Madhya Pradesh High Court
Rammilan Pandey vs The State Of Madhya Pradesh on 10 February, 2023
Author: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 10TH OF FEBRUARY, 2023
WRIT PETITION NO. 4217/2020
BETWEEN:-
RAMMILAN PANDEY, S/O SHRI HANUMAN RAM
PANDEY, AGED ABOUT 58 YEARS, OCCUPATION-
TERMINATED CONSTABLE, R/O SARAI,
DISTRICT SIDHI, M.P.
......PETITIONER
(BY SHRI VIJAY KUMAR SHUKLA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH,
THROUGH THE SECRETARY, HOME
DEPARTMENT, VALLABH BHAVAN,
BHOPAL, M.P.
2. THE DIRECTOR GENERAL OF POLICE,
POLICE HEAD QUARTER, JAHANGIRABAD,
BHOPAL, DISTRICT BHOPAL, M.P.
3. THE INSPECTOR GENERAL OF POLICE,
POLICE ZONE REWA, DISTRICT REWA, M.P.
4. THE SUPERINTENDENT OF POLICE, SIDHI,
DISTRICT SIDHI, M.P.
.....RESPONDENTS
(BY SHRI GIRISH KEKRE - GOVERNMENT ADVOCATE)
................................................................................................................................................
Reserved on : 02.02.2023
2
Pronounced on : 10.02.2023
This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Court pronounced the following:
ORDER
Learned counsel for the petitioner submits that the matter relates to
termination of the petitioner from service. He submits that the petitioner
was terminated on 30.05.2000. The disciplinary proceedings earlier
challenged by the petitioner by filing a petition and the said petition was
allowed. The matter was remitted back to the disciplinary authority for
further enquiry from the stage of giving show cause to the petitioner by
the disciplinary authority disagreeing with the finding of enquiry officer.
The enquiry was again conducted but in the said enquiry the enquiry
officer also acted as a presenting officer and he has filed a document i.e.
Annexure P/13. He has also pointed out the defect in the decision
making process showing a report of enquiry in which the disciplinary
authority directed the enquiry officer to act in a particular manner or to
cross-examine the witnesses and as such further enquiry was conducted
by the enquiry officer cross-examining the witnesses who had already
been declared hostile. He submits that the enquiry has been conducted in
violation of the procedure as has been prescribed under the Madhya
Pradesh Police Regulations or Madhya Pradesh (Civil Service,
Classification and Control) Rules, 1966. In view of the document i.e.
Annexure P/13, the questionnaire made by the enquiry officer and the
manner in which he examined the witnesses as a presenting officer,
counsel for the petitioner has relied upon a decision reported in 2008 (4)
MPLJ 35 - Ram Prakash Gaya Prasad vs. State of M.P. saying that the
enquiry officer cannot act as a presenting officer because as per the
principle laid down in the said judgment, a person cannot be a judge of
his own cause and accordingly the said manner of enquiry was held to
be illegal by the Court and therefore the whole enquiry is vitiated and
the order dated 31.05.2018 (Annexure P/11) passed by the authority on
the basis of said report terminating the petitioner is also liable to be held
illegal and accordingly deserves to be set aside and the petitioner is also
entitled to get all the consequential benefits.
2. Shri Kekre appearing for the respondents opposed the submission
made by the learned counsel for the petitioner and submits that there is
nothing wrong in the manner in which the enquiry has been conducted.
He submits that since the enquiry officer did not proceed in the matter in
a manner prescribed under the law therefore he was instructed to make a
proper enquiry. Not only this, the disciplinary authority had given a
show cause notice to the petitioner showing his disagreement with the
reasons assigned therein and as such there is nothing illegal in the
manner in which the disciplinary authority proceeded. He submits that
personal hearing was also provided to the petitioner and therefore there
is no violation of principles of natural justice in the decision making
process. He submits that the petitioner has not availed the alternative
remedy of appeal and has directly challenged the order of disciplinary
authority before this Court and as such petition is not maintainable
because the petitioner has an efficacious statutory remedy of appeal.
3. Learned counsel for the respondents/State further submits that if
this Court comes to the conclusion that there is defect in the decision
making process, the matter can be remitted back to the authority to
initiate fresh enquiry from that stage only.
4. On the other hand, Shri Shukla submits that liberty cannot be
granted to the respondents because the petitioner was terminated on
30.05.2000 and since then he is suffering a lot as time and again matter
cannot be remitted back to the disciplinary authority. He submits that on
earlier occasion also the High Court allowed the petition, remitted the
matter to the disciplinary authority but still they have acted arbitrarily
and illegally and therefore under such a circumstance liberty, as prayed
for, cannot be granted to the respondents.
5. Considering the submissions made by the learned counsel for the
parties and after perusal of record, to resolve the issue involved in the
case, it is apt to mention the necessary facts of the case, which in
nutshell are:-
At the relevant point of time the petitioner was a Constable in the
Police Department and when he was posted at Police Station Jiyawan,
District Sidhi, he was found involved alongwith one ASI Shri Parmatma
Singh charging entree fees from the truck drivers in the night of
26.05.1998. They were trapped by the then Superintendent of Police,
Sidhi and the amount collected by them towards the entry fees was also
recovered from them. A preliminary enquiry was conducted on the said
incident and thereafter a charge sheet was also issued to the petitioner
and also to Parmatma Singh jointly on 05.06.1998.
6. One Shri R.L. Prajapati, Additional Superintendent of Police was
appointed as the enquiry officer but no presenting officer was appointed.
The enquiry officer submitted the enquiry report in which the petitioner
was exonerated. The said enquiry report dated 31.12.1998 is available
on record as Annexure P/2. As per the petitioner, the enquiry report
reveals that the statements of witnesses, who were examined during the
course of enquiry, were meticulously considered and then only the
petitioner and other officer i.e. Parmatma Singh were given the clean
chit by the enquiry officer. Thereafter, the said report was forwarded to
the Superintendent of Police Sidhi, who after examining the enquiry
report disagreeing with the same remitted back the same to the enquiry
officer on 23.01.1999 saying that during the course of enquiry his
statement (Superintendent of Police, Sidhi), who was the main
prosecution witnesses of the incident, was not recorded as a prosecution
witness. The Superintendent of Police also directed to submit a report
again after examining the remaining witnesses. Thereafter, enquiry
officer after recording the statement of the Superintendent of Police
again submitted a report on 03.06.1999 (Annexure P/3) in which he
found the charges against Parmatma singh partly proved and fully
proved against the petitioner.
7. Thereafter on the direction of Inspector General of Police enquiry
was ordered again directing that the witnesses who were declared hostile
they be again examined as on earlier occasion the enquiry officer did not
examine them properly. Shri K.C. Agrawal, Additional Superintendent
of Police, Waidhan was appointed as a new enquiry officer, who again
conducted an enquiry and submitted his report on 19.02.2000 (Annexure
P/4) in which also the petitioner was found guilty as the charges levelled
against him were found fully proved. Thereafter, on 30.05.2000
(Annexure P/5) final order was passed terminating services of the
petitioner. The petitioner preferred an appeal against the said order of
termination, which was also dismissed on 22.02.2001 (Annexure P/6).
8. Challenging the order passed by the disciplinary authority and
also by the appellate authority, the petitioner preferred a writ petition,
which was registered as WP No. 17067/2003. The said writ petition was
allowed setting aside the orders dated 30.05.2000 and 22.02.2001 and
the matter was remitted back to the disciplinary authority directing him
to communicate the petitioner the reasons for disagreeing with the
findings of enquiry officer and provide an opportunity of hearing to the
petitioner.
9. In pursuance to the order passed in the said writ petition, the
disciplinary authority issued a show cause notice to the petitioner on
08.04.2018 (Annexure P/8) directing him to submit his reply to the said
show cause notice within a period of 10 days. The petitioner submitted
reply to the said show cause notice denying the allegations made
therein. Thereafter, vide letter dated 27.04.2018 (Annexure P/4) the
petitioner was also given a personal hearing. The disciplinary authority
i.e. Inspector General of Police passed the impugned order dated
31.05.2018 (Annexure P/11) inflicting punishment of removal from
service upon the petitioner.
10. The petitioner has filed a rejoinder alongwith the documents
showing that in the third round of enquiry when Shri K.C. Agrawal was
appointed as an enquiry officer there was no presenting officer and Shri
Agrawal acted as a presenting officer also and cross-examined the
witnesses and therefore the report of the said enquiry is contrary to law
as the enquiry officer cannot act as a presenting officer because a person
cannot be a good judge of his own cause.
11. To validate his case, the petitioner has placed reliance in the cases
of Ram Prakash Gaya Prasad (supra) and also in the case of K.C.
Bhargava vs. State of M.P. - 2012 (4) MPLJ 244. The said cases have
been considered by the High Court in the case of Sujat Kabir s/o Abdul
Wahid vs. State of M.P. & others - WP No. 2201/2008 decided on
18.03.2019.
12. Respondents have filed their reply taking stand therein that the
scope of interference in the matter of disciplinary proceeding is very
limited for the High Court because in the present case proper
opportunity of hearing was provided to the petitioner and after
examining the witnesses, the enquiry officer reached the conclusion that
the charges levelled against the petitioner were found fully proved and
therefore the disciplinary authority inflicted the punishment of dismissal
from service upon the petitioner and that order was approved by the
appellate authority. There is nothing wrong in the action taken and the
procedure adopted by the respondents and hence the petition is without
substance and deserves to be dismissed.
13. Considering the submissions made by the learned counsel for the
parties and after perusal of record it is clear that the documents filed
alongwith the rejoinder show that the disciplinary authority appointed
Shri K.C. Agrawal, Additional Superintendent of Police as an enquiry
officer directing him to cross-examine the witnesses who were declared
hostile and as such he not only cross-examined the witnesses but also
acted as a presenting officer and as such in the third round of enquiry
nobody was acting as a presenting officer. In this regard, in almost
similar circumstances, the High Court in the case of Sujat Kabir (supra)
relying upon the cases of K.C. Bhargava and Ram Prakash Gaya
Prasad (supra) has held as under:-
"9. In these case, no Presenting Officer was appointed
and the inquiry was initiated by the Enquiry Officer as
Presenting Officer to present the case of prosecution,
therefore, this Court has quashed the entire
proceedings.
10. In the case of Ram Prakash (Surpa) para 6 to 12 are
relevant, which reads as under :-
"6.The petitioner has raised various grounds
before this Court assailing the order of reversion
and the order passed by the appellate authority. It
has been urged by the petitioner that no Presenting
Officer was appointed by the disciplinary
authority and the Enquiry Officer himself has
acted as the Presenting Officer conducting the
chief examination of prosecution witnesses and
cross-examination the defence witnesses. The
Enquiry Officer himself has conducted the
examination and cross-examination of the
petitioner.
7. From the bare perusal of the enquiry
proceedings which took place before the Enquiry
Officer, it is evident that the Enquiry Officer has
acted as the Presenting Officer conducting the
chief examination of the prosecution witnesses as
well as cross-examination of the defence
witnesses. The enquiry has been conducted
examining and cross-examining the delinquent
Government servant by the Enquiry Officer.
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 article 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. It 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 recognized 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 led 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 on 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 not a case where the
Enquiry Officer in the absence of the Presenting
Officer has simply put clarificatory questions to
the delinquent government servant.
12. Thus, in the present case, the Enquiry Officer
has acted as the Presenting Officer which is
evident from the departmental enquiry
proceedings, and therefore, relying upon the
principle laid down by a Division Bench of this
Court in the case of Union of India through its
Secretary, Ministry of Railway, New Delhi and
others (supra) and adverting to the sacred principle
that no man can be a good judge of his own cause,
the enquiry proceedings stand vitiated.
Resultantly, the order of reversion dated 29th
November, 1997 (Annexure A/13) passed by the
disciplinary authority and the order passed by the
appellate authority dated 5th February, 1998
(Annexure A/14) are quashed. However, the
respondents are free to resume the enquiry
proceedings from the stage of appointing the
Presenting Officer and conclude the disciplinary
proceedings initiated against the petitioner in
accordance with law."
11. Similar view has also been taken by this Court in
K.C. Bhargava (Supra) in para 10 and 11, which reads
thus :
"10 : Learned counsel for the petitioner putting his
reliance heavily in the case of Mohd. Yunus Khan
Vs. State of Uttar Pradesh and others [(2010) 10
SCC 539], contended that in view of such facts,
the bias of the authorities initiating disciplinary
proceedings against the petitioner were proved. It
is further submitted by learned counsel for the
petitioner that imposing the punishment by
holding a disciplinary proceedings is in fact in the
nature of quasi judicial proceedings and though
the technical Rules of Code of Civil Procedure and
Evidence Act are not applicable, but the principles
of natural justice are required to be observed. It is
contended that there was flagrant violation of the
Rules of natural justice and, as such, the order
impugned was bad in law. Further, placing
reliance in the case of Balveer Singh Vs. State of
M.P. and others [2010(2) M.P.H.T. 374], it is
contended that if there is violation of the
provisions of the Rules and the Eqnuiry Officer
has acted as Presenting Officer as well as Enquiry
Officer, the enquiry proceedings are vitiated and,
as such, the penalty could not have been imposed
on the petitioner. This Court in the case of Balveer
Singh (supra) has examined the procedure laid
down under the Rules and has also examined
whether could it be said that by not appointing the
Presenting Officer any illegality was committed or
not. Placing reliance in the case of Shishir Raizada
Vs. Union of India and others [2008 (2) MPWN
59], this Court has held that the Presenting Officer
appointed under Rule 14(5)(c) of the CCA Rules,
is in fact a person appointed like prosecutor and a
person who has to prove the misconduct before the
Enquiry Officer. It is the Presiding Officer, who
conducts the chief examination of the prosecution
witnesses as well as the 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. Thus, the opinion is expressed
by this Court that in case the Presenting Officer is
not appointed and the Enquiry Officer has
conducted the chief examination and has
conducted the cross examination of defence
witnesses as well as cross examination of the
delinquent Government servant, the Enquiry
Officer in fact has played the role of the
prosecutor. The principles laid down by the
Division Bench of this Court in the case of Union
of India through its Secretary Ministry of Railway,
New Delhi and others Vs. Mohd. Nasim Sidduqui
(2005 LLJ 331) are that the Enquiry Officer is in
the position of a judge and shall not act as a
Presenting Officer who is in the position of a
prosecutor. However, it is not necessary for the
disciplinary authority to appoint the Presenting
Officer in each and every case and to ascertain
whether the Enquiry Officer has in fact acted as
the Presenting Officer or not, the proceedings of
enquiry are required to be examined with
reference to the manner in which the evidence is
led and recorded in the enquiry. 11: For the
aforesaid purposes, again the enquiry record is
required to be examined. As has been referred
hereinabove, the enquiry officer has noted down
the fact relating to calling the petitioner to take
part in the enquiry. As far as the evidence is
concerned, it appears that examination in chief
was done by the Enquiry Officer himself. The
witness examined by the disciplinary authority had
proved the documents with respect to issuing the
orders to the petitioner, but could not explain
whether any communication was sent to the
petitioner rejecting his application for grant of
leave or not. Same was the situation with respect
to the other person examined as a witness. The
defence witnesses were examined by the petitioner
and they were cross examined by the Enquiry
Officer. This itself is enough to demonstrate that in
fact the Enquiry Officer himself has acted as the
prosecutor. The enquiry proceedings were thus
vitiated."
14. I have heard arguments advanced by the learned counsel for the
parties and perused the documents filed alongwith the petition, reply and
also alongwith the rejoinder. From a perusal of the enquiry proceedings,
it is evident that Shri K.C. Agrawal was appointed as an enquiry officer
asking him to cross-examine the witnesses, who were declared hostile,
but no separate presenting officer was appointed and Shri Agrawal
himself acted as a presenting officer conducting the chief examination of
the prosecution witnesses as well as cross-examination of prosecution as
well as defence witnesses. The enquiry was conducted examining and
cross-examining the delinquent government servants by the enquiry
officer himself. It is also apt to mention here that where the disciplinary
authority itself enquires into any article of charge or appoints an enquiry
officer for holding an enquiry into such charge, the said authority should
appoint a presenting officer. It is the presenting officer who conducts the
chief examination of the prosecution witnesses as well as cross-
examination of the defence witnesses. The presenting officer also
conducts the cross-examination of the delinquent government servant in
order to arrive at a finding of guilt or innocence. In the present case,
after going through the record minutely, it is evident that the enquiry
officer had conducted the enquiry, chief examination of the prosecution
witnesses and also the cross-examination of the defence witnesses and
also cross-examined the petitioner and other officer i.e. Parmatma Singh
and hence the enquiry conducted by him is vitiated. It is to be mentioned
here that if an enquiry officer acts as an enquiry officer as well as
presenting officer, it depends on the facts of each case. But the situation
in the present case is altogether is different.
15. It is also relevant to mention here that in the present case the
charges levelled upon the petitioner and Parmatma Singh were same and
the witnesses were also the same but the punishment inflicted upon both
the delinquent employee is different because Parmatma Singh has been
punished with a minor penalty whereas the petitioner has been punished
with a major penalty of removal from service, which is not permissible
under the law. Under such circumstances, the Supreme Court in the case
of Tata Engineering & Locomotive Co. Ltd. vs. Jitendra Pd. Singh and
another reported in (2001) 10 SCC 530 has held and observed that such
order of punishment is not permissible under the law because it clearly
indicates that the employee has been discriminated and therefore the
order under challenge in my opinion is not sustainable in the eyes of law
and is liable to be set aside. The Supreme Court in the said case has held
and observed as under :-
"2. On an enquiry being held, the enquiry authority
found that the allegation of misconduct is proved and
the disciplinary authority on consideration of the
report of the enquiry authority and the other relevant
material dismissed the first respondent from service.
Thereafter, a reference to the Labour Court at the
instance of the first respondent was made. The Labour
Court though held on a preliminary question that the
disciplinary enquiry conducted against the first
respondent is valid came to the conclusion after
perusing the documentary and oral evidence on record
that the dismissal was not justified and held that he
was entitled to reinstatement with full back wages
with continuity in service and other consequential
benefits. A writ petition was filed in the High Court
which was allowed but on the basis of certain offer
made, the learned Single Judge also directed that the
appellant shall pay to the first respondent salary from
the date of discharge till the date of the order in a
lump sum of Rs 50,000. Thereupon both the
management and the workman filed two appeals. In
the appeals, several questions were raised as to
whether the act attributed to the first respondent would
amount to misconduct at all which will entail a
disciplinary enquiry at the instance of the management
to end up with his dismissal; strong reliance was
placed on Glaxo Laboratories (1) Ltd. v. Presiding
Officer, Labour Court, Meerut [(1984) 1 SCC 1 : 1984
SCC (L&S) 42 : (1984) 1 SCR 230] . Ultimately,
however, the two learned Judges were agreed on one
aspect of the matter that the question, whether on
misconduct attributed to the workman there should
have been causal connection between misconduct and
employment of the workman may not be of much
significance when such acts have taken place within
the premises of the factory, should be decided in an
appropriate case. What influenced the Court in
deciding the matter is that:
"Since as many as three workmen on almost
identical charges were found guilty of
misconduct in connection with the same incident,
though in separate proceedings, and one was
punished with only one month's suspension, and
the other was ultimately reinstated in view of the
findings recorded by the Labour Court and
affirmed by the High Court and the Supreme
Court, it would be denial of justice to the
appellant if he alone is singled out for
punishment by way of dismissal from service."
3. As the judgment is rested upon this position,
whatever other views may have been expressed in the
course of the judgment may be of no significance. In
that view of the matter, we think there is no need to
interfere with the order made by the High Court, that
too in a proceeding arising under Article 136 of the
Constitution. Hence we decline to interfere with the
order made by the High Court. The appeals are
dismissed accordingly.
16. In view of the discussion made herein above and also the law laid
down by the High Court as well as the Supreme Court in the cases cited
above, this Court has no hesitation to hold that the whole enquiry is
vitiated as the procedure adopted in conducting the enquiry is contrary
to law and the authority has also not followed the principles of natural
justice and there is material illegality in not appointing a presenting
officer for conducting the departmental enquiry.
17. Ex-consequentia, this petition is allowed. The impugned order
dated 31.05.2018 (Annexure P/11) passed by the respondent No. 3 is
hereby set aside. The respondents are directed to grant all consequential
benefits to the petitioner.
18. At this juncture, considering the fact that the petitioner is facing
the departmental proceedings since 1998 and the order of punishment
was finally passed in the year 2000, now after 22 years this Court does
not deem it appropriate to remit the matter back to the disciplinary
authority for conducting enquiry again because thrice it has been done
but still enquiry suffers from principles of natural justice.
19. In view of the facts and circumstances of the case, there shall be
no order as to costs.
(SANJAY DWIVEDI)
JUDGE
Raghvendra
RAGHVENDRA
SHARAN SHUKLA
2023.02.11
16:16:49 +05'30'
