Madhya Pradesh High Court
Nisar Ahmed vs State Of M.P. on 1 March, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 1 st OF MARCH, 2025
WRIT PETITION No. 8667 of 2011
NISAR AHMED
Versus
STATE OF M.P. AND OTHERS
Appearance:
Shri Sameer Kumar Shrivastava - Advocate for the petitioner.
Shri B.M. Patel- Govt. Advocate for the State.
ORDER
The petitioner has filed this writ petition challenging the order dated
28.09.2004 (Annexure P/1) whereby, on account of misconduct found proved in
the Departmental Inquiry, petitioner was imposed with punishment of dismissal
from service. He has also challenged the order dated 03.05.2005 (Annexure P/2)
whereby, his appeal filed against the punishment order is dismissed by the
Appellate Authority. The petitioner has further challenged the order dated
07.08.2007 (Annexure P/3) whereby, the Second Appeal filed against the
punishment order was also dismissed. The petitioner has also challenged the order
dated 20.02.2008 (Annexure P/4) whereby, the revision filed against the
punishment was also dismissed.
[2]. The facts necessary for decision of this case are that the petitioner at
the relevant time was working as Patwari at Halka No.1, Tehsil Guna (M.P.). On
account of his absence from duty w.e.f. 01.02.2004, he was placed under
suspension vide order dated 01.04.2004. The Sub Divisional Officer Pargana,
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Guna (M.P.), who is also the Disciplinary Authority of the petitioner, issued a
charge-sheet vide memo dated 29.04.2004 (Annexure P/5) wherein, the charge of
unauthorized absence from duty w.e.f. 01.02.2004 was levelled against the
petitioner. The petitioner on 17.05.2004 (Annexure P/6) submitted reply to the
charge-sheet stating that on account of his illness, he could not attend his duty for
which he had handed over an application for leave from 03.02.2004 to 05.02.2004
to J.M. Siddiqui, Revenue Inspector. He submitted in the reply that till date, he is
not well and on regaining health, he wold present himself for duty.
[3]. The Disciplinary Authority being not satisfied with the explanation
given by the petitioner, appointed Inquriy Officer as also Presenting Officer to
conduct the inquiry. After conducting the inquiry, the Inquiry Officer submitted
his report to the Disciplinary Authority on 11.08.2004 (Annexure P/8) wherein,
charge levelled against the petitioner was found established.
[ 4 ] . The Disciplinary Authority having prima-facie agreed with the
findings of the Inquiry Officer, issued a show cause notice to the petitioner on
09.09.2004 (Annexure P/9) whereby, a copy of Inquiry Report was forwarded to
the petitioner and the petitioner was asked to submit his explanation. The
petitioner having failed to respond to his show cause notice, the punishment of
dismissal from service was imposed on the petitioner vide order dated 28.09.2004
(Annexure P/1). The Appeal, Second Appeal & Revision filed against the order of
punishment were also dismissed as stated hereinabove.
[5]. The learned counsel for the petitioner challenges the punishment on the
following grounds;
(I) The Disciplinary Authority in the show cause notice dated,
09.09.2004, having concurred with the findings of Inquiry
Officer, has relied upon the punishments imposed on him
previously and his involvement in a criminal case which was
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pending at that point of time. He submits that since these were
not the part of charge-sheet, the Disciplinary Authority was not
competent to take into account the aforesaid material.
(II) Mr. Siddiqui, Revenue Inspector who was examined as
prosecution witness, was cross-examined by the Inquiry Officer
which vitiates the inquiry.
(III) For the month of February 2004, petitioner was paid salary
on 04.03.2004 which implies that his absence was condoned by
the employer.
[6]. In support of his submission, learned counsel for the petitioner has
relied upon the judgments rendered in the case of A.K. Kahar Vs. M.P. Power
Transmission Co. Ltd. reported in [2001 (2) M.P.L.J. 335] , Bhagwatiprasad
Chhotelal Shrivastava Vs. State of Madhya Pradesh and Anr. reported in [1978
M.P.L.J. 215] & Balveer Singh Vs. State of M.P. & Ors. reported in [I.L.R.
(2010) M.P., 191].
[7]. Per contra, learned Government Advocate supports the action taken
against the petitioner. He submits that since the punishments imposed on the
petitioner referred to in the show cause notice were never disputed by the
petitioner, the Disciplinary Authority was competent to look into the past conduct
of the petitioner in order to adjudicate upon the quantum of punishment. With
regard to cross-examination of witness by the Inquiry Officer, the learned
Government Advocate submits that no prejudice is caused to the petitioner.
Regarding the third ground raised by learned counsel for the petitioner, learned
Government Advocate refers to the statement of Shri Anand Ikka, Office
Kanoongo, recorded during the inquiry, who stated that the salary for the month
of February, 2004 was not drawn.
[8]. So far as the first ground raised by the learned counsel for the
petitioner is concerned, the Apex Court in the case of State Of Mysore Vs. K.
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Manche Gowda reported in [AIR 1964 SC 506] held that the Disciplinary
Authority should inform the delinquent employee that it is likely to take into
consideration the past conduct of the employee while imposing the punishment
unless the proved charged against the delinquent is so grave that it may
independently warrant the proposed punishment. Though the previous record may
not be the subject-matter of the charge at the first instance.
[9]. Again in the case of Union Of India & Ors. Vs. Bishamber Das Dogra
[(2009) 13 SCC 102] , the Apex Court in para-30 held as under;
30. In view of the above, it is evident that it is desirable that delinquent
employee may be informed by the disciplinary authority that his past
conduct would be taken into consideration while imposing the
punishment. But in case of misconduct of grave nature or indiscipline,
even in absence of statutory rules, the authority may take into
consideration the indisputable past conduct/service record of the
employee for adding the weight to the decision of imposing the
punishment if the facts of the case so require.
[10]. The judgments relied upon by the learned counsel for the petitioner in
the case of A.K. Kahar (supra), Bhagwatiprasad Chhotelal Shrivastava (supra) &
Balveer Singh (supra) are different on facts inasmuch as those cases were not of
consideration of past conduct by Disciplinary Authority. In those cases, the
incumbent was punished for allegation which were not part of a charge-sheet. On
the other hand, the judgments of Apex Court referred herein-before are directly on
issue.
[11]. Thus, in view of the law laid down by the Apex Court in the aforesaid
cases, the requirement of the law is satisfied. The Disciplinary Authority has
issued the show cause notice dated 09.09.2004 informing the petitioner that the
punishment inflicted upon him on earlier occasion is going to be taken into
account. The petitioner failed to give reply to show cause notice and did not rebut
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the contents of the same. Thus, the first ground raised by the learned counsel for
the petitioner is sans merits and is rejected.
[12]. The second ground raised by the petitioner is regarding violation of
principles of natural justice inasmuch as the prosecution witness Mr. Siddiqui was
stated to be cross-examined by the Inquiry Officer. In this regard, it may be seen
that the charge levelled against the petitioner was that he was unauthorizedly
absent from duty w.e.f. 01.02.2004 till the date charge-sheet was issued. As per
the reply of the petitioner himself, this fact is not disputed by him. Importantly, as
per his own submission, he submitted an application for leave only from
03.02.2004 to 05.02.2004. In other words, there was not even an application for
the remaining period of his absence. Thus, merely because the Inquiry Officer has
put some questions to the witness, no prejudice is caused to the petitioner.
[13]. With regard to compliance of principles of natural justice, the Apex
Court in the case of In Syndicate Bank & Ors. Vs. Venaktesh Gururao Kurati
reported in [(2006) 3 SCC 150] held that "To sustain the allegation of violation of
principles of natural justice, one must establish that prejudice has been caused to
him for non-observance of principles of natural justice."
[14]. Again in the case of Aligarh Muslim University & Ors. Vs. Mansoor
Ali Khan reported in [2000 (7) SCC 529] ; the Apex Court held that an order
passed in violation of principles of natural justice need not be set-aside in exercise
of the writ jurisdiction unless it is shown that non-observance has caused
prejudice to the person concerned for the reasons that quashing the order may
revive another order which itself is illegal and unjustified. Taking into account the
aforesaid law laid down by Apex Court, in the instant case admittedly, petitioner
was absent from duty from 01.04.2004 till the date of issuance of charge-sheet for
which there is no application submitted by him nor there is any explanation put
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forth by him during the course of inquiry as also in the instant writ petition. Thus,
in the admitted facts of the case, it cannot be said that the petitioner suffered any
prejudice because of Inquiry Officer putting some questions to the prosecution
witness. The second argument of the learned counsel for the petitioner is also
required to be rejected.
[15]. The third limb of argument of the learned counsel for the petitioner is
that the salary for the month of February, 2004 was paid to him which is reflected
from copy of his passbook filed at page-18 of the application (I.A.
No.8700/2023).
[16]. In reply to this argument, learned counsel for the respondents has
pointed-out that the witness has stated that salary for the month of February, 2004
is not drawn. Even if some amount towards salary has been deposited in the
petitioner's account, it cannot be said that the employer condoned his absence for
the said period. For condoning the absence, an specific order was required to be
passed by the Disciplinary Authority which in the instant case is admittedly not
passed. Thus, this ground is also not sustainable and is hereby rejected.
[17]. In view of the aforesaid, the petition is devoid of merits and is
dismissed.
(ASHISH SHROTI)
JUDGE
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