.
4 The department examined five witnesses against the petitioner and got exhibited six documents. The petitioner was given opportunity to lead evidence, but he did not examine any witness. The Inquiry Officer submitted his inquiry report to the disciplinary authority. Shri I.S. Chouhan, Police Dy. Inspector General, vide letter dated 28/04/2005, had supplied a copy of inquiry report to the petitioner with the direction to submit objection and show-cause as to why punishment of stoppage of one increment with cumulative effect be not imposed. On 12/05/2005, the petitioner submitted detailed reply to the show-cause notice and objection to the inquiry report. Vide order dated 23/06/2005, Shri D.S. Sengar, Police Inspector General, SAF, Indore has cancelled the show- cause notice dated 28/04/2005 and issued fresh show- cause notice dated 23/06/2005 by which, punishment of dismissal of service has been proposed to the petitioner. In response to the aforesaid show-cause notice, the petitioner appeared personally before the Police Inspector General on 01/07/2005. He was further directed to submit objection in writting, but he did not submit. By order dated 12/07/2005, punishment of dismissal from service has been passed by Shri D.S. Sengar, Police Inspector General.
5 Being aggrieved by the aforesaid punishment, the petitioner preferred first appeal on 18/07/2005. Vide order dated 26/09/2005, Addl. D.G.P decided the appeal and modified the punishment from âdismissal from service â to âcompulsory retirementâ. The petitioner preferred Mercy Appeal to DGP, which was also rejected vide order dated 22/07/2006, hence the present petition before this Court.
6 The petitioner has assailed the impugned order on the ground that the Asst. Commandant was not the competent authority to issue charge-sheet. The petitioner was promoted to the post of Subedar by D.G.P., therefore, dismissal order cannot be passed by the Inspector General, hence the impugned order is also without jurisdiction and the same is liable to be set aside. 7 The petitioner has also raised the ground that he was not given sufficient opportunity of hearing by the Inquiry Officer as the documents demanded by him were not supplied to him. The inquiry was conducted against the provisions of M.P. Civil Services( Classification, Control and Appeal ) Rules, 1966. The Presenting Officer was not appointed, therefore, the entire inquiry vitiates. 8 After notice, the respondent/s filed return, in which, it was submitted that the petitioner himself has admitted his guilt, therefore, lenient view was taken by the Appellate Authority and the order of termination from service has been converted into compulsory retirement. The petitioner has misappropriated the government money, therefore, no leniency can be shown to the petitioner. The punishment is proportionate to the charges proved against the petitioner. Looking to the gravity of the charges, the Addl. DGP has rightly cancelled the show-cause notice issued by Inspector General, in which there was no illegality and prayed for dismissal of present writ petition.
ORDER 9 In the charge-sheet, two charges were levelled against the petitioner. Charge no. 1 was in respect of negligence of the petitioner and he has failed to get verified the non- government fund cash book from 10/2003 to 02/09/2004. In reply to the aforesaid charge, the petitioner submitted that he was given the charge of head clerk on 01/11/2003 and cash book was verified from 01/11/2003 to 31/08/2003. In defence, he demanded a copy of the aforesaid cash book from 01/10/2003 to 02/09/2004 and admittedly, those copies were not supplied to him. The Inquiry Officer has found that the petitioner was having charge of head clerk for the period of ten months and it was his duty to get non-government fund Cash Book verified . Witness nos 1 and 5 have stated that there was no verification of cash book from 10/2003, therefore, the Inquiry Officer was of the opinion that it was the negligence on the part of the petitioner and found charge no. 1 proved.
10 In respect of charge no. 2, it was alleged that the amount of Rs. 1000/- was sent to the Company Commandant vide challan no. 65 on 10/08/2004, thereafter, again under the said challan no. 65, amount of Rs. 1000/- was been withdrawn on 16/08/2004 by the petitioner. This fact came to the knowledge of Shri V.S. Chawada, who immediately informed the petitioner. The petitioner admitted his mistake and returned the amount of Rs. 1000/- by way of cheque on 17/09/2004. In reply to this charge, the petitioner submitted that due to human error, the said mistake had occurred, which he immediately rectified. There was no intention of misappropriation of funds. It was submitted by him that he was handling monthly transaction worth of crores of rupees in the department, hence it cannot be believed that he would indulge himself in misappropriation of Rs. 1000/- only. Since the petitioner has admitted charge no. 2 and returned the amount, the Inquiry Officer has found the charge no. 2 waso proved against him.
11 The petitioner was serviced with show-cause notice along with inquiry report proposing punishment of stoppage of one increment by Dy. Inspector General. The petitioner submitted detailed reply to the Inquiry Report on 12/05/2005. After submitting his reply, the Inspector General vide order dated 23/06/2005 has cancelled the show-cause notice issued by Dy. Inspector General and issue afresh show-cause notice proposing punishment of dismissal from service. He gave opportunity to file reply to show-cause notice to the petitioner, but he did not submit reply to the show-cause notice dated 23/06/2005. Since the petitioner did not submit any reply to the Dy. Inspector General, believed that the petitioner do not want to say anything against the charges and punishment, therefore, he has passed the order of punishment dated 12/07/2005. The Inspector General in his order has only justified his action for issuance of show- cause notice proposing punishment of dismissal from service, but did not appreciate the reply of the petitioner, which was already on record in response to the show- cause notice dated 28/04/2005. Though the said reply was submitted in response to the earlier show-cause notice issued by Dy.Inspector General, but in the said reply, the petitioner has denied the charges and submitted the detailed objection in respect of inquiry report, therefore, it was incumbent upon the disciplinary authority to pass detailed speaking order meeting out the objections submitted by the petitioner. He has passed the order of punishment of dismissal from service simply on the ground that the petitioner did not submit reply to the show-cause notice issued by him, but the fact remains that the reply submitted by the petitioner was already on record, therefore, on this ground alone, the order of punishment which is non-speaking and non-reasoned order, is liable to be set aside.
Even otherwise, the petitioner, during inquiry, has demanded photocopies of the cash book, on which first charge was based, and admittedly, the said photocopies were not supplied to the petitioner, therefore, the petitioner was denied effective opportunity to defend himself.
12 Under the provisions of Clause (c) of sub-rule (5) of Rule 14 of M.P. Civil Services ( Classification, Control and Appeal ) Rules, 1966, it is the duty of the department to appoint Inquiry Officer and Presenting Officer to prove the charges against the delinquent. In the present case, admittedly, Presenting Officer was not appointed and only Enquiry Officer was appointed, who acted as Presenting Officer and Enquiry Officer as well, therefore, the entire inquiry has been conducted in violation of Rule 14 of CCA Rules, 1966 . This Court in the case of K.C. Bhargava Vs. State of M.P. and another reported in [ 2012(4) MPLJ 244 ] has held that due to non-appointment of Presenting Officer, entire inquiry vitiates. Para 9 is reproduced below :
9: Apart from this aspect, it is to be seen whether any prejudice was caused to the petitioner or not if a Presenting Officer is not appointed. Though hard and fast Rules of Evidence are not applicable, but the enquiry being a fact finding enquiry, reasonable compliance of the Rules is required to be done. The role of the Presenting Officer in a departmental enquiry is to put up the case of the department or the disciplinary authority. In fact, he acts as a prosecutor. The Presenting Officer is required to examine the witnesses. If the Enquiry Officer acts as Presenting Officer and put the question to the witnesses produced by the disciplinary authority, naturally they are to answer in the manner the questions are asked. This cannot be said to be a proper procedure as the Enquiry Officer may sometime ask the direct question even the leading question and the answer is bound to come in affirmative. This would naturally cause a prejudice to the delinquent as even after effective cross examination of that witness, it will not be deemed that such statements made are incorrect. Normally, if such questions are asked by the Enquiry Officer and the answers are given in affirmative, the Enquiry Officer would not look into the other aspects and would accept the evidence without further application of mind or without its appreciation with respect to the statements made in the cross examination by the very same witness. This being the reason, the provisions have been made under the statutory Rules for appointment of a Presenting Officer. Thus, to say that the prejudice was not caused to the petitioner by not appointing the Presenting Officer, is incorrect. Further, there seems to be no justification for issuing an order of transfer with respect to a person who is suffering from such injuries, is ailing for long and is granted the privilege of taking appropriate treatment out of the State by the State Government itself. This being so, in fact, the charge sheet itself was not issued in justified manner and the enquiry against the petitioner was not justified. This particular aspect is considered only because it has been said in the second show cause notice issued to the petitioner after closure of the departmental enquiry on 25.7.1996 that the plea raised by the petitioner that he was not physically fit to resume the duty could not be accepted as the petitioner was going to Bombay for taking treatment in the intervening period when the order of transfer was issued. Traveling to a place for taking treatment is quite different than that of traveling to a place for resuming duty. If with the assistance of two persons, the petitioner could be moved to Bombay to take treatment, can it be said that he was such physically fit that he could have resumed the duty as well? This itself indicates that the respondents were bent upon to punish the petitioner.
Inquiry Officer cannot assume the job of Presenting Officer, therefore, the entire departmental enquiry is liable to be set aside.
13 In view of the above, present writ petition is allowed. The order of penalty dated 12/07/2005 as well as the Appellate Order dated 26/09/2005 are hereby quashed. The petitioner be treated into service with all consequential benefits, except the back wages from the date of compulsorily retirement till joining on date of retirement. Pension of the petitioner be also revised if he has attained the age of superannuation and retiral dues be settled in favour of the petitioner within a period of three months from the date of production of certified copy of this order. The Department would be at liberty to proceed against the petitioner from the stage of appointment of Presenting Officer to conduct afresh enquiry against the petitioner.
C c as per rules.
(VIVEK RUSIA) JUDGE amol