Madhya Pradesh High Court
Shivhari Shrivastava vs The State Of Madhya Pradesh on 7 August, 2024
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 7 th OF AUGUST, 2024
WRIT PETITION No. 3880 of 2016
SHIVHARI SHRIVASTAVA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri K.C. Ghildiyal - Senior Advocate with Ms. Warija Ghildiyal - Advocate for
the Petitioner.
Shri Utkarsh Agrawal - Advocate for the Respondent/State.
ORDER
The present petition has been filed challenging the order dated 29.12.2015 and
15.09.2015 which are the orders passed by the Appellate authority and by the
disciplinary authority Annexure P-7 and P-5 respectively whereby the petitioner
has been dismissed from service and the said dismissal has been confirmed in
appeal.
2. Learned counsel for the petitioner while assailing the said orders has argued
that the petitioner was posted as cash clerk in Cash collection counter of erstwhile
Madhya Pradesh State Electricity Board. Thereafter, he came to be an employee
of respondent No.2, which is the successor company of the erstwhile Madhya
Pradesh State Electricity Board. A Charge sheet was issued to him vide Annexure
P-1 dated 10.01.2006 against him wherein two charges were framed against him.
Charge No.1 related to receiving amount of Rs.14,061/- towards electricity bills
during the period 2003-04 from 31 consumers but not depositing the said amount
in the concerning account of the said amount of said consumers. Charge No.2
related to the petitioner having accepted Rs.58,241/- from various consumers of
the Company while working as Bill clerk in cash counter but the said amount was
not handed over to the Chief Cashier of the Division. The deficit of the amount
collected and amount handed over to the Chief Cashier was reported to be
Rs.58,241/-.
3. A departmental enquiry ensued in relation to the said charges and upon
giving a finding of guilt in the enquiry report vide Annexure P-3 dated
13.02.2012, the petitioner was awarded a punishment of dismissal from service
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vide order Annexure P-5 dated 15.09.2014 and the said order has been confirmed
in appeal vide Annexure P-7 dated 29.12.2015.
4. It is contended by learned counsel for the petitioner that against the findings
of enquiry, the petitioner has submitted a detailed representation Annexure P-4
and there has been absolutely no consideration in the penalty order passed by the
disciplinary authority Annexure P-5 of any of the contentions made in the said
representation. The penalty order has been simplicitor passed mentioning in
concluding paras of the said penalty order that the authority fully agrees to the
findings of the Enquiry Officer and has come to conclusion that the petitioner has
defalcated the revenue of the Company which is a serious mis-conduct and
therefore, the petitioner is being awarded with penalty of dismissal from service.
5. It is contended by learned counsel for the petitioner that the said order does
not fulfil the requirements of Rule 15(3) of M.P. Civil Services (Classification,
Control and Appeal) Rules which were applicable to the petitioner and as per Rule
15(3), the disciplinary authority is required to record reasons in the penalty order
but in the present case, the disciplinary authority has utterly failed to record
reasons for the same though, a major penalty as defined in Rule 10 of the CCA
Rules has been awarded to the petitioner. It is further argued by learned counsel
for the petitioner that the order Annexure P-5 imposing penalty is vulnerable
being non speaking and arbitrary and further that the appellate order Annexure P-
7 is even more non speaking because it only mentions that the petitioner could
not submit any proof or fact in the appeal which can prove him innocent. There is
not a single word of consideration in any of the contentions made in the appeal by
the petitioner.
6. It is contended by the petitioner that in the appeal memo as well as in the
representation, it was categorically stated by the petitioner that during the relevant
time, there was a migration of cash collection system from manual to
computerized system by introduction of RMS Software and the dicrepancies
which have crept in between the entries in CAC Register maintained by the
petitioner and the cash book are on account of the improper conciliation of the
two accounts which was subsequently migrated to computerized system and this
was specifically pleaded by him in the appeal as well as in the representation with
the enquiry report and this aspect has not been considered by both of the
authorities in even a single word though the specific contention was made by the
petitioner.
7. Learned senior counsel further argued that the petitioner was also subjected
to criminal trial under Section 409 of I.P.C. on the same set of allegations which
were sought to be proved by same set of witnesses on the same allegations of
defalcation of Rs.14,061/- and Rs.58,241/- respectively by the petitioner. It is
contended that in the said criminal prosecution, the petitioner has been acquitted
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by the Sessions Court vide judgment dated 15.12.2022 and it is contended that the
criminal Court has considered various aspects of the matter upon consideration of
evidence of same set of witnesses and for this various paragraphs of the judgment
of acquittal are referred to.
8. It is argued by the learned counsel for the petitioner that the criminal Court
has categorically held that so far as the aspect of first charge of Rs.14,061/- is
concerned, which was subject matter of the Departmental enquiry, it is recorded
by the criminal Court that no consumer made any complaint regarding he having
handed over the amount to the petitioner but the said amount not having been
deducted from the bills. The criminal Court has considered that no complaint was
ever received by any authority of the company regarding non-deduction of the
amount deposited with the petitioner in the bill.
9. On the aspect of the second charge of Rs.58,241/-, it is argued by learned
senior counsel for petitioner that the allegation was that the petitioner had handed
over Rs.58,241/- to the cashier which was deficit of the total amount received by
the petitioner from the consumers. The criminal Court has considered the aspect
that if the amount of the bills was not properly entered in the cash book and there
was a deficit between the entries and the record maintained by the petitioner and
the cash book maintained by the head cashier, the said could not be proved
because the Head Casher is neither produced as witness nor made an accused.
10. Considering all the aforesaid factors, the criminal Court has acquitted the
petitioner and therefore, once the allegations were the same, witnesses were the
same, hence, the department is bound by the findings of criminal Court in terms
of Judgment of Hon'ble Apex Court reported in Ramlal Vs. State of
Rajasthan (2024) 1 SCC 175. On the aspect of the order of penalty being non
speaking in terms of Rule 15(3), the learned senior counsel had relied on the
judgment of co-ordinate bench of this Court in Writ Petition No.3304/2008.
11. On the aspect of the appellate order being utterly non-speaking and original
penalty order also being non-speaking, the learned senior counsel argued that in
such circumstances, both orders have to be set aside and reliance has been placed
on Sharda Singh Vs. State of U.P. (2009) 11 SCC 683.
12. Per contra, Shri Utkarsh Agrawal, learned counsel appearing for
respondents No.2 to 5/Company has vehemently argued that the petitioner was
required to separately challenge the Enquiry Report and in absence of any relief
sought regarding challenge to enquiry report in the relief clause, the petition
deserves to be dismissed. This point was vehemently argued by the learned
counsel for the respondents to submit that the enquiry report is a separate
document and it is required to be separately challenged and it is required to be
separately set aside by the Court and without setting aside the enquiry report,
nothing can be argued by an employee to challenge the ultimate penalty order and
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appellate order.
13. Learned counsel for the respondents also argued that the reasons are not
required to be recorded by the disciplinary authority because the disciplinary
authority is simply agreeing with the findings of the Enquiry Officer. Reliance
has been placed on judgment of the Supreme Court in National Fertilizers Ltd.
Vs. P.K. Khanna 2005 7 SCC 597 and further reliance is placed on judgment of a
co-ordinate bench of this Court in Writ Petition No.20123/2012.
14. Learned counsel for the respondents further argued by relying on judgment
of Hon'ble Apex Court in SBI Vs. R. Periyaswamy (2015) 3 SCC 101 that the
standard of proof in criminal trial and a departmental enquiry are different and the
findings of Departmental Enquiry cannot be set aside by simply looking to the
findings recorded in the criminal case. In this regard, reliance is also been placed
on judgment reported in SBI Vs. P. Zadenga (2023) 10 SCC 675 . It was further
contended that the charges against the petitioner were serious and this Court
cannot advert to correctness of the charges and sufficiency of evidence recorded
during the course of Departmental Enquiry by sitting as an appellate Court and
the jurisdiction and scope of interference in judicial review is limited to the aspect
whether there is failure to observe principles of natural justice whereby any
injustice may be deemed to have occasioned.
15. Heard.
16. This Court has gone through the documents placed on record as well as the
arguments advanced by learned counsel for the rival parties.
17. So far as the objections of the learned counsel for the respondents that there
is no relief sought for enquiry report is concerned, the same is found to be
misplaced because the enquiry report is not binding on the disciplinary authority
which is well settled in law and once the employee has challenged the final
penalty order as well as the appellate order, then the challenge to enquiry report is
implicit in challenge to such orders. While challenging the penalty orders based
on the enquiry report, it can always be argued by the delinquent employee that
since the enquiry report is vitiated on one count or the other, hence, the final order
is also vitiated. It is well settled that in absence of its acceptance by the
disciplinary authority, the enquiry report in itself would not operate to award
penalty to an employee. Thus, once the final orders of disciplinary authority and
appellate authority are under challenge in the present petition, the objection
relating to non challenge of the enquiry report is discarded being utterly
misconceived.
18. The aspect of the orders being nonspeaking is taken up. Rule 15 of M.P.
Civil Services (Classification, Control and Appeal) Rules, 1966 provides action
on the enquiry report. Rule 15(1) provides the condition where the disciplinary
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authority can remit the case to the enquiry authority for further enquiry. As per
Rule 15(2), the procedure in case of disagreement is laid down. Rule 15(3) relates
to procedure in those cases where the disciplinary authority having regard to its
findings or all or any of the articles of charge is of the opinion that any of the
penalties under Rule 10 should be imposed on the employee, it shall make an
order imposing such penalty and in doing so it shall also record its reasons in
writing. Thus, it was contended that the disciplinary authority is under obligation
to record its separate findings. The relevant Rule 15 is as under:-
"1. The disciplinary authority if it is not itself the inquiring authority may, for
reasons to be recorded by it in writing, remit the case to the inquiring authority
for further inquiry and report and the inquiring authority shall thereupon proceed
to hold the further inquiry according to the provisions of rule 14 as far as may be.
2. The disciplinary authority shall, if it disagrees with the findings of the
inquiring authority on any article of charge, record its reasons for such
disagreement and record its own finding on such charge, if the evidence on record
is sufficient for the purpose.
3. If the disciplinary authority having regard to its findings on all or any of the
articles of charge is of the opinion that any of the penalties specified in 1[xxx] rule
10 should be imposed on the Government servants, it shall, notwithstanding
anything contained in rule 16, make an order imposing such penalty 2[but in
doing so it shall record reasons in writing]:
Provided that in every case where it is necessary to consult the Commission,
the record of the inquiry shall be forwarded by the disciplinary authority to the
Commission for its advice and such advice shall be taken into consideration
before making any order imposing any penalty on the Government servant."
19. In the present case, it was argued by the learned counsel for employee that
the disciplinary authority would have regard to "its" findings on all or any of the
article of charges. Thus, it was contended that the disciplinary authority is under
obligation to record its separate findings. The said contention was countered by
the respondents by stating that if the disciplinary authority is simply agreeing
with the Enquiry report then it need not record its separate findings. Reliance was
placed on judgment of the Hon'ble Apex Court in the case of National Fertilizers
(supra).
20. In the aforesaid case, the Hon'ble Supreme Court had the occasion to
consider Rule 33 of the Employees Conduct, Discipline and Appeal Rules which
are reproduced in para 9 of the aforesaid judgment. In the said Rule 33 as
reproduced in para 9 of the aforesaid judgment, it is evident that there is no
obligation cast on the disciplinary authority to record "its" findings and also to
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record reasons in writing while passing penalty order. In the present case, as per
Rule 15 (3), the disciplinary authority has to give its findings which has to be read
alongwith the last concluding lines of Rule 15 (3) mentioning that "it shall record
reasons in writing".
21. Thus, in view of the judgment passed by a co-ordinate bench in Writ
Petition No.3304/2008, this Court is inclined to accept to some extent the
arguments of learned counsel for the petitioner employee that the disciplinary
authority is bound to record reasons in writing and record its findings, which may
not be as detailed as the findings of the enquiry officer but they must contain
reasons and final findings after considering the representation of the employee
against the enquiry report and some brief reasons that why the disciplinary
authority agrees with the enquiry Officer's report despite the representation of the
employee.
22. Before making any comments on the Order Annexure P-5, the
representation of the employee is examined. In the said representation against
Enquiry report, the employee has categorically stated in paras 9 and 10 of his
representation that the difference in amounts has crept in on account of migration
of the system from manual to computer software. In para 9 of the representation,
it is clearly mentioned by the petitioner that he was only a cash collection clerk
and he was required to hand over the cash to the head cashier. If the amount was
less then the Head Cashier was bound to point out the deficit to the petitioner and
get the deficit amount deposited from the petitioner. The petitioner had
categorically stated that if some amount has been mentioned in the cash book at
lesser side then the petitioner cannot be put to blame because the aspect of entries
in the Cash book was of the Head Cashier and not of the Cash Collection Clerk.
23. The Sessions Court while acquitting the petitioner has considered the
similar aspect that the Head Cashier was not produced as witness before the
Criminal Court and in para 17 of the judgment of acquittal, it is recorded by
Criminal Court that the Chief Head cashier is neither produced as witnesses nor
made an accused. The said Head Cashier had however appeared in the
departmental enquiry proceedings and the said evidence of the Head Cashier was
countered by the petitioner in para 8 of his representation to the Enquiry Report.
In para 8 of the representation, the petitioner had mentioned that the Head Cashier
in the course of enquiry has deposed that he can comment anything on the deficit
deposit only upon perusal of the relevant records. He was brought as witness
without bringing on record, the CAC Register of the relevant dates which was
filled by up the petitioner and Cash book of the same dates which was filled up by
the Head Cashier. Upon objection of the petitioner, the Enquiry Officer did not
recall the said Head Cahier for evidence despite permission being given by the
Enquiry Officer.
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24. On the aspect of non-deposit of amounts collected from 31 consumers to
the tune of Rs.14,061/-, the petitioner has contended in the representation that no
consumer has made any complaint in this regard and if the amount had indeed
been pocketed by the petitioner, then the consumers would have made complaint
and not a single complaint has been received from the consumers. Thus, it was the
specific contention of the petitioner that the difference arrived at by the audit
party is on account of the discrepancies crept in the account at the time of
migration from manual system to computerized software named as RMS
Software.
25. When the aforesaid contentions made by the petitioner in his representation
to the Enquiry Officer's report are examined in juxta position to the enquiry
Officer's report placed on record as Annexure P-3, it is seen that in the said
report, it has been said by the witness H.A. Meena who was member of the audit
party that whatever amount is recorded in the CAC Register maintained by the
Cash clerk should reflect in the Cash Book.
26. The important aspect of the case is that the entire shortcomings were not
discovered as a result of any complaint made by any consumer but the
shortcomings were reflected by subsequent audit made in the year 2005 of the
accounts of the year 2003-04. Another witness O.P. Koushal who was also
member of the audit party had stated before the Enquiry Officer as recorded at
page 9 of the Enquiry Report that some amounts of 31 consumers were (relating
to charge No.1) were deposited in short but he did not give any specific
statements in relation to charge No.2 which was for Rs.58,241/-.
27. The aspect of the audit party giving the findings on the basis of mis-match
of entries in manual accounting and computerized accounting on page 9 of the
Enquiry report, the deposition of audit party member Shri Koushal is mentioned
wherein he has deposed that he has no knowledge of Computer accounting system
and he has given the findings after taking assistance of other employees trained in
computers by the Department. All these aspects were highlighted by the petitioner
in his representation in detail. However, the disciplinary authority has simply
written in order of penalty that he agrees with the findings of the Enquiry Officer
and imposed the penalty of dismissal from service.
28. In such circumstances, this Court agrees with the argument of the learned
senior counsel for the petitioner that the order of disciplinary authority is totally
non speaking. The order by a bare perusal makes it clear and evident that the very
purpose of allowing an employee to submit representation against findings of
Enquiry Officer as per judgment of constitution Bench in the case of Managing
Director, ECIL Vs. B. Karunakar reported in (1993) 4 SCC 727 has been
frustrated.
29. Thus, the impugned order Annexure P-5 suffers from vice of being non-
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speaking order and not containing reasons required to be recorded in writing by
the disciplinary authority in terms of Rule 15 (3).
30. It is a settled principle of law that any administrative order should mention
the reasons and reasons are the heartbeat of conclusions. The impugned orders
Annexure P-5 & P-7 suffer from the vice of being unreasoned orders devoid of
any reasons (see Kranti Associates Vs. Masood Ahmed reported in (2010) 9 SCC
31. So far as the aspect of the order being vulnerable on account of subsequent
acquittal in criminal case is concerned, this Court is not much impressed by
argument of learned senior counsel for the petitioner because considering the
judgment of the Hon'ble Apex Court, in the case of Ramlal (supra), in the present
case, it is seen that various persons who were witnesses in the enquiry
proceedings were not witnesses in the course of Criminal trial. Most importantly,
the chief cashier who was witness in the enquiry proceedings was not witness in
the criminal trial. Thus, only on the aspect of the petitioner having been acquitted
in criminal case, the impugned orders Annexure P-5 and P-7 cannot be set aside.
32. Consequently, the orders Annexure P-5 and P-7 are found to be non-
speaking in nature and do not satisfy the requirements of Rule 15 (3) of M.P.
Civil Services (Classification, Control and Appeal) Rules, 1966. Accordingly,
the impugned orders Annexure P-5 and P-7 are set aside. Petition is allowed.
33. The matter is relegated to the disciplinary authority to pass fresh reasoned
speaking order by taking into consideration the reply of the petitioner to the
Enquiry report and recording specific reasons for agreement with the enquiry
report and reasons for arriving at conclusion to impose major penalty.
34. As the petitioner is reported to have crossed the age of the superannuation,
the disciplinary authority would be at liberty to pass orders in terms of Rule 9 of
Civil Services (Pension) Rules.
35. For the period of termination till attaining the age of superannuation, the
petitioner would be entitled to subsistence allowance as was being drawn by him
on the date of impugned order of termination. The payment of rest of the amount
and rest of the benefits including pension etc. would depend upon the findings to
be recorded by the disciplinary authority while passing the fresh order and the
outcome thereof.
36. It is however clarified that if no fresh order is passed within a period of
three months from the date of production of certified copy of this order, the
disciplinary authority shall be precluded from passing such a fresh order and the
petitioner would be entitled to all the pensionary benefits.
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37. With the aforesaid directions, the petition is allowed and disposed of.
(VIVEK JAIN)
JUDGE
veni
