Madhya Pradesh High Court
Rashi Raman Mishra vs The State Of Madhya Pradesh on 1 August, 2024
Author: Anand Pathak
Bench: Anand Pathak
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
ON THE 1st OF AUGUST, 2024
WRIT PETITION No. 7118 of 2021
RASHI RAMAN MISHRA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
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Appearance :
Shri Jay Shukla - Advocate for the petitioner.
Shri V.P. Tiwari - Government Advocate for the respondents/State.
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ORDER
This petition under Article 226 of the Constitution has been
preferred seeking following reliefs :
i) to quash the impugned order dated 25.02.2021
(Annexure P-8) passed by respondent No.3 and also order
dated 18.07.2019 (Annexure P-5) passed by respondent
No.4 which are in violation of statutory provisions.
ii) to call for the record pertaining to impugned orders.
iii) to grant any other relief which the Hon'ble Court
may deem fit and proper in the facts and circumstances of
the case including cost of the litigation in favour of the
petitioner.
2. Precisely stated facts of the case are that petitioner at the relevant
time was discharging his duties in the department of School Education
as Assistant Teacher. It appears that in the General Election, 2019, he
was deputed as Presiding Officer at booth No.146 at Deotalab, Mauganj,
Rewa and due to some alleged non-adherence to procedure, he was
placed under suspension by the Collector/District Election Officer vide
order dated 30.03.2019. Thereafter, charge-sheet was issued to the
petitioner on 13.04.2019 in which two charges were framed against him.
3. Petitioner appeared in the inquiry and sought documents for filing
reply. However, on 18.07.2019, without considering the reply and giving
opportunity of hearing to participate in the departmental enquiry,
impugned orders have been passed by which petitioner is inflicted
punishment of stoppage of two annual increments with non-cumulative
effect.
4. Appeal was preferred by petitioner before appellate authority but
met the same fate and vide order dated 25.02.2021, Commissioner,
Division Rewa dismissed the appeal, therefore, this petition has been
preferred.
5. It is the submission of the petitioner that Collector initially issued
charge-sheet against the petitioner and departmental enquiry was to be
held but midway without proceeding with the departmental enquiry, all
of a sudden, impugned orders have been passed. Approach of the
Collector is arbitrary and illegal. Once departmental enquiry was
initiated, then the outcome of the departmental enquiry ought to have
been waited for. Such major penalty granted without holding
departmental enquiry is contrary to Rule 14 and 16 of the M.P. Civil
Services (Classification, Control and Appeal) Rules, 1966 (hereinafter
referred to 'the CCA Rules'). He relied upon the judgment of Apex
Court in the case of O.K.Bhardwaj vs. Union of India & ors. (2001) 9
SCC 180. He also relied upon judgments in the case of Audhraj Singh
vs. State of M.P. 1967 SCC Online MP 72 and Brajesh Kumar
Kulshrestha vs. State of M.P. (2006) 3 MPWN 40.
6. Learned counsel for the respondents opposed the prayer and
submited that the petitioner was guilty of misconduct, therefore, the
impugned orders have been passed. He has supported the impugned
orders.
7. It is a case where the petitioner who was working as Assistant
Teacher was initially charge-sheeted and thereafter without affording
opportunity of hearing and without conducting departmental enquiry,
impugned orders have been passed whereby punishment of stoppage of
two annual increments with non-cumulative effect has been inflicted
upon the petitioner.
8. Rule 14 and 16 of the CCA Rules are worth consideration for
reproduction :
"14. Procedure for imposing penalties.- (1) No order imposing any
of the penalties specified in clauses (v) to (ix) of Rule 10 shall be
made except after an inquiry held, as far as may be, in the manner
provided in this rule and Rule 15 or in the manner provided by the
Public Servants' (Inquiries) Act, 1850 (37 of 1850), where such
inquiry is held under that Act.
(2) Whenever the disciplinary authority is of the opinion that there are
grounds for inquiring into the truth of any imputation of misconduct or
misbehaviour against a Government servant, it may itself inquire into
or appoint under this rule or under the provisions of the Public
Servants (Inquiries) Act, 1850, as the case may be, an authority to
Inquire into the truth thereof:
[Provided that where there is a complaint of sexual harassment within
the meaning of rule 3 C of the Central Civil Services (Conduct) Rules,
1964, the Complaints Committee established in each Ministry or
Department or Office for inquiring into such complaints, shall be
deemed to be the inquiring authority appointed by the disciplinary
authority for the purpose of these rules and the Complaints Committee
shall hold, if separate procedure has not been prescribed for the
Complaints Committee for holding the inquiry into the complaints of
sexual harassment, the inquiry as far as practicable in accordance with
the procedure laid down in these rules.]
Explanation.- Where the disciplinary authority itself holds the inquiry,
any reference in sub-rule (7) to sub-rule (20) and in sub-rule (22) to
the inquiring authority shall be construed as a reference to the
disciplinary authority.
(3) Where it is proposed to hold an inquiry against a Government
servant under this rule and Rule 15, the disciplinary authority shall
draw up or cause to be drawn up-
(i) the substance of the imputation of misconduct or misbehaviour
into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in
support of each article of charge, which shall contain :-
(a) a statement of all relevant facts including any admission or
confession made by the Government servant;
(b) a list of documents by which, and a list of witnesses by whom,
the articles of charge are proposed to be sustained.
(4) The disciplinary authority shall deliver or cause to be delivered to
the Government servant a copy of the article of charge, the statement
of the imputations of misconduct or misbehaviour and a list of
documents and witnesses by which article of charge is proposed to be
sustained and shall require the Government servant to submit, within
such time as may be specified, a written statement of his defence and
to state whether he desires to be heard in person.
(5)(a) On receipt of the written statement of defence, the disciplinary
authority may itself inquire into such of the articles of charge as are
not admitted or, if it considers it necessary so to do, appoint, under
sub-rule (2), an inquiring authority for the purpose; and where all the
articles of charges have been admitted by the Government servant in
his written statement of the defence the disciplinary authority shall
record its finding on each charge after taking such evidence as it may
think fit and shall act in the manner laid down in Rule 15;
(b) If no written statement of defence is submitted by the
Government servant, the disciplinary authority may itself inquire into
the articles of charge or ma;, if it considers it necessary to do so,
appoint, under sub-rule (2), an inquiring authority for the purpose;
(c) 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 articles of charge.
(6) The disciplinary authority shall, where it is not the inquiring
authority, forward to the inquiring authority-
(i) a copy of the articles of charge and the statement of the
imputations of misconduct and misbehaviour;
(ii) a copy of the written statement of defence, if any, submitted by
the Government servant;
(iii) a copy of the statements of witnesses, if any, referred to in sub-
rule (3);
(iv) evidence providing the delivery of the documents referred to in
sub-rule (3), to the Government servant; and a copy of the order
appointing the "Presiding Officer".
(7) The Government servant shall appear in person before the
inquiring authority on such day and at such time within ten working
days from the date of receipt by him of the articles of charge and the
statement of the imputations of misconduct or misbehaviour, as the
inquiring authority may, by a notice in writing specify in that behalf,
or within such further time, not exceeding ten days, as inquiring
authority may allow.
(8) 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.
(9) If the Government servant who has not admitted any of the
articles of charge in his written statement of defence or has not
submitted any written statement of defence, appears before the
inquiring authority, such authority shall ask him whether he is guilty
to any of the articles of charge, the inquiring authority shall record the
plea, sign the record and obtain the signature of the Government
servant thereon.
(10) The inquiring authority shall return a finding of guilt in respect
of these articles of charge to which the Government servant pleads
guilty.
(11) The inquiring authority, shall, if the Government servant fails to
appear within the specified time or refuses or omits to plead, require
the Presiding Officer to produce the evidence by which he proposes to
prove the articles of charge, and shall adjourn the case to a later date
not exceeding thirty days, after recording an order that the
Government servant may, for the purpose of preparing his defence-
(i) inspect within five days of the order or within such further time
not exceeding five days as the inquiring authority may allow, the
documents specified in the list referred to in sub-rule (3);
(ii) submit a list of witnesses to be examined on his behalf.
Note.-If the Government servant applies orally or in writing for the
supply of copies of the statements of witnesses mentioned in the list
referred to in sub-rule (3), the inquiring authority shall furnish him
with such copies as early as possible and in any case not later than
three days before the commencement of the examination of the
witnesses on behalf of the disciplinary authority.
(iii) Give a notice within ten days of the order or within such
further time not exceeding ten days as the inquiring authority
may allow, for the discovery or production of any documents
which are in the possession of Government but not mentioned in
the list referred to in sub-rule (3).
Note.- The Government servant shall indicate the relevance of the
documents required by him to be discovered and produced by the
Government.
(12) The inquiring authority shall, on receipt of the notice for the
discovery or production of documents forward the same or copies
thereof to the authority in whose custody or possession the documents
are kept, with a requisition for the production of the documents by
such date as may be specified in such requisition :
Provided that the inquiring authority may, for reasons to be recorded
by it in writing, refuse requisition to such of the documents as are, in
its opinion, not relevant to the case.
(13) On receipt of the requisition referred to in sub-rule (12), every
authority having the custody or possession of the requisitioned
documents shall produce the same before the inquiring authority :
Provided that if the authority having the custody or possession of the
requisitioned documents is satisfied for reasons to be recorded by it in
writing that the production of all or any of such documents would be
against the public interest or security of the State, it shall inform the
inquiring authority accordingly and the inquiring authority shall, on
being so informed, communicate the information to the Government
servant and withdraw the requisition made by it for the production or
discovery of such documents.
(14) On the date fixed for the inquiry, the oral and documentary
evidence by which the articles of charge arc proposed to be proved
shall be produced by or on behalf of the disciplinary authority. The
witnesses shall be examined by or on behalf of the Officer and may
be cross-examined by or on behalf of the Government servant. The
Presenting Officer shall be entitled to re-examine the witnesses on
any points on which they have been cross-examined but not on any
new matter, without the leave of the inquiring authority. The inquiring
authority may also put such questions to the witnesses as it thinks fit.
(15) If it shall appear necessary before the close of the case on behalf
of the disciplinary authority, the inquiring authority may, in its
discretion, allow the Presenting Officer, to produce evidence riot
included in the list given to the Government servant or may itself call
for new evidence or recall and re-examine any witness and in such
case the Government servant shall be entitled to have if he demands
it, a copy of the list of further evidence proposed to be produced and
an adjournment of the inquiry for three clear days before the
production of such new evidence, exclusive of the day of adjournment
and the day to which the enquiry is adjourned. The inquiring authority
shall give the Government servant an opportunity of inspecting such
documents before they are taken on the record. The inquiring
authority may also allow the Government servant to produce new
evidence, if it is of the opinion that the production of such evidence is
necessary in the interest of justice.
Note.- New evidence shall not be permitted or called for or any
witness shall not be recalled to fill up any gap in the evidence. Such
evidence may be called for only when there is an inherent lacuna or
defect in the evidence which has been produced originally.
(16) When the case for the disciplinary authority is closed, the
Government servant shall be required to state his defence, orally or in
writing, as he may prefer. If the defence is made orally, it shall be
recorded and the Government servant shall be required to sign the
record, in their case, a copy of the statement of defence shall be given
to the Presenting Officer, if any, appointed.
(17) The evidence on behalf of the Government servant shall then be
produced. The Government servant may examine himself in his own
behalf if he so prefers. The witnesses produced by the Government
servant shall then be examined and shall be liable to cross-
examination, re-examination and examination by the inquiring
authority according to the provisions applicable to the witnesses for
the disciplinary authority.
(18) The inquiring authority may, after the Government servant closes
his case, and shall, if the Government servant has not examined
himself, generally question him on the circumstances appearing
against him in the evidence for the purpose of enabling the
Government servant to explain any circumstances appearing in the
evidence against him.
(19) The inquiring authority may, after the completion of the
production of evidence, hear the Presenting Officer, if any, appointed,
and the Government servant or permit them to file written briefs of
their respective case, if they so desire.
(20) If the Government servant to whom a copy of the articles of
charge has been delivered, does not submit the written statement of
defence on or before the date specified for the purpose or does not
appear in person before the inquiring authority or otherwise fails or
refuses to comply with the provisions of this rule, the inquiring
authority may hold the inquiry ex parte.
(21)(a) Where a disciplinary authority competent to impose any of the
penalties specified in clauses (i) to (iv) of Rule 10 (but not competent
to impose any of the penalties specified in clauses (v) to (ix) of Rule
10); has itself inquired into or the articles of any charge and that
authority, having regard to its own finding or having regard to its
decision on any of the findings of any inquiring authority appointed
by it, is of opinion that the penalties specified in clauses (v) to (ix) of
Rule 10 should be imposed on the Government servant, that authority
shall forward the records of the inquiry to such disciplinary authority
as is competent to impose the last mentioned penalties.
(b) The disciplinary authority to which the records are so forwarded
may act on the evidence on the record or may, if it is of the opinion
that further examination of any of the witnesses if necessary in the
interests of justice, recall the witness and examine, cross-examine and
re-examine the witness and may impose on the Government servant
such penalty as it may deem fit in accordance with these rules.
(22) Whenever any inquiring authority, after haying heard and
recorded the whole or any part of the evidence in an inquiry ceases to
exercise jurisdiction therein, and is succeeded by another inquiring
authority which has, and which exercises, such jurisdiction, the
inquiring authority so succeeding may act on the evidence so
recorded by its predecessor, or partly recorded by itself :
Provided that if the succeeding inquiring authority is of the opinion
that further examination of any of the witnesses whose evidence has
already been recorded is necessary in the interest of justice, it may
recall, examine, cross-examine and re-examine any such witnesses as
hereinbefore provided.
(23)(i) After the conclusion of the inquiry, a report shall be prepared
and it shall contain-
(a) the articles of charge and the statement of the imputations of
misconducts or misbehaviour;
(b) the defence of the Government servant in respect of each articles
of charge;
(c) an assessment of the evidence in respect of each article of
charge; and
(d) the finding on each article of charge and the reasons therefor.
16. Procedure for imposing minor penalties.- (1) Subject to the
provisions of sub-rule(3) of Rule 15, no order imposing on a
Government servant any of the penalties specified in clauses (i) to (iv)
of Rule 10 and Rule 11 shall be made except after-
(a) informing the Government servant in writing of the proposal to
take action against him and of the imputations of misconduct or
misbehaviour on which it is proposed to be taken, and giving
him a reasonable opportunity of making such representation as
he may wish to make against the proposal;
(b) holding an inquiry in the manner laid down in sub-rules (3) to
(23) of Rule 14, in every case in which the disciplinary authority
is of the opinion that such inquiry is necessary;
(c) taking the representation, if any, submitted by the Government
servant under clause (a) and the record of inquiry, if any, held
under clause (b) into consideration;
(d) recording a finding on each imputation of misconduct or
misbehaviour; and
(e) consulting the commission where such consultation is necessary.
[(1-a) Notwithstanding anything contained in clause (b) of sub-rule
(1), if in a case it is proposed after considering the representation, if
any, made by the Government Servant under clause (a) of that sub-
rule to withhold increments of pay of Stagnation Allowance and such
withholding or increments of pay or Stagnation Allowance is likely
to effect adversely the amount of pension payable to the Government
Servant or to withhold increments of pay or Stagnation allowance for
a period exceeding three years of to withhold increments of pay or
Stagnation allowance with cumulative effect for any period, an
inquiry shall be held in the manner laid down in sub-rules (3) to (23)
of Rule 14, before making any order imposing on the Government
servant any such penalty.]
(2) The record of the proceedings in such cases shall include-
(i) a copy of the intimation to the Government servant of the
proposal to take action against him;
(ii) a copy of the statement of imputation of misconduct or
misbehaviour delivered to him;
(iii) his representation, if any;
(iv) the evidence produced during the inquiry;
(v) the advice of the commission, if /any;
(vi) the findings on each imputation of misconduct or
misbehaviour; and
(vii) the orders on the case together with the reasons therefor.
9. In the instant case, there is nothing on record to indicate
application of mind by the disciplinary authority on the question of
viability and feasibility of holding or non-holding of full-fledged
departmental enquiry especially when charge-sheet was given for
holding departmental enquiry. However, no such discussion appears to
hold such enquiry as per Rules 14(3) to (23) of the CCA Rules.
10. When Collector was of the opinion that charge-sheet is to be filed
and charge-sheet was issued and petitioner was placed under suspension,
then either full-fledged departmental enquiry ought to have been held or
if Collector came to the conclusion that minor penalty can be given and
he intended to proceed as per Rule 16 of the CCA Rules, then also he
should have given opportunity of hearing to the petitioner and thereafter,
should have passed the order. Subjective satisfaction of Collector was
also important in view of Rule 16(1)(b) of the CCA Rules. Such
subjective satisfaction is missing in the present case.
11. In the case of O.K.Bhardwaj (surpa), Apex Court has given
guidance in following manner.
"3. While we agree with the first proposition of the High
Court having regard to the rule position which expressly says
that "withholding increments of pay with or without cumulative
effect" is a minor penalty, we find it not possible to agree with
the second proposition. Even in the case of a minor penalty an
opportunity has to be given to the delinquent employee to have
his say or to file his explanation with respect to the charges
against him. Moreover, if the charges are factual and if they are
denied by the delinquent employee, an enquiry should also be
called for. This is the minimum requirement of the principle of
natural justice and the said requirement cannot be dispensed
with."
12. Collector is administrative/quasi-judicial authority. Reasons must
be recorded in support of its conclusions as the reasons are the heart beat
of conclusions. In the case of M/s Kranti Asso.Pvt. Ltd. & anr. vs.
Masood Ahmed Khan & ors. (2010) 9 SCC 496, Apex Court has
discussed in detail in this regard.
13. In view of above, it appears that the impugned orders are not
sustainable in the eyes of law. Resultantly, the impugned orders dated
25.02.2021 (Annexure P-8) and 18.07.2019 (Annexure P-5) are hereby
set-aside.
14. However, respondents are at liberty to proceed against the
petitioner in accordance with law, if advised so and statute permits.
15. Petition stands disposed of.
(ANAND PATHAK)
JUDGE
aks
