Madhya Pradesh High Court
Tomesh Maneshwer vs Manniya M.P. Uccha Nyayalaya on 12 January, 2023
Author: Vishal Mishra
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 12th OF JANUARY, 2023
WRIT PETITION No. 12071 of 2022
BETWEEN:-
TOMESH MANESHWER S/O SHRI SEVAKRAM
MANESHWER, AGED ABOUT 30 YEARS,
OCCUPATION: SHASKIYA NAUKAR, R/O WARD NO.
19, GARRA, DISTRICT BALAGHAT (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI ABHISHEK SHARMA - ADVOCATE)
AND
1. MANNIYA M.P. UCCHA NYAYALAYA DWARA
SHRI MAAN REGISTRAR GENERAL
MAHODAYA M.P. UCCHA NYAYALAYA
JABALPUR (MADHYA PRADESH)
2. SHRIMAN PRADHAN JILA EVAM SATRA
NYAYADHEESH KARYALAYA PRADHAN JILA
EVAM SATRA NYAYADHEESH BALAGHAT
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ASHISH SHROTI - ADVOCATE)
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This petition coming on for admission this day, Hon'ble Shri
Justice Vishal Mishra, passed the following:
Signature Not Verified
Signed by: SUSHEEL
KUMAR JHARIYA
Signing time: 1/19/2023
3:58:14 PM
2
ORDER
The present petition has been filed assailing the order dated
26.04.2022 passed by the authorities rejecting an application filed under
Rule 14(8) of the Madhya Pradesh Civil Services (Classification, Control
and Appeal) Rules, 1966 (for short 'the Rules of 1966').
2. It is the case of the petitioner that he is a Class-IV employee
working in the office of Principal District and Sessions Judge, Balaghat
and presently posted under the Civil Judge, Junior Division, Baihar. With
respect to working of the petitioner, a complaint was made by the
Presiding Officer of the Court to the District and Sessions Judge,
Balaghat. Initially a show cause notice was issued, which was duly
replied by him, but when again a complaint was made by the Presiding
Officer, a decision was taken to initiate a departmental enquiry against
the petitioner. It is his case that without considering the reply submitted
by him pointing out several difficulties and harassment which have been
faced by him, the authorities have taken a decision for initiation of the
departmental enquiry, which is subject to challenge in the writ petition.
3. During the course of the departmental enquiry, the petitioner filed
an application under Section 14(8) of the Rules of 1966 seeking
permission to enable him to arrange for defence assistance which has
been rejected by the authorities. It is his case that he is having a statutory
right in terms of the Rule 14 of the Rules of 1966. Therefore, rejection of
the application is per se illegal. He has placed reliance upon a judgment
dated 14.12.2021 passed by the Division Bench of this Court in the case
of Deenbandhu Saket vs. State of Madhya Pradesh and others (Writ
Petition No.22576 of 2021) wherein a similar question was raised before
the Division Bench and the writ petition was disposed off by permitting
the petitioner therein for his defense assistance. Apart from challenging
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Signed by: SUSHEEL
KUMAR JHARIYA
Signing time: 1/19/2023
3:58:14 PM
the departmental enquiry, the rejection order passed by the Enquiry
Officer is also put to challenge in the present writ petition.
4. Per contra, learned counsel appearing for the respondents has
supported the impugned order stating therein that looking to the facts and
circumstances of the case and as per settled legal proposition with respect
to interference in a departmental enquiry, no relief can be extended to the
petitioner. The petitioner is having right to participate in the departmental
enquiry. He can even cross-examine the witnesses and can also lead
defence witnesses. Placing reliance upon the judgments of the Hon'ble
Supreme Court in the cases of Union of India and others Vs. Dalbir Singh
reported in (2021) 11 SCC 321, Union of India and others vs. P.
Gunasekaran reported in (2015) 2 SCC 610 and in the case of Union of
India and another Vs. Kunishetty Satyanarayan reported in (2006) 12
SCC 28 he has prayed for rejection of the relief with respect to quashment
of the departmental enquiry and the charge-sheet.
5. As far as the claim of the petitioner with respect to liberty to
arrange for defence assistance is concerned, he has supported the
impugned order passed by the authorities and contends that the authorities
have rightly considered the application and rejected the same. It is
submitted that the employee is free to produce all relevant material in
support of his case but as far as grant of legal assistance is concerned, he
may not be permitted to engage any counsel for the same and has
supported the impugned order. Hence, he has prayed for dismissal of the
writ petition.
6. Heard the learned counsels for the parties and perused the record.
7. Law with respect to challenge to the departmental enquiry and the
charge sheet is settled by the Hon'ble Supreme Court in large numbers of
judgments. The Hon'ble Supreme Court in the case of P. Gunasekaran
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Signed by: SUSHEEL
KUMAR JHARIYA
Signing time: 1/19/2023
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(supra) has laid down guidelines regarding interference in cases of
departmental enquiry holding as under:-
"12. Despite the well-settled position, it is painfully disturbing to
note that the High Court has acted as an appellate authority in
the disciplinary proceedings, reappreciating even the evidence
before the enquiry officer. The finding on Charge I was accepted
by the disciplinary authority and was also endorsed by the
Central Administrative Tribunal. In disciplinary proceedings, the
High Court is not and cannot act as a second court of first
appeal. The High Court, in exercise of its powers under Articles
226/227 of the Constitution of India, shall not venture into
reappreciation of the evidence. The High Court can only see
whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in
that behalf;
(c) there is violation of the principles of natural justice in
conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair
conclusion by some considerations extraneous to the evidence
and merits of the case;
(e) the authorities have allowed themselves to be influenced by
irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and
capricious that no reasonable person could ever have arrived at
such conclusion;
(g) the disciplinary authority had erroneously failed to admit the
admissible and material evidence;
(h) the disciplinary authority had erroneously admitted
inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High
Court shall not:
(i) reappreciate the evidence;
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Signed by: SUSHEEL
KUMAR JHARIYA
Signing time: 1/19/2023
3:58:14 PM
(ii) interfere with the conclusions in the enquiry, in case the same
has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings
can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its
conscience."
8. The aforesaid aspect was again considered by the Hon'ble Supreme
Court in the case of Dalbir Singh (supra) wherein, it is held as under:-
"24.........held that the degree of proof which is necessary to
order a conviction is different from the degree of proof
necessary to record the commission of delinquency. In
criminal law, burden of proof is on the prosecution and
unless the prosecution is able to prove the guilt of the
accused beyond reasonable doubt, he cannot be convicted
by a court of law. In a departmental enquiry, on the other
hand, penalty can be imposed on the delinquent officer on a
finding recorded on the basis of preponderance of
probability. It was held as under:
11. As far as acquittal of the appellant by a
criminal court is concerned, in our opinion, the said
order does not preclude the Corporation from taking an
action if it is otherwise permissible. In our judgment,
the law is fairly well settled. Acquittal by a criminal
court would not debar an employer from exercising
power in accordance with the Rules and Regulations in
force. The two proceedings, criminal and departmental,
are entirely different. They operate in different fields
and have different objectives. Whereas the object of
criminal trial is to inflict appropriate punishment on the
offender, the purpose of enquiry proceedings is to deal
with the delinquent departmentally and to impose
penalty in accordance with the service rules. In a
criminal trial, incriminating statement made by the
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Signed by: SUSHEEL
KUMAR JHARIYA
Signing time: 1/19/2023
3:58:14 PM
accused in certain circumstances or before certain
officers is totally inadmissible in evidence. Such strict
rules of evidence and procedure would not apply to
departmental proceedings. The degree of proof which is
necessary to order a conviction is different from the
degree of proof necessary to record the commission of
delinquency. The rule relating to appreciation of
evidence in the two proceedings is also not similar. In
criminal law, burden of proof is on the prosecution and
unless the prosecution is able to prove the guilt of the
accused beyond reasonable doubt, he cannot be
convicted by a court of law. In a departmental enquiry,
on the other hand, penalty can be imposed on the
delinquent officer on a finding recorded on the basis of
preponderance of probability. Acquittal of the appellant
by a Judicial Magistrate, therefore, does not ipso facto
absolve him from the liability under the disciplinary
jurisdiction of the Corporation. We are, therefore,
unable to uphold the contention of the appellant that
since he was acquitted by a criminal court, the
impugned order dismissing him from service deserves
to be quashed and set aside.
25.... .... .... ....
8. ......The purpose of departmental inquiry and of
prosecution are two different and distinct aspects. The
criminal prosecution is launched for an offense for violation
of a duty, the offender owes to the society or for breach of
which law has provided that the offender shall make
satisfaction to the public. So crime is an act of commission
in violation of law or of omission of public duty. The
departmental inquiry is to maintain discipline in the service
and efficiency of public service. It would, therefore, be
expedient that the disciplinary proceedings are conducted
and completed as expeditiously as possible. It is not,
therefore, desirable to lay down any guidelines as inflexible
rules in which the departmental proceedings may or may
not be stayed pending trial in the criminal cases against the
delinquent officer. Each case requires to be considered in
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Signed by: SUSHEEL
KUMAR JHARIYA
Signing time: 1/19/2023
3:58:14 PM
the backdrop of its own facts and circumstances. There
would be no bar to proceed simultaneously with
departmental inquiry and trial of a criminal case unless the
charge in the criminal trial is of grave nature involving
complicated questions of fact and law. Offense generally
implies infringement of public duty, as distinguished from
mere private rights punishable under criminal law. When
the trial for a criminal offense is conducted it should be in
accordance with proof of the offense as per the evidence
defined under the provisions of the Indian Evidence Act,
1872 [in short the Evidence Act]. The converse is the case
of departmental inquiry. The inquiry in a departmental
proceeding relates to conduct or breach of duty of the
delinquent officer to punish him for his misconduct defined
under the relevant statutory rules or law. That the strict
standard of proof or applicability of the Evidence Act
stands excluded is a settled legal position. ...Under these
circumstances, what is required to be seen is whether the
departmental inquiry would seriously prejudice the
delinquent in his defense at the trial in a criminal case. It is
always a question of fact to be considered in each case
depending on its own facts and circumstances."
9. The Hon'ble Supreme Court in the case of Kunishetty
Satyanarayan (supra) with respect to quashment of the charge-sheet has
held as under:-
"13. It is well settled by a series of decisions of this Court
that ordinarily no writ lies against a charge sheet or show-
cause notice vide Executive Engineer, Bihar State Housing
Board vs. Ramdesh Kumar Singh and others JT 1995 (8) SC
331, Special Director and another vs. Mohd. Ghulam
Ghouse and another AIR 2004 SC 1467, Ulagappa and
others vs. Divisional Commissioner, Mysore and others
2001(10) SCC 639, State of U.P. vs. Brahm Datt Sharma
and another AIR 1987 SC 943 etc.
14. The reason why ordinarily a writ petition should not be
entertained against a mere show-cause notice or charge-
sheet is that at that stage the writ petition may be held to be
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Signed by: SUSHEEL
KUMAR JHARIYA
Signing time: 1/19/2023
3:58:14 PM
premature. A mere charge-sheet or show-cause notice does
not give rise to any cause of action, because it does not
amount to an adverse order which affects the rights of any
party unless the same has been issued by a person having
no jurisdiction to do so. It is quite possible that after
considering the reply to the show-cause notice or after
holding an enquiry the authority concerned may drop the
proceedings and/or hold that the charges are not
established. It is well settled that a writ lies when some right
of any party is infringed. A mere show-cause notice or
charge-sheet does not infringe the right of any one. It is
only when a final order imposing some punishment or
otherwise adversely affecting a party is passed, that the said
party can be said to have any grievance.
15. Writ jurisdiction is discretionary jurisdiction and hence
such discretion under Article 226 should not ordinarily be
exercised by quashing a show-cause notice or charge sheet.
16. No doubt, in some very rare and exceptional cases the
High Court can quash a charge-sheet or show-cause notice
if it is found to be wholly without jurisdiction or for some
other reason if it is wholly illegal. However, ordinarily the
High Court should not interfere in such a matter."
Considering the law laid down by the Hon'ble Supreme Court in
the aforesaid cases, the relief with respect to quashment of the
departmental enquiry and the charge-sheet, cannot be extended to the
petitioner. Therefore, to the aforesaid extent, the relief is rejected.
10. As far as prayer for engagement of a defence assistance is
concerned, the Rule 14 of the Rules of 1966 and the circular or executive
instructions issued by the General Administration Department dated
18.06.1974 are relevant which support the case of the petitioner. Both the
aforesaid aspects were considered by the Division Bench of this Court in
the case of Deenbandhu Saket (supra) wherein the Division Bench vide
order dated 14.12.2021 has held as under:
Signature Not Verified
Signed by: SUSHEEL
KUMAR JHARIYA
Signing time: 1/19/2023
3:58:14 PM
"4. To take assistance of defence assistant, is a statutory right of
delinquent employee, as per the provisions of Rule 14 of M.P.
Civil C.C.A.Rules. The relevant provisions of the said rule are
reproduced as below:-
"The Government servant may take the assistance of any
other Government servant to present the case on his behalf,
but may not engage a legal practitioner for the purpose
unless the Presenting Officer appointed by the disciplinary
authority is a legal practitioner, or, the disciplinary
authority, having regard to the circumstances of the case,
so permits."
5. If a delinquent employee proposes a Defence Assistant who is
employed elsewhere then the Inquiry Officer ought to take the
initiative and pass necessary directions to ensure that the
delinquent employee does not remain unrepresented leading to
denial of his right to defend himself. The Inquiry Officer in all
fairness should request in writing to the Controlling Officer of
the proposed defence assistance to act as defence assistant
provided there is no other legal impediment. The Inquiry Officer
should not leave the delinquent in a lurch. Inquiry Officer ought
to remember that he is not a prosecutor but an independent and
impartial arbiter and umpire whose prime object is to conduct &
conclude the disciplinary proceedings in a fair and impartial
manner following the principles of natural justice.
6. However, learned counsel for petitioner has brought to the
notice of this Court an executive instruction issued by GAD,
Govt. of M.P. dated 18.06.1974 which deals with an issue raised
herein and thus for ready reference and convenience the same is
reproduced below:-
"fo"k; & e/;izns'k flfoy lsok ¼oxhZdj.k] fu;U=.k rFkk vihy½
fu;e] 1966 ds vUrxZr foHkkxh; tk¡p esa 'kkldh; lsod }kjk vU;
'kkldh; lsod dh lgk;rk ysus ds lEcU/k esAa
1- e/;izns'k flfoy lsok ¼oxhZdj.k] fu;U=.k rFkk vihy½ fu;e]
1966 ds fu;e 14 ¼8½ ds vUrxZr vfHk;qDr 'kkldh; lsod viuh
vksj ls ekeyk izLrqr djus ds fy, fdlh vU; 'kkldh; lsod dh
lgk;rk ys ldrk gSA ,slk djus ds fy;s mls tk¡p izkf/kdkjh ;k
vuq'kklfud izkf/kdkjh ls vuqefr ysus dh vko';drk ugha gS fdUrq
ftl 'kkldh; lsod dks foHkkxh; tk¡p esa lgk;rk djus ds fy;s
cqyk;k tkrk gS mls vius ofj"B vf/kdkjh ls ml dk;Z ds fy;s
vuqifLFkr jgus dh vuqefr ysuh gksxhA bl lEcU/k esa vkidk /;ku
bl foHkkx ds fnukad 11 tuojh] 1971 ds Kkiu Øekad
Signature Not Verified
Signed by: SUSHEEL
KUMAR JHARIYA
Signing time: 1/19/2023
3:58:14 PM
32&1&1090&,d ¼3½&70 ds iSjkxzQ 2 dh vksj Hkh vkÑ"V fd;k
tkrk gS ftlesa ;g Li"V fd;k x;k gS fd tk¡p
izkf/[email protected]'kklfud izkf/kdkjh dks pkfg, fd os lgk;rk djus
okys 'kkldh; deZpkjh ds ofj"B vf/kdkjh dks lwfpr djsa fd muds
v/khuLFk deZpkjh foHkkxh; tk¡p esa ennxkj ds :i esa dk;Z dj
jgk gSA ,slh lwpuk izkIr gksus ij ofj"B vf/kdkjh dk ;gk¡ drZO;
gks tkrk gS fd ml 'kkldh; lsod dks fu;r frfFk ij vfHk;qDr
'kkldh; lsod dh lgk;rk djus ds fy;s vius dk;Z ls vuqifLFkr
jgus dh vuqefr iznku djus esa rc rd fdlh izdkj dh vkifRr u
djsa tc rd fd mudh vuqifLFkfr ls fdlh 'kkldh; vifjgk;Z
dk;Z esa :dkoV u iM+rh gksA
2- vfHk;qDr 'kkldh; lsod dsoy mlh 'kkldh; lsod dh
lgk;rk ys ldrk gS tks 'kkldh; lsok esa dk;Zjr gks] Hkys gh og
fuyfEcr D;ksa u gks] fdUrq og lsokfuo`Rr 'kkldh; lsod dh
lgk;rk ugha ys ldrkA ;fn lgk;rk djus okyk 'kkldh; lsod
foHkkxh; tk¡p ds nkSjku lsokfuo`Rr gks tkrk gS ;k lsok ls i`Fkd gks
tkrk gS rks mlds lsokfuo`Rr ;k lsok ls i`Fkd gksus dh frfFk ds
ckn mldh lgk;rk ugha yh tk ldsxhA
[e-iz- 'kklu] lkekU; iz'kklu foHkkx] Mh- Øekad 406&970&,d
¼3½@74] fnukad 18&06&1974]"
7. The above executive instruction lay down procedure which
appears to be just fair and reasonable and inline with the
requirements of principles of natural justice."
11. Therefore, by maintaining the parity with the judgment of the
Division Bench of this Court in the case of Deenbandhu Saket (supra),
the impugned order dated 26.04.2022 (Annexure P/14) is quashed. The
application filed by the petitioner for defence assistance is allowed. The
Enquiry Officer is directed to permit the delinquent employee to enable
him to arrange for defence assistant.
12. With the aforesaid, the petition is partly allowed. No order as to
costs.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
Signature Not Verified
Signed by: SUSHEEL
KUMAR JHARIYA
Signing time: 1/19/2023
3:58:14 PM
SJ
Signature Not Verified
Signed by: SUSHEEL
KUMAR JHARIYA
Signing time: 1/19/2023
3:58:14 PM
