Madhya Pradesh High Court
Harisingh Parmar vs State Of Madhya Pradesh on 25 June, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION No.4739 of 2008(S)
HARISINGH PARMAR
Vs.
STATE OF M.P. & OTHERS
Appearance:
Shri Arun Katare - Advocate for the petitioner.
Shri K.K. Prajapati - Government Advocate for the State.
RESERVED ON : 19/06/2025
DELIVERED ON : 25/6/2025
ORDER
The present petition, under Article 226/227 of the Constitution of
India, has been filed by the petitioner being aggrieved by the order
dated 06.12.2001 passed by Respondent No.2 whereby the order of the
punishment of dismissal from service has been modified/converted into
compulsory retirement.
2. Short facts of the case are that the husband of the petitioner was
working as Constable in the Respondent Department on 10.06.1985 and
while he was posted at Police Station Gwalior, he was charge-sheeted
on 11.8.2000 whereby total two charges were leveled against him which
are as under:-
आररप
1. द नक 28.2.2000 स 1.4.2000 तक 34 द वस अनध कत रप स
अनपस त रहकर कतव क पधत घरर लपरवह, उ स!नत त अनशसनहनत
प धशत करन।
2. अनध कत रप सगगरहसजर हरन क आ हरन।
3. After issuance of the charge-sheet, the petitioner has duly
submitted his reply and denied all the charges. The Disciplinary
Authority being dissatisfied with the reply filed by the petitioner
directed for departmental inquiry. The Inquiry Officer conducted the
inquiry and examined number of witnesses and finally submitted
inquiry report to the respondent/SP, Gwalior who, after giving show-
cause notice alongwith the inquiry report to the petitioner, had inflicted
the penalty of compulsory retirement from service vide order dated
27.02.2001. The petitioner being aggrieved by the order of Disciplinary
Authority had preferred a departmental appeal before Inspector General
of Police, which was dismissed vide order dated 19.04.2001. Against
which, a mercy petition was filed before the Director General of Police,
PHQ, Bhopal which was allowed in part vide order Annexure P/1
whereby the order of the punishment of dismissal from service was
converted into compulsory retirement. Aggrieved by the aforesaid
orders, the present petition has been filed.
4. Learned counsel for the petitioner has submitted that the
impugned order is liable to be quashed, inasmuch as, in the present
case, no Presenting Officer was appointed and the Enquiry Officer
himself proceeded to examine the prosecution/defence witnesses and
thereafter submitted the enquiry report. Accordingly, as no Presenting
Officer was appointed, the impugned order is unsustainable in eyes of
law as laid down by this Court in the matter of Ramesh Chand
Rathore vs. State of M.P. & Others reported in 2010 (3) MPHT 32
wherein this Court while, dealing with the identical circumstances,
quashed the impugned order of penalty therein. In this regard, he has
also placed reliance on the decision of this Court in the matter of Ram
Prakash Gaya Prashad vs. State of M.P. & Other reported in 2008
(4) MPLJ 35.
5. It was further submitted that prejudice had been caused to the
petitioner by not appointing Presenting Officer and without Presenting
Officer, the Enquiry Officer himself has conducted the entire enquiry
and has acted a judge of his own cause and had given the report holding
the petitioner to be guilty in the aforesaid inquiry. Therefore, the entire
enquiry stands vitiated. Thus, on this count alone, the impugned order is
liable to be quashed.
6. It was further submitted that since the enquiry had not been
properly conducted and no opportunity was granted to the petitioner and
even he was not given opportunity to produce the defence witnesses and
the enquiry was conducted in a very hurry and haste manner, the
Disciplinary Authority had committed a grave error of law in retiring
the petitioner compulsorily from his service.
7. It was further submitted that during conduction of the inquiry, no
Presenting Officer was appointed and the Enquiry Officer himself
proceeded to examine the prosecution witnesses as well as defence
witnesses and thereafter submitted an inquiry report, in which the
charges were found to be proved and on the basis of which, the
petitioner was confronted with the order of penalty of compulsory
retirement from his services, which was bad.
8. It was further submitted that no misconduct whatsoever was
attributed to the petitioner so as to justify the impugned order of penalty
and in the present case, the order was passed by the Disciplinary
Authority in a most capricious, highhanded and callous manner.
9. On the basis of the above arguments, it was prayed that the order
impugned herein be set aside and respondents be directed to reinstate
the petitioner with all consequential benefits.
10. Per contra, Shri K.K. Prajapti - Government Advocate appearing
for the State has submitted that considering the gravity of charges which
amounted to dereliction of duty and serious misconduct, the punishment
of compulsory retirement from his service, by no stretch of imagination,
can be said to be disproportionate. Even otherwise, the present petition
suffers from delay and laches of 07 years and the petitioner is unable to
explain inordinate delay in approaching the Court and assailing the
impugned order.
11. While placing reliance on the decision of the Apex Court in the
case of Union of India and Others Vs. Datta Linga Toshatwad
reported in (2005) 13 SCC 709; Y.P. Sara Bhai vs. Union of India
reported in 2006 (5) SCC 377 and State of Punjab & Others vs.
Sukhvinder Singh reported in 2007 (10) SCC 511, it was submitted
that no interference with the disciplinary proceedings is warranted in
exercise of powers conferred under Article 226 of the Constitution of
India.
12. It was further submitted that as interference with the disciplinary
proceedings is limited, inasmuch as, it is not within the ambit of judicial
review to re-appreciate the evidence, the adequacy and reliability of the
evidence cannot be gone into in exercise of powers conferred under
Article 226 of the Constitution of India. There is no violation of
principles of natural justice. The conclusions drawn by the disciplinary
Authority are neither arbitrary nor capricious so as to attract
interference by this Court. It is also not a case of no evidence.
Moreover, even an error of fact howsoever grave, cannot be corrected in
exercise of powers conferred under Article 226/227 of the Constitution
of India, thus, he penalty imposed upon the petitioners cannot be said to
be disproportionate looking to serious allegations leveled against the
petitioner in the charge sheet.
13. Heard counsel for the parties and perused the record.
14. So far as objection of the respondents/State with regard to delay
in filing the present petition is concerned, this Court in the obtaining
facts and circumstances of the case finds the period of about 07 years
ostensibly appears to be a period of inactivity and indolence on the part
of petitioner but considering the nature of grievance, which related to
compulsory retirement of the petitioner, a liberal, instead of a parochial
approach needs to be adopted to condone the delay of a few years, as
delay and latches in writ jurisdiction do not have any statutory or
constitutional recognition, but is a mere self-imposed rule formulated by
the Superior Courts to weed out frivolous, vexatious and delayed cause
of action and the writ jurisdiction of this Court under Article 226/227 of
the Constitution arms this Court with ample power to condone the delay
especially where denial of relief would lead to injustice. Accordingly,
the aforesaid delay in filing the present petition, stands condoned.
On merits, discussion and finding are as under:
15. Admittedly, the Inquiry Officer, so appointed, had proceeded to
conduct the enquiry and no Presenting Officer was appointed to
substantiate the charges against the petitioner and the Inquiry Officer
himself ventured upon to examine all the prosecution as well as defence
witnesses and later on, submitted the enquiry report, on the basis of
which the impugned order has been passed by the Respondent
Authority. It is evident that the enquiry Officer himself examined the
prosecution as well as defence witnesses and concluded that the charges
were proved against the petitioner. On perusal of the enquiry report, it is
evident that the present petitioner was also examined by the Enquiry
Officer exhaustively. Though the cross-examination is styled as
examination-in-chief but it is evident that the petitioner/delinquent was
examined as if he was being cross-examined in questions and answers
form. It is a case where the Enquiry Officer has acted as the Presenting
Officer, which is evident from the inception page as well as page 29 of
the Departmental Inquiry record produced by the State, therefore, in the
considered view of this Court, the enquiry in the present matter got
vitiated.
16. This Court in the case Ram Prakash Gaya Prashad (supra) in
Para 8, 9, 10 and 11 has held has under:-
"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 articles 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 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 pregnant 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 recognised 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 let 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 ion 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 cross-examination of the
delinquent Government servant. It is also case where the
Enquiry Officer in the absence of the Presenting Officer
has simply put clarificatory questions to the delinquent
Government servant. "
17. The judgment of Ram Prakash Gaya Prashad (supra) was further
considered by this Court in Ramesh Chand Rathore (supra), wherein
this Court has held that in Para 6 as under:-
"6. Keeping in view the judgment delivered by this Court
and also keeping in view the record relating to
Departmental Enquiry proceedings, it is evident that the
Inquiry Officer has in the present case conducted regular
cross-examination of witnesses and he has also
conducted the cross-examination of the delinquent
Government servant. It is not a case where the Inquiry
Officer has simply asked clarificatory questions to the
delinquent Government servant. Meaning thereby, the
Inquiry Officer, has assumed the role of the prosecutor
while acting as a Judge in the Departmental Enquiry
proceedings."
18. If the impugned orders are examined while keeping in view the
law laid down by this Court in the aforesaid cases, it is evident that the
entire proceedings got vitiated on account of the fact that the Enquiry
Officer himself acted as Presenting Officer and examined the
prosecution as well as the petitioner, therefore, as the said irregularity
goes to the root of the matter, in the considered view of this Court, such
proceedings could not have been ensued in passing of order of imposing
a penalty of compulsory retirement upon him.
19. Accordingly, the impugned order dated 06.12.2001 Annexure P/1
cannot withstand the scrutiny of law and is hereby set aside. The order
dated 27.02.2001 of penalty of dismissal from service by the
Respondent/Disciplinary Authority is also quashed. Since the original
petitioner/employee had already expired, therefore, there is no question
of remanding the matter back for conducting fresh inquiry or any
question of reinstatement arises and even otherwise, the original
petitioner if could have been alive would have retired by this time, thus
the present petitioner, who is wife of the deceased/employee, is entitled
for the benefits which could had accrued to the deceased employee, if
he would had reinstated and continued till his retirement, notionally.
Accordingly, benefits from the period deceased employee was
compulsorily retired till his actual date of retirement be calculated
notionally and be paid, if any to the present petitioner (wife) within a
period of three months from the date of receipt of certified copy of this
order.
20. With the aforesaid observation and directions, the present petition
is allowed and disposed off finally.
(Milind Ramesh Phadke)
Judge
PAWAN
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR, ou=HIGH COURT OF MADHYA
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KUMAR
postalCode=474001, st=Madhya Pradesh,
serialNumber=61B9D129971D2EA4FD4455ED49EA4
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cn=PAWAN KUMAR
Date: 2025.06.25 17:15:45 +05'30'
