Jamuna Prasad Arya vs The State Of Madhya Pradesh
2023 Latest Caselaw 16333 MP

                            1                W.P. No. 24664/2023


IN THE HIGH COURT OF MADHYA PRADESH
           AT JABALPUR
                         BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 5th OF OCTOBER, 2023
              WRIT PETITION No. 24664 of 2023
BETWEEN:-

JAMUNA PRASAD ARYA S/O SHRI K.L. ARYA,
AGED ABOUT 61 YEARS, OCCUPATION:
SERVICE, R/O QUARTER NO. E-10, DERA
PAHADI SICHAYI COLONY, CHHATARPUR,
DISTRICT CHHATARPUR (MADHYA PRADESH)



                                               .....PETITIONER
(BY SHRI SANJEEV KUMAR SINGH- ADVOCATE)

AND

1.    THE STATE OF MADHYA PRADESH
      THROUGH    PRINCIPAL  SECRETARY,
      PANCHAYAT AND RURAL DEVELOPMENT
      DEPARTMENT MANTRALAYA, VALLABH
      BHAWAN, BHOPAL DISTRICT BHOPAL
      (MADHYA PRADESH)




2.    ENGINEER-IN-CHIEF,         RURAL
      ENGINEERING SERVICES, VINDHACHAL
      BHAWAN, BHOPAL (MADHYA PRADESH)




3.    SHRI B.S. CHANDEL, ENGINEER IN CHIEF
      (RETIRED), R/O VILLAGE AND POST
      BAIRAHANA, TEHSIL KOTHI, DISTRICT
      SATNA (MADHYA PRADESH)
                                                 2                            W.P. No. 24664/2023



4.      SHRI SUNIL PARMAR, SUPERINTENDING
        ENGINEER,    RURAL    ENGINEERING
        SERVICES, MANDAL OFFICE RES SAGAR,
        DISTRICT SAGAR (M.P.) PRESENTLY
        POSTED AT SUPERINTENDING ENGINEER
        RES   MANDAL    OFFICE   SHAHDOL,
        DISTRICT SHAHDOL (MADHYA PRADESH)




5.      SHRI   B.S.  YADAV,     IN-CHARGE
        EXECUTIVE    ENGINEER,      RURAL
        ENGINEERING   SERVICES,   DIVISION
        OFFICE DAMOH, DISTRICT DAMOH
        (MADHYA PRADESH)



                                                                             .....RESPONDENTS
(BY SHRI K.S. BAGHEL- GOVERNMENT ADVOCATE)

---------------------------------------------------------------------------------------------------------
         This petition coming on for admission this day, the court passed the

following:

                                                    ORDER

This petition under Article 226 of Constitution of India has been filed against the order dated 28.12.2022 by which the petitioner was placed under suspension as well as against the departmental charge- sheet dated 10.02.2023.

2. It is fairly conceded by counsel for petitioner that petitioner has not filed any appeal against the order of suspension.

3. No good ground has been pointed out by counsel for petitioner for by passing the statutory remedy available to the petitioner.

4. Accordingly, petition so far as it relates to challenge to the order of suspension is concerned, the same is dismissed on the ground of availability of alternative remedy.

5. So far as the challenge to the departmental charge-sheet is concerned, it is submitted by counsel for petitioner that departmental charge-sheet has been issued on account of malafide intention on the part of private respondents.

6. Accordingly, counsel for petitioner was directed to address this Court with regard to maintainability of a writ petition against the departmental charge-sheet issued against the delinquent officer.

7. It is submitted by counsel for petitioner that since the petitioner has alleged malafide against the private respondent, therefore, this Court can look into the correctness of the allegations made in the charge-sheet. Thus, the writ petition is maintainable.

8. Heard learned counsel for the petitioner.

9. The Supreme Court in the case of Union of India and another Vs. Kunisetty Satyanarayana reported in (2006) 12 SCC 28, has held as under:-

"7. By order dated 3-1-1995, the Assistant Post Master General directed that the respondent be treated as of "OC" community and accordingly, an alteration was made in the respondent's service book stating that he belongs to "OC" community.

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. Ramesh 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."

10. The Supreme Court in the case of Transport Commissioner, Madras-5 Vs. A. Radha Krishna Moorthy reported in (1995) 1 SCC 332, has held as under:-

"7. So far as the truth and correctness of the charges is concerned, it was not a matter for the Tribunal to go into-more particularly at a stage prior to the conclusion of the disciplinary enquiry. As pointed out by this Court repeatedly, even when the matter comes to the Tribunal after the imposition of punishment, it has no jurisdiction to go into truth of the allegations/charges except in a case where they are based on no evidence, i.e., where they are perverse. The jurisdiction of the Tribunal is akin to that of the High Court under Article 226 of the Constitution. It is power of judicial review. It only examines the procedural correctness of the decision-making-process. For this reason the order of the Tribunal insofar as it goes into or discusses the truth and correctness of the charges, is unsustainable in law."

11. The Supreme Court in the case of Union of India and others Vs. Upendra Singh reported in (1994) 3 SCC 357, has held as under:-

"5. The said statement of law was expressly affirmed by a seven-Judge Bench in Ujjam Bai v. State of UP. The reason for this dictum is self-evident. If we do not keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law, the exercise of jurisdiction becomes rudderless and unguided; it tends to become arbitrary and capricious. There will be no uniformity of approach and there will be the danger of the jurisdiction becoming personalized. The parameters of jurisdiction would vary from Judge to Judge and from Court to Court.

(Some say, this has already happened.) Law does advance. Jurisprudence does undoubtedly develop with the passage of time, but not by forgetting the fundamentals. You have to build upon the existing foundations and not by abandoning them. It leads to confusion; it does not assist in coherence in thought or action.

6. In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal v. Gopi Nath & Sons. The Bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J., affirmed the principle thus: (SCC p.317, para 8) "Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter

of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorized by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."

7. Now, if a court cannot interfere with the truth or correctness of the charges even in a proceeding against the final order, it is ununderstandable how can that be done by the tribunal at the stage of framing of charges? In this case, the Tribunal has held that the charges are not sustainable (the finding that no culpability is alleged and no corrupt motive attributed), not on the basis of the articles of charges and the statement of imputations but mainly on the basis of the material produced by the respondent before it, as we shall presently indicate."

12. The Supreme Court in the case of Secretary, Ministry of Defence and Others Vs. Prabhash Chandra Mirdha, reported in (2012) 11 SCC 565, has held as under:-

"10. Ordinarily a writ application does not lie against a charge-sheet or show-cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, charge-sheet does not

infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a charge-sheet or show-cause notice in disciplinary proceedings should not ordinarily be quashed by the court. (Vide State of U.P. v. Brahm Datt Sharma [(1987) 2 SCC 179 : (1987) 3 ATC 319 : AIR 1987 SC 943] , Bihar State Housing Board v. Ramesh Kumar Singh [(1996) 1 SCC 327] , Ulagappa v. Commr. [(2001) 10 SCC 639 : AIR 2000 SC 3603 (2)] , Special Director v. Mohd. Ghulam Ghouse [(2004) 3 SCC 440 : 2004 SCC (Cri) 826 : AIR 2004 SC 1467] and Union of India v. Kunisetty Satyanarayana [(2006) 12 SCC 28 : (2007) 2 SCC (L&S) 304] .)"

13. The Supreme Court in the case of Union of India and others Vs. Upendra Singh, reported in (1994) 3 SCC 357 has held as under:-

"6. In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be.

The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal v. Gopi Nath & Sons [1992 Supp (2) SCC 312] . The Bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J., affirmed the principle thus : (SCC p. 317, para 8)

"Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."

14. A Division Bench of this Court in case of Jagdish Baheti Vs. High Court of M.P. and others reported in 2015 (2) MPHT 382, has held as under:-

"7. In the case of Secretary, Ministry of Defence and Others vs. Prabhash Chandra Mirdha, (2012) 11 SCC 565, the Supreme

Court has held that ordinarily a writ petition does not lie against the charge-sheet or a show cause notice as it does not give rise to any cause of action unless the same has been issued by an authority not competent to initiate departmental proceedings. The Supreme Court has laid down the law in this regard by relying on several previous decision, in the following terms:-

"10. Ordinarily a writ application does not lie against a charge sheet or show cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, charge sheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a charge sheet or show cause notice in disciplinary proceedings should not ordinarily be quashed by the Court. [Vide : State of U.P. v. Brahm Datt Sharma, (1987) 2 SCC 79; Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh & Ors., (1996) 1 SCC 327; Ulagappa & Ors. v. Div. Commr., Mysore & Ors., (2001) 10 SCC 639; Special Director & Anr. v. Mohd. Ghulam Ghouse & Anr., (2004) 3 SCC 440; and Union of India & Anr. v. Kunisetty Satyanarayana , (2006) 12 SCC 28].

11. In State of Orissa & Anr. v.

Sangram Keshari Misra & Anr., (2010) 13 SCC 311, this Court held that normally a charge sheet is not quashed prior to the conclusion of the enquiry on the ground that the facts stated in the charge are erroneous for the reason that correctness or truth of the charge is the function of the disciplinary authority. [See also: Union of India & Ors. v. Upendra Singh (1994) 3 SCC 357].

12. Thus, the law on the issue can be summarised to the effect that chargesheet cannot generally be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings."

8. The law laid down by the Supreme Court in the above quoted decisions, therefore, makes it clear that generally and ordinarily a writ petition is not maintainable against a charge-

sheet as issuance of the same does not give rise to a cause of action on account of the fact that it does not adversely effect the rights of a party except in cases where the charge-sheet has been issued by an authority not competent to do so. The Supreme Court has also held that

neither disciplinary proceedings nor a charge- sheet can be quashed at the initial stage on merits as it would be a pre-mature stage to deal with the merits of the case. The Supreme Court has also held that at the stage of issuance of charge-sheet the correctness or veracity of the charges cannot be looked into in writ proceedings as that aspect is the domain of the disciplinary authority and not the High Court."

15. A coordinate Bench of this Court in case of Ranjeet Singh Kumpawat Vs. Central Madhya Pradesh Gramin Bank and others reported in 2016 (IV) MPJR 150, has held as under:-

"7. This is settled in law that charge-sheet can be interfered with at this stage on limited grounds. In the case of Union of India and Others Vs. Upendra Singh-(1994) 3 SCC 357, the Apex Court held that charge-sheet can be interfered with only when there is a patent lack of jurisdiction in issuing the charge-sheet. Correctness of the allegations cannot be gone into at this stage. The Court cannot take-over the functions of the disciplinary authority. Truth or otherwise of the charges is a matter for the disciplinary authority to go into. In the case of Transport Commissioner, Madras-5 Vs. A. Radha Krishna Moorthy-(1995) 1 SCC 332 the Apex Court has taken the same view. The Division Bench of this Court in the case of Jagdish Baheti Vs. High Court of M.P and others-2015(2) MPHT 382 has considered various judgments of the Supreme Court and opined that ordinarily a writ petition is not maintainable against the charge-sheet. The charge-sheet cannot be quashed at initial stage on merits as it would be a premature stage to deal with the merits of the case.

8. No doubt, has held in State of Punjab (supra), interference in a charge-sheet can be made if allegations of malafide are established.

In the present case, the petitioner has alleged malafide against respondent No.3 only on the ground that earlier he passed certain administrative orders against the petitioner

16. Thus, in light of the judgment passed by Supreme Court as well as by the High Court in the above mentioned case, it is clear that the writ petition against a departmental charge-sheet is not maintainable. The petitioner has not challenged the competency of the authority who has issued the departmental charge-sheet.

17. This Court in exercise of power under Article 226 of Constitution of India cannot look into the correctness as well as genuineness of the charges leveled against the delinquent officer. This Court cannot quash the charge-sheet before full flashed departmental enquiry is conducted.

18. The Supreme Court in the case of Prabhash Chandra Mirdha (supra) has held that normally a charge-sheet is not liable to be quashed as it does not adversely affects the right of an employee and does not give rise to any cause of action. It is only when a final order imposing punishment or otherwise is passed, a cause of action will arise.

19. The Supreme Court in the case of State of Orissa and Another Vs. Sangram Keshari Misra and Another, reported in 2010 (13) SCC 311 has held that normally a charge-sheet is not to be quashed on the ground that the facts stated in the charge are erroneous for the reason that adjudicating correctness or truthfulness of the charge is the function of the disciplinary authority.

20. Accordingly, no case is made out warranting interference.

21. The petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE ashish ASHISH KUMAR LILHARE 2023.10.07 17:14:53 +05'30'