Guman Singh Damor vs State of Madhya Pradesh and Another

This review petition has been filed by the petitioner for reviewing the order dated 11.8.2011 passed in Writ Appeal No. 355/2011, whereby this Court upheld the judgment of the learned writ Court and dismissed the intra-Court appeal filed by the petitioner. The short facts, which are relevant for disposal of this review petition are as follows:-

When the petitioner was working as an Executive Engineer in Public Health Engineering Department of Government of Madhya Pradesh, a complaint was lodged in the office of the Lokayukt and was registered as case No. Lok/28/102/2002-03. The respondent No. 2 directed to hold enquiry under the provisions of M.P. Lokayukt Evam Up-Lokayukt Adhiniyam 1981 (for short ''the Adhiniyam''). After holding a preliminary enquiry a show cause notice was issued to the petitioner and thereafter, after considering his reply, the enquiry officer submitted the fact finding enquiry report before the Up-Lokayukt. The Up-Lokayukt on being satisfied that the allegation levelled against the petitioner is duly established, communicated his recommendation to the respondent No. 1.

Feeling aggrieved by the recommendatory report of the Lokayukt and the direction issued by the Secretary of the Lokayukt, the petitioner has filed the writ petition on the ground that enquiry was conducted in violation to the principles of natural justice and no opportunity was granted to him to cross examine the witnesses who were examined before the Lokayukt organization and the statements of whom were recorded by the enquiry officer of the Lokayukt and as such the recommendation made by Up-Lokayukt on the basis of such enquiry report cannot be acted upon. It was also contended that the enquiry against the petitioner was conducted by the person, who was junior to him in the seniority to him and the said enquiry was conducted by the said officer contrary to the circulars issued by the Government of Madhya Pradesh from time to time. The next contention of the learned Senior counsel for the petitioner was that the recommendatory note dated 15.12.2008 was sent by the Up-Lokayukt and the Secretary of the Lokayukt has issued direction vide letter dated 16.12.2008 to the State Government to conduct departmental enquiry against the petitioner, which is violative of provisions contained in Section 12 of the Adhiniyam, as no mandatory direction to initiate the departmental inquiry could have been issued to the State Government.

The learned Single Judge after considering the provisions of Section 10, Section 12 and Section 13 of the Adhiniyam, came to the conclusion that letter dated 16.12.2008 issued by the Secretary of the Lokayukt organization is not directory in nature and the same shall not be acted upon by the competent authority of the State Government mechanically and it shall be considered by the competent authority and appropriate decision shall be taken on it in conformity with the provisions contained in Section 12 of the Adhiniyam, with the aforesaid observations the writ petition was dismissed.

In writ appeal almost the same ground was taken by the petitioner. This Court after appreciating the arguments advanced by the learned Senior counsel for the petitioner dismissed the writ appeal by holding that the action of the Lokayukt establishment in conformity with the provisions of the Act and the Rules framed thereunder and held that learned Single Judge has not committed any error in dismissing the writ petition.

On facts the Division Bench of this Court held that there was nothing on record to show that Up-Lokayukt influenced with the fact finding enquiry report and there was nothing on record to show that on the basis of preliminary enquiry report the Up-Lokayukt formed an opinion and recommended to the Government of M.P. for departmental action against the petitioner.

It is not disputed by the learned Senior counsel for the petitioner that show cause notice was issued to the petitioner on 08.08.2008 and thereafter, the petitioner submitted its reply and additional reply. After considering the same, the enquiry officer submitted the enquiry report dated 10.12.2008 before the Up-Lokayukt. The Up-Lokayukt on being satisfied that the allegation levelled against the petitioner is duly established formed his independent opinion forwarded his recommendation to the State Government for holding the enquiry and taking appropriate action against the petitioner.

The petitioner failed to point out any statutory violation, nor he point out that action of the respondent No. 2 is in violation of any law. Learned Senior counsel for the petitioner drew our attention to the impugned order dated 11.8.2011, Annexure - G dated 27.9.2008, circular dated 13.10.1992 and Rule 16 of 1982.

It is not in dispute that the preliminary enquiry was conducted by the Chief Engineering posted in the Lokayukt organization after considering the reply to the show cause notice, the enquiry officer submitted the enquiry report before Up-Lokayukt. The Up-Lokayukt on being satisfied that the allegation levelled against the petitioner is duly established, therefore, the recommendation for holding the enquiry is forwarded to the Government of M.P. The entire proceedings conducted by the Up-Lokayukt office of Lokayukt is according to the norms prescribed under the Adhiniyam and on the basis of enquiry the recommendation was forwarded after giving full opportunity of hearing to the petitioner. The Up-Lokayukt after going through the entire report of the enquiry officer came to the conclusion that the departmental enquiry should be initiated against the petitioner because the Up-Lokayukt in its recommendatory letter dated 16.12.2008 has considered at length the irregularities committed by the petitioner and found that the reply filed by the petitioner was not satisfactory and thereafter has given his recommendation for proceedings against the petitioner. After dismissal of the writ appeal the State Government initiated enquiry u/s 14 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 and charge-sheet has been issued on 13.10.2011. The order of promotion dated 30.9.2009, whereby the petitioner was promoted on the post of Engineer-in-Chief (advisory) is ordered to be cancelled and posted on the post of Chief Engineer (Civil) as per the order Court passed in Writ Petition.

An error contemplated for permissibility of review must be such which is apparent on the face of the record and not an error which has to be fished out and searched. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the material placed before the Court. If the error is so apparent that without further investigation or enquiry, only conclusion can be drawn in favour of the petitioner, the review will lie. Under the guise of review, the petitioner is not entitled to rehearing of the same issue. In the present case, there is no error apparent on the face of the record. The petitioner is raising the same issues which were raised earlier in the writ appeal as well as before the learned Single Judge in the writ petition.

The power of the review in our opinion extends to correct all errors to prevent miscarriage of justice. On going through the material available on record and the arguments advanced by the learned counsel for the parties, we are of the view that there is no error apparent on the face of the record. There is some typographical error in respect of date in the impugned order and on that basis it cannot be said that there is error apparent on the face of the record.

The petitioner some how want that matter be linger on so that departmental enquiry may not be completed during his tenure. It is also pointed out that when departmental enquiry was initiated by the State Government he challenged the action by filing the writ petition before this Court and the said writ petition is pending for consideration. The review petition filed by the petitioner has no merit and is accordingly dismissed with costs of Rs. 5,000/- .