I.D. Patel vs The State of Madhya Pradesh

Sanjay Yadav, J.—Heard on admission. Order dated 30.4.2013 is being assailed vide this petition.

Vide said order Commissioner, Tribal Welfare has called upon Collector, District Mandla to lodge an FIR against the petitioner in furtherance to the enquiry report by Lokayukta in enquiry case No. 241/2012 which in turn was on the basis of the complaint against the petitioner, an Assistant Commissioner, Tribal Welfare.

That, vide impugned order in respect of fact finding as complaint No. 1, 5, 6, 9 and 11 which related to financial irregularities committed by the petitioner while posted as Assistant Commissioner, Mandla, direction has been issued to initiate a department enquiry. Whereas, in respect of finding as to complaint No. 2 that the petitioner is found having received Rs. 40,000/- through cheque from the Contractor Pramod Pandey, lodging of F.I.R. is directed.

Though the petitioner contends that he has been condemned unheard; however, trite it is that for arriving at a decision to initiate a disciplinary proceeding on the basis of fact finding enquiry no prior opportunity of hearing is warranted as there is no condemnation but only a decision is taken to initiate a domestic enquiry.

In Champaklal Chimanlal Shah Vs. The Union of India (UOI), it is held

Generally therefore a preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out, and it is very necessary that the two should not be confused........... Such a preliminary enquiry may even be held ex parte, for it is merely for the satisfaction of government, though usually for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry. But at that stage he has no right to be heard for the enquiry is merely for the satisfaction of the Government, and it is only when the government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the government servant gets the protection of Art. 311 and all the rights that protection implies as already indicated above. There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments indicated in Art. 311 that the government servant is entitled to the protection of that Article......

Therefore, there is no illegality in the action taken by respondents to rely on preliminary enquiry by the Lokayukta preceding the departmental enquiry, without affording an opportunity of hearing.

Similar is the situation when an FIR is lodged, it also does not precede with a prior opportunity of hearing. In this context reference can be had of a decision in Union of India and another Vs. W.N. Chadha, wherein their Lordships were pleased to observe:

The principle of law that could be deduced from the above decisions is that it is no doubt true that the fact that a decision, whether a prima facie case has or has not been made out, is not by itself determinative of the exclusion of hearing, but the consideration that the decision was purely an administrative one and a full-fledged enquiry follows is a relevant and indeed a significant factor in deciding whether at that stage there ought to be hearing which the statute did not expressly grant.

Applying the above principle, it may be held that when the investigating officer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or not and a full enquiry in case of filing a report under S. 173(2) follows in a trial before the Court or Tribunal pursuant to the filing of the report, it cannot be said that at that stage rule of audi alteram partem superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognise. The question is not whether audi alteram partem is implicit, but where the occasion for its attraction exists at all.

Under the scheme of Chap. XII of the Code of Criminal Procedure, there are various provisions under which no prior notice or opportunity of being heard is conferred as a matter of course to an accused person while the proceeding is in the stage of an investigation by a police officer.

Under S. 235(2), in a trial before a Court of Sessions and under S. 248(2) of the trial of warrant cases, the accused as a matter of right, is to be given an opportunity of being heard. Unlike the above provisions which we have referred to above by way of illustration, the provisions relating to the investigation under Chapter XII do not confer any right of prior notice and hearing to the accused and on the other hand they are silent in this respect.

In view of above pronouncement of law, the order dated 30.4.2012 impugned herein cannot be faulted with as would warrant an interference. In the result petition fails and is dismissed. No costs.