Devendra Kumar Khare vs The State Of M.P. And Ors.
2021 Latest Caselaw 7208 MP

                                            1



 THE HIGH COURT OF JUDICATURE FOR MADHYA PRADESH,
                    AT JABALPUR

                             (DIVISION BENCH)
                             W.P.S. No. 1666/2003

       Devendra Kumar Khare                                  ....Petitioner
                                      Versus

      State of Madhya Pradesh and others                       ...Respondents
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      Coram :
              Hon'ble Mr. Justice Ravi Malimath, Chief Justice.
              Hon'ble Mr. Justice Vijay Kumar Shukla, Judge.
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      Presence :
              Shri H.K.Upadhyay, learned counsel for the petitioner
              None for the respondents.
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                                  ORDER

(10/11/2021)

Per : V.K. Shukla, J.

The present writ petition has been filed under Article 226/227 of

the Constitution of India challenging the order dated 06-10-

2001(Annexure P-11) passed by the respondent no.3, order dated 03-07-

2002(Annexure P-15) passed by the respondent no.2 and the order dated

23-10-2002(Annexure P-17) passed by the respondent no.2 and also

prayed a direction to reinstate the petitioner with back wages.

2. The petitioner was removed from service by the impugned order

dated 01-12-2002. The petitioner filed an appeal before the respondent

no.2 which was also dismissed by the impugned order dated 03-07-2002.

Thereafter, the petitioner preferred a mercy appeal, which also stands

dismissed by the impugned order dated 23-10-2002. Thus, the petitioner

has suffered punishment of removal from service.

3. The facts of the case are that the petitioner was working as a

peon in the District & Sessions Court at Katni. He was discharging his

duties. A complaint was lodged against him by Incharge -Officer,

Nazarat, Katni and a show cause notice dated 27-01-2000 was issued

against him to the effect that he used to come late in the office and

was permitting outsiders in the night to use court premises. In reply to

the aforesaid show cause notice, the petitioner stated that his wife had

fractured her leg and there being no other male member in the family to

look after her, the petitioner had to take care, therefore, he used to come

late in the office. The petitioner denied the allegation of permitting

outsiders to use the court premises. It was further alleged against the

petitioner that while working in the office of Shri C.M. Upadhyay,

Judicial Magistrate First Class, the petitioner obtained photocopies of the

records after taking them out from his office. A charge sheet dated 28-

04-2000 was issued to the petitioner levelling as many as four

imputation of charges stating therein that the misconduct falls within

Rule-3 of M.P. Civil Services(Conduct) Rules, 1965 and therefore, the

petitioner is liable to be punished under Rules, 1966. By memo dated

02-05-2000, the respondent no.3 intimated the petitioner that a

departmental enquiry has been instituted against him and he should

file his reply within 15 days.

4. The petitioner participated in the departmental enquiry and the

Enquiry Officer examined prosecution witnesses and permitted the

petitioner to cross-examine the same. The petitioner also examined

himself. The Enquiry Officer found the charge no.1 for attending the

duties late proved and also the charge no.2 that the petitioner used to

take keys of the court building while going to Jabalpur daily which

caused great inconvenience in closing the court building in the

evening. The charge no.3 permitting outsiders in the court building for

the purpose of drinking liquor was not found proved. However, charge

no.4 that the petitioner was found to be in illegal possession of the

court documents was found proved.

5. On the basis of the aforesaid enquiry report, a show cause notice

dated 06-10-2001 was issued to the petitioner as to why he be not

removed from service. The petitioner replied to the said show cause

notice. Vide order dated 01-12-2001, the services of the petitioner were

removed under Rules, 1966. The petitioner preferred an appeal before

the Registrar General, High Court of M.P. . The said appeal was also

dismissed by order dated 03-07-2002 . The petitioner preferred another

mercy appeal, which was also rejected by order dated 23-10-2002.

6. Being aggrieved by the aforesaid orders of punishment, rejection

of appeal and mercy appeal, the petitioner filed the present petition.

Though, initially the petitioner submitted that the findings recorded by

the Enquiry Officer and the Disciplinary Authority are contrary to the

record but the petitioner could not substantiate his aforesaid

submissions from the record. Lastly, the petitioner argued that the

punishment awarded to the petitioner is highly disproportionate to the

charges. In support of his submissions, he placed reliance on the

judgment passed by the Apex Court in Civil Appeal Nos.4715-4716 of

2013 arising out of S.L.P.(C ) Nos. 22263-22264 of 2012 (S.R.Tewari

Vs. Union of India and another) decided on 28-05-2013.

7. The respondent nos. 2 and 3 have filed reply and submitted that

the petitioner was Choukidar and he was posted at Civil Court Katni.

His duty was to attend the office at 6 p.m. and to check and lock the

rooms of court to secure the Civil Court upto morning. The keys of the

court rooms were in possession of the petitioner . He failed to perform his

duties honestly and sincerely. Many times the Court rooms could not be

locked because the petitioner used to be absent and keys of locks were in

his possession. It is further submitted that he did not report the office of

Civil Court Katni upto 6 p.m. He was an up downer from Jabalpur to

Katni and he daily used to come from Jabalpur for attending the office

in the evening hours. Jabalpur is 90 kms. away from Katni. He never

attended the office in time. On number of occasions oral warnings were

given to him to attend the office in time, but even then he did not change

his behaviour and was continuously late for attending his office. Naib

Nazir and Ameen had to stay upto 9 p.m. or 10 p.m. in the court rooms

many times because the petitioner had not reached the court in time for

locking the court rooms. He was residing out of his headquarter which

was at Katni without permission of competent authority. Number of

complaints were received , a show cause notice dated 27-01-2001 was

issued to the petitioner by the Officer Incharge of the Nazarat, Katni.

The reply filed by the petitioner to the show cause notice was not found

satisfactory and therefore, he was asked to submit his explanation to the

District Judge on 18-02-2000. There was also allegation against the

petitioner that he often exported the court records out of the court

premises for photocopy of the record and due to this his duty was

transferred from court room to Choukidar. A show cause notice was

issued by the District and Sessions Judge to the petitioner on 29-02-2000

and all the above mentioned allegations were mentioned in the notice.

A show cause notice was given to him as to why the action for stopping

of one annual increment without affecting his future increments be not

taken against him.

8. The petitioner filed his reply to the said show cause notice and

denied the allegations. The petitioner did not agree for the punishment

on notice and pleaded for enquiry. He submitted that he was trying to

arrange a house at Katni. His sons were residing at Jabalpur and

therefore, he also resided at Jabalpur. He pleaded that he was never

careless in his duties and he was never late for joining his duties. Since

the authority was not convinced with the reply filed by the petitioner ,

therefore, decided to proceed to hold departmental enquiry against the

petitioner.

9. A charge sheet was issued on 28-04-2000 and four charges were

framed against the petitioner. The first charge was that the petitioner

was posted as a Chowkidar for security of court premises and he should

join the duty daily up to 6 p.m. but mostly he joined the duty much late

which comes under the misconduct. The second charge was that he

resided at Jabalpur and he possessed the keys of the court rooms. Due to

delay in joining the duty, it was not possible to lock the courts in time,

thereby the Government work was adversely effected. Third charge was

that he had permitted a number of unsocial elements to stay in the court

premises in the night hours. These persons took liquor in the court

premises and polluted the atmosphere. Fourth charge was that he was

found by the authority with the records of the court which he took to

get xeroxed.

10. The petitioner filed reply to the aforesaid charges and denied the

allegations. The Enquiry Officer submitted the report and has stated

that charge nos. 1 and 2 were found proved . Charge No.3 was not

proved and charge no.4 was found proved partly. The petitioner was

extended the facility of Defence Assistant as he sought for

appointment of Shri M.L. Tamrakar. The department had examined a

number of witnesses to prove the case. The petitioner was also

examined and after recording his statement, he also filed an application

for examination of defence witnesses which was also allowed. The

petitioner then examined the witnesses. Thereafter, the case was fixed

for final arguments on 14-08-2001 but on such date the petitioner

prayed for time and his prayer was allowed and argument was heard on

18-08-2021.

11. The Enquiry Officer considered the material on record including

the reply, statement of the petitioner, statement of defence witnesses and

written arguments filed by the petitioner and thereafter he submitted the

report. The respondent no.3 considered the charge sheet, deposition of

witnesses of parties, written arguments and all other material on record

and found that charge nos. 1 and 2 are proved and the charge no.4 was

partly proved against the petitioner, therefore, punishment of termination

of service was proposed and a show cause notice was issued to the

petitioner for filing reply within 15 days. The petitioner submitted reply

to the aforesaid show cause notice. The respondent no.3 considered all

the material on record and passed the order of removal of the petitioner

from service. The petitioner preferred an appeal before the respondent

no.2. The respondent no.2 called the entire record of the departmental

enquiry and considering the seriousness of charges, the disciplinary

authority has passed the order of punishment of removal from service

and there is no illegality.

12. After having heard the learned counsel for the parties, we do not

find any illegality or infirmity in the departmental enquiry or in the

order of punishment. Fair opportunity has been granted to the petitioner

and the petitioner has failed to prove any material irregularity in the

departmental enquiry. The punishment awarded to the petitioner cannot

be held to be excessive considering the seriousness of the charges that

the petitioner was a Chowkidar for security of court premises and he was

supposed to join the duty daily upto 6 p.m. but mostly he joined the duty

much late which comes under the misconduct. The second charge was

also serious that he used to stay outside the headquarters at Jabalpur

and he possessed the keys of the court rooms and therefore, the security

of the court premises was also at stake. The fourth charge was found to

be proved that the petitioner was in possession of the court papers

without any authority of law.

13. In view of the aforesaid, it cannot be held that the punishment is

shocking and excessive in nature, therefore, the judgment passed in the

case of S.R.Tewari(supra) by the Apex Court would not apply to the

facts of the present case.

14. The scope of judicial review in a case of departmental inquiry

is no longer res integra as has been held by the Supreme Court in

the case of B.C. Chaturvedi Vs. Union of India (1995) 6 SCC 749

wherein it has been observed as under:

"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court.

When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. (emphasis supplied)"

15. In Apparel Export Promotion Council Vs. A.K.Chopra (1999) 1 SCC 759, the Apex Court held as under :

"16, The High Court appears to have over-looked the settled position that in departmental proceedings, the Disciplinary Authority is the sole Judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in Writ Jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since, the High Court does not sit as

an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the Disciplinary or the Departmental Appellate Authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned Single Judge and the Division Bench of the High Court, it appears, ignored the well-settled principle that even though Judicial Review of administrative action must remain flexible and its dimension not closed, yet the Court in exercise of the power of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial Review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process.

Lord Haltom in Chief Constable of the North Wales Police v. Evans, (1982) 3 All ER 141, observed :

"The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized or enjoyed by law to decide for itself, a conclusion which is correct in the eyes of the court."

Judicial Review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the Court while exercising the power of Judicial Review must remain conscious of the fact that if the decision has been arrived at by the Administrative Authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the Court cannot substitute its judgment for that of the Administrative Authority on a matter which fell squarely within the sphere of jurisdiction of that authority."

(Emphasis Supplied)"

16. In Bank of India Vs. Degala Suryanarayana (1999) 5 SCC 762, it

is held by the Apex Court as under:

"11. Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. In Union of India v. H.C. Goel the Constitution Bench has held:

The High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not."€

17. In M.V. Bijlani Vs. Union of India, (2006) 5 SCC 88, Supreme

Court opined as under:

"25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to

prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, 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. [Emphasis Supplied]"

18. As per the principles of law laid down in the aforesaid cases, it is clear that interference can be made against the findings of Inquiry Officer and other authorities, provided findings are perverse or it is a case of no evidence. If there is some evidence to support the conclusion of Inquiring Authority, no interference can be made. Adequacy of evidence cannot be subject matter of judicial review.

19. In the light of aforesaid analysis, in our view, there is no flaw in the decision making process. The findings of Inquiry Officer are neither perverse nor based on any evidence. In view of misconduct on the part of petitioner, it cannot be said that punishment is disproportionate and shocking so as to warrant any interference.

20. Accordingly, the petition is dismissed.

      (RAVI MALIMATH)                        (VIJAY KUMAR SHUKLA)
        CHIEF JUSTICE                                JUDGE
hsp
  Digitally signed by
  HARSAHAI
  PATERIYA
  Date: 2021.11.16
  16:54:09 +05'30'