Madhya Pradesh High Court

Ganesh Ram Kirar vs The State Of M.P. on 19 February, 2024

Author: Sanjay Dwivedi

Bench: Sanjay Dwivedi

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 19TH OF FEBRUARY, 2024
WRIT PETITION NO. 26927 OF 2003

BETWEEN:-

GANESH RAM KIRAR (DEAD) - THROUGH L.Rs.

(a) SMT. RADHA BAI KIRAR, WIDOW OF LATE
GANESH RAM KIRAR, AGED ABOUT 44
YEARS.
(B) LAKHAN LAL KIRAR, AGED ABOUT 27
YEARS.
(C) MANOJ KUMAR KIRAR, AGED ABOUT 24
YEARS.
(d) AMIT KUMAR, AGED ABOUT 22 YEARS.

ALL RESIDENTS OF 105/1, DHORKHERA
GRAM, TAHSIL BARELI, DISTRICT RAISEN.
....PETITIONERS

(SHRI A.K. JAIN - ADVOCATE)

AND

1. THE STATE OF MADHYA PRADESH,
THROUGH THE PRINCIPAL SECRETARY,
FOREST DEPARTMENT, GOVERNMENT OF
M.P., VALLABH BHAWAN, BHOPAL (M.P.).

2. THE CONSERVATOR OF FORESTS, BHOPAL
CIRCLE, BHOPAL (M.P.).

3. THE DIVISIONAL FOREST OFFICER,
(TERRITORIAL) FOREST DIVISION
OBAIDULLAGANJ, DISTRICT RAISEN, M.P.

.....RESPONDENTS
(BY SHRI RITWIK PARASHAR - GOVERNMENT ADVOCATE)
2

................................................................................................................................................
Reserved on : 16.01.2024
Pronounced on : 19.02.2024
This petition having been heard and reserved for orders, coming
on for pronouncement this day, the court pronounced the following:

ORDER

This petition is under Article 226 of the Constitution of India challenging the order dated 08.03.2002 (Annexure A/1) passed by the Appellate Authority affirming the order passed by the Disciplinary Authority whereby the Disciplinary Authority after conducting a regular departmental enquiry inflicted the punishment of dismissal upon the delinquent under the provisions of Madhya Pradesh Civil Services (Classification, Control & Appeal) Rules, 1966.

2. The facts leading to the case lie in a narrow compass, which are as under:-

A charge sheet was issued to the delinquent levelling charge against him that at the relevant point of time he was holding the post of Forest Guard and posted at Bamhori Range between the period from 14.10.1992 to 05.01.1993. During that period, between 02.01.1993 to

03.01.1993 in the midnight, an information was received by the Superintendent that some forest produce was being illegally transported by some persons on bullock carts without there being any Transit Pass (TP) and permission of the Forest Officer. As per the charge levelled against the delinquent, the said illegal transportation of forest produce was being done in presence of the delinquent and for that he received Rs. 500/- for each bullock cart. The second charge against the delinquent was that he was involved in such illegality and provided full

cooperation to the persons who were found involved in the illegal activity of carrying forest produce unauthorizedly. After enquiry, the Enquiry Officer found the charges proved against the delinquent and submitted the enquiry report. Thereafter, Disciplinary Authority also finding the said charges proved accepted the enquiry report and inflicted the punishment of dismissal from service upon the delinquent. Afterwards, the delinquent assailed the order of his dismissal by filing an Original Application before the then State Administrative Tribunal i.e. OA No. 267/1997, which was decided by order dated 01.01.2002 (Annexure A/4) directing respondent No. 2 to decide the appeal of the delinquent after giving an opportunity of hearing and pass the final order in the appeal. The delinquent thereafter preferred an appeal, which was dismissed by the Appellate Authority by a reasoned order affirming the order passed by the Disciplinary Authority observing that the order passed by the said authority was proper.

3. Learned counsel for the petitioner has assailed the orders passed by the Disciplinary Authority and also by the Appellate Authority only on the ground that it is a case of no evidence. He submitted that findings given by the Disciplinary Authority as well as the Appellate Authority are perverse. He submitted that in the order of Disciplinary Authority the statement of the witnesses produced by the prosecution has been taken note of, but none of the witnesses stated against the delinquent saying that they had paid any money to the delinquent and whatever illegality had been committed that was with his permission. None of the witnesses have even stated about the presence of the delinquent on the spot. However, the persons, who were illegally carrying the forest produce, in their statements presumed that since the intimation was given to the officer on 02.01.1993, therefore he seized the forest produce

and recorded two PORs and the said officer in his statement stated that whatever information he received, when he reached on the spot, he found that the said information was correct and as per his statement, the delinquent was found involved in the said illegal activity.

4. Learned counsel for the petitioner submitted that the statement of delinquent was also recorded as a defence witness. In his statement, the delinquent stated that in the month of January 1993 he was posted at Siyalwada Beat. On the date of incident i.e. 02.01.1993, his wife was ill and he was at Bareli and on receiving information about the illness of his wife, at about 8-9 p.m. when he was going to Bareli on a bicycle, on the way near Hamirganj village Superintendent (Adhikshak Sir) and other members of the team coming on a Jeep met him and asked about the information regarding the bullock carts then he said that he had no knowledge about any such information. Thereafter, on the instruction of Superintendent, the delinquent accompanied them and when they were going back towards Bhagdei, on the way they found 15 bullock carts carrying firewood whereupon seizure of the said wood was made and deposited in the depot. As per the statement of delinquent, on the next day the persons, who were carrying the forest wood on the bullock carts, were compelled to make statement against the delinquent whereas he never received any money from anybody and he was falsely implicated in the case. The delinquent stated that no sign of illegal cutting of trees was found in his Beat.

5. Learned counsel for the petitioner submitted that the statement of delinquent was not taken note of by the authorities and he was not cross- examined. Even his statement and defence was not controverted by any other evidence. He submitted that from the record of enquiry and after scrutiny of the statements of witnesses, it is clear that the prosecution

failed to produce any cogent evidence to prove the charge levelled against the delinquent and as such it can be said with certainty that it is a case of no evidence. In support of his submission, learned counsel relied upon decisions reported in (1995) 6 SCC 749 - B.C. Chaturvedi vs. Union of India and others, AIR 2006 SC 3475-M.V. Bijlani v. Union of India & Ors and (2011) 4 SCC 584 - State Bank of Bikaner and Jaipur vs. Nemi Chand Nalwaya.

6. Per contra, Shri Parashar appearing for the State relied upon the stand taken by the State in the reply and opposed the submission made by the learned counsel for the petitioners. He submitted that the delinquent was granted full opportunity to defend himself. He submitted that it is settled law that the scope of interference in a matter of departmental enquiry under Article 226 is very limited. He submitted that under the existing circumstances, judicial review with regard to the orders passed by the disciplinary authority and the appellate authority is not permissible. He submitted that number of witnesses to prove the charge does not matter but it is the quality of their testimony which matters and that is required to be seen to prove the guilt of delinquent. According to the learned counsel, the statement of Sanjay Moharrir is sufficient to prove the charge against the delinquent and as such the orders passed by the disciplinary authority as well as the appellate authority are not required to be interfered with. According to him, the petition is without any substance and it merits dismissal.

7. I have heard the arguments advanced by the learned counsel for the parties and perused the record. On the basis of available material, especially the enquiry report (Annexure A/2), it is clear that the Enquiry Officer has very elaborately discussed the statements of witnesses in his report recorded during the course of enquiry. Total five witnesses

including delinquent were examined by the prosecution. The delinquent appeared as a defence witness. For the sake of convenience, the charge levelled against the delinquent is quoted hereinbelow:-

^^II& rF;ksa dk fooj.k ftl ij Jh x.ks'k jke fdjkj ouj{kd ds fo:) vkjksi vk/kkfjr gSA Jh x.ks'k jke fdjkj ouj{kd] fnukad 14@10@92 ls 5@1@93 rd ifj{ks= cEgksjh ds ifjlj fl;yokM+k ds izHkkj esa inLFk FksA ml dykof/k esa Jh x.ks'k jke fdjkj chV xkMZ fl;yokM+k }kjk lacaf/kr chV ds ou {ks= ls bekjrh lkxkSu ydfM;ksa dh voS/k dVkbZ ,oa fudklh dh ekSf[kd vuqefr nsdj vijkf/k;ksa ls mRdksp izkIr fd;k x;kA bl izdkj Jh x.ks'k jke fdjkj us 'kkldh; lEifRr dh voS/k fudklh esa lg;ksx fn;k x;kA vr,o Jh x.ks'k jke fdjkj ou j{kd] ¼fu½ dks insu dRrZO; dh mis{kk] in dk nq:i;ksx ,oa dnkpj.k ds vkjksi ls vkjksfir fd;k x;k gSA**

8. Thus, from the charge levelled against the delinquent it is clear that it was to be proved by the prosecution that illegal cutting and exit of the forest wood was done in the respective beat in which the delinquent was the Incharge and that illegal act was done with his consent for which he received illegal gratification and permitted the accused persons to transport the forest wood.

9. The prosecution produced five persons as witnesses and what they stated during course of enquiry was reproduced by the Enquiry Officer in his report. So far as Har Prasad, Ram Babu Sharma, Manak Singh and Keshav Singh are concerned, they all have very clearly denied about giving any money to the delinquent and also not stated that the illicit filling of the forest wood was done with the permission of delinquent and with his consent they were unauthorisadely transporting the forest wood. On question being put to them by the Presenting Officer about their statement earlier recorded, all the said four persons very

categorically stated that whatever statement they had given earlier were not correct but the statement they made during course of enquiry be treated to be true and according to them the said statements were correct.

The statement of fifth witness namely Sanjay Moharrir, Superintendent was also recorded, but from his statement nothing has come out indicating that the delinquent accepted any money from the accused persons before him or any money seized from the delinquent or any material produced during course of enquiry substantiating involvement of the delinquent, but this witness stated that the report which he had given earlier to the DFO Obedullaganj that was proper and in that report he had very categorically stated that it was the delinquent who illegally accepted the money from the accused persons and permitted them to take away the forest produce.

10. Thus from the material available on record, it is evidently clear that neither Enquiry officer nor Disciplinary Authority has taken note of the statement of the delinquent which he had given in his defence saying that at the relevant point of time he was going to meet his wife and in the mid of the way near village Hamirganj, Superintendent and other members of the team met him and as per the instruction of Superintendent the delinquent accompanied them and when they were returning back towards Bhagdei, 15 bullock carts carrying forest wood were seized in front of delinquent, but on the next day the persons, who were involved in the said illegal transportation of forest wood, were compelled to make false statement alleging against the delinquent. None of the team members were examined by the prosecution to prove that the delinquent in his defence had made false statement because only Sanjay Moharrir in his report stated that whatever illicit filling was done

that was done with the consent of the delinquent, but during the course of enquiry even no material/evidence produced by the prosecution to establish that any illicit filling of the forest wood was done in the respective Beat where the delinquent was posted as Forest Guard.

11. Consequently, from the overall material considered by the Enquiry officer and also by the Disciplinary Authority while reaching to the impugned finding of holding the delinquent guilty, it cannot be inferred that the delinquent was involved in such illicit filling of forest wood and he received illegal gratification from the persons involved in the said illegal activity. On the Contrary, from the report of enquiry officer it is apparent that the witnesses examined by the prosecution although stated that they have given money to some Nakedar but they did not disclose the name. When none of the witnesses identified the delinquent and not alleged anything against him then without there being any evidence available with the prosecution, it is very surprising as to how and on what basis the said charge has been levelled against him and found proved. There is no contretemps about the degree of evidence required to be considered in a departmental enquiry. Although it is a settled principle of law that strict rule of evidence is not applicable in a matter of disciplinary proceeding but at the same time it is also required to be seen that there has to be some evidence and cogent material available with the prosecution and produced during the course of enquiry so as to prove the charge levelled against the delinquent. I feel no hesitation to say that the stand taken by the counsel for the petitioners that it is a case of no evidence and as such judicial review is permissible is having substance and as per the decisions on which he placed reliance and the view taken therein by the Supreme Court, interference under the existing circumstances even in a petition under Article 226 of the Constitution of

India is permissible.

12. In the case of B.C. Chaturvedi (Supra), the Supreme Court considered the scope of judicial review in a matter of departmental enquiry and also observed as to when interference in a matter of departmental enquiry can be done. In the said case, the Supreme Court observed as under:-

"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

13. The disciplinary authority is the sole judge of facts.

Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 718 : AIR 1964 SC 364 :

(1964) 1 LLJ 38] this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.

18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."

Emphasis supplied

From the view expressed by the Supreme Court, it is clear that interference in a decision of disciplinary authority and the appellate authority is permissible when finding given by the authorities is based on no evidence. The Supreme Court has also observed that if punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it may

appropriately mould the relief directing disciplinary/appellate authority to reconsider the penalty imposed.

13. Likewise, in the case of M.V. Bijlani (Supra), the Supreme Court observed as under:

"25. No doubt, while exercising power under Article 226 of the Constitution, the High Courts have to bear in mind the restraints inherent in exercising power of judicial review. It is because of this that substitution of the High Court's view regarding appropriate punishment is not permissible. But for this constraint, I would have thought that the law-makers do desire application of judicial mind to the question of even proportionality of punishment/penalty. I have said so because the Industrial Disputes Act, 1947 was amended to insert Section 11-A in it to confer this power even on a labour court/industrial tribunal. It may be that this power was conferred on these adjudicating authorities because of the prevalence of unfair labour practice or victimisation by the management. Even so, the power under Section 11-A is available to be exercised, even if there be no victimisation or taking recourse to unfair labour practice. In this background, I do not think if we would be justified in giving much weight to the decision of the employer on the question of appropriate punishment in service matters relating to government employees or employees of public corporations. I have said so because if need for maintenance of office discipline be the reason of our adopting a strict attitude qua the public servants, discipline has to be maintained in the industrial sector also. The availability of appeal etc. to public servants does not make a real difference, as the appellate/revisional authority is known to have taken a different view on the question of sentence only rarely. I would, therefore, think that but for the self- imposed limitation while exercising power under Article 226 of the Constitution, there is no inherent reason to disallow application of judicial mind to the question of proportionality of punishment/penalty. But then, while seized with this question as a writ court interference is permissible only when the punishment/penalty is shockingly disproportionate.

26. I had expressed my unhappiness qua the first facet

of the case, as Chief Justice of the Orissa High Court in paras 20 and 21 of Krishna Chandra Pallai v. Union of India [AIR 1992 Ori 261 (FB)] , by asking why the power of doing complete justice has been denied to the High Courts. I feel happy that I have been able to state, as a Judge of the Apex Court, that the High Courts too are to do complete justice. This is also the result of what has been held in the leading judgment."

14. In case of State Bank of Bikaner and Jaipur (Supra), the Supreme Court has further observed as under:-

"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749 :

1996 SCC (L&S) 80 : (1996) 32 ATC 44] , Union of India v. G. Ganayutham [(1997) 7 SCC 463 : 1997 SCC (L&S) 1806] , Bank of India v. Degala Suryanarayana [(1999) 5 SCC 762 : 1999 SCC (L&S) 1036] and High Court of Judicature at Bombay v. Shashikant S. Patil [(2000) 1 SCC 416 : 2000 SCC (L&S) 144] .)

9. Several witnesses were examined to prove the charge. One of them was H.S. Sharma who conducted the preliminary enquiry and to whom the respondent had made a statement broadly admitting the facts which constituted the subject-matter of the second

charge. I.M. Rawal, who was the cashier and I.C. Ojha, the officiating Branch Manager were also examined. Based upon their evidence, the enquiry officer found the respondent to be guilty of the second charge and that has been accepted by the disciplinary authority. The High Court has interfered with the said finding without expressly holding that the said finding of guilt was erroneous. The High Court has proceeded as if it was sitting in appeal over the departmental enquiry and interfered with the finding on a vague assumption that the respondent must have acted bona fide in an "increasing customer-friendly atmosphere".

There was no justification for the Division Bench to interfere with the finding of guilt."

15. Resultantly, in view of the law laid down by the Supreme Court in the matters relating to departmental enquiry in the cases referred hereinabove and in view of the discussion made hereinabove, it is established beyond doubt that in the case at hand there was no sufficient material or evidence available with the prosecution to bring the charge home or prove the same against the delinquent beyond reasonable doubt. Despite that, the authorities were bent upon to impose punishment upon the delinquent and accordingly they done so and inflicted the major punishment of dismissal from service upon the delinquent, which, in my opinion, is not sustainable in the eyes of law. The order was passed by the authority almost 20 years back and during the pendency of this petition the delinquent died. As such, in my opinion, it would not be justifiable to remit the matter back to the authority for reconsidering the punishment inflicted because the charge levelled against the delinquent has not been proved by adducing any cogent evidence or in fact any evidence.

16. Accordingly, this petition succeeds. The order dated 08.03.2002 (Annexure A/1) imposing punishment of dismissal from service upon

the delinquent is hereby set aside. The respondents are directed to treat the delinquent (original petitioner) in service from the date of his dismissal till the date of his superannuation and accordingly extend the consequential benefits to the present petitioners who are the legal heirs of the deceased employee as if he was in service and make payment of the same to the legal heirs within a period of three months from the date of the order making it clear that delayed payment shall carry interest at the rate of 8% from the date of expiry of three months period from the date of the order till the actual payment is made.

17. However, considering the facts and circumstances of the case, there shall be no order as to costs.

18. The petition is allowed.

(SANJAY DWIVEDI) JUDGE Raghvendra

RAGHVENDRA SHARAN SHUKLA 2024.02.21 10:48:23 +05'30'