Madhya Pradesh High Court
Jai Kumar Bajpai (Dead) Thr. Lrs. ... vs Chairman-Cum-Managing Director on 27 April, 2022
Author: Sanjay Dwivedi
1 Writ Petition No.14344/2009
THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
Writ Petition No.14344/2009
Jai Kumar Bajpai (Dead) through Lrs. Smt.
Chandrakanta Bajpai, W/o. Late Jai Kumar
Bajpai, Aged about 65 years, Occupation
Housewife, R/o.1342/38, Shahi Naka Road,
Garha Talab, Garha, Jabalpur (M.P.)
........... Petitioner
Versus
1. Chairman-cum-Managing Director, Madhya
Pradesh State Electrical Board, Rampur,
Jabalpur.
2. Superintending Engineer (City Circle)
(Disciplinary Authority), M.P. Poorva
Kshyetra Vidyut Vitran Co. Ltd., MPSEB,
Mission Compound, Jabalpur.
3. Chief Engineer (Personnel), Jabalpur Zone &
Appellate Authority, M.P. Poorva Kshyetra
Vidyut Vitran Co. Ltd., MPSEB, Rampur,
Jabalpur.
.......... Respondents
Date of Order 27.04.2022
Bench Constituted Single Bench
Order delivered by Hon'ble Mr. Justice Sanjay Dwivedi,
Whether approved Yes
for reporting
Name of counsel For petitioner: Mr. D.K. Dixit,
for parties Advocate.
For Respondents: Ms. Ritika
Chouhan, Advocate
Law laid down: 1. Non-consideration of defence of
delinquent by the Disciplinary
Authority as well as the Appellate
Authority, would amount to violation
of principles of natural justice.
2. Based on available material in a
petition under Article 226, when it
emerges that the employee had
unblemished service career, however, at
the verge of retirement, has been
inflicted punishment of dismissal on
the allegation of misappropriation of
meager amount, the conscience of the
Court is shaken.
3. It is indispensable component
of decision-making process as
observing principles of natural justice
by judicial, quasi-judicial and even by
administrative bodies to record reasons
so as to ascertain that the relevant
factors have been objectively
considered and it is important for
sustaining the litigants' faith in the
justice delivery system. The reasons in
support of decisions must be cogent,
clear and succinct. A pretence of
reasons or "rubber-stamp reasons" is
not to be equated with a valid decision-
making process as it amounts to
violation of principles of natural
justice.
Significant paras 31, 33 & 34.
Reserved on : 24.02.2022
Delivered on : 27.04.2022
(O R D E R)
By the instant petition filed under Article 226
of the Constitution of India, the petitioner is challenging
the order dated 05.10.2006 (Annexure-P/4) passed by the
respondent no.2 in a regular departmental enquiry initiated
against him as after receiving the enquiry report submitted
by the Enquiry Officer, the Disciplinary Authority
(respondent no.2) inflicted punishment of dismissal of
service vide order dated 10.11.2008 (Annexure-P/18).
Thereafter, an appeal was preferred by the petitioner
against the order passed by the Disciplinary Authority but
the Appellate Authority has also dismissed the appeal vide
order dated 06.10.2009 (Annexure-P/22), affirming the
finding given by the Disciplinary authority. Both the
orders are under challenge in this petition on various
grounds and the relief for quashing these orders has been
claimed.
2. The respondents have filed its reply and
denied the submissions made by learned counsel for the
petitioner and stated that petitioner has been inflicted the
punishment of dismissal from service as charges levelled
against him have been found proved. It is also stated in the
reply that considering the charges, i.e. irregularity and
financial embezzlement, punishment of dismissal from
service is proper and adequate. As per the respondents, in
the matter of disciplinary proceedings, the scope of
interference or judicial review in the order of Disciplinary
authority is very limited. The proceedings of departmental
enquiry can be interfered with on the ground of violation
of principles of natural justice in a decision making
process or the punishment is interfered with, when it is not
in consonance with the charges levelled. Here, in this case,
according to the respondents, there is no violation of
principles of natural justice in the decision making process
and punishment of dismissal is also an adequate
punishment as charges of irregularity and financial
embezzlement have been proved and, thus, the petition
deserves to be dismissed.
3. Before deciding the controversy involved in
the matter, the necessary facts in brief are required to be
mentioned which are as under:-
4. That, the petitioner was an employee of the
respondent/Department, initially appointed on the post of
Security Guard. Later on, he was promoted as a Lower
Division Clerk and was posted in the office of Executive
Engineer, City Division (West), M.P. Poorva Kshyetra
Vidyut Vitran Co. Ltd., Mission Compound, Jabalpur,
where he was directed to work as Electric Bill Collection
Clerk through online computer.
5. That, on 29.08.2006 while working as Electric
Bill Collection Clerk, an electric bill of one Shri Naveen
Kumar Malhotra to the tune of Rs. 1397/- was received for
collection. The petitioner received the said amount and
issued receipt of the same but the computer refused to
accept it. When the petitioner failed to enter the same in
the computer, he enquired from his colleagues and then he
came to know that the said bill is negative (minus one),
therefore, the computer is not accepting the same. He was
advised that it is better to return the said amount to the
customer concerned and take the receipt back. The
petitioner was not computer friendly, therefore, he could
not handle the computer and make proper entry of such
minus bill.
6. An application was submitted by Shri Naveen
Kumar Malhotra on 30.08.2006 (Annexure-P/1) informing
the respondent/Department that he had wrongly deposited
an amount of Rs.1397/-, though the bill was negative
(minus one) and requested the respondent/Department to
adjust the said amount in his future bills.
7. On 04.09.2006, an order of suspension was
issued to the petitioner by the respondent/authority after
coming to know about the said irregularity that he took an
amount of Rs.1397/- and did not deposit the same in the
account of the respondent/Department and kept the same
with him or was utilized by him.
8. The petitioner, thereafter on 06.09.2006 made
an application for depositing the said amount mentioning
therein that accepting the minus bill was his mistake and
instead of depositing the said amount in the account of the
said customer or to the account of the
respondent/Department, he kept it with him and, therefore,
he be permitted to deposit the amount.
9. A charge-sheet was issued to the petitioner
levelling two charges against him, first of irregularity and
second of financial embezzlement with the customer
amount and as such, defamed the image of the
Department, making him liable for initiation of
disciplinary action and as such, departmental enquiry was
proposed.
10. The petitioner submitted reply to the charge-
sheet and denied the charges levelled against him and
stated that he had already deposited the amount.
11. The respondents instead of accepting the
explanation given by the petitioner decided to initiate
departmental enquiry and appointed Enquiry Officer and
the Presenting Officer vide order dated 22.11.2006
although on an objection raised by the petitioner, the
Presenting Officer was later on changed and the
departmental enquiry was initiated giving full opportunity
of hearing to the petitioner to participate in the same and
put his defence. Thereafter, the enquiry report was
prepared by the Enquiry Officer and it was submitted on
11.09.2008 approving both the charges levelled against the
petitioner and finding him guilty. The report was also
supplied to the petitioner.
12. The petitioner submitted reply to the enquiry
report but the Disciplinary authority finally passed an
order on 10.11.2008 relying upon the findings given by
the Enquiry Officer holding the petitioner guilty and
inflicted punishment of dismissal from service.
13. An appeal was preferred against the order of
the Disciplinary authority and the appellate Authority vide
its order dated 06.10.2009 dismissed the appeal, approving
the order of the Disciplinary authority. Hence, this
petition.
14. The petitioner in this petition has raised the
ground that he has neither committed any embezzlement
nor caused any loss to the Department because the amount
was deposited by the customer against the minus bill and
that amount would ultimately go in the account of the
customer who has not made any complaint against the
petitioner. However, non-deposit of the said amount in the
account of the customer was a technical irregularity
committed by the petitioner as he was not familiar with the
process in which the said minus bill is handled as despite
several attempts, the computer did not accept the said
amount.
15. Learned counsel for the petitioner has
contended that the petitioner has finally deposited the
amount with the respondent/Department as he made
attempts to refund the said amount to the customer but
despite that, he could not contact him as the customer was
not residing in the address available in the record of the
respondent/Department. It is also contended that the
respondent/Department has accepted this fact that the
petitioner was not performing the duties of bill collecting
clerk and was not sitting on the respective computer table
from where this function was being performed and had
also not undergone the training and, therefore, he was not
familiar with the process in which the entry used to be
made in the computer, which clearly indicates that if any
irregularity alleged to have been committed, that was bona
fide on the part of the petitioner and the same was not
deliberate and intentional and nothing has been proved by
the respondent/Department that the petitioner had any
intention to embezzle the amount so as to put the
Department in loss. He further submits that the image of
the Department did not get any dent or not damaged
among the people because the customer who deposited the
said amount has never raised voice against such
irregularity but, on the contrary, he has informed the
superiors of the petitioner that petitioner has not
committed any mistake and, therefore, he should not be
punished.
16. An affidavit of the customer has also been
produced by the petitioner during the course of enquiry in
which the customer has very categorically stated that
petitioner was frequently visiting his house for refunding
the said amount of negative (minus) bill; but, in his
absence, it could not be returned to him. He has also stated
that petitioner was not guilty and was trying to refund the
said amount but due to his non-availability, it could not be
refunded however later on, it was deposited in the account
of the respondent-Department. Thus, according to the
petitioner, it is clear that the charges levelled against him
has no relevance. In fact, the petitioner cannot be punished
with the punishment of dismissal from service, that too,
after performing unblemished service for 28 years. He
submits that only 20 days, before his retirement, an order
of dismissal was passed which was shocking and the said
punishment may conscience to the mind of any normal
person or of this Court.
17. Learned counsel for the petitioner has also
contended that the Appellate Authority has not applied its
mind but reiterated the same thing which was opined by
the Disciplinary Authority and in other words, the
Appellate Authority has failed to discharge its obligation
as has been cast upon him under Rule 27 of the Madhya
Pradesh Civil Services (CCA) Rules, 1966 (for short,
Rules, 1966). Accordingly, the petitioner is claiming that
the orders of the Disciplinary Authority and the Appellate
Authority are contrary to law and are liable to be set aside
because charges of irregularity and embezzlement are not
made out against the petitioner and in fact, the same has
not been proved by the respondent/Department.
18. The respondents have filed their reply and
denied the stand taken by the petitioner saying that
petitioner could have deposited the said amount in the
account of the Department immediately after making an
attempt to deposit the same against the minus bill of the
customer but by not doing so, clearly indicates that
intention of the petitioner was not pious and he wanted to
utilize the said amount for his personal use. It is also
stated by the respondents that the application for
depositing the said amount was made by the petitioner
after almost one month of the incident and that too, after
placing him under suspension which clearly indicates that
by depositing the amount, the petitioner was trying to
show that he did not commit any mistake and has not
embezzled any amount. As stated by the respondents, the
charges levelled against the petitioner have been found
proved by the Enquiry Officer and the same was also
approved by the Disciplinary Authority and thereafter by
the Appellate Authority and looking to the nature of
charges, except dismissal from service, no other
punishment was available to the petitioner and it has
rightly been passed against him.
19. Ms. Ritika Chouhan, learned counsel for the
respondents submits that in a matter of disciplinary
proceeding, scope of interference by this Court in a
petition under Article 226 of the Constitution of India is
very limited. The judicial review is permissible only under
the circumstance when it is established that during the
course of decision making process, principle of natural
justice has not been followed or punishment inflicted upon
the delinquent does not commensurate with the charges
levelled. She further submits that there is no perversity in
the finding given by the Disciplinary Authority and as
such, the order of dismissal is proper and no interference
is called for and the petition, therefore, deserves to be
dismissed.
20. Learned counsel for the petitioner has placed
reliance upon a decision passed by this Court in W.P.
No.23569/2017 (Smt. Jyoti Dubey Vs. State of M.P. and
Others) wherein this Court after relying upon several
decisions of the Supreme Court as well of the High Court,
has set aside the order of punishment passed by the
Disciplinary authority and approved by the Appellate
Authority on the ground that the charges of corruption
levelled against the delinquent employee has not been
found proved in proper manner but the authority went with
presumption that not depositing the amount in the account
of the respondents indicates the intention of the
petitioner/employee to embezzle the amount. In the said
case, this Court has also observed that though the scope of
judicial review in a matter of disciplinary proceeding is
very limited but if the punishment inflicted upon the
delinquent appears to be arbitrary and based upon the
evidence which is not sufficient to constitute the charges
levelled, the same can be set aside and judicial review in
such a stage is permissible.
21. Learned counsel for the petitioner has also
placed reliance on a decision passed by this Court in W.P.
No.18904/2012 (Sanjay Singh Vs. The Director General
of Police Headquarters Jail Road, Jabalpur) in which
also, the Court has observed that if punishment shocks the
conscience of the court or it is wholly impermissible,
interference can be made and punishment inflicted by the
authority has been set aside because the Court was of the
opinion that negligence without any ulterior motive cannot
result into imposition of punishment of dismissal from
service.
22. Shri D.K. Dixit, learned counsel for the
petitioner has also placed reliance upon an order passed by
the Supreme Court reported in AIR 2022 SC 667- Brijesh
Chandra Dwivedi (Dead) thr. Lrs. Vs. Sanya Sahayak
and Others wherein the Supreme Court after considering
the fact that in the departmental proceeding, the
punishment of dismissal inflicted against an employee
who has completed 25 years of long service as a driver
and met with a minor accident with a jeep, that too under
the influence of liquor has finally observed that the
punishment was too harsh and could be converted into
compulsory retirement of the employee. The counsel for
the petitioner has submitted that in the present case also,
the petitioner was at the verge of retirement and the
punishment of dismissal inflicted upon him is too harsh.
23. Learned counsel for the respondents has
placed reliance upon the decision reported in (2005) 3
SCC 254 (Divisional Controller, KSRTC (NWKRTC)
vs. A.T. Mane, (2006) 7 SCC 212 (State Bank of India
and Others Vs. Ramesh Dinkar Punde), (2007) 7SCC
236 (Bank of India and Others Vs. T. Jogram), (2009) 8
SCC 310 (State of Uttar Pradesh and another Vs. Man
Mohan Nath Sinha and another), 2006 SCC Online AP
445 (T. Premachandra Rao Vs. B. Pramod and Others).
24. After hearing the rival submissions of learned
counsel for the parties and perusal of the record available,
I am of the opinion that it is a trite law that scope of
interference in the disciplinary proceedings by this Court
in a petition under Article 226 of the Constitution of India
is very limited. Interference can be made if decision
making process is defective or contrary to the principles of
natural justice which has caused serious prejudice to the
delinquent employee. The scope of interference on the
ultimate punishment is also very limited. If the
punishment shocks the conscience of the court or it is
wholly impermissible, interference can be made. Here in
this case, from the charges levelled against the petitioner
as contained in the charge-sheet (Annexure-P/4), it is clear
that two charges have been levelled. As per the first
charge, the petitioner is said to be responsible for
committing the irregularity and embezzlement, putting the
respondent/Department in loss because of the bill
deposited by one of the customer namely Naveen Kumar
Malhotra, who under misconception deposited an amount
of Rs.1397/- against his negative (minus) bill and receipt
of the same was also given by the petitioner to him but the
said amount was neither deposited in the account of the
customer nor in the account of the respondent/Department
and as such, that amount was with the petitioner only
unauthorizedly. As per the second charge, committing such
an irregularity by not depositing the amount received from
the customer against his minus bill and keeping the same
with him knowingly and unauthorizedly is nothing but an
attempt to damage the image of the respondent/
Department and to exploit the customer.
25. As per undisputed facts, the petitioner was not
performing the duties regularly as a bill collecting clerk
for which he was also not given any training and this fact
has been accepted by the Enquiry Officer in his enquiry
report and observed that merely because petitioner was not
a trained bill collecting clerk, he cannot be absolved from
the alleged irregularity. It is also not in dispute that as per
the statement of the customer that he was not residing on
the address available with the respondent/Department at
the relevant point of time and he has been informed by his
wife that petitioner was regularly visiting the house to
refund the amount of Rs.1397/- which has been wrongly
accepted by the petitioner. There is nothing available on
record or produced by the respondent/Department during
the course of enquiry that the fact with regard to not
accepting the amount against the minus bill by the
computer, the colleagues have advised the petitioner to
refund the said amount to the customer itself. There is no
reason as to why the said stand taken by the petitioner was
not accepted by the authority when there is no contrary
material available on record. The amount which was
deposited by the customer, in other words was not the
amount of the Department because it was deposited under
misconception against the minus bill though in a situation
existing in the present case, it could have been deposited
by the petitioner in the account of the Department or could
be returned to the customer himself. The petitioner tried to
refund the same to the customer as he was not much
familiar about the process in which such situation could be
handled and as per the advice of his colleagues, he was
trying to refund the said amount and repeatedly
approaching the customer. The bona fide of the petitioner
has been doubted by the respondents without there being
any contrary evidence. At this stage, the fact cannot be
ignored that the amount is very meager and the petitioner
has rendered his whole service and was very near to this
retirement. At the same time, the customer has not made
any complaint against the petitioner and has also not
criticized his conduct but asked the Department to adjust
the said amount in his future bills and the amount of
customer has been deposited by the petitioner at later point
of time and the same was also accepted by the
Department.
26. The overall circumstances existing and dealt
with by the Enquiry Officer and from the enquiry report, it
can be seen that the Presenting Officer and the witnesses
adduced by the prosecution have admitted that the
petitioner has not taken any training of accepting online
electric bill and he has not been trained for that purpose
and have also accepted that previously the petitioner has
not committed any such irregularity and not shown any
carelessness. The respective part of the finding of the
enquiry report of the Enquiry Officer is apt to be
reproduced hereinabelow:-
"izLrqrdrkZ vfHkdkjh }kjk izLrqr xokgksa us vius c;kuksa
esa ;g mYys[k fd;k gS fd Jh ts-ds-cktis;h] vfr- dk;kZy;
lgk;d xzsM&nks ¼fu½ dks vkaWu ykbu dEI;wVj ij jktLo
laxzg.k ysus gsrq dksbZ izf'k{k.k ugha fn;k x;k rFkk iwoZ esa
muds }kjk dHkh Hkh fcy dh jkf'k tek djus esa vfu;ferrk
,oa ykijokgh ugha dh x;hA ;g lgh gS fd Jh ts-ds-
cktis;h] vfr- dk;kZy; lgk;d Js.kh&nks ¼fu½ dks vkWu
ykbu dEI;wVj ij jktLo laxzg.k ysus gsrq dksbZ izf'k{k.k
izkIr ugha Fkk ijUrq fnukad 20-07-2006 dks tkjh ih&8 ls
Li"V gS fd Jh ts-ds- cktis;h] vfr- dk;kZy; lgk;d
Js.kh&nks ¼fu½ fnukad 20-07-2006 ls gh enuegy dkmaVj
ij vkWu ykbu jktLo laxzg.k dk dk;Z dj jgs Fks vkSj
muds }kjk vkjksi dzekad&,d eas mYysf[kr vfu;ferrk
fnukad 29-08-2008 dks dh x;h gSA vr% izf'k{k.k ugha gksus
ls bl izdkj dh xfYr;ka gks] ;g cpko lgh ugha gSA""
27. Likewise, in the statement of the
complainant/customer which has been filed by him on an
affidavit, he has also admitted as such:-
"3. That, in the month of August, 2006, a
negative bill of Rs. 1397/- was received to my
neighbour. As usual, the same was paid in the
office of Madan Mahal cash counter of
MPSEB and its receipt was sent to me at
Chachai by courier for information; which
was received to me on next day. But on
noticing that the Bill was negative & ought
not have been paid, I wrote a letter on
30.08.2006 to adjust the same in my future
bills, without complaining against anybody
which was received to the office of MPSEB
on 02.09.06. It was assured that the same
would be materialized in future.
4. That, thereafter, my wife Smt. Renu
Malhotra visited Jabalpur to clear off the
amount & to look after my residential house,
then she was informed that one J.K. Bajpai
was making frequent visits to my house from
29.08.06 to 02.09.06 continuously to refund
the amount of negative bill to the tune of Rs.
1397/- which was wrongly deposited.
Thereafter, he made a phone call to me which
was attended by my wife Smt. Renu
Malhotra. She visited Jabalpur on 9.9.06 &
received the whole information but paid no
attention to it & returned to Chachai.
5. That, thereafter I visited Jabalpur & met to
the then Superintending Engineer, M.P.S.E.B.
in connection with some personal work, then
only I came to know that one Mr. J.K. Bajpai
has been suspended from service and a
departmental enquiry has been initiated
against him on the basis of my alleged
complaint letter dated 30.08.06, which was in
fact never made. I became stunned to receive
such information.
6. That, I once again make it clear that the
mistake was committed in depositing the
amount of negative bill of Rs. 1,397/- by my
neighbour Ater Singh Rana & by nobody
else. There was no mistake or any malafide
intention of J.K. Bajpai in receiving the same,
as on detecting the mistake, he immediately
visited my house to refund the amount but
due to my non availability, it could not be
refunded to me. Later on, the same was
deposited in MPSEB Office as per due
procedure.
7. That, no complaint of any nature has ever
been lodged by me against Mr. J.K. Bajpai,
employee of MPSEB, Jabalpur nor I intended
or told anybody to take any action against
J.K. Bajpai."
28. Not only this, from perusal of the order of the
Disciplinary Authority dated 10.11.2008 (Annexure P/18),
it is clear that the Disciplinary Authority has not applied
its mind for considering the stand taken by the delinquent
employee and has reproduced the observation of the
Enquiry Officer and relied upon the same, inflicted the
punishment of dismissal from service. The Appellate
Authority further did not meet out any of the grounds
raised by the petitioner and approved the order of the
Disciplinary Authority. It can be otherwise considered that
defence of the petitioner, in fact has not taken note of by
any of the authority. In view of the existing situation as
has been discussed hereinabove, in my opinion, the
charges levelled against the petitioner do not fit in the
situation and in fact, it is evident that the authority acted
arbitrarily and imposed punishment of dismissal from
service. The Supreme Court in the case of Rajendra
Yadav Vs. State of M.P. and Others (2013) 3 SCC-73
and Lucknow Kshetriya Gramin Bank and another Vs.
Rajendra Singh (2013) 12 SCC 372 has considered
and observed that the Disciplinary Authority has to apply
its mind in the light of the principle laid down in the case
of Dev Singh Vs. Punjab Tourism Development
Corporation Ltd. and another (2003) 8 SCC 9 that
negligence without any ulterior motive cannot result into
imposition of punishment of dismissal from service. Here
in this case, though some irregularity has been committed
by the petitioner but with the material evidence produced
during the course of enquiry, as has been discussed
hereinabove, it is clear that there was no ulterior motive of
the petitioner and there was no intention that he was
intending to embezzle the amount of the customer. The
Disciplinary Authority and the Appellate Authority both
have not discussed this aspect and without applying its
mind and answered as to why that stand of the petitioner is
not sufficient to hold him innocent, proceeded with an
assumption that the said irregularity was committed by the
petitioner for financial embezzlement. But the record and
the material produced during the course of enquiry was
otherwise.
29. The Division Bench of this Court in case of
Ganesh Kumar Sharma Vs. State of M.P.- 2013(2)
MPLJ-402 has held that dismissal is a punishment of last
resort and should ordinarily not to be inflicted until all
other means of corrections have failed. This principle was
further followed in the case of Purushottam Ivne Vs.
State of M.P. -2014(3) MPLJ-704.
30. I do not dispute that the departmental enquiry
does not mean the strict rule of evidence as is required to
prove the criminal charge against the accused, but the
punishment in a disciplinary proceeding is based upon
preponderance of probabilities. The Supreme Court says
that a serious charge of corruption requires to be proved to
the hilt as it being civil and criminal consequences upon
the employee concerned. The charge of corruption requires
to be proved beyond the shadow of doubt and to the hilt
and it cannot be proved on mere probabilities. In the case
reported in (2009) 12 SCC 78 [Union of India and
others Vs. Gyan Chand Chattar], the Supreme Court has
observed as under:-
"21. Such a serious charge of
corruption requires to be proved
to the hilt as it brings civil and
criminal consequences upon the
employee concerned. He would be
liable to be prosecuted and would
also be liable to suffer severest
penalty awardable in such cases.
Therefore, such a grave charge of
quasi-criminal nature was
required to be proved beyond any
shadow of doubt and to the hilt. It
cannot be proved on mere
probabilities."
Further in the case reported in (2006) 5 SCC 88
[M.V. Bijlani Vs. Union of India and others], the
Supreme Court while dealing with the power of judicial
review of the High Court and has observed 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 quasijudicial
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......"
In view of aforesaid, I have no hesitation to say that
the minimum requirement for the Authorities in a matter
of disciplinary proceeding was to consider the defence
taken by the delinquent and meet out the same atleast by
giving reasons why the said defence is not acceptable.
31. In the existing circumstances, the Disciplinary
Authority and the Appellate Authority have to take into
account that the defence taken by the petitioner/employee
was not sufficient but nobody has discussed this aspect as
to what defence has been taken by the employee.
Therefore, in my opinion, merely because opportunity has
been granted to the petitioner and he was allowed to
contest in the departmental enquiry but not considering his
defence, would amount to violation of principles of natural
justice.
32. The respondents basically relied upon the
decisions dealing with particular legal position that the
scope of interference in a matter of departmental enquiry
is very limited but at the same time, the Court cannot shut
its eyes if the Disciplinary Authority and the Appellate
Authority have failed to discharge their obligation and
acted arbitrarily showing total perversity in their attitude
while passing the order in a disciplinary proceeding. If the
Appellate Authority does not meet out the grounds raised
in appeal and without referring those grounds, rejected the
appeal putting seal of confirmation upon the order of the
Disciplinary Authority, then it is clear that the said
authority has failed in its duty and has not discharged its
obligation in a proper manner. Rule 27 of the Rules, 1966
prescribed as to in what manner the appeal has to be
decided and further indicates the obligation cast upon the
Appellate Authority. But, here in this case, if the order of
the Appellate Authority is seen, then it would clearly
indicate that the Appellate Authority nowhere has
discharged its obligation nor decided the appeal in the
manner in which it has to be decided and the requirement
as has been prescribed under Rule 27 has not been
fulfilled. It is apt to mention Rule 27 of the Rules.1966
which reads as under:-
"27. Consideration of appeal. - [(1) In
the case of an appeal against an order of
suspension, the appellate authority shall
consider whether in the light of the
provisions of Rule 9 and having regard to
the circumstances of the case, the order of
suspension is justified or not and confirm
or revoke the order accordingly.]
[(2)] In the case of an appeal against an
order imposing any of the penalties
specified in Rule 10 or enhancing any
penalty imposed under the said rule, the
appellate authority shall consider :-
(a) whether the procedure
laid down in these rules has
been complied with and if
not, whether such non-
compliance has resulted in
the violation of any
provisions of the
Constitution of India or in
the failure of justice;
(b) whether the findings of
the disciplinary authority are
warranted by the evidence
on the records; and
(c) whether the penalty or
the enhanced penalty
imposed is adequate,
inadequate or severe, and
pass orders-
(i) confirming,
enhancing, reducing
or setting aside the
penalty; or
(ii) remitting the case
to the authority which
imposed or enhanced
the penalty or to any
other authority with
such direction as it
may deem fit in the
circumstances of the
case:
Provided that-
(i) the Commission shall be
consulted in all cases where such
consultation is necessary;
[(ii) if the enhanced penalty which
the appellate authority proposes to
impose is one of the penalties
specified in clauses (v) to (ix) of
Rule 10 and an inquiry under Rule
14 has not already been held in the
case, the appellate authority shall,
subject to the provisions of Rule
19, itself hold such inquiry or
direct that such inquiry be held in
accordance with the provisions of
Rule 14 and thereafter on
consideration of the proceedings of
such inquiry, make such orders as
it may deem fit.
(iii) if the enhanced penalty which
the appellate authority proposes to
impose is one of the penalties
specified in clauses (v) to (ix) of
Rule 10 and an inquiry under Rule
14 has already been held in the
case the appellate authority shall,
after giving the appellant a
reasonable opportunity of making
representation against the penalty
proposed, make such order as it
may deem fit].
(iv) no order imposing an
enhanced penalty shall be made in
any other case unless the appellant
has been given a reasonable
opportunity, as far as may be, in
accordance with the provisions of
Rule 16, of making a
representation against such
enhanced penalty."
33. In view of the above discussion and the stand
taken by the respondents confining their arguments to the
extent and scope of interference in a matter of
departmental enquiry, I am of the opinion that the Court
cannot ignore this fact that the delinquent has produced
evidence in his favour but the authority has failed to
consider it and, therefore, the Court has no option but to
consider the same to draw a conclusion as to whether the
punishment inflicted upon the delinquent can be allowed
to be sustained or not. Looking to the facts and
circumstances of the case, the order of dismissal from
service, in my opinion is not sustainable and, therefore, the
same is set aside. The order of the Appellate Authority is
also accordingly set aside. Since the petitioner was at the
verge of retirement and as per the discussion made
hereinabove, the authorities have failed to discharge their
obligation properly and not considered the defence taken
by the petitioner and as such, the decision making process
amounts to violation of principles of natural justice. Since
the petitioner had retired during the pendency of this
petition, it is not proper to remit the matter to the
Disciplinary Authority to pass an appropriate order after
considering the defence taken by the petitioner.
34. The Supreme Court in case of Kranti
Associates Private Limited and another Vs. Masood
Ahmed Khan and Others reported in (2010) 9 SCC 496
has considered the obligation cast upon the Disciplinary
Authority as well as the Appellate Authority while dealing
with the matter of disciplinary proceeding and also
observed that recording reasons by the Authority in
exercise of their power is a material aspect and is
requirement of law. The Supreme Court has also laid down
the principles for recording the reasons in the following
manner:-
"(a) In India the judicial trend has always been to
record reasons, even in administrative decisions, if
such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record
reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant
to serve the wider principle of justice that justice must
not only be done it must also appear to be done as
well.
(d) Recording of reasons also operates as a
valid restraint on any possible arbitrary exercise of
judicial and quasi-judicial or even administrative
power.
(e) Reasons reassure that discretion has been
exercised by the decision maker on relevant grounds
and by disregarding extraneous considerations.
(f) Reasons have virtually become as
indispensable a component of a decision-making
process as observing principles of natural justice by
judicial, quasi-judicial and even by administrative
bodies.
(g) Reasons facilitate the process of judicial
review by superior courts.
(h) The ongoing judicial trend in all countries
committed to rule of law and constitutional
governance is in favour of reasoned decisions based
on relevant facts. This is virtually the lifeblood of
judicial decision-making justifying the principle that
reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions
these days can be as different as the judges and
authorities who deliver them. All these decisions
serve one common purpose which is to demonstrate
by reasons that the relevant factors have been
objectively considered. This is important for
sustaining the litigants' faith in the justice delivery
system.
(j) Insistence on reason is a requirement for
both judicial accountability and transparency.
(k) If a judge or a quasi-judicial authority is not
candid enough about his/her decision-making process
then it is impossible to know whether the person
deciding is faithful to the doctrine of precedent or to
principles of incrementalism.
(l) Reasons in support of decisions must be
cogent, clear and succinct. A pretence of reasons or
"rubber-stamp reasons" is not to be equated with a
valid decision-making process.
(m) It cannot be doubted that transparency is
the sine qua non of restraint on abuse of judicial
powers. Transparency in decision-making not only
makes the judges and decision-makers less prone to
errors but also makes them subject to broader
scrutiny.
(n) Since the requirement to record reasons
emanates from the broad doctrine of fairness in
decision-making, the said requirement is now
virtually a component of human rights and was
considered part of Strasbourg Jurisprudence.
(o) In all common law jurisdictions judgments
play a vital role in setting up precedents for the future.
Therefore, for development of law, requirement of
giving reasons for the decision is of the essence and is
virtually a part of "due process".
35. Considering the law laid down by the Supreme
Court and the order passed by the Disciplinary Authority,
it is clear that the Disciplinary Authority has not laid down
any specific reason for discarding the stand taken by the
delinquent (petitioner). The manner in which the
Disciplinary Authority has concluded its order and applied
its mind makes it clear that in fact, no reason has been
assigned. The relevant part of the order of Disciplinary
Authority is as under:-
"tSlk fd Jh cktisbZ }kjk mDr QkbfMaXl ds laca/k esa
fnukad 1-11-2008 dks vH;kosnu izLrqr fd;k x;k tks
larks"ktud ugha ik;k x;kA
vkSj tSlk fd] mDr foHkkxh; tkWp ls lacaf/kr leLr
vfHkys[kksa] vkjksih deZpkjh }kjk izLrqr vH;kosnu ,oa tkWp
vf/kdkjh }kjk izLrqr QkbfMaXl ds voyksdu mijkar ;g ik;k
x;k gS fd tkWp vf/kdkjh }kjk Jh t; dqekj cktisbZ ds
fo:) dh xbZ tkWp fof/klaxr gS rFkk v/kksgLrk{kjdrkZ mlls
iw.kZ lger gSA foHkkxh; tkWp esa mUgsa cpko gsrq ;qfDr;qDr
volj iznku fd;k x;k gSA paqfd Jh cktis;h }kjk daiuh
ds jktLo dk xcu fd;k x;k gS tks xaHkhj dnkpj.k gSA vr%
bldks n`f"Vxr j[krs gq, v/kksgLrk{kjdrkZ bl fu"d"kZ ij
igqapk gS fd Jh t;dqekj cktisbZ dks e-iz-jk-fo-ea- dh lsokvksa
ls c[kkZLr ¼fMlfel½ djuk izdj.k esa U;k;laxr gksxkA
vr% Jh t; dqekj cktisbZ] vfr0dk;kZ0lgk0Js.kh&nks
¼fuya0½ dks eaMy dh lsokvksa ls ,rn }kjk rRdky izHkko ls
c[kkZLr ¼fMlfel½ fd;k tkrk gSA"
Further, if the order of the Appellate Authority and
the reason assigned therein is examined then it is also clear
that even the Appellate Authority did not care to assign
any reason or to meet out the grounds raised in the appeal.
The order of the Appellate Authority is nothing but a
reproduction of the reasons assigned by the Disciplinary
Authority. It is something surprising that when the
authority is dealing with a major punishment of dismissal
from service of an employee and is not showing their
concern, considering the defence taken by the delinquent.
The operative part of the order passed by the Appellate
Authority is reproduced hereunder:-
"tkWp vf/kdkjh Jh vkj-,l- vk.ksdj] vfr- v/kh{k.k
;a=h }kjk Jh t; dqekj cktis;h] dh foHkkxh; tkWp ls
lacaf/kr tkWp fjiksVZ ¼QkbfMaXl½ muds i= dzekad 137 fnukad
29-8-2008 ds }kjk vfr- v/kh{k.k vfHk;ark] 'kgj if'pe laHkkx]
tcyiqj dks izLrqr dh xbZ ftlesa muds fo:) yxk;s x;s
vkjksi fl) ik;s x;sA Jh cktis;h }kjk mDr QkbfMaXl ds
laca/k esa fnukad 1-11-2008 dks vH;kosnu izLrqr fd;k x;k tks
larks"ktud ugha ik;k x;kA
vkSj tSlk fd tkWPkdrkZ vf/kdkjh }kjk izLrqr tkWp
fu"d"kZ esa mYysf[kr mDr Vhi dks /;ku esa j[krs gq, v/kh{k.k
vfHk;=k ¼'kgj½ o`Rr] tcyiqj us Jh t; dqekj cktis;h] vfr-
dk;kZy; lgk;d Js.kh&nks dks dEiuh ds jkTkLc dk xcu
tSls xsHkhj dnkpj.k ds vk/kkj ij v/kh{k.k vfHk;ark ¼'kgjo`Rr½
tcyiqj us vius vkns'k dzekad 927&28 fnukad 10-11-2008 ds
rgr e-iz- jkT; fo|qr [email protected] dh lsokvksa ls c[kkZLr
¼fMlfel½ dk vkns'k tkjh fd;k x;kA
vkSj tSlk fd vDr vkns'k ds fo:) Jh t; dqekj
cktis;h] vfrfjDr dk;kZy; lgk;d Js.kh&nks }kjk dh
xbZ vihy ij vf/k{k.k ;a=h 'kgjo`Rr tcyiqj }kjk Hksts x;s
vfHker ,oa izdj.k dk lw{e ijh{k.k djus ds mijkUr
v/kksgLrk{kjdrkZ bl vafre fu"d"kZ ij igqpk gS fd] Jh t;
dqekj cktis;h] vfrfjDr dk;kZy; lgk;d Js.kh&nks ¼c[kkZLr½
ds }kjk n.Mkns'k ds fo:) dh xbZ vihy dks fujLr fd;k
tkuk U;k;ksfpr gksxkA
vr% esa v/kksgLrk{kjdrkZ Jh t; dqekj cktis;h]
vfrfjdr dk;kZy; lgk;d Js.kh&nks ¼c[kkZLr½ }kjk n.Mkns'k
ds fo:) dh xbZ vihy fujLr djus dk vkns'k izlkfjr
djrk gwWA"
36. In view of the aforesaid, it is clear that neither
the Disciplinary Authority nor the Appellate Authority
have discharged their obligation assigning proper reasons
or apply their mind to deal with the situation as to why the
defence taken by the delinquent is not sufficient to hold
him innocent. Here in this case, the statements of customer
namely Naveen Kumar Malhotra and his wife Smt. Renu
Malhotra were produced before the authority in which
they have very categorically stated that the delinquent was
visiting their house continuously to refund the said
amount, i.e. Rs. 1397/- but due to non availability of Shri
Malhotra, the same could not be handed over to them.
37. Thus, this Court has no hesitation to hold that
it is a clear case in which the Disciplinary Authority and
the Appellate Authority acted arbitrarily without applying
their mind, passed the order of dismissal and not taken
note of the defence taken by the employee during course
of disciplinary proceeding. It is also not out of question
and is settled principle of law that not considering the
reply submitted would amount to violation of principles of
natural justice. Thus, in a decision making process,
violation of principles of natural justice is apparent and,
therefore, the order impugned dated 10.11.2008 (Annexure
P/18) passed by the Disciplinary Authority as well as the
order dated 06.10.2009 (Annexure P/22) passed by the
Appellate Authority are not sustainable in the eyes of law
and, therefore, are set aside.
38. It is also pertinent to mention here that during
the pendency of the petition, the petitioner had died.
Therefore, his wife, being the legal heir is entitled to get
all the consequential benefits and retiral dues as if
petitioner was in service till the date of his retirement. The
same be calculated and paid accordingly to the wife of the
deceased petitioner, being his legal heir.
39. The aforesaid exercise be carried out within a
period of three months from the date of receipt of copy of
this order, otherwise the delay will carry interest @8%
over the delayed payment.
40. The petition is accordingly allowed without
there being any order of back wages.
(SANJAY DWIVEDI)
JUDGE
rao
Digitally signed by SATYA SAI RAO
SATYA
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH, ou=HIGH COURT OF MADHYA
PRADESH, postalCode=482001, st=Madhya
Pradesh,
2.5.4.20=fd8212036fdbf89fa7ca6dd1d45561
a7803f38162f693a3cbabf7e416131fa7f,
SAI RAO
pseudonym=6D368848B6731EB999EE2C54F
154A7245187F1E5,
serialNumber=D71B7C71D530E3C544E8EBF
848D8818167BECB37EB09E44776D0667970E
ED1E9, cn=SATYA SAI RAO
Date: 2022.04.29 16:50:30 +05'30'
