Madhya Pradesh High Court
Girdhari Naik vs The State Of Madhya Pradesh on 5 December, 2023
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 5 th OF DECEMBER, 2023
WRIT PETITION No. 449 of 2016
BETWEEN:-
GIRDHARI NAIK S/O ATMARAM NAIK, AGED ABOUT 49
YEARS, OCCUPATION: PRINCIPAL GOVT. HIGHER SEC.
SCHOOL, KARANJA, DISTRICT BALAGHAT (MADHYA
PRADESH)
.....PETITIONER
(BY SMT. SHOBHA MENON - SENIOR ADVOCATE WITH SHRI BALDEEP
SINGH BEDI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY, MANTRALAYA,
VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
2. COMMISSIONER, DIRECTORATE OF PUBLIC
IN STR UCTION S, GAUTAM NAGAR, BHOPAL
(MADHYA PRADESH)
3. DISTRICT EDUCATION OFFICER, SCHOOL
EDUCATION DEPARTMENT, DISTRICT
BALAGHAT, (MADHYA PRADESH)
4. COLLECTOR / DISTRICT MAGISTRATE
COLLECTOR BALAGHAT, DISTRICT BALAGHAT,
(MADHYA PRADESH)
5. CHIEF EXECUTIVE OFFICER, ZILA PANCHAYAT,
B ALAGHAT, DISTRICT BALAGHAT, (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SWAPNIL GANGULY - DY. ADVOCATE GENERAL)
This petition coming on for admission this day, th e court passed the
following:
Signature Not Verified
Signed by: MOHD IRFAN
SIDDIQUI
Signing time: 12/8/2023
10:40:35 AM
2
ORDER
With the consent of the parties, matter is heard finally.
2. By the present petition, the petitioner-Girdhari Naik who was posted as
Principal, Government Higher Secondary School, Karanja, District Balaghat has
prayed for quashment of the suspension order dated 21-22/8/2015 (Annexure-
P-49) and also memorandum of charge-sheet dated 28.9.2015 (Annexure-P-50)
3. It is not in dispute that during the pendency of the petition the suspension
has been revoked and petitioner has been reinstated and he is performing duties
at Government, Girls Higher Secondary School Lanji, District Balaghat and
therefore, only question for consideration in present petition is in respect of the
issuance of charge-sheet. The petitioner has challenge the charge-sheet and
prayed for declaration of the charge-sheet as unjustified, illegal and the entire
action void ab initio.
4. Learned senior counsel vehemently argued that there was a dispute
between the petitioner and a Senior Teacher Ms. Seema Paul and therefore,
both of them lodged a complaint against each other before the various forums.
Ms. Seema Paul lodged a complaint against the petitioner before the
Commissioner, Public Instructions, Bhopal wherein she leveled various
allegations in respect of mental and physical harassment as well as sexual
harassment against the present petition. The present petitioner also passed an
order on 15.3.2015 whereby two annual increments of Ms. Seema Paul without
cumulative effect were withheld. According to the petitioner, she was
transferred from Government Higher Secondary School, Karanja, Block Lanji
District Balaghat to Government Higher Secondary School , Bhanegaon vide
order dated 11.8.2015 passed by District Education Officer, a Committee was
constituted to enquiring of the complaint filed by Ms. Seema Paul against the
present petitioner and inquiry was conducted by the Committee and inquiry
report was submitted on 12.8.2015 wherein allegations against the petitioner of
misbehavior with teachers/employees/clerks/peon were found proved and
consequently, the petitioner was suspended and later on the Commissioner,
Directorate of Public Instructions issued a charge-sheet to the petitioner wherein
the charge of harassment of the subordinates mentally and financially and
passing of order without any authority against Ms. Seema Paul to stop her two
increments without cumulative effect were levelled.
5. In the statement of the charge also these allegations were mentioned and
therefore, the charge-sheet has been issued for serious misconduct by harassing
the subordinates and issuance of order without jurisdiction.
6. Learned senior counsel argued that in respect of the charge of sexual
harassment, the guidelines set up by Apex Court in the matter of Vishakha vs.
State of Rajasthan, reported (1997) 6 SCC 241 should be followed whereas in
the present matter inquiry was not conducted according to the guidelines laid
down by the Apex Court in the matter of Vishakha (supra). The learned senior
counsel further relied upon the judgment of the Apex Court in the matter of
D.S. Grewal vs. Vimmi Joshi and others, reported in (2009) 2 SCC 210 ,
wherein the Apex Court has held that before a disciplinary proceeding is
initiated in a case of the nature of sexual harassment, prima facie finding has to
be arrived as regard to the role of delinquent employee.
7. Learned Dy. Advocate General appearing for the State submitted that in
the charge-sheet, no allegations of sexual harassment has been alleged and
before issuance of charge-sheet an inquiry was conducted and after obtaining
the inquiry report of the Committee and upon the recommendation of the
District Education Officer, the charge-sheet has been issued and therefore, there
is no violation of Vishakha guidelines as well as the order passed in the matter
of D.S. Grewal (supra). However, it is argued that as in the present matter, the
inquiry committee has also not given any opinion in respect of sexual
harassment.
8. In the case of Vishaka vs. State of Rajasthan (supra), for the first time a
detail guidelines were issued by the Apex Court in respect of taking action
against the delinquent employees involved in the sexual harassment of women at
work place. Thereafter, the guidelines were further explained by the Apex Court
in the matter of D.S. Grewal (supra) but the guidelines of Vishakha was issued
in anticipation that the parliament will enact a forceful law prevent the sexual
harassment of women at work place, and therefore, the guidelines were issued
till the legislation is made in this behalf. Thereafter, the Sexual Harassment of
Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 was
passed by the Parliament and came into force on 9.12.2013 wherein a complete
procedure has been prescribed for prevention of sexual harassment and
redressal of the complaints.
9. In the present matter, no complaint was lodged by the Senior Teacher Ms.
Seema Paul, either before the internal complaint committee or before local
complaint committee and in the present matter the allegations of sexual
harassment at work place has not been leveled against the present petitioner in
the charge sheet and consequently the argument of the petitioner that before
issuing of charge-sheet for sexual harassment, the procedure has not been
followed, is not helpful to the petitioner.
10. Learned senior counsel further argued that a charge sheet cannot be issued
upon the allegation of mere inefficiency because the same would not amount to
misconduct within the meaning of M.P. Civil Services (Conduct) Rules, 1965.
Resultantly, no disciplinary action can be initiated against the petitioner. To
bolster this argument, learned senior counsel heavily relied upon the judgment of
the Apex Court passed in the matter of Union of India vs. J. Ahmed reported
in (1979) 2 SC 286, whereby the Supreme Court has held that mere
inefficiency would not amount to misconduct.
11. Learned senior counsel further relied upon the judgment of the Apex Court
passed in the matter of Zunjarrao Bhikaji Nagarkar vs. Union of India and
others, reported in (1999) 7 SCC 409, wherein the Apex Court has held that,
every error of law will not constitute a charge of misconduct, it would impinge
upon the independent functioning of quasi-judicial officers and after considering
the allegations of the charge-sheet, the Apex Court quashed the article of
charge. Learned senior counsel relied upon paras 43 and 44 of the judgment
which reads as under:-
43. If, every error of law were to constitute a charge
of misconduct, it would impinge upon the independent
functioning of quasi judicial officers like the
appellant. Since in sum and substance misconduct is
sought to be inferred by the appellant having
committed an error of law, the charge-sheet on the
face of it does not proceed on any legal premise
rendering it liable to be quashed. In other words, to
maintain any charge-sheet against a quasi judicial
authority something more has to be alleged than a
mere mistake of law, e.g., in the nature of some
extraneous consideration influencing the quasi
judicial order. Since nothing of the sort is alleged
herein the impugned charge-sheet is rendered illegal.
The charge- sheet, if sustained, will thus impinge
upon the confidence and independent functioning of a
quasi judicial authority. The entire system of
administrative adjudication whereunder quasi
judicial powers are conferred on administrative
authorities, would fall into disrepute if officers
performing such functions are inhibited in performing
their functions without fear or favour because of the
constant threat of disciplinary proceedings.
44. Considering whole aspects of the matter, we are
of the view that it was not a case for initiation of any
disciplinary proceedings against the appellant.
Charge of misconduct against him was not proper. It
has to be quashed.
12. Learned senior counsel further relied upon the judgment passed by the
Coordinate Bench in the case of Ajay Kumar Shukla vs. State of M.P. and
others, reported in (2019) 1 M.P.L.J. 426, whereby the coordinate Bench after
relying upon the judgment of J. Ahmed (supra) held that the finding against the
delinquent that he wrongly interpreted the account rules, will not amount to
misconduct until and unless there is an allegation of misappropriation or
misutilization of the amount. It is further decided by the coordinate Bench that
every mistake, error of judgment, lack of efficiency etc. cannot be a reason to
punish somebody. The learned senior counsel argued that the petitioner passed
the order of withholding two increments of Ms. Seema Paul without cumulative
effect by misunderstanding the rules and assuming he was competent to do so,
therefore, the mistake of passing the said order will not fall within the definition
of misconduct.
13. In the said matter, the coordinate Bench held that it will be a clear like noon
day that petitioner was held responsible for wrongly interpreting the rules and in
view of that the petition was allowed and charges were quashed. But in the
present matter, the charge is not for misinterpretation of law or inefficiency but
charge is in respect of passing the order without authority. The charge is in
respect of misbehavior with the subordinates and harassing them mentally and
financially. Therefore, the judgment relied by the learned senior counsel are not
helpful to the petitioner and in view of this court prima facie the charge of
misconduct cannot be quashed.
14. Per contra, learned counsel appearing for the State supported the charge
sheet and argued that the charge sheet was issued after due consideration of
inquiry report and during the inquiry the petitioner duly participated and the
statement of the witnesses were recorded and after considering the same the
Committee has passed the inquiry report on 12.8.2015 and the District
Education Officer recommended for the suspension of the petitioner on
13.8.2015. However, the suspension order has already been revoked. After
considering the inquiry report and taking into consideration the material
collected by the Committee, the charge sheet was issued to the petitioner and
petitioner can very well participate in the departmental enquiry and submitted his
case but the charge sheet cannot be quashed on the ground that the same has
been issued without any basis or prima facie no allegation of misconduct is
made out.
15. Learned counsel for the respondents-State relied on the judgment passed
by the coordinate Bench in W.P. No.27352/2023 (Ashish Mahajan vs. State of
M.P. and others) passed on 1.11.2023, whereby the coordinate Bench has held
that interference can be made if the charge sheet is issued by an incompetent
authority or if the same is highly belated and prima facie no case is made out.
He further relied upon judgment of coordinate Bench in W.P. No.17234/2021
(D.K. Tiwari vs. Union of India and others) passed on 1.12.2021, wherein the
Bench has held that, scope and extend of judicial review and interference in
the charge sheet permissible under Article 226 of the Constitution of India is
limited and it is settled law that issuance of order or suspension or charge
sheet at the instance of the disciplinary authority to conduct an enquiry
cannot be treated as punishment and does not give rise to a cause of action as
no final order is passed at this stage. It is further held that normally, a charge
sheet is not quashed prior to conducting the enquiry on the ground that facts
stated in the charge sheet are erroneous. The legal proposition in this regard
has already been settled by the Supreme Court in a number of decisions that
no writ lies against the charge sheet or show cause notice unless the same is
wholly without jurisdiction or illegal for some other reasons.
16. In the present matter, it is not the case of the petitioner that the authority,
which has issued the charge sheet was not empowered to issue the charge sheet
and the whole arguments is that, no case of misconduct is made out prima
facie.
17. In the matter of Jagdish Baheti vs. High Court of M.P. and others,
reported in 2015(3) M.P.L.J. 172 , the Division Bench has held that a writ
petition against the charge sheet is not maintainable and mere issuance of charge
sheet will not give any cause of action to file the writ petition. Learned counsel
for the respondents heavily relied on the judgement and argued that at this stage
in writ proceedings under Article 226 of the Constitution of India wherein the
disputed question of facts are involved, no interference is warranted. Para 12
and 13 of the judgment reads as under :-
"12. We have taken note of the aforesaid facts only
because of the contention of the learned Senior
Counsel for the petitioner, which we have already
rejected, that there is no prima facie material on
record to justify issuance of a charge-sheet and that
the charge-sheet has been issued by challenging the
correctness of the judicial order passed by the
petitioner which is not permissible. However, in view
of the law laid down by the Supreme Court, this Court
cannot look into the correctness or veracity of the
charges at this stage in writ proceedings under Article
226 of the Constitution of India, which even otherwise
involve highly disputed questions of fact which can
only be decided in the departmental proceedings.
13. At the cost of repetition, we make it further clear
that we have not expressed any opinion on the
correctness or otherwise of the charges levelled
against the petitioner as that is the exclusive domain
of the departmental enquiry but we have taken note of
the aforesaid aspect only because of the contention of
the petitioner in this regard and anything mentioned
by us in this order shall not be treated as an opinion
expressed 12 W.P No.3201/2015 on the correctness or
otherwise of the charges nor would the departmental
authorities be in any way influenced by the same."
18. It is trite law that the scope of judicial interference in departmental enquiry
is very limited. In the present matter, the petitioner and Ms. Seema Paul were
involved in lodging the complaint against each other before various forums. Ms.
Seema Paul leveled the serious allegations against the petitioner and petitioner
passed the order to stop her two increments without cumulative effect. It is not
the case of the petitioner that petitioner was empowered to pass such order .
Meaning thereby the petitioner exercise the jurisdiction,which was not vested in
him and therefore, it is not the matter of interpretation of statute. The
department has constitute a committee to inquire about the allegations. The
committee after inquiry submitted the report and a recommendation was made
to initiate the departmental enquiry against the petitioner and suspend the
petitioner. Subsequently, the petitioner was suspended and a charge sheet was
issued to the petitioner wherein the allegations in respect of misbehavior with the
subordinates and he harassed them mentally and financially and passed the
order without any authority. The suspension was subsequently revoked and the
departmental enquiry is pending.
19. In view of above, I do not deem it proper to quash the charge sheet. The
petitioner may prove his innocence during the Departmental Enquiry. His
suspension has already been revoked and the Presenting Officer will submit the
evidence against the petitioner and the Inquiry Officer will decide the same in
accordance with law. Therefore, this is not a case where the inquiry is
unjustified or without jurisdiction or void ab initio. Consequently, the petition
fails and admission declined.
20. With the aforesaid, the present petition is dismissed. No order as to costs.
(VINAY SARAF)
JUDGE
irf.
