Madhya Pradesh High Court
Satish Kumar Raghuwanshi vs The State Of Madhya Pradesh on 1 December, 2023
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 1 st OF DECEMBER, 2023
WRIT PETITION No. 17749 of 2012
BETWEEN:-
SATISH KUMAR RAGHUWANSHI S/O LATE SHRI
SITARAM RAGHUWANSHI, AGED ABOUT 40 YEARS,
OCCUPATION: EX CONSTABLE GRP QURTRS, BALI
BAZAR, ITARSI (MADHYA PRADESH)
.....PETITIONER
(BY SHRI S.K. PATHAK - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH PRINCIPAL
SECRETARY MINISTRY OF HOME AFFAIRS
CENTRAL INDUSTRIAL SECURITY FORCE
(MADHYA PRADESH)
2. DIRECTOR GENERAL OF POLICE POLICE HEAD
QUARTER, BHOPAL. (MADHYA PRADESH)
3. INSPECTOR GENERAL OF POLICE POLICE HEAD
QUARTER, BHOPAL,M.P. (MADHYA PRADESH)
4. SUPERINTENDANT OF POLICE BEHIND CENTRAL
JAIL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MANAS MANI VERMA - GOVT. ADVOCATE)
Th is petition coming on for hearing this day, the Court passed the
following:
ORDER
The petitioner has filed this petition while praying for the following
reliefs:-
"(i) Quash the penalty over (Annexure -P/5), passed by
respondent No. 4;
(ii) Quash the order rejecting appeal (Annexure - P/7),
passed by respondent No. 3 and also order rejecting mercy petition
(Annexure -P/9), passed by respondent No. 2.
(iii) Direct the respondent to reinstate the petitioner back in
service with all consequential benefits including back wages;
(iv) Award the cost of instant litigation;"
(v) and any other relief may also be given which this
Hon'ble Court may deem fit and proper in the facts and
circumstances of the case.
2 ) The facts, as detailed in the petition, reflect that the petitioner was
posted as Constable in GRP, Line Bhopal. The petitioner was served with a
charge-sheet vide Annexure P-1, by which two charges were levelled against the
petitioner. The first charge, pertained to unauthorized absence for a period of
72 days and the second charge was pertaining to the conduct of the petitioner in
habitually remaining absent from duty on number of occasions in past as well.
Pursuant to charge-sheet, an enquiry was conducted. During conduct of
enquiry, no Presenting Officer was appointed and the Enquiry Officer himself
proceeded to examine the prosecution witnesses as well as defence witnesses
and thereafter submitted an enquiry report, in which both the charges were
found to be proved and resultantly on the basis of the said enquiry report, the
petitioner was confronted with the order of penalty by which the petitioner was
retired compulsorily and the period of 72 days was treated on the principle of
"no work no pay".
3) The petitioner preferred an appeal before the Appellate Authority and a
specific ground was taken that no Presenting Officer was appointed and
therefore, the enquiry got vitiated. The Appellate Authority vide impugned
(Annexure P-7), dismissed the appeal. Thereafter a mercy petition was also filed
by the petitioner, which was also dismissed vide order Annexure P-9. Thus,
assailing the original order as well as order passed by the Appellate Authority,
this petition has been filed.
4) The counsel for the petitioner contends that the impugned orders are
liable to be quashed, inasmuch as, in the present case, no Presenting Officer
was appointed and the Enquiry Officer himself proceeded to examine the
prosecution as well as defence witnesses. It is also contended that the Enquiry
Officer under the garb of examination-in-chief, cross-examined the petitioner,
which is evident from the testimony recorded during conduct of enquiry. The
Enquiry Officer further proceeded to examine the other witnesses including the
defence witnesses and thereafter submitted the enquiry report. Accordingly, as
no Presenting Officer was appointed, the impugned orders are unsustainable in
view of the law laid down by this Court in Ramesh Chand Rathore Vs. State
of M.P. & others - 2010 (3) MPHT 32 wherein this Court while dealing with
the identical circumstances, quashed the impugned order of penalty. The
counsel has also placed reliance on the decision of this Court in Ram Prakash
Gaya Prashad Vs. State of M.P. and others - 2008 (4) MPLJ 35 . Thus, it
is submitted that on this count alone, the impugned orders are liable to be
quashed.
5) Per contra, the counsel for the respondents submits that the petitioner
has been found a habitual defaulter, inasmuch as, on previous occasions also he
remained unauthorisedly absent and again the said conduct is repeated by the
petitioner. As petitioner without any intimation proceeded on leave for 72 days,
therefore, the petitioner was rightly confronted with the disciplinary action,
which has ensued in passing of the impugned order. It is further contended that
the petitioner being a member of disciplined force, could not have acted in such
a manner. Unauthorised absence by a member of disciplined force is
considered to be a serious misconduct and thus, while taking into note of the
said aspect, the order impugned has been passed. It is further contended that in
the memorandum of appeal no specific ground was taken recourse to by the
petitioner as regard appointment of the Presenting Officer and, therefore, the
said issue cannot be agitated at this stage. The counsel for the respondent
further contended that Authority has also taken into consideration the past
conduct of the petitioner and, therefore, the impugned order requires no
interference.
6) No other point is argued or pressed by the counsel for the parties.
7) Heard the submissions advanced on behalf of the parties and perused
the record.
8 ) On perusal of record, it reflects that the petitioner herein, who was
working as Constable with the respondents, was served with a charge-sheet,
wherein following two charges were levelled against the petitioner:-
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9 ) On perusal of aforesaid charges, it reflects that the charges were
pertaining to unauthorised absence from the duty. According to the department,
the petitioner remained unauthorisedly absent from the duty for a period of 72
days and the another charge was pertaining to past conduct of the petitioner, on
account of which identical allegations were levelled against the petitioner. The
Enquiry Officer, so appointed, proceeded to conduct the enquiry. No
Presenting Officer was appointed to substantiate the charges against the
petitioner and the Enquiry Officer himself ventured upon to examine all the
prosecution as well as defence witnesses and later on, submitted the enquiry
report, on the basis of which the impugned order has been passed by the
Authority.
1 0 ) It is evident that the Enquiry Officer himself examined the
prosecution as well as defence witnesses and concluded that the charges were
proved against the petitioner. It is further evident from the perusal of the enquiry
report that the present petitioner was also examined by the Enquiry Officer
exhaustively. Though the cross examination is styled as examination-in-chief but
it is evident that the petitioner/delinquent was examined as if he was being
cross-examined in questions and answers form. It is a case where the Enquiry
Officer has acted as the Presenting Officer, therefore, in the considered view of
this Court the enquiry in the present case got vitiated.
11) This Court in the case Ram Prakash Gaya Prashad (supra) in
Para 8, 9, 10 and 11 has held has under:-
"8. Rule 14 of the CCA Rules of 1966 provides procedure
for imposing penalties. Relevant Rule 14(5)(c) reads as under:-
"Where the Disciplinary Authority itself inquires into any
article of charge or appoints an Inquiring Authority for holding an
inquiry into such charge, it may, by an order, appoint a
Government servant or a legal practitioner, to be known as the
"Presenting Officer" to present on its behalf the case in support of
the articles of charge."
9. The Presenting Officer appointed under Rule 14(5) (c) of
the CCA Rules of 1966 is in fact is a person appointed like a
prosecutor and the person has to prove the misconduct before the
Enquiry Officer. It is the Presenting Officer who conducts the chief
examination of the prosecution witnesses as well as cross-
examination of the defence witnesses. It is again the Presenting
Officer who conducts the cross-examination of the delinquent
Government servant in order to arrive at a finding of guilt. In the
present case, after going through the record minutely, it is evident
that the Enquiry Officer has conducted the chief examination and
he has conducted the cross-examination of the defence witnesses as
well as cross-examined the delinquent Government servant. Thus,
the Enquiry Officer himself has played the role of the prosecutor.
10. A Division Bench of this Court in the case of Union of
India through its secretary, Ministry of Railway, New Delhi and
others Vs. Mohd. Naseem Siddiqui, 2005(1) LLJ 931 in Paragraph
16 has held as under:-
We may summarise the principles thus:-
(i) The Inquiry Officer, who is in the position of a Judge
shall not act as a Presenting Officer, who is in the position of a
prosecutor,
(ii) It is not necessary for the Disciplinary Authority to
appoint a Presenting Officer in each and every inquiry. Non-
appointment of a Presenting Officer, by itself will not vitiate the
inquiry.
(iii) The Inquiry Officer, with a view to arrive at the truth or
to obtain clarifications can put questions to the prosecution
witnesses as also the defence witnesses. In the absence of a
Presenting Officer, if the Inquiry Officer puts any questions to the
prosecution witnesses to elicit the facts, he should thereafter permit
the delinquent employee to cross-examine such witnesses on those
clarifications.
(iv) If the Inquiry Officer conducts a regular examination-
in-chief by leading the prosecution witnesses through the
prosecution case, or puts leading questions to the departmental
witnesses pregnant with answers, or cross-examines the defence
witnesses or puts suggestive questions to establish the prosecution
case employee, the Inquiry Officer acts as prosecutor thereby
vitiating the inquiry.
(v) As absence of a Presenting Officer by itself will not
vitiate the inquiry and it is recognised that the Inquiry Officer can
put questions to any or all witnesses to elicit the truth, the question
whether an Inquiry Officer acted as a Presenting Officer, will have
to be decided with reference to the manner in which the evidence is
let in any recorded in the inquiry.
Whether an Inquiry Officer has merely acted only as an
Inquiry Officer or has also acted as a Presenting Officer depends
ion the facts of each case. To avoid any allegations of bias and
running the risk of inquiry being declared as illegal and vitiated,
the present trend appears to be to invariably appoint Presenting
Officers, except in simple cases. Be that as it may.
11. In the present case, it is evident from a perusal of the
enquiry proceedings that no Presenting Officer was appointed by
the Disciplinary Authority. The evidence on behalf of the
Disciplinary Authority has been presented by the Enquiry Officer,
by conducting a regular examination-in-chief of prosecution
witnesses by taking them through the prosecution case. The
Enquiry Officer has also conducted in the present case regular
cross-examination of the defence witnesses. The Enquiry Officer
has also conducted the cross-examination of the delinquent
Government servant. It is also case where the Enquiry Officer in
the absence of the Presenting Officer has simply put clarificatory
questions to the delinquent Government servant. "
12) The judgment of Ram Prakash Gaya Prashad (supra) was further
considered by this Court in Ramesh Chand Rathore (supra), wherein this
Court has held that in Para 6 as under :-
"6. Keeping in view the judgment delivered by this Court
and also keeping in view the record relating to Departmental
Enquiry proceedings, it is evident that the Inquiry Officer has in the
present case conducted regular cross-examination of witnesses and
he has also conducted the cross-examination of the delinquent
Government servant. It is not a case where the Inquiry Officer has
simply asked clarificatory questions to the delinquent Government
servant. Meaning thereby, the Inquiry Officer, has assumed the role
of the prosecutor while acting as a Judge in the Departmental
Enquiry proceedings."
13) If the impugned order is examined while keeping in view the law laid
down by this Court in the aforesaid cases, it is evident that the entire
proceedings got vitiated on account of the fact that the Enquiry Officer himself
acted as Presenting Officer and examined the prosecution as well as defence
witnesses, therefore as the said irregularity goes to the root of the matter, in the
considered view of this Court, such proceedings could not have been ensued in
passing of order of imposing major penalty of compulsory retirement.
14) Accordingly, the impugned orders dated 30.6.2010 (Annexure P-5)
and 12.10.2010 (Annexure P-7) and 15.3.2012 (Annexure P-9) stand quashed.
The petitioner is directed to be reinstated in service within 30 days. The
petitioner shall not be entitled for any backwages. However, this order shall not
come in the way of the respondents, if the respondents proceed afresh against
the petitioner while ensuring adherence to the procedure in accordance with law.
15) With the aforesaid, the petition stands allowed to the extent indicated
hereinabove. No costs.
(MANINDER S. BHATTI)
JUDGE
PB
