Brijesh Singh Bhadauria vs State of M.P. and Others

Sujoy Paul, J.—In this case, the petitioner has called in question the disciplinary proceedings, the punishment order (Annexure A-16) dated 23.7.2001, the appellate order dated 4.2.2007 whereby the appeal was rejected and also the order passed by the D.G.P. whereby the earlier order passed in mercy appeal was set aside.

The brief facts necessary for adjudication of this matter are as under:-

The petitioner was working as a Constable Driver in the respondents department. The petitioner was served with a charge sheet on 29.1.2000. By filing reply dated 16.2.2000 (Annexure A-3), the petitioner denied the charges. Thereafter, the enquiry officer was appointed to conduct enquiry. The enquiry officer submitted his report and found all the charges as proved against the petitioner. The enquiry officer''s report was served on the petitioner along with show cause Annexure A-14. The petitioner submitted his detailed reply (Annexure A-15). By punishment order dated 23.7.2001, the S.P. Morena dismissed the petitioner from service. The petitioner''s appeal also could not fetch any result and was rejected on 4.2.2002 (Annexure A-17). The petitioner preferred mercy appeal which was decided by Annexure A-18. The D.G.P. modified the punishment of dismissal by imposing the punishment of compulsory retirement. However, by Annexure A-25 dated 29.11.2002, the earlier order dated 23.7.2001 whereby the petitioner was dismissed from service was restored.

Shri D.K. Katare, learned counsel for the petitioner, assailed the disciplinary proceedings on the ground that the petitioner preferred an application for change of enquiry officer on the ground of bias. The said request of the petitioner was turned down, which is bad in law. It is further contended that the enquiry officer cross-examined the defence witnesses and acted as a prosecutor rather than a Judge. On this score alone, the enquiry is vitiated. It is further contended that there was no opportunity to the petitioner to prefer representation against I.O.''s report. Lastly, it is submitted that the D.G.P. interfered with the punishment order because he treated it to be disproportionate one and, therefore, modified it by compulsory retirement. He was not justified in restoring the punishment order dated 23.7.2001. The competence of D.G.P. in recalling his own order is also called in question.

Mrs. Nidhi Patankar, learned Government Advocate, on the other hand, submitted that the enquiry was conducted in accordance with law. The principles of natural justice were duly followed. The enquiry officer considered each and every aspect and prepared the detailed report. The petitioner''s representation was considered by disciplinary authority. The appellate order is also speaking dealing with the grounds raised in the appeal memo, hence no interference is warranted. By relying on the charges, it is submitted that the punishment is commensurate to the misconduct and no interference is warranted.

I have heard the learned counsel for the parties and perused the record.

This is settled in law that in a case of departmental enquiry, the scope of judicial review is limited to examine the decision making process. This Court is not required to sit as an appellate authority to re-appreciate or re-weigh the evidence. This view is taken in Apparel Export Promotion Council Vs. A.K. Chopra, . If there is serious and palpable procedural flaw in the decision making process which resulted into miscarriage of justice or grave prejudice to the employee, interference can be made. Findings can be interfered with if the same are shown to be perverse in nature. Punishment can be interfered with if it is shockingly disproportionate/harsh qua the misconduct alleged and proved.

On the anvil of aforesaid principle, it is to be seen whether the present enquiry is conducted in accordance with law. Firstly, it is contended that the petitioner preferred an application for change of enquiry officer which was wrongly turned down. However, petitioner has not chosen to file the said application, nor filed the rejection order by which S.P. rejected the said representation. In absence of showing reasons for change of enquiry officer and without challenging the rejection order, I am not inclined to hold that the respondents committed any error in conducting and continuing the enquiry by the same enquiry officer.

The enquiry officer prepared a detailed report. The said report was forwarded to the petitioner along with show cause notice (Annexure A-14). It is apt to quote the relevant portion of the notice which reads as under:-

On the basis of this show cause notice, the contention of the petitioner is that he was given opportunity to file representation only against the proposed punishment and was not given opportunity to submit representation against enquiry officer''s report. I find substantial force in the said contention. A microscopic reading of aforesaid quoted paragraph makes it clear that enquiry officer''s report was accepted in toto by the disciplinary authority. The show cause notice was limited on the question of quantum of punishment. Putting it differently, the disciplinary authority agreed with the enquiry officer and issued limited notice to the petitioner as to why he should not be dismissed from service. Thus, it is clear that petitioner was not given any opportunity to submit his representation against the enquiry officer''s report.

This is trite that opportunity to prefer representation against the I.O.''s report is part and parcel of principles of natural justice and is flowing from Article 14 of the Constitution. A Constitution bench of Supreme Court in Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., opined that the opportunity to represent against I.O.''s report is a valuable right of the delinquent employee. The petitioner preferred a detailed representation against I.O.''s report (Annexure A-15) (running in six pages). The disciplinary authority imposed the punishment order (Annexure A-16) dated 23.7.2001. Last two paragraphs of this order also makes it clear that in consonance with the show cause notice aforesaid, the disciplinary authority only examined the question of quantum of punishment. There is no whisper in this order about the points raised by the petitioner against I.O.''s report. The appellate authority''s order suffers from same infirmity. Internal page three of the appellate order shows that the appellate authority obtained comments from the S.P./disciplinary authority and on the basis of such comments opined that the enquiry procedure was in accordance with law. There is no independent application of mind by the appellate authority on the point whether petitioner was afforded with the opportunity to submit representation against the I.O.''s report.

In the peculiar facts and circumstances of this case, it is clear that serious prejudice is caused to the petitioner by depriving him to submit representation against the I.O.''s report. This has certainly resulted into miscarriage of justice. In the opinion of this Court, the disciplinary proceedings from that stage needs to be interfered.

As analyzed above, the show cause notice was not in consonance with the principles of natural justice. The petitioner was not given opportunity to prefer representation against I.O''.s report. Thus, the entire proceedings from the stage of erroneous show cause notice needs to be interfered with. Resultantly, the punishment order based on such show cause notice, the appellate order and the orders passed in mercy appeal are set aside. The respondents are directed to treat their show cause notice Annexure A-14 as a notice to the petitioner to submit representation against I.O.''s report. The petitioner''s representation against I.O.''s report (Annexure A-15) shall be considered by the disciplinary authority. The disciplinary authority is at liberty to pass orders thereupon in accordance with law by considering the representation against I.O.''s report. Since it is a 2002 matter, the respondents shall conclude the enquiry expeditiously, preferably within eight months. The respondents shall decide about the intervening period in accordance with law at appropriate stage. The petition is allowed to the extent indicated above. No cost.