[Cites 16, Cited by 0]
Madhya Pradesh High Court
Santosh Sen vs The State Of Madhya Pradesh on 4 December, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:35554
1 W.P. No.20457/2022
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE JAI KUMAR PILLAI
WRIT PETITION No.20457 of 2022
SANTOSH SEN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri L.C. Patne - Advocate for the petitioner.
Shri Raghav Shrivastava - Government Advocate for the
respondents/State
Reserved on : 20/11/2025
Post on : 04/12/2025
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ORDER
The petitioner has approached this Court under Article 226 of the
Constitution of India seeking followings reliefs:-
"a) To call for the relevant records of the case from the
respondents;
b) To quash the impugned punishment order dated
22.11.2021 (Annexure P/13) issued by Respondent No. 4, the
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consequential appellate order dated 27.01.2022 (Annexure
P/15) issued by Respondent No. 2, and the impugned
revisional order dated 12.08.2022 (Annexure P/18) issued
by Respondent No. 5, by issuing a writ of certiorari or any
other appropriate writ, direction, or order;
c) To command the respondents to reinstate the petitioner in
service and to grant all consequential and monetary
benefits, including arrears of salary and allowances along
with interest @ 12% per annum, by issuing a writ of
mandamus or any other appropriate writ, direction, or
order;
d) To allow this petition with costs;
e) To pass any other order(s) as may be deemed just and
proper in the facts and circumstances of the case, in favour
of the petitioner."
2. It is the case of the petitioner that he was initially appointed as
Home Guard Sainik No.118 and successfully completed his basic training
between 01/09/1998 and 15/10/1998. Since then, he has been serving
sincerely, and several commendation certificates were issued to him from
time to time. Further the petitioner was posted at Police Station Tilak
Nagar, Indore, Respondent No.2, by order dated 17/09/2021, directed the
CSP, Pardeshipura, to conduct a preliminary enquiry into allegations
regarding demand of illegal gratification of Rs.50,000/- from chain
snatchers detained in the police station and regarding circulation of a
related video on social media.
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3. Pursuant to the said direction, the CSP obtained a report from the
SHO, Police Station Tilak Nagar, and thereafter conducted a preliminary
enquiry. The petitioner's statement was recorded, but the statements of
other concerned persons were taken behind his back and without
permitting him to cross-examine them. On 22/09/2021, the CSP
submitted his enquiry report recommending stern disciplinary action
against the petitioner, however, this report was never supplied to the
petitioner. Based on this preliminary enquiry, Respondent No.2, vide
letter dated 04/10/2021, directed Respondent No.4 to take strict
disciplinary action.
4. Thereafter, without issuing any charge-sheet, without supplying the
preliminary enquiry report, and without appointing a presenting officer,
Respondent No. 4 directly appointed an enquiry officer, who combined
the roles of enquiry officer and presenting officer. The petitioner was
asked to submit his explanation regarding alleged physical assault on the
accused persons and making their video. Only the petitioner's statement
was taken on 28/10/2021, and no witnesses were examined in his
presence. Subsequently, without providing a copy of the enquiry report or
affording opportunity for cross-examination, Respondent No.4 issued a
show-cause notice dated 10/11/2021 proposing stern disciplinary action.
The petitioner submitted a detailed reply and also demanded relevant
documents. The CD of the alleged video was never provided during the
enquiry and was supplied later only under the RTI Act on 14/02/2022.
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5. Ultimately, Respondent No.4 passed the impugned punishment
order dated 22/11/2021, removing the petitioner from service under Rule
25 of the M.P. Home Guard Rules, 2016, without framing specific
charges, without holding a proper departmental enquiry, and solely
relying on the preliminary enquiry. The statutory appeal filed by the
petitioner was dismissed on 27/01/2022, and even the revision preferred
by him after directions of this Hon'ble Court in W.P. No.11049/2022 was
rejected by Respondent No.5 on 12/08/2022. Aggrieved by these actions,
the petitioner has approached this Hon'ble Court by way of the present
writ petition.
6. The counsel for the petitioner asserts that the entire disciplinary
action taken against the petitioner is vitiated as it stands in stark violation
of the principles of natural justice and fair play. It is urged that the
preliminary enquiry forming the basis of the punishment was conducted
completely behind the petitioner's back, where statements of witnesses
were recorded without providing him any opportunity of participation or
cross-examination. It is further submitted that no charge-sheet containing
specific and distinct articles of charge was ever served, no oral enquiry
was held, and even the alleged CD containing the offending video was
never subjected to any scientific examination. The petitioner has relied on
the case of Union of India v. Mohd. Naseem Siddiqui, (2005 MPLSR
61) (DB), to contend that an enquiry officer cannot simultaneously act as
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the presenting officer, as such practice offends the basic canons of
fairness.
7. The counsel for the petitioner further asserts that the disciplinary
authority, while imposing the impugned punishment, erroneously
considered adverse past service record without issuing any notice
regarding such material or mentioning it in any charge. It is submitted
that taking into account such extraneous considerations without
cautioning the delinquent employee causes serious prejudice and renders
the punishment unsustainable in law. The petitioner has relied on the case
of State of Mysore v. K. Manche Gowda, AIR 1964 SC 506 and M.V.
Bijlani v. Union of India, (2006) 5 SCC 88 to emphasize that
undisclosed material cannot be relied upon while imposing punishment.
8. The counsel for the petitioner also asserts that neither the
preliminary enquiry report nor the regular enquiry report was furnished to
the petitioner before passing the order of removal from service. It is urged
that withholding such vital documents violates the settled law laid down
by the Hon'ble Supreme Court in Managing Director, ECIL v. B.
Karunakar, (1993) 4 SCC 727 which mandates that denial of enquiry
report ipso facto vitiates the punishment. The petitioner has relied on this
judgment as well as the corresponding circular of the State Government
dated 29.07.1994 to submit that the impugned action is wholly illegal and
liable to be quashed.
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9. The counsel for the petitioner finally asserts that the appellate and
revisional authorities have failed to discharge their statutory duties by
dismissing the petitioner's appeal and revision through non-speaking and
unreasoned orders. It is submitted that such mechanical disposal violates
the law laid down by the Hon'ble Supreme Court in Ram Chandra v.
Union of India, AIR 1986 SC 1173; Narendra Mohan Arya v. United
India Insurance Co. Ltd., (2006 SCC (L&S) 840); Chairman, D.A.,
Rani Lakshmi Bai K.G. Bank v. Jagdish Sharan Varshney, 2009 AIR
SCW 3321; and Divisional Forest Officer v. Madhusudan Rao, 2008
AIR SCW 1365. The petitioner has also relied on the decisions of this
Hon'ble Court in Mohd. Idris v. Registrar General, 2005 (2) MPLJ
51, and Tanveer Ahmad v. State of M.P., 2005 (2) MPHT 15 (NOC),
to contend that Appellate Authorities are bound to pass reasoned and
speaking orders.
10. The counsel for the respondents asserts that the present petition is
not maintainable, as the petitioner previously filed W.P. No.11049/2022
against the same termination order dated 22/11/2021, which was
dismissed on 11.05.2022 due to availability of a statutory remedy under
Rule 26 (6) of the Home Guard Rules, 2016. The petitioner thereafter
filed a revision, which was rejected on 12/08/2022 by a speaking order. It
is highlighted that the documents submitted by the petitioner (Annexure
P/1 to P/14) themselves show that he was given ample opportunity to
present his case both before the District Commandant and the Revisional
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Authority. The enquiry into the viral video showing police personnel
demanding Rs.50,000 from an accused revealed that the petitioner had
created the video by intimidating the accused during his posting at Tilak
Nagar Police Station. Therefore, the respondents contend that principles
of natural justice were fully complied with.
11. The respondents further submit that the petitioner, being a Home
Guard volunteer, is not governed by the Madhya Pradesh Civil Services
(Classification, Control and Appeal) Rules, 1966, but exclusively by the
Home Guard Rules, 2016. These rules do not provide for a formal
departmental inquiry before termination, and the petitioner's conduct
amounts to a violation of Rule 23 and Rule 27 of the 2016 Rules. Hence,
the legal arguments and case laws cited by the petitioner do not apply to
him. The termination order, supported by material evidence and affirmed
by the Revisional Authority, does not suffer from arbitrariness, bias, or
discrimination. Consequently, no ground for interference under Article
226 of the Constitution is made out. The respondents also reserve the
right to file a detailed reply if directed by this Hon'ble Court.
12. Heard, both parties at length and perused the entire records
available.
13. This Court is of the considered opinion that the disciplinary
proceedings initiated against the petitioner stand vitiated on account of
gross violation of the principles of natural justice. The record reveals that
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the entire action culminating in the petitioner's removal was founded
solely upon a preliminary enquiry conducted behind his back by the CSP
of police station Tilak Nagar, wherein statements of material witnesses
were recorded without permitting the petitioner either to participate or to
cross-examine them. The Hon'ble Supreme Court in State of Uttar
Pradesh v. Shatrughan Lal, (1998) 6 SCC 651, para 6, has held that a
preliminary enquiry cannot substitute a regular enquiry nor can it form
the sole basis of punitive action. The failure of the respondents to supply
the preliminary enquiry report and to conduct a full-fledged oral enquiry,
therefore, renders the impugned punishment legally unsustainable, the
operative part of the judgement reads as follows :-
"6. Preliminary enquiry which is conducted invariably on
the back of the delinquent employee may often constitute
the whole basis of the charge-sheet. Before a person is,
therefore, called upon to submit his reply to the charge-
sheet, he must, on a request made by him in that behalf, be
supplied the copies of the statements of witnesses recorded
during the preliminary enquiry particularly if those
witnesses are proposed to be examined at the departmental
trial. This principle was reiterated in Kashinath
Dikshita v. Union of India (1986) 1 ATC 176 : AIR 1986
SC 2118 wherein it was also laid down that this lapse
would vitiate the departmental proceedings unless it was
shown and established as a fact that non-supply of copies
of those documents had not caused any prejudice to the
delinquent in his defence."
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14. This Court is further of the considered opinion that the
simultaneous functioning of the enquiry officer as the presenting officer
is impermissible in law, as the same violates the doctrine of fairness in
disciplinary adjudication. The petitioner has rightly relied on Union of
India v. Mohd. Naseem Siddiqui, 2005 MPLSR 61 (DB), wherein it
was categorically held that :-
"9. A domestic inquiry must be held by an unbiased person
who is unconnected with the incident so that he can be
impartial and objective in deciding the subject matters of
inquiry. He should have an open mind till the inquiry is
completed and should neither act with bias nor give an
impression of bias. Where the Inquiry Officer acts as the
Presenting Officer, bias can be presumed. At all events, it
clearly gives an impression of bias. An Inquiry Officer is in
position of a Judge or Adjudicator. The Presenting Officer
is in the position of a Prosecutor. If the Inquiry Officer
acts as a Presenting Officer, then it would amount to Judge
acting as the prosecutor. When the Inquiry Officer
conducts the examination-in- chief of the prosecution
witnesses and leads them through the facts so as to present
the case of the disciplinary authority against the employee
or cross- examines the delinquent employee or his
witnesses to establish the case of the employer/disciplinary
authority evidently, the Inquiry Officer cannot be said to
have an open mind. The very fact that he presents the case
of the employer and supports the case of the employer is
sufficient to hold that the Inquiry Officer does not have an
open mind"
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15. This Court is also of the considered opinion that reliance upon
adverse past service record without putting the petitioner to notice
represents a fatal illegality. The Hon'ble Supreme Court in State of
Mysore v. K. Manche Gowda, AIR 1964 SC 506, para 8, and M.V.
Bijlani v. Union of India, (2006) 5 SCC 88, paras 25-26, has held that:-
"8. Before we close, it would be necessary to make one
point clear. It is suggested that the past record of a
government servant, if it is intended to be relied upon for
imposing a punishment, should be made specific charge in
the first stage of the enquiry itself and, if it is not so done, it
cannot be relied upon after the enquiry is closed and the
report is submitted to the authority entitled to impose the
punishment. An enquiry against a government servant is
one continuous process, though for convenience it is done
in two stages. The report submitted by the Enquiry Officer
is only recommendatory in nature and the final authority
which scrutinizes it and imposes punishment is the
authority empowered to impose the same. Whether a
particular person has a reasonable opportunity or not
depends, to some extent, upon the nature of the subject-
matter of the enquiry. But it is not necessary in this case to
decide whether such previous record can be made the
subject matter of charge at the first stage of the enquiry.
But, nothing in law prevents the punishing authority from
taking that fact into consideration during the second stage
of the enquiry, for essentially it relates more to the domain
of punishment rather than to that of guilt. But what is
essential is that the government servant shall be given a
reasonable opportunity to know that fact and meet the
same."
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16. This Court is moreover of the considered opinion that the petitioner
was deprived of the enquiry report before the order of punishment was
passed, which constitutes a mandatory requirement in law. The
Constitution Bench in Managing Director, ECIL v. B. Karunakar,
(1993) 4 SCC 727, paras 7, 30 & 31, has unequivocally held that non-
supply of the enquiry report ipso facto vitiates the punishment as it
deprives the employee of an opportunity to rebut adverse findings. The
fact that the alleged CD forming the basis of the charges was supplied
only after the penalty under the RTI Act further demonstrates a denial of
fair opportunity.
17. The respondents' contention that Home Guard personnel are
governed solely by the Home Guard Rules, 2016, does not dilute the
applicability of natural justice principles which apply irrespective of the
service rules, as held in A.K. Kraipak v. Union of India, (1969) 2 SCC
262, which reads as follows:-
"20. The aim of the rules of natural justice is to secure
justice or to put it negatively to prevent miscarriage of
justice. These rules can operate only in areas not covered
by any law validly made. In other words they do not
supplant the law of the land but supplement it. The concept
of natural justice has undergone a great deal of change in
recent years. In the past it was thought that it included just
two rules namely: (1) no one shall be a judge in his own
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case (Nemo debet esse judex propria causa) and (2) no
decision shall be given against a party without affording
him a reasonable hearing (audi alteram partem). Very
soon thereafter a third rule was envisaged and that is that
quasi-judicial enquiries must be held in good faith, without
bias and not arbitrarily or unreasonably. But in the course
of years many more subsidiary rules came to be added to
the rules of natural justice. Till very recently it was the
opinion of the courts that unless the authority concerned
was required by the law under which it functioned to act
judicially there was no room for the application of the rules
of natural justice. The validity of that limitation is now
questioned. If the purpose of the rules of natural justice is
to prevent miscarriage of justice one fails to see why those
rules should be made inapplicable to administrative
enquiries. Often times it is not easy to draw the line that
demarcates administrative enquiries from quasi-judicial
enquiries. Enquiries which were considered administrative
at one time are now being considered as quasi-judicial in
character. Arriving at a just decision is the aim of both
quasi-judicial enquiries as well as administrative enquiries.
An unjust decision in an administrative enquiry may have
more far reaching effect than a decision in a quasi-judicial
enquiry. As observed by this Court in Suresh Koshy
George v. University of Kerala [1968 SCC OnLine SC 9]
the rules of natural justice are not embodied rules. What
particular rule of natural justice should apply to a given
case must depend to a great extent on the facts and
circumstances of that case, the framework of the law under
which the enquiry is held and the constitution of the
Tribunal or body of persons appointed for that purpose.
Whenever a complaint is made before a court that some
principle of natural justice had been contravened the court
has to decide whether the observance of that rule was
necessary for a just decision on the facts of that case."
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18. This Court is finally of the considered opinion that the appellate
and revisional orders cannot be sustained as they suffer from non-
application of mind and absence of reasons. The Supreme Court in Ram
Chandra v. Union of India, AIR 1986 SC 1173, para 10, Narendra
Mohan Arya v. United India Insurance Co. Ltd., (2006) SCC (L&S)
840, paras 26-28, and Chairman, Rani Lakshmi Bai K.G. Bank v.
Jagdish Sharan Varshney, 2009 AIR SCW 3321, para 9, has held that
appellate authorities are obligated to pass speaking, reasoned orders
reflecting independent consideration. The orders dated 27/01/2022 and
12/08/2022 are cryptic, mechanical, and do not deal with the specific
grounds raised by the petitioner. Such orders cannot cure the defects
committed by the disciplinary authority.
19. Consequently, this Court finds that the impugned termination and
the subsequent orders are arbitrary, illegal, and deserve to be set aside.
20. Thus, in view of the above discussion, the writ petition deserves to
be and is hereby partly allowed. The impugned orders dated 22/11/2021,
27/01/2022 and 12/08/2022 are quashed. The petitioner is entitled to
reinstatement, with liberty to the Competent Authority to initiate the
enquiry afresh in accordance with the principles of natural justice. The
grant of back-wages and all consequential benefits from the date of
termination until the date of reinstatement shall be decided by the
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Competent Authority as per the rules prescribed by law after conclusion
of the enquiry.
21. Pending applications, if any shall be disposed of accordingly.
(Jai Kumar Pillai)
Judge
Aiyer*PS
