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Madhya Pradesh High Court
Mukesh Kumar Savita vs The State Of Madhya Pradesh on 18 March, 2026
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 18th OF MARCH, 2026
WRIT PETITION No. 17478 of 2025
MUKESH KUMAR SAVITA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Dharmendra Singh Raghuwanshi - Advocate for the petitioner.
Shri K.K. Prajapati - GA for the respondents/State.
ORDER
Petitioner has filed this writ petition being aggrieved by the order
dated 21/9/2023 (Annexure P/2) passed by respondent no.5, whereby, the
petitioner has been dismissed from service on account of certain allegations
of embezzlement of public funds, established against him. The petitioner has
also challenged the order dated 22/5/2024 (Annexure P/1) passed by
respondent no.4, whereby, his appeal filed against the punishment order was
dismissed.
2. Facts necessary for decision of this case are that the petitioner was
substantially holding the post of Constable and was given officiating charge
of post of Head Constable and was posted in the office of Superintendent of
Police, Shivpuri. He was working in the salary branch of the office.
3. The District Pension Officer, Shivpuri, vide its memo, dated
05/09/2023, intimated the office of Superintendent of Police, Shivpuri there
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are suspicious transactions found in the bank account of petitioner's wife
Smt. Sarita Savita. The amount related to the salary and other dues of one
Sunil Khemariya and other employees. The petitioner was placed under
suspension vide order, dated 07/09/2023 and a preliminary enquiry was
directed to be conducted by Additional Superintendent of Police, Shivpuri.
4. The preliminary enquiry report was submitted by Addl. S.P. on
13/09/2023 (Annexure R/3). It was reported that the salary of several
employees of the department was credited in the account of petitioner's wife.
The total defalcated amount was reported to be Rs.4,43,275/-. It was further
reported that after suspension of petitioner, the amount of Rs.60,068/-
towards salary of Sunil Khemariya for month of February and Rs.44,174/-
towards salary of Deepak Sharma for month of February, has been credited
from account of petitioner's wife to their respective accounts. The remaining
amount of Rs.3,06,353/- was deposited in Police Head through challan.
5. Being satisfied with the aforesaid act of petitioner, the respondent
no.5 issued a show cause notice to him on 14/09/2023. The petitioner was not
found available in his house and, therefore, the notice was affixed on the
door of his house. On account of registration of criminal case against the
petitioner for offence punishment under Sections 420, 467, 468, 409 of IPC
and Section 13-1(A) of Prevention of Corruption Act at Thana Kotwali, the
petitioner was absconding alongwith his family.
6. The respondent no.5, thereafter passed the impugned order dated
21/9/2023, thereby, dismissing the petitioner from service on account of
aforesaid allegations. He has invoked provisions of Article 311(2)(b) of
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Constitution of India and has recorded his satisfaction in the impugned order
that conducting departmental enquiry against the petitioner is not practically
possible because of non-availability of petitioner. The petitioner thereafter,
challenged the punishment order by filing an appeal before respondent no.4,
which too has been dismissed vide order dated 22/5/2024. The petitioner is
therefore before this Court challenging the impugned order of punishment.
7. Learned counsel for the petitioner submitted that on 12/9/2023, a
criminal case was registered against the petitioner and by recording his
absconsion on 13/9/2023, 15/9/2023 and 21/9/2023, the impugned action has
been taken against the petitioner. He submitted that the impugned order of
punishment was passed on 21/9/2023 itself. He also submitted that the
petitioner was a permanent employee of the respondent/department, and
therefore, he could not have ben dismissed from service without conducting
departmental enquiry under Rule 14 of the M.P. Civil Services
(Classification, Control and Appeal) Rules, 1966. He submitted that merely
on registration of FIR against the petitioner, he has been dismissed from
service by respondent no.5, which is impermissible and unsustainable in law.
He placed reliance upon the decision of this Court in the case of Vivek
Pathak Vs. State of M.P. & Ors., in W.P. No.20113/2024 . Learned counsel
therefore, prayed for setting aside of the impugned orders and for
reinstatement of the petitioner with all consequential benefits.
8. On the other hand, learned counsel for the State submitted that a
criminal case for serious allegations has been registered against the
petitioner. He has been found guilty of embezzlement of public funds
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relating to salary of the employees of the department. He submitted that the
show cause notice was issued to the petitioner asking him to explain his
conduct. However, the petitioner was not available in his house, and
therefore, the notice was affixed on the door of his house. Learned counsel
further submitted that since the petitioner was absconding at the relevant
point of time, respondent no.5 was justified in recording his satisfaction that
conducting departmental enquiry is no possible.
9. Learned Govt. Advocate further submitted that looking to the
allegations made against the petitioner, it is only the petitioner who had to
explain his conduct and no further enquiry was required. He further
submitted that dismissal of petitioner from service is not solely based upon
registration of FIR, whereas, allegation that he has embezzled the amount of
salary of the employees and has credited the same in the account of his wife,
has been found established in the preliminary enquiry. Since the petitioner
failed to explain his conduct in response to the show cause notice, the
impugned action has been taken. Learned counsel also submitted that in the
present petition also, the petitioner has failed to explain this aspect of the
matter, which shows that he has no explanation for the allegations levelled
against him. Learned counsel thus prayed for dismissal of the writ petition.
10. Considered the arguments and perused the record.
11. The only objection raised in this writ petition by the petitioner is
about not conducting departmental enquiry before passing of the impugned
order of punishment. The respondent no.5 has invoked provisions of Article
311(2)(b) of the Constitution of India and has recorded his satisfaction that
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conducting departmental enquiry is not possible. To appreciate the aforesaid
action of respondent no.5, it is relevant to examine the provisions of Article
311 of Constitution of India as also Rule 19 of the CCA Rules.
12. Rule 14 of CCA Rules opens with the words "No order imposing
any of the penalties specified in Clause (v) to (ix) of Rule 10 shall be made
except after an enquiry held .......". Further, Rules 19 of CCA Rules
prescribes certain exceptions to Rule 10. Rule 19 of CCA Rules reads as
under:
"19. Special procedure in certain cases .- Notwithstanding anything
contained in rule 14 to rule 18 :
(i) where any penalty is imposed on a Government servant on the
ground of conduct which has led to his conviction on a criminal
charge, or
(ii) where the disciplinary authority is satisfied for reasons to be
recorded by it in writing that it is not reasonably practicable to
hold an inquiry in the manner provided in these rules, or
(iii) where the President is satisfied that in the interest of the
security of the State, it is not expedient to hold any inquiry in the
manner provided in these rules, the disciplinary authority may
consider the circumstances of the case and make such orders
thereon as it deems fit:
Provided that the Commission shall be consulted where such
consultation is necessary, before any orders are made in any case
under this rule."
13. Further Article 311 of the Constitution of India also prescribes
somewhat similar provision, which reads as under :
"311. Dismissal, removal or reduction in rank of persons
employed in civil capacities under the Union or a State -
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(1) *** *** ***.
(2) No such person as aforesaid shall be dismissed or removed or
reduced in rank except after an inquiry in which he has been
informed of the charges against him and given a reasonable
opportunity of being heard in respect of those charges;
Provided that where it is proposed after such inquiry, to impose
upon him any such penalty, such penalty may be imposed on the
basis of the evidence adduced during such inquiry and it shall not
be necessary to give such person any opportunity of making
representation on the penalty proposed:
Provided further that this clause shall not apply-
(a) where a person is dismissed or removed or reduced in rank on
the ground of conduct which has led to his conviction on a
criminal charge; or
(b) where the authority empowered to dismiss or remove a person
or to reduce him in rank is satisfied that for some reason, to be
recorded by that authority in writing, it is not reasonably
practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is
satisfied that in the interest of the security of the State, it is not
expedient to hold such inquiry."
14. It is thus evident that, by virtue of Rule 19(ii) of CCA Rules as
also by Article 311(2)(b) of Indian Constitution, the competent authority is
empowered to waive condition of conducting departmental enquiry, if it is
satisfied that conducting enquiry is not practicable.
15. In the facts of the present case, it is seen that petitioner was sought
to be served with the show cause notice on 14/9/2023, however the same
could not be served as the petitioner was not available in his house. He was
absconding alongwith his family because of registration of criminal case.
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The respondent no.5 was therefore, justified in recording his satisfaction that
it is not reasonably practical to hold enquiry in near future as the petitioner is
not available.
16. Pertinently, the allegations levelled against the petitioner are with
regard to siphoning public money in the account of his wife. Therefore, it is
only the petitioner who can explain aforesaid conduct and no further enquiry
was warranted. Surprisingly, neither in the appeal filed before respondent
no.4 nor in the present writ petition, aforesaid conduct is tried to be
explained by the petitioner. The petitioner had an opportunity to atleast show
his innocence before the appellate authority and/or before this Court.
However, there is complete silence on his part to this effect.
17. The petitioner has tried to portrait that he was in jail and therefore,
was placed under suspension. However, from the averments made in para 5.4
of the writ petition, it is gathered that he was arrested and remained in jail
from 13/12/2024 to 20/3/2025. By this time the impugned action was already
taken against him.
18. The Apex Court has dealt with the doctrine of audi alteram partem
in the case of State of U.P. v. Sudhir Kumar Singh reported in (2021)19 SCC
706. The Court held as under:-
"31. In some of the early judgments of this Court, the non-
observance of natural justice was said to be prejudice in itself to
the person affected, and proof of prejudice, independent of proof
of denial of natural justice, was held to be unnecessary. The only
exception to this rule is where, on "admitted or indisputable" facts
only one conclusion is possible, and under the law only one
penalty is permissible. In such cases, a Court may not issue its writ
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to compel the observance of natural justice, not because it is not
necessary to observe natural justice, but because Courts do not
issue writs which are "futile" -- see S.L. Kapoor v. Jagmohan
[S.L. Kapoor v. Jagmohan, (1980) 4 SCC 379], para 24. In P.D.
Agrawal v. SBI [P.D. Agrawal v. SBI, (2006) 8 SCC 776: (2007) 1
SCC (L&S) 43] , however, the Court observed that this statement
of the law has undergone a "sea change", as follows : (P.D.
Agrawal case [P.D. Agrawal v. SBI, (2006) 8 SCC 776 : (2007) 1
SCC (L&S) 43] , SCC pp. 793-94, para 39)
"39. Decision of this Court in S.L. Kapoor v. Jagmohan [S.L.
Kapoor v. Jagmohan, (1980) 4 SCC 379] whereupon Mr Rao
placed strong reliance to contend that non-observance of
principle of natural justice itself causes prejudice or the same
should not be read "as it causes difficulty of prejudice",
cannot be said to be applicable in the instant case. The
principles of natural justice, as noticed hereinbefore, have
undergone a sea change. In view of the decisions of this
Court in State Bank of Patiala v. S.K. Sharma [State Bank of
Patiala v. S.K. Sharma, (1996) 3 SCC 364 : 1996 SCC (L&S)
717] and Rajendra Singh v. State of M.P. [Rajendra Singh v.
State of M.P., (1996) 5 SCC 460] the principle of law is that
some real prejudice must have been caused to the
complainant. The Court has shifted from its earlier concept
that even a small violation shall result in the order being
rendered a nullity. To the principle/doctrine of audi alteram
partem, a clear distinction has been laid down between the
cases where there was no hearing at all and the cases where
there was mere technical infringement of the principle. The
Court applies the principles of natural justice having regard
to the fact situation obtaining in each case. It is not applied in
a vacuum without reference to the relevant facts and
circumstances of 8 the case. It is no unruly horse. It cannot be
put in a straitjacket formula."
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19. It is thus a settled legal proposition that the principle of natural
justice is not an unruly horse and its applicability has to be seen in the facts
and circumstances of each case independently. What the petitioner alleges is
basically violation of principles of natural justice. However, he has yet not
denied the fact that the amount in question was not credited in his wife's
account. He has not explained so far as to how the amount was credited in
his wife's account. Consequently, this Court is of the considered opinion that
the action taken by respondent no.5 is just and proper inasmuch as the
petitioner failed to explain his conduct.
20. Consequently, impugned orders dated 21/9/2023 (Annexure P/2) &
22/5/2024 (Annexure P/1) are found to be just and proper in the facts and
circumstance of the case. Same are accordingly upheld. Petition fails and is
hereby dismissed.
(ASHISH SHROTI)
JUDGE
JPS/-
