Madhya Pradesh High Court
Home Department vs Sujat Kabir on 20 January, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025: MPHC-IND:1665
1 W.A. No. 1426 of 2019
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 20th OF JANUARY, 2025
WRIT APPEAL No. 1426 of 2019
HOME DEPARTMENT AND OTHERS
Versus
SUJAT KABIR
---------------------------------------------------------------------------------------------------------
Appearance:
Shri Sudeep Bhargava - Dy. A.G. for appellant/State.
Shri L.C. Patne - Advocate for the respondent.
ORDER
Per: Justice Vivek Rusia
The State and others have filed the present writ appeal under
Section 2(1) of Madhya Pradesh Uchha Nyayalay (Khand Nyaypith Ko
Appeal) Adhiniyam, 2005 challenging the order dated 18.03.2019
passed in W.P. No. 2201/2018, whereby the Writ Court has allowed the
writ petition by setting aside the punishment order.
2. The respondent/ writ petitioner was served with the charge-sheet
dated 01.04.2007 and the charges are reproduced as under:-
1- बूतऩूर्व आयऺक 723 सभीय की डी0ऩी0एप0 के अंततभ बुगतान की
NEUTRAL CITATION NO. 2025:MPHC-IND:1665
02,52,180/- रूऩमे की याति को , बुगतान व्हाaउचय(ऐ-योर) ऩय रगे
ये र्ेन्मू, स्टा म्ऩt ऩय बूऩू आय0 सभीय के पर्जी हस्ताaऺय फनामे र्जाने की
प्रक्रिमा सम्ऩOन्न कय, िासन एर्ं बूऩू आय0 सभीय से धोखाघडी कय ,
फेईभानीऩूर्क
व हडऩ रेना तथा रगबग 22 भाह ऩश्चा त ् बूतऩूर्व
आयऺक सभीय द्वाया डी0ऩी0एप0 तनकारने हे तु ऩुन: आर्ेदन दे ने से ,
तिकामत हो र्जाने के बम से ब्माऩर्ज सक्रहत 02,52,180/- की याति को
र्ापऩस कय दे ना।
2- िासकीम अतबरेखों एर्ं िासकीम भार/यकभ की हे यापेयी के संफंध भें
ऩूर्व भें दं क्रडत क्रकमे र्जाने के फार्र्जूद आदत भें सुधाय न राना। ''
3. The respondent denied the charges and the Enquiry Officer Shri
M.S. Mandloi, SDOP Thandla, was appointed as Enquiry Officer who
submitted its report with an opinion that the charges are found proved.
Thereafter, the respondent submitted an objection to the enquiry report
which was not found satisfactory and vide order dated 31.05.2007, he
was dismissed from service by the Superintendent of Police.
4. Being aggrieved by the aforesaid order, the respondent preferred
an appeal before the D.I.G. which came to be dismissed vide order dated
22.06.2007. The respondent filed a mercy petition before the Additional
D.G.P. Indore Zone, which was also dismissed vide order dated
07.12.2007. Thereafter, the respondent filed a writ petition before this
Court and the Writ Court has set aside the order of punishment and
orders passed by the appellant authority solely on the ground that no
Presenting Officer was appointed to conduct departmental enquiry and
directed to treat the respondent into the service for pensionery benefits
and other retiral dues. Hence, this writ appeal before this Court.
5. Shri Sudeep Bhargava, learned Dy. A.G. for appellant/State
NEUTRAL CITATION NO. 2025: MPHC-IND:1665
submits that it is correct that the Presenting Officer was not appointed in
the departmental enquiry but the respondent did not raise any objection
during the enquiry as well as in both the appeals. No prejudice was
caused to the respondent as he duly cross-examined all the witnesses
and presented his case before the Enquiry Officer. Although. Writ Court
has set aside the order of punishment but has wrongly directed to grant
all the benefits into the service. The Writ Court ought to have remanded
the matter back to the department for conducting a fresh enquiry at the
stage of issuance of the charge-sheet.
6. In support of his contention, counsel for the appellant has placed
reliance on the judgments passed by the Apex Court in the case of
Union of Indian and Others vs. Ram Lakhan Sharma reported in
(2018) 7 SCC 670, Indrani Bai vs. Union of India reported in 1994
Supp (2) SCC 256 and Union of India and Others vs. Gyan Chand
Chattar reported in (2009) 12 SCC 78.
7. Per contra, Shri L.C. Patne, learned counsel appearing on behalf
of respondent refutes that the respondent rendered twenty eight years of
service and now he is aged about seventy years, therefore, at this stage it
would not be proper to conduct an enquiry against the respondent. The
respondent did not commit any misconduct and he did not cause any
loss to the State. The amount of DPF i.e., Rs. 2,52,180/- was paid due to
the mistaken identity. Later on, the respondent paid the aforesaid
amount with interest of Rs. 25,000/- to Ex- Constable No. 723 Sameer/
complainant.
8. Shri Sudeeep Bhargava submits that so far as the merit of the
NEUTRAL CITATION NO. 2025:MPHC-IND:1665
case is concerned, the respondent illegally withdrawn the amount of Rs.
2,52,180/- payable to the Ex-constable and kept with him for almost two
years and when complaint was made, he made arrangement of the said
amount within 24 hours and returned to the complainant with interest of
Rs. 25,000/- without any protest. The charges against the respondent
were that he not only committed forgery but also misappropriated the
amount. After twenty two months, he returned the amount under the fear
of disciplinary action against him. In the departmental enquiry all the
documents were examined by the Enquiry Officer and it was found that
by forging a signature, the final payment of DPF amounting to Rs.
2,52,180/- payable to the Ex-Constable No. 723 Sameer was received by
the respondent.
Heard
9. It is settled law that if the enquiry is vitiated on account of any
technical ground then instead of directing reinstatement, the Court
should direct the department to start the enquiry from the stage of
alleged illegality as had already been held by the Apex Court in the case
of State of Punjab vs. Rakesh Kumar reported in (2008) 12 SCC 33 and
Board of Management of S.V.T. Educational Institution and Another
vs. A. Raghupathy Bhat and Others reported in (1997) 10 SCC 178. In
this case the Writ Court has found that the enquiry is illegal because the
Presenting Officer was not appointed, therefore, the Writ Court ought to
have remanded the enquiry to the department for conducting it afresh by
appointing a Presenting Officer instead of directing for treating the
petitioner into the service for all pensionery benefits hence, the order to
NEUTRAL CITATION NO. 2025: MPHC-IND:1665
that effect is set aside and the matter is remitted back to the appellants.
But the fact remains that eighteen years have been passed from the date
of incident and during this period the record must have been eliminated
and the memory of the witnesses must have been faded. The Writ Court
has already held that the respondent shall not be entitled for salary or
monetary benefit from the period from date of dismissal till the date of
retirement. We hereby direct the disciplinary authority to take decision
as to whether fresh enquiry is liable to be conducted after lapse of 18-20
years from the date of incident or to impose minor punishment without
conducting any enquiry on the basis of reply of the charge-
sheet/grounds taken in the memo of appeal. Let entire exercise be
completed within a period of 90 days from the date of production of
certified copy of this order.
10. In view of above, the present writ appeal stands dismissed.
(VIVEK RUSIA) (BINOD KUMAR DWIVEDI)
JUDGE JUDGE
Vatan
