Madhya Pradesh High Court
Ashish Mahajan vs The State Of Madhya Pradesh on 1 November, 2023
Author: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
JUSTICE SUJOY PAUL
ON THE 1st OF NOVEMBER, 2023
WRIT PETITION No. 27352 of 2023
BETWEEN :-
ASHISH MAHAJAN S/O SHRI S.R. MAHAJAN,
AGED ABOUT 38 YEARS, OCCUPATION:
ASSISTANT GRADE III (SUSPENDED)
DIRECTORATE HEALTH SERVICES BHOPAL
(MADHYA PRADESH)
......PETITIONER
(BY SHRI DEVENDRA KUMAR TRIPATHI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH ITS PRINCIPAL SECRETARY
HEALTH AND FAMILY WELFARE
DEPARTMENT VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
2. DIRECTOR (ADMIN) DIRECTORATE
HEALTH SERVICES SATPURA BHAWAN
BHOPAL (MADHYA PRADESH)
3. SECRETARY CUM HEALTH
COMMISSIONER BHOPAL MADHYA
PRADESH BHOPAL (MADHYA PRADESH)
Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 11/2/2023
3:42:09 PM
2
4. AYUSHMAN BHARAT NIRAMAYAM
MADHYA PRADESH JAI PRAKASH
HOSPITAL IEC BUREAU IST FLOOR
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ANKIT AGRAWAL - GOVERNMENT ADVOCATE FOR THE STATE)
----------------------------------------------------------------------------------------
This petition coming on for admission this day, JUSTICE
SUJOY PAUL passed the following :
ORDER
Heard on admission.
2. This petition filed under Article 226 of the Constitution of India
challenges the charge sheet dated 16.02.2023 (Annexure-P/1).
Petitioner has already filed reply to the said charge sheet.
3. Criticising the charge sheet, learned counsel for the petitioner
raised following submissions :-
(i) a preliminary/fact finding enquiry was conducted by the
Department in which charges were not found proved
against the petitioner, and therefore, issuance of charge
sheet is bad in law in the light of judgment of Supreme
Court in Nand Kumar Verma v. State of Jharkhand,
(2012) 3 SCC 580.
(ii) Charges are vague and ambiguous.
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Signed by: HIMANSHU
KOSHTA
Signing time: 11/2/2023
3:42:09 PM
(iii) the other persons also committed misconduct but
petitioner alone is picked up and chosen for disciplinary
action which is discriminatory in nature.
(iv) the documents listed alongwith the charge sheet are not
supplied to the petitioner enabling the petitioner to file the
effective reply.
4. Shri Ankit Agrawal, learned Government Advocate opposed the
admission.
5. No other point is pressed by the learned counsel for the parties.
6. This is trite that scope of interference at the stage of issuance of
charge sheet in exercise of power under Article 226 of the Constitution
is limited. The charge sheet is not an order. If allegations mentioned in
the charge sheet are admitted in totality and yet no misconduct is made
out, interference can be made. Interference can also be made if it is
issued by an incompetent authority, if it is highly belated and there
exists no justifiable explanation of delay. In the case of Union of India
v. Kunisetty Satyanarayana, (2006) 12 SCC 28, the Apex Court
opined 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 v. Ramesh Kumar Singh
[(1996) 1 SCC 327 : JT (1995) 8 SC 331] , Special
Director v. Mohd. Ghulam Ghouse [(2004) 3 SCC
440 : 2004 SCC (Cri) 826 : AIR 2004 SC 1467],
Ulagappa v. Divisional Commr., Mysore [(2001) 10
SCC 639] , State of U.P. v. Brahm Datt Sharma
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Signed by: HIMANSHU
KOSHTA
Signing time: 11/2/2023
3:42:09 PM
[(1987) 2 SCC 179 : (1987) 3 ATC 319 : 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 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 petition
lies when some right of any party is infringed. A
mere show-cause notice or charge-sheet does not
infringe the right of anyone. 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.
17. Learned counsel for the respondent submitted
that the charge against the respondent had already
been enquired into earlier and he had been
exonerated of the charge in an earlier proceeding.
Hence, he contended that the impugned charge
memo would amount to double jeopardy and was
therefore illegal. He relied upon the decision of this
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Signed by: HIMANSHU
KOSHTA
Signing time: 11/2/2023
3:42:09 PM
Court in Lt. Governor, Delhi v. HC Narinder Singh
[(2004) 13 SCC 342 : 2004 SCC (L&S) 876].
18. We agree with the learned counsel for the
respondent that if the charge which has been levelled
under the memo dated 23-12-2003 had earlier been
enquired into in a regular enquiry by a competent
authority, and if the respondent had been
exonerated on that very charge, a second enquiry
would not be maintainable. However, in the present
case, we are of the opinion that the charges levelled
against the respondent under the charge memo dated
23-12-2003, had not been enquired into by any
authority and he had not been exonerated on those
charges. Hence we are of the opinion that it is not a
case of double jeopardy."
(Emphasis supplied)
7. Para-18 of this judgment of Supreme Court makes it clear that if
earlier enquiry was a regular enquiry constituted by the competent
authority and in that regular enquiry, an employee stood exonerated, a
second enquiry would not be maintainable. This principle cannot be
made applicable when previous enquiry was a preliminary enquiry and
not a regular enquiry.
8. A Division Bench of this Court in Jagdish Baheti vs. High
Court of M.P., 2015 (2) MPHT 382 followed the ratio decidendi of
aforesaid Supreme Court judgment. Accordingly, it is to be seen
whether there exits any such ingredient on which interference can be
made.
9. This is trite that preliminary inquiry is not a mandatory
requirement before holding a regular departmental enquiry. It is the
prerogative of disciplinary authority to conduct a preliminary enquiry
or not. Outcome of preliminary enquiry does not bind the disciplinary
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Signed by: HIMANSHU
KOSHTA
Signing time: 11/2/2023
3:42:09 PM
authority for the purpose of initiating regular departmental enquiry. So
far, judgment of Nand Kumar Verma (supra) is concerned, it is clear
that in that case the factual backdrop was different. A Judicial Officer
was put to notice by the order of the High Court on judicial site and
thereafter, for the same allegation, a departmental enquiry was directed
to be conducted. In the above peculiar backdrop, the Apex Court made
certain observations which cannot be stretched in a case of this nature.
10. So far argument that charge sheet is vague/ambiguous is
concerned, on a specific query from the Bench. Shri D.K. Tripathi,
learned counsel for the petitioner could not point out a single averment
from his reply which shows that the petitioner raised any such
objection before the disciplinary authority regarding ambiguity of the
charges. This Court is not sitting as an appellate Court to examine
these aspects. Had it been a case of vagueness of charge, the minimum
expectation from the delinquent employees was that he will raise such
ground in his reply. In absence thereof, no interference on this aspect is
warranted.
11. The petitioner also raised ground of discrimination. On this
aspect also, despite repeated query, learned counsel for the petitioner
was unable to show any averment from his reply where he had raised
the point of discrimination. Even otherwise, the aspect of
discrimination is an aspect relating to a fact which needs to be
established by leading evidence in the departmental enquiry and at this
stage no interference can be made on this ground.
Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 11/2/2023
3:42:09 PM
12. Lastly, learned counsel for the petitioner submitted that the
relevant documents have not been given to him and therefore he could
not file effective reply. This argument of petitioner runs contrary to the
record. The relevant portion of his reply reads as under :-
^^d`i;k egksn;th ls fouez fuosnu dj ys[k gS fd
vkosnd dks mijksDr lanfHkZr Kki fnukad 16-02-2023 ds
ek/;e ls tkjh vkjksi i= dk izfrokn mRrj izLrqr djus gsrq
vkosnd }kjk vfHkys[kksa dh lwph pkgh xbZ tks dk;kZy;
LFkkiuk 'kk[kk ls vkosnd dks Kki Øekad 854@fnukad 25-
04-2023 }kjk izkIr gksus ij vkosnd ds fo:) vf/kjksfir
vkjksi dk izfrokn mRrj] mijksDrkuqlkj izLrqr dj vuqjks/k gS
fd e-iz- 'kklu lkekU; iz'kklu foHkkx ds ifji= Ø- ,Q
11&14@2014@,d@9 fnukad 20-11-2014 ,oa ifji=
Ø- ,Q&11@14@2007@,d@9 fnukad 25-04-2007 ds fcUnq
Ø- 06 vuqlkj QthZ uke@irs ls izkIr f'kdk;r dks uLrhc)
fd;k tk,xk** ds vuqlkj mDr vkjksi Ø- 01 esa mYysf[kr
QthZ uke@irs ls izkIr f'kdk;r dks uLrhc) djus dk d"V
djsa ¼ifjf'k"V&06½A vkosnd }kjk izLrqr izfrokn mRrj ij
d`i;k lgkuqHkwfriwoZd fopkj dj vkosnd ds fo:) tkjh
vkjksi i= lknj vuqjks/k lfgr fujLr djus dk d"V djsaA
Lo;a vkosnd ,oa vkosnd dk ifjokj lnSo vkidk vkHkkjh
jgsxkA**
(Emphasis supplied)
13. Thus, this argument runs contrary to record. In addition, subject
matter of reply also shows that after receiving the documents, reply
has been filed. I deprecate this practice of stating incorrect facts
during arguments before the Court.
14. In view of foregoing discussion, no case is made out for
admission. The petition is bereft of merits and is hereby dismissed.
(SUJOY PAUL)
JUDGE
HK
Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 11/2/2023
3:42:09 PM
