Madhya Pradesh High Court
The State Of Madhya Pradesh vs Rammilan Pandey on 27 January, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SURESH KUMAR KAIT,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 27 th OF JANUARY, 2025
WRIT APPEAL No. 1730 of 2023
THE STATE OF MADHYA PRADESH AND OTHERS
Versus
RAMMILAN PANDEY
Appearance:
Shri B.D. Singh - Deputy Advocate General for appellants/State.
Shri Vijay Kumar Shukla - Advocate for respondent.
ORDER
Per: Hon'ble Shri Justice Suresh Kumar Kait, Chief Justice
This appeal has been filed by the appellants/State under Section 2(1) of the
Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam,
2005 challenging the order dated 10.02.2023 passed by the learned Single Judge
in W.P. No.4217/2020 whereby the writ petition filed by the respondent/writ
petitioner was allowed with all consequential benefits. The appellants seeks the
following reliefs:-
"1. Hon'ble Court may be pleased to set aside the order dated
10.02.2023 passed by the Hon'ble Single Bench in W.P.
No.4217/2020.
2. Hon'ble Court may be pleased to dismiss the W.P.
No.4217/2020.
3. Any other suitable relief deemed fit in the facts and
circumstances of the case may also kindly be granted in favour of
the appellant."
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2. Respondent/writ petitioner was a Constable at the relevant time in Police
Department and when he was posted at Police Station Jiyawan, District Sidhi, he
was found involved alongwith one A.S.I. Shri Parmatma Singh charging entry fees
from the truck drivers in the light of 26.05.1998. They were trapped by the then
Superintendent of Police, Sidhi and the amount collected by them towards the
entry fees was also recovered from them. A preliminary enquiry was conducted on
the said incident and thereafter a charge-sheet was also issued to the petitioner and
also to Parmatma Singh jointly on 05.06.1998. One Shri R.L. Prajapati,
Additional Superintendent of Police was appointed as enquiry officer but no
presenting officer was appointed. The enquiry officer submitted the enquiry report
in which petitioner was exonerated. The said enquiry report dated 31.12.1998 is
available on record as Annexure P-2. As per the petitioner the enquiry report
reveals that the statements of witnesses, who were examined during the course of
enquiry, were considered and then only the petitioner and other officer named
above were given the clean chit by the enquiry officer. Thereafter, the said report
was forwarded to the Superintendent of Police, Sidhi who after examining the
enquiry report disagreeing with the same remitted back the same to the enquiry
officer on 23.01.1999 saying that during the course of enquiry statement of
Superintendent of Police, Sidhi, who was the main prosecution witness of the
incident, was not recorded as a prosecution witness. The Superintendent of Police
also directed to submit a report again after examining the remaining witnesses.
Thereafter enquiry officer after recording the statement of Superintendent of
Police had again submitted a report on 03.06.1999 (Annexure P-3) in which he
found the charges against Parmatma Singh partly proved and fully proved against
the petitioner. Thereafter, on direction of the Inspector General of Police enquiry
was ordered again directing that the witnesses who were declared hostile they be
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again examined as on earlier occasion the enquiry officer did not examine them
properly. The Additional S.P., Waidhan namely K.C. Agrawal was appointed as a
new Enquiry Officer who again conducted an enquiry and submitted his report on
19.02.2000 (Annexure P-4) in which also the petitioner was found guilty as the
charges levelled against him were found fully proved. Thereafter, on 30.05.2000
(Annexure P-5) final order was passed terminating the services of the petitioner.
The petitioner preferred an appeal against the said order which was also dismissed
on 22.02.2001.
3. Being aggrieved by the aforesaid orders, petitioner preferred a writ petition
which was registered as W.P. No.17067/2003. The said writ petition was allowed
setting aside the orders dated 30.05.2000 and 22.02.2001 and the matter was
remitted back to the disciplinary authority by directing him to communicate the
petitioner the reasons of disagreeing with the findings of enquiry officer and
provide an opportunity of hearing to the petitioner.
4. In pursuance to the order passed in the said writ petition, the disciplinary
authority issued a show cause notice to the petitioner on 08.04.2018 (Annexure P-
8) directing him to submit his reply to the said show cause notice within a period
of 10 days. Petitioner submitted his reply to the said show cause notice denying
the allegations made therein. Thereafter vide letter dated 27.04.2018 the petitioner
was also given a personal hearing. The disciplinary authority i.e the Inspector
General of Police passed the impugned order dated 31.05.2018 (Annexure P-11)
inflicting punishment of removal from service upon the petitioner.
5. We note on perusal of the impugned order that the petitioner had filed
rejoinder along with the documents showing that in the third round of enquiry
when Shri K.C. Agrawal was appointed as an enquiry officer there was no
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presenting officer and Shri Agrawal acted as a presenting officer also and cross-
examined the witnesses and, therefore, the report of the said enquiry is contrary to
law as enquiry officer cannot act as a presenting officer because a person cannot be
a judge of his own cause.
6. Learned counsel for the appellant submits that the scope of interference in the
matter of disciplinary enquiry is very limited because in the present case proper
opportunity of hearing was provided to the petitioner after examining the
witnesses. The enquiry officer reached the conclusion that the charges levelled
against the petitioner were found fully proved and, therefore, disciplinary
authority inflicted the punishment of dismissal from service upon the petitioner
and that order was approved by the appellate authority.
7. Counsel appearing on behalf of the appellant submits that there is nothing
wrong in the view taken by the authorities and the procedure adopted by the
appellants are proper, therefore, the present appeal deserves to be allowed.
8. On perusal of the impugned order, it is observed by the writ court that from a
perusal of the documents filed along with the rejoinder it is evident that Shri K.C.
Agrawal, Additional Superintendent of Police was appointed as an enquiry officer
asking him to cross-examine the witnesses who were declared hostile but no
separate presenting officer was appointed and Shri Agrawal himself acted as a
presenting officer conducting the chief-examination of the prosecution witnesses
as well as cross -examination of prosecution as well as defence witnesses. The
enquiry was conducted examining and cross-examining the delinquent
government servants by the enquiry officer himself as such he not only cross-
examined the witnesses but also acted as a presenting officer and as such in the
third round of enquiry, nobody was acting as a presenting officer.
9. In a similar circumstances, the High Court in the case of Sujat Kabir S/o
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Abdul Wahid vs. State of M.P. and others - W.P. No.2201/2008 decided on
18.03.2019 while relying upon the case of K.C. Bhargava vs. State of M.P.,
2012(4) M.P.L.J. 244 and Ram Prakash Gaya Prasad vs. State of M.P., 2008 (4)
M.P.L.J. 35 has held as under:-
"9. In these case, no Presenting Officer was appointed and the
inquiry was initiated by the Enquiry Officer as Presenting Officer to
present the case of prosecution, therefore, this Court has quashed
the entire proceedings.
10. In the case of Ram Prakash (Surpa) para 6 to 12 are relevant,
which reads as under:-
"6. The petitioner has raised various grounds before this Court
assailing the order of reversion and the order passed by the
appellate authority. It has been urged by the petitioner that no
Presenting Officer was appointed by the disciplinary authority and
the Enquiry Officer himself has acted as the Presenting Officer
conducting the chief examination of prosecution witnesses and
cross-examination the defence witnesses. The Enquiry Officer
himself has conducted the examination and cross-examination of
the petitioner.
7. From the bare perusal of the enquiry proceedings which took
place before the Enquiry Officer, it is evident that the Enquiry
Officer has acted as the Presenting Officer conducting the chief
examination of the prosecution witnesses as well as cross-
examination of the defence witnesses. The enquiry has been
conducted examining and cross-examining the delinquent
Government servant by the Enquiry Officer.
8. Rule 14 of the CCA Rules of 1966 provides procedure for
imposing penalties. Relevant Rule 14(5)(c) reads as under:- "Where
the disciplinary authority itself inquires into any article of charge or
appoints an inquiring authority for holding an inquiry into such
charge, it may, by an order, appoint a Government servant or a legal
practitioner, to be known as the "Presenting Officer" to present on
its behalf the case in support of the article of charge."
9. The Presenting Officer appointed under Rule 14(5)(c) of the
CCA Rules of 1966 is in fact is a person appointed like a prosecutor
and the person has to prove the misconduct before the Enquiry
Officer. It is the Presenting Officer who conducts the chief
examination of the prosecution witnesses as well as cross-
examination of the defence witnesses. It is again the Presenting
Officer who conducts the cross-examination of the delinquent
Government servant in order to arrive at a finding of guilt. In the
present case after going through the record minutely, it is evident
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that the Enquiry Officer has conducted the chief examination and
he has conducted the cross-examination of the defence witnesses as
well as cross-examined the delinquent Government servant. Thus,
the Enquiry Officer himself has played the role of the prosecutor.
10. A Division Bench of this Court in the case of Union of India
through its Secretary, Ministry of Railway, New Delhi and others
vs. Mohd. Naseem Siddiqui, 2005 (1) LLJ 931 in paragraph 16 has
held as under:-
We may summarise the principles thus:
(i) The Inquiry Officer, who is in the position of a Judge shall not
act as a Presenting Officer, who is in the position of a prosecutor.
(ii) It is not necessary for the Disciplinary Authority to appoint a
Presenting Officer in each and every inquiry. Non-appointment of a
Presenting Officer, by itself will not vitiate the inquiry.
(iii) The Inquiry Officer, with a view to arrive at the truth or to
obtain clarifications, can put questions to the prosecution witnesses
as also the defence witnesses. In the absence of a Presenting
Officer, if the Inquiry Officer puts any questions to the prosecution
witnesses to elicit the facts, he should thereafter permit the
delinquent employee to cross-examine such witnesses on those
clarifications.
(iv) If the Inquiry Officer conducts a regular examination-in-chief
by leading the prosecution witnesses through the prosecution case,
or puts leading questions to the departmental witnesses prégnant
with answers, or cross-examines the defence witnesses or puts
suggestive questions to establish the prosecution case employee, the
Inquiry Officer acts as prosecutor thereby vitiating the inquiry.
(v) As absence of a presenting Officer by itself will not vitiate the
inquiry and it is recognized that the Inquiry Officer can put
questions to any or all witnesses to elicit the truth, the question
whether an Inquiry Officer acted as a Presenting Officer, will have
to be decided with reference to the manner in which the evidence is
led in any recorded in the inquiry. Whether an Inquiry Officer has
merely acted only as an Inquiry Officer or has also acted as a
Presenting Officer depends on the facts of each case. To avoid any
allegations of bias and running the risk of inquiry being declared as
illegal and vitiated, the present trend appears to be to invariably
appoint Presenting Officers, except in simple cases. Be that as it
may.
11. In the present case, it is evident from a perusal of the enquiry
proceedings that no Presenting Officer was appointed by the
disciplinary authority. The evidence on behalf of the disciplinary
authority has been presented by the Enquiry Officer, by conducting
a regular examination-in-chief of prosecution witnesses by taking
them through the prosecution case. The Enquiry Officer has also
conducted in the present case regular cross-examination of the
defence witnesses. The Enquiry Officer has also conducted the
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cross-examination of the delinquent government servant. It is not a
case where the Enquiry Officer in the absence of the Presenting
Officer has simply put clarificatory questions to the delinquent
government servant.
12. Thus, in the present case, the Enquiry Officer has acted as the
Presenting Officer which is evident from the departmental enquiry
proceedings, and therefore, relying upon the principle laid down by
a Division Bench of this Court in the case of Union of India through
its Secretary, Ministry of Railway, New Delhi and others (supra)
and adverting to the sacred principle that no man can be a good
judge of his own cause, the enquiry proceedings stand vitiated.
Resultantly, the order of reversion dated 29th November, 1997
(Annexure A/13) passed by the disciplinary authority and the order
passed by the appellate authority dated 5th February, 1998
(Annexure A/14) are quashed. However, the respondents are free to
resume the enquiry proceedings from the stage of appointing the
Presenting Officer and conclude the disciplinary proceedings
initiated against the petitioner in accordance with law."
11. Similar view has also been taken by this Court in K.C. Bhargava
(Supra) in para 10 and 11, which reads thus:
"10 : Learned counsel for the petitioner putting his reliance heavily
in the case of Mohd. Yunus Khan Vs. State of Uttar Pradesh and
others [(2010) 10 SCC 539], contended that in view of such facts,
the bias of the authorities initiating disciplinary proceedings against
the petitioner were proved. It is further submitted by learned
counsel for the petitioner that imposing the punishment by holding
a disciplinary proceedings is in fact in the nature of quasi judicial
proceedings and though the technical Rules of Code of Civil
Procedure and Evidence Act are not applicable, but the principles of
natural justice are required to be observed. It is contended that there
was flagrant violation of the Rules of natural justice and, as such,
the order impugned was bad in law. Further, placing reliance in the
case of Balveer Singh Vs. State of M.P. and others [2010 (2)
M.P.H.T. 374], it is contended that if there is violation of the
provisions of the Rules and the Enquiry Officer has acted as
Presenting Officer as well as Enquiry Officer, the enquiry
proceedings are vitiated and, as such, the penalty could not have
been imposed on the petitioner. This Court in the case of Balveer
Singh (supra) has examined the procedure laid down under the
Rules and has also examined whether could it be said that by not
appointing the Presenting Officer any illegality was committed or
not. Placing reliance in the case of Shishir Raizada Vs. Union of
India and others [2008 (2) MPWN 59], this Court has held that the
Presenting Officer appointed under Rule 14(5)(c) of the CCA
Rules, is in fact a person appointed like prosecutor and a person
who has to prove the misconduct before the Enquiry Officer. It is
the Presiding Officer, who conducts the chief examination of the
prosecution witnesses as well as the cross examination of the
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defence witnesses. It is again the Presenting Officer, who conducts
the cross examination of the delinquent Government servant in
order to arrive at a finding of guilt. Thus, the opinion is expressed
by this Court that in case the Presenting Officer is not appointed
and the Enquiry Officer has conducted the chief examination and
has conducted the cross examination of defence witnesses as well as
cross examination of the delinquent Government servant, the
Enquiry Officer in fact has played the role of the prosecutor. The
principles laid down by the Division Bench of this Court in the case
of Union of India through its Secretary Ministry of Railway, New
Delhi and others Vs. Mohd. Nasim Sidduqui (2005 LLJ 331) are
that the Enquiry Officer is in the position of a judge and shall not
act as a Presenting Officer who is in the position of as a prosecutor.
However, it is not necessary for the disciplinary authority to appoint
the Presenting Officer in each and every case and to ascertain
whether the Enquiry Officer has in fact acted as the Presenting
Officer or not, the proceedings of enquiry are required to be
examined with reference to the manner in which the evidence is led
and recorded in the enquiry. 11: For the aforesaid purposes, again
the enquiry record is required to be examined. As has been referred
hereinabove, the enquiry officer has noted down the fact relating to
calling the petitioner to take part in the enquiry. As far as the
evidence is concerned, it appears that examination in chief was
done by the Enquiry Officer himself. The witness examined by the
disciplinary authority had proved the documents with respect to
issuing the orders to the petitioner, but could not explain whether
any communication was sent to the petitioner rejecting his
application for grant of leave or not. Same was the situation with
respect to the other person examined as a witness. The defence
witnesses were examined by the petitioner and they were cross
examined by the Enquiry Officer. This itself is enough to
demonstrate that in fact the Enquiry Officer himself has acted as the
prosecutor. The enquiry proceedings were thus vitiated."
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vs. Ram Lakhan Sharma, reported in (2018) 7 SCC 670 , has held as
Court
under:- has
"28. When the statutory rule does not contemplate appointment of
Presenting Officer whether non-appointment of Presenting Officer
ipso facto vitiates the inquiry? We have noticed the statutory
provision of Rule 27 which does not indicate that there is any
statutory requirement of appointment of Presenting Officer in the
disciplinary inquiry. It is thus clear that statutory provision does not
mandate appointment of Presenting Officer. When the statutory
provision does not require appointment of Presenting Officer
whether there can be any circumstances where principles of natural
justice can be held to be violated is the broad question which needs
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to be answered in this case. We have noticed above that the High
Court found breach of principles of natural justice in Enquiry
Officer acting as the prosecutor against the respondents. The
Enquiry Officer who has to be independent and not representative
of the disciplinary authority if starts acting in any other capacity and
proceeds to act in a manner as if he is interested in eliciting
evidence to punish an employee, the principle of bias comes into
place."
"36. Thus, the question as to whether the Enquiry Officer who is
supposed to act independently in an inquiry has acted as prosecutor
or not is a question of fact which has to be decided on the facts and
proceedings of a particular case. In the present case we have noticed
that the High Court had summoned the entire inquiry proceedings
and after perusing the proceedings the High Court came to the
conclusion that the Enquiry Officer himself led the examination-in-
chief of the prosecution witness by putting questions. The High
Court further held that the Enquiry Officer acted himself as
prosecutor and Judge in the said disciplinary enquiry. The above
conclusion of the High Court has already been noticed from paras 9
and 10 of the judgment of the High Court giving rise to Civil
Appeal No. 2608 of 2012."
11. It is not in dispute that K.C. Agrawal was appointed as an enquiry officer
who cross-examined the witnesses also declared hostile but the fact that no
separate presenting officer was appointed and Shri Agrawal himself acted as a
presenting officer conducted the chief-examination of the witnesses as well as the
cross examination of the prosecution witnesses as well as the defence witnesses.
The enquiry was conducted cross-examining the delinquent government servant
by the enquiry officer himself.
12. It is pertinent to mention here that where disciplinary authority itself
enquires into any article of charge and appoints an enquiry officer for holding an
enquiry into such charges the said authority should appoint a presenting officer. It
is the presenting officer who conducts the chief examination of the prosecution
witnesses as well as the cross examination of the defence witnesses. The
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presenting officer also conducted the cross examination of the delinquent in order
to arrive at a finding of guilt or innocence.
13. In the present case, as observed by the learned writ court that the Enquiry
Officer had conducted enquiry, chief examination of the prosecution witnesses as
well as defence witnesses as also cross-examination of those witnesses. The
learned counsel for appellants/State was not able to dispute or demolish factual
finding in this regard as contained in para-14 of the order passed by the learned
Single Judge.
14. It is trite law that if an enquiry officer acts as an enquiry officer as well as
presenting officer, it depends on the facts of each case but in the present case there
is no explanation on record as to why the presenting officer has not been
appointed. The only argument of the learned counsel for the appellant is that in the
Police Rules it is the discretion of the authority to appoint the presenting officer or
not. In the present case since it was not necessary the presenting officer was
rightly not appointed. However, that would not entitle the enquiry officer to act as
presenting officer.
15. The facts remains that in Tata Engineering & Locomotive Co. Ltd. vs.
Jitendra Pd. Singh and another reported in (2001) 10 SCC 530 the Supreme
Court has held and observed that such order of punishment is not permissible
under the law because it clearly indicates that the employee has been discriminated
and therefore the order under challenge is not sustainable in the eye of law and is
liable to be set aside. Accordingly, the Supreme Court in the said case has held
and observed as under:-
"2. On an enquiry being held, the enquiry authority found that the
allegation of misconduct is proved and the disciplinary authority on
consideration of the report of the enquiry authority and the other
relevant material dismissed the first respondent from service.
Thereafter, a reference to the Labour Court at the instance of the
first respondent was made. The Labour Court though held on a
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preliminary question that the disciplinary enquiry conducted against
the first respondent is valid came to the conclusion after perusing
the documentary and oral evidence on record that the dismissal was
not justified and held that he was entitled to reinstatement with full
back wages with continuity in service and other consequential
benefits. A writ petition was filed in the High Court which was
allowed but on the basis of certain offer made, the learned Single
Judge also directed that the appellant shall pay to the first
respondent salary from the date of discharge till the date of the
order in a lump sum of Rs.50,000. Thereupon both the management
and the workman filed two appeals. In the appeals, several
questions were raised as to whether the act attributed to the first
respondent would amount to misconduct at all which will entail a
disciplinary enquiry at the instance of the management to end up
with his dismissal; strong reliance was placed on Glaxo
Laboratories (1) Ltd. v. Presiding Officer, Labour Court, Meerut
[(1984) 1 SCC 1 : 1984 \SCC (L&S) 42 : (1984) 1 SCR 230] .
Ultimately, however, the two learned Judges were agreed on one
aspect of the matter that the question, whether on misconduct
attributed to the workman there should have been causal connection
between misconduct and employment of the workman may not be
of much significance when such acts have taken place within the
premises of the factory, should be decided in an appropriate case.
What influenced the Court in deciding the matter is that:
"Since as many as three workmen on almost identical
charges were found guilty of misconduct in connection
with the same incident, though in separate proceedings,
and one was punished with only one month's
suspension, and the other was ultimately reinstated in
view of the findings recorded by the Labour Court and
affirmed by the High Court and the Supreme Court, it
would be denial of justice to the appellant if he alone is
singled out for punishment by way of dismissal from
service."
3. As the judgment is rested upon this position, whatever other
views may have been expressed in the course of the judgment may
be of no significance. In that view of the matter, we think there is
no need to interfere with the order made by the High Court, that too
in a proceeding arising under Article 136 of the Constitution. Hence
we decline to interfere with the order made by the High Court. The
appeals are dismissed accordingly."
16. It is not in dispute that in the first round of enquiry he was exonerated.
However, disciplinary authority remanded the case back by stating that the
statements of the witness (the then Superintendent of Police) was not recorded. It
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is also not in dispute that the presenting officer was not appointed. Thus, there was
prejudice caused to the delinquent as the disciplinary authority himself acted as the
enquiry officer as well as presenting officer by cross-examining the witnesses.
17. In view of the above, we find no error or perversity in the impugned order
passed by the learned Single Judge. Finding no merit in the appeal, the writ appeal
is accordingly dismissed.
18. Admittedly, the dismissal order passed by the disciplinary authority has been
set aside by the writ court only on the aforesaid ground. The respondent has not
been exonerated on merit. We note that the writ court by allowing the writ petition
directed the appellants to grant all consequential benefits to the respondent. Since
he has not been exonerated on merit, however, on technical ground only,
therefore, we deem it just and appropriate to modify the order dated 10.02.2023
passed by the learned Single Judge to the extent of grant of 50% back wages along
with interest at the rate of 6% per annum from the date amount fell due. The order
passed by the learned writ court shall be complied with within four weeks from
today.
19. The writ appeal is accordingly disposed of.
(SURESH KUMAR KAIT) (VIVEK JAIN)
CHIEF JUSTICE JUDGE
psm
