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Madhya Pradesh High Court
Dhanpat Singh Divakar vs The State Of Madhya Pradesh on 16 December, 2025
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
WRIT PETITION NO. 23822 OF 2023
DHANPAT SINGH DIVAKAR
Versus
STATE OF MADHYA PRADESH AND OTHERS
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Appearance:
Shri R.P.S. Kaurav, Advocates for the petitioner.
Shri Dilip Awasthi- GA for the respondents/State.
Shri Nitin Goyal- Advocate for respondents no. 2 and 3.
RESERVED ON: 08/12/2025
ORDER PASSED ON: 16/12/2025
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O R D E R
Petitioner has filed this writ petition under Article 226 of the
Constitution of India challenging the enquiry report dated 16/4/2001
(Annexure P/6). He has further challenged the order dated 22/9/2001,
whereby, he was dismissed from service on account of misconduct found
proved in the departmental enquiry with further direction for recovery of
amount under embezzlement. Petitioner has further challenged the order
dated 5/4/2003 (Annexure P//11), whereby, his appeal against the
punishment order was dismissed by the Board of Directors of respondent/
Corporation. The petitioner has also challenged the orders dated 8/11/2013
(Annexure P/15) and 17/8/2023 (Annexure P/17), whereby the dispute
under Section 55 (2) read with Section 64 of the M.P. Cooperative Societies
Act has been decided against the petitioner. Petitioner has further prayed for
a direction to respondents to provide him all consequential benefits.
2. Facts necessary for decision of this case are that at the relevant time,
the petitioner was working as Accountant in M.P. State Cooperative
Scheduled Castes Finance & Development Corporation at Datia. On
account of certain acts of embezzlement of bank money, an FIR was lodged
against him for offence under Sections 409, 467, 468, 420 & 478 of IPC.
For the same set of allegations, a charge sheet was also issued to him on
12/8/1991 (Annexure P/1), whereby, following charge was levelled against
him:-
"Jh fnokdj] ys[kkiky us vius Ikn dk dk;Z djrsa gq,s o"kZ 90&91 esa ftyk
lfefr ds cSad [kkrk dzekad 229] ftyk dsUnzh; lgdkjh cSad nfr;k] 'kk[kk
nfr;k ls dk;kZy; }kjk tkjh fd;s x;s fofHkUUk psdkss esa jkf'k c<+kdj 04 yk[k
16 gtkj :i;s vf/kd vkgj.k fd;k rFkk mls dk;kZy; esa tek u djds mDr
jkf'k dk xcu fd;k gSA
bl izdkj Jh Mh0 ,l0 fnokdj ys[kkiky foRrh; nqjkpj.k ,oa xcu ds nks"kh
gS A"
3. The petitioner submitted reply to the charge-sheet on 27/8/1991. He
denied the allegations levelled against him and shifted the burden upon the
in-charge Chief Executive Officer of the Corporation and stated that he
prepared the cheques in question on instructions from the Chief Executive
Officer. He also requested for keeping the enquiry in abeyance on the
ground that a criminal case on the same set of allegations is also pending.
He also demanded certain documents on the basis of which, the charge was
levelled against him.
4. Since the petitioner failed to give satisfactory explanation of the
charge, the Deputy Collector, Datia was appointed as enquiry officer and the
Chief Executive Officer of the Corporation was appointed as presenting
officer to conduct the departmental enquiry. It is gathered from the records
that since the criminal case was pending in relation to same set of charge,
wherein, the original record was seized by the Police, the enquiry officer
kept the enquiry in abeyance awaiting outcome of the criminal case. The
enquiry therefore, remained pending for a substantial period of time. In
January' 1999, when a new enquiry officer i.e. the then Deputy Collector,
Datia, was appointed, he recommenced the enquiry based upon the
photocopies available on record.
5. The enquiry was conducted by the enquiry officer, wherein,
prosecution witnesses were examined which included the then in-charge
Chief Executive Officer- Shri S.R. Kaushal and three Cashiers working in
District Cooperative Central Bank, Datia from where, the cheques were
cleared. Petitioner was granted opportunity to cross-examine the witnesses
but he declined. He also did not lead any evidence in rebuttal.
6. The enquiry officer accordingly, submitted the report on 16/2/2001
(Annexure P/6), whereby, the charge was found proved against the
petitioner. Accordingly, respondent no.2, being the disciplinary authority,
issued a show cause notice to petitioner alongwith copy of enquiry report
and asked him to submit his explanation to the findings recorded by the
enquiry officer. The petitioner submitted his explanation on 9/7/2001
(Annexure P/8), whereby, he reiterated his earlier explanation fastening the
responsibility upon the then Chief Execution Officer, Shri Kaushal.
Respondent no.2, thereafter, passed the impugned order dated 22/09/2001,
thereby, imposing punishment of dismissal from service with a further
direction for recovery of Rs.4.16 lakh as arrears of land revenue. The
petitioner challenged the punishment order by filing appeal before the Board
of Directors of the Corporation, which too was dismissed vide order dated
5/4/2003 (Annexure P/11).
7. Challenging the aforesaid punishment orders, the petitioner raised a
dispute under Section 55(2) read with Section 64 of the M.P. Cooperative
Societies Act before the Registrar, Cooperative Societies. The dispute was
decided against him by the order dated 8/11/2013 (Annexure P/15) passed
by the Deputy Registrar, Cooperative Societies, Gwalior. The order of
Deputy Registrar was then challenged by the petitioner by filing further
appeal before the M.P. Cooperative Tribunal, Bhopal, which also suffered
dismissal vide order dated 17/8/2023 (Annexure P/17). Thus, the petitioner
has filed the present writ petition challenging the orders mentioned above.
8. The learned counsel for the petitioner challenged the impugned action
taken against the petitioner on the ground that the relevant documents were
not supplied to him though demand was raised by the petitioner in this
regard time and again. He also submitted that the petitioner requested for
assistance of a defence representative, however, the same was also not
allowed. It is further submitted that the charge was proved against the
petitioner based upon the photocopies of the documents, whereas, the same
ought to have been proved by producing the original documents. He further
submitted that the petitioner was denied opportunity of hearing at every
stage of enquiry and the enquiry was concluded after an inordinate delay.
9. The learned counsel for the petitioner also submitted that the defence
of petitioner that he prepared the cheques on the instructions of the in-
charge Chief Executive Officer Shri Kaushal and the cheques were in fact
signed by the Chief Executive Officer was also not considered. He also
submitted that even though the then CEO was the main culprit, he has been
let free by the respondents by imposing minor punishment, whereas, the
petitioner has been made scapegoat by imposing major punishment of
dismissal from service. Learned counsel also argued that the copy of
preliminary enquiry report was not supplied to the petitioner. He thus,
prayed for setting aside of the impugned orders and for reinstatement of the
petitioner with all consequential benefits.
10. On the other hand, respondents' counsel supported the impugned
action of the respondents and submitted that the petitioner has failed to
rebut the evidence which was led in support of the charge. He also
submitted that the petitioner was admittedly working as Accountant at the
relevant time and cheques were also prepared by him. Merely shifting the
burden upon the then CEO would not absolve the petitioner from his acts
which has been established based upon documentary evidence as also by
oral statement given by the witnesses. Learned counsel also submitted that
since the original record was seized by the Police, the charge was proved
based upon the photocopies and since the petitioner has failed to show that
these documents were not genuine, nothing wrong can be found in the
action of the enquiry officer.
11. Learned counsel for the respondents further submitted that the
petitioner though demanded documents, however, he did not point out
details of the documents which are required by him. He further submitted
that because of pendency of criminal case, the then enquiry officer kept the
enquiry in abeyance, however, when the conclusion of the criminal case was
taking substantial time, the enquiry was re-commenced by the enquiry
officer. Learned counsel for the respondents further submitted that the
petitioner has been found guilty of embezzlement of the bank money by
forging the cheques. Thus, the punishment of dismissal from service is just
and proper and the same does not warrant any interference by this Court.
12. No other point was pressed.
13. Considered the arguments and perused the record.
14. Fact that the petitioner was working as Accountant at the relevant
point of time is not in dispute. He has also not disputed the preparation of
cheques by him and his defence is that he prepared the cheques on the
instructions of the then in-charge Chief Executive Officer. However, in the
enquiry report dated 16/4/2001, a finding has been recorded that the amount
mentioned in the cheques was changed by pre-fixing the amount to enhance
the cheque amount and enhanced amount was withdrawn from the account
of the Society. It has been recorded by the enquiry officer that the
corresponding entries were also not made in the cash book and ledger,
which was admittedly the job of the petitioner. Thus, merely by making a
bald statement that he prepared the cheques, on the instructions of then
Chief Executive Officer, is of no help to the petitioner in absence of any
justification of not making corresponding entries in the cash book and
ledger.
15. The Cashiers who have been examined as prosecution witnesses have
stated in their statement that the amount in question was handed over to the
petitioner. Thus, the petitioner was well aware while accepting the amount
that the cheque amount has been enhanced, still he did not raise any
objection. This establishes his involvement in the fraudulent act. Moreso,
the petitioner has failed to cross-examine these witnesses though
opportunity was given to him. Further, he has not led any evidence in
rebuttal. Thus, there is no reason to discard the findings recorded by the
enquiry officer.
16. Learned counsel for the petitioner vehemently argued that the
petitioner raised a demand for supply of documents time and again but the
same was not accepted by the respondents and the documents were not
supplied to him. In support of his submission, he referred to the applications
collectively filed as Annexure P/3 to P/5. In this regard, it be noted here that
the charge has been established against the petitioner based upon the cash
register and the ledger produced during the course of enquiry. Copies
thereof were supplied to the petitioner. Thus, sufficient material was
available on record to support the findings recorded by the enquiry officer.
The Apex Court in the case of State Bank of India v. Tarun Kumar
Banerjee, reported in (2000) 8 SCC 12 has held that the charge levelled
against the delinquent is required to be proved based upon the documents
relied upon by the presiding officer. The observation of the Apex Court in
para 8 is as follow:-
"8. It is submitted that even if evidence is withheld, the
conclusion of the enquiry officer would be correct is a perverse
approach. We do not think so. What is stated therein is that
when sufficient evidence was produced to conclude one way or
the other, the evidence not produced will not be of any
significance unless there was such evidence which was withheld
would have tilted the evidence adduced in the course of
domestic enquiry. No such evidence is forthcoming in this case.
Therefore, this argument deserves to be rejected."
17. It is also relevant to point out that the petitioner while raising the
ground of non-supply of documents is required to show relevancy of said
documents and the resultant prejudice caused to him because of non-supply
of documents. In absence of same, the enquiry cannot be held to be vitiated.
This has been so held by the Apex Court in the case of Union of India Vs.
Alok Kumar, reported in (2010)5 SCC 349, wherein in para 83, the Apex
Court had held as under:-
"83.Earlier, in some of the cases, this Court had taken the view
that breach of principles of natural justice was in itself a
prejudice and no other "de facto" prejudice needs to be proved.
In regard to statutory rules, the prominent view was that the
violation of mandatory statutory rules would tantamount to
prejudice but where the rule is merely directory the element of
de facto prejudice needs to be pleaded and shown. With the
development of law, rigidity in these rules is somewhat relaxed.
The instance of de facto prejudice has been accepted as an
essential feature where there is violation of the non-mandatory
rules or violation of natural justice as it is understood in its
common parlance. Taking an instance, in a departmental
enquiry where the department relies upon a large number of
documents majority of which are furnished and an opportunity
is granted to the delinquent officer to defend himself except that
some copies of formal documents had not been furnished to the
delinquent. In that event the onus is upon the employee to show
that non-furnishing of these formal documents have resulted in
de facto prejudice and he has been put to a disadvantage as a
result thereof."
18. Since the petitioner has failed to pinpoint relevancy of any document
which is not supplied to him and the prejudice which is caused to him, the
objection raised by the petitioner's counsel regarding non-supply of the
documents is unacceptable and is accordingly rejected.
19. Learned counsel for the petitioner also vehemently raised a ground of
non-production of original documents during the course of enquiry. In this
regard, it be noted here that the original record was seized by the Police. In
his report, the enquiry officer has recorded this fact that awaiting outcome
of the criminal case, enquiry was kept pending for about 10 years. However,
looking to the delay in conclusion of the criminal case, enquiry was
recommenced based upon photocopies of the documents and the oral
submissions of the witnesses. It is further gathered from the record that the
petitioner was given opportunity to cross-examine the witnesses but he
denied. He has also not led any evidence in rebuttal. Therefore, in absence
of any objection raised by the petitioner during the course of enquiry, the
establishment of charge on the basis of photocopies of documents would
also not vitiate the enquiry. This has been so held by the Apex Court in the
case of State Bank of India and Ors. Vs. Narendra Kumar Pandey,
reported in (2013) 2 SCC 740. Para 22 & 23 being relevant are reproduced
hereinbelow:-
"22.We are of the view that the High Court also committed an
error in holding that since no witness was examined in support
of the charges, it was a case of no evidence. In an ex parte
inquiry, in our view, if the charges are borne out from the
documents kept in the normal course of business, no oral
evidence is necessary to prove those charges. When the
charged officer does not attend the inquiry, then he cannot
contend that the inquiring authority should not have relied
upon the documents which were not made available or
disclosed to him. Of course, even in an ex parte inquiry, some
evidence is necessary to establish the charges, especially when
the charged officer denies the charges, uncontroverted
documentary evidence in such situation is sufficient to prove
the charges.
23. The inquiring authority has examined each and every
charge levelled against the charged officer and the documents
produced by the presenting officer and came to the conclusion
that most of the charges were proved. In a departmental
enquiry, the disciplinary authority is expected to prove the
charges on preponderance of probability and not on proof
beyond reasonable doubt. Reference may be made to the
judgments of this Court inUnion of India v. Sardar Bahadur
[(1972) 4 SCC 618] and R.S. Saini v. State of Punjab [(1999) 8
SCC 90 : 1999 SCC (L&S) 1424]. The documents produced by
the Bank, which were not controverted by the charged officer,
support all the allegations and charges levelled against the
charged officer. In a case, where the charged officer had failed
to inspect the documents in respect of the allegations raised by
the Bank and not controverted, it is always open to the
inquiring authority to accept the same."
20. Petitioner has also strenuously urged the delay in conclusion of
enquiry as also prejudice caused to the petitioner. However, except making
this submission, it has not been shown as to how and what prejudice is
caused to the petitioner. Law with regard to delay in conclusion of enquiry
is also well settled. The Apex Court in the case of Additional
Superintendent of Police Vs. T.Natarajan, reported in 1999 SCC (L&S)
646 has held in para 7 as under:-
"7. In regard to the allegation that the initiation of the
disciplinary proceedings was belated, we may state that it is
settled law that mere delay in initiating proceedings would not
vitiate the enquiry unless the delay results in prejudice to the
delinquent officer. In this case, such a stage as to examine that
aspect has not arisen."
21. Recently, again the law has been reiterated by the Apex Court in the
case of S. Janaki Iyer v. Union of India & Ors., reported in (2025) 8 SCC
696, wherein, in para 28 the Court held as under:-
"28. Mere delay during the inquiry proceedings, when it is
explained with regard to the time taken for the inquiry to
conclude and that too justifying the same with no prejudice
having been caused, cannot be made the basis for vitiating the
departmental proceedings. Inordinate or unexplained delay in
the departmental proceedings may be a justifiable ground if
tampered with prejudice having been established to have been
caused to the delinquent employee in the said process for
interference by the Court. In the present case, the same is
absent and therefore the said plea of delay fails."
22. Thus, mere delay in conclusion of enquiry without showing any
resultant prejudice to the delinquent would not vitiate the enquiry. This
ground raised by the petitioner is also not acceptable and is accordingly,
rejected.
23. A criminal case was instituted against the petitioner for the same
incidence in the year 1991 itself and simultaneously the charge-sheet was
also issued to him on 12/8/1991. On the objection raised by the petitioner,
the enquiry officer kept the enquiry in abeyance for a substantial period of
time. However, when the criminal case was not concluded for a substantial
period of time, it was re-commenced in January' 1999. This fact has been
recorded by the enquiry officer in his report. Thus, delay in conclusion of
enquiry is well explained in the facts of the case. The Apex Court in the case
of SBI v. Neelam Nag, reported in (2016) 9 SCC 491 was dealing with
somewhat similar situation and answered the law in para 23 & 24 as
under:-
"23 [Ed. : Paras 23, 24, 25 and 27 corrected vide Order dated
9-11-2016.]. Notably, in the present case in spite of a
peremptory direction of the Division Bench given on 28-6-2010
to the criminal court concerned to proceed with the trial on
day-to-day basis, as noted above, no effective progress has
been made in that trial (except recording of evidence of three
prosecution witnesses out of eighteen witnesses) so far. In the
last six years, evidence of only two additional prosecution
witnesses has been recorded. Respondent 1 has not pointed out
any material on record to even remotely suggest that she had
tried her best to dissuade the criminal court from adjourning
the trial, in breach of direction given by the Division Bench of
the High Court to proceed on day-to-day basis and to conclude
the trial within one year from 28-6-2010. Pendency of criminal
trial for around 10 years, by no means, can be said to be a
reasonable time-frame to withhold the disciplinary
proceedings. We are fortified in taking this view on the
principle underlying the former part of the same clause, which
envisages that if the Authority which has to start the
prosecution refuses (read fails) to do so within one year from
the commission of the offence, the departmental action can
proceed under the provisions as set out in Clauses 11 and 12 of
the settlement.
24 [Ed. : Paras 23, 24, 25 and 27 corrected vide Order dated
9-11-2016.] . In the fact situation of the present case, it is
possible to take the view that the first part of Clause 4 is
attracted. In that, Respondent 1 has been put on trial in
connection with the alleged offence, by framing of charges on
12-6-2007. That has happened after one year from the
commission of the offence."
24. Lastly, the petitioner's counsel has raised an objection with regard to
not allowing him the defence representative, however, it is seen that the
charge levelled against the petitioner was simple and the petitioner being an
Accountant with sufficient experience of working, does not suffer any
prejudice, if the defence representative was not allowed. Thus, the enquiry
would not vitiate on this ground also.
25. In the criminal case lodged against the petitioner, the petitioner has
been convicted for the same offence vide judgment dated 30/6/2016 passed
by Chief Judicial Magistrate, Datia in Criminal Case No.528/2006. Thus, in
the criminal case also the charge against the petitioner has been established
beyond reasonable doubt. It is stated by the petitioner that he has challenged
the judgment of conviction in appeal and the same is pending.
26. In view of the discussion made above, the action taken by the
respondents against the petitioner which has been affirmed by the Deputy
Registrar as also by the Tribunal, is found to be just and proper and does not
warrant any interference by this Court.
27. Petition is accordingly fails and is hereby dismissed.
(ASHISH SHROTI)
JUDGE
JPS/-
