Islam Khan vs State of M.P. and Others

Sujoy Paul, J.—This petition filed under Article 226 of the Constitution is directed against the order dated 3.6.2005 (Annexure P/2) whereby the disciplinary authority imposed a punishment of compulsory retirement on the petitioner. The order Annexure P/1 dated 21.6.2006 is also called in question whereby petitioner''s appeal is rejected. Brief facts necessary for adjudication of this matter are as under:-

(i) At the relevant point of time, the petitioner was working as Head Constable in District Shivpuri. He was served with a charge-sheet dated 23.7.2004. Petitioner submitted his detailed reply (Annexure P/9) dated 1.8.2004 and denied the allegations in toto. The disciplinary authority was not satisfied with the reply of the petitioner, and therefore, appointed an enquiry officer to conduct an enquiry against the petitioner. In the enquiry, certain prosecution witnesses deposed their statements and thereafter the side of the petitioner was heard by the enquiry officer. The enquiry officer submitted his enquiry report (Annexure P/13). By aforesaid charge-sheet, four charges were alleged against the petitioner. Charges No. 1, 2 and 4 were found proved against the petitioner, whereas charge No. 3 was not found proved.

(ii) The copy of the enquiry report was supplied to the petitioner with a view to provide an opportunity to him to submit his representation. In turn, the petitioner submitted his representation (Annexure P/15). After receiving the reply against enquiry officer''s report, the disciplinary authority imposed the punishment (Annexure P/2) on 3.6.2005. Against this order, petitioner preferred a detailed appeal (Annexure P/17). This appeal of the petitioner is rejected by the impugned order (Annexure P/1) by the appellate authority.

Shri Kirar, learned counsel for the petitioner, submits that in the reply to the charge-sheet, the petitioner made his stand very clear and on the basis of actual factual matrix, stated about the incident. In the enquiry also, he took a specific stand and after receiving the enquiry officer''s report, submitted a detailed reply to the disciplinary authority. In the said representation, petitioner demonstrated about the falsity of the statements of the prosecution witnesses. He further argues that if the statements of prosecution witnesses are examined in a microscopic manner, it will be clear that the entire story of the prosecution is like a house of cards, and therefore, he demonstrated and analysed the entire story of the prosecution to demolish the same in his reply to the enquiry report. Criticizing the order of the disciplinary authority, Shri Kirar submits that the said authority has not applied his mind and did not consider reply to the enquiry officer''s report. He further submits that petitioner was given 95 awards and was inflicted with 29 minor punishments. Considering the aforesaid, the punishment imposed is highly disproportionate/excessive in nature.

Shri Kirar, learned counsel for the petitioner, further submits that the appellate authority has not dealt with the points raised by the petitioner in his appeal. On these grounds, said two orders are called in question in this writ petition.

Per contra, Shri Praveen Newaskar, learned Deputy Govt. Advocate for the respondents/State, submits that the enquiry officer applied his mind in extenso and dealt with every aspect of the matter. Enquiry officer''s report is detailed and is prepared after due application of mind. This Court is not obliged to sit as an appellate authority to reweigh or re-appreciate the entire evidence. He submits that the disciplinary authority is not obliged to deal with the representation against the enquiry officer''s report. He also supported the order of the appellate authority and submits that it is in accordance with law. No other point is pressed by the parties.

I have bestowed my anxious consideration to the rival contentions of the learned counsel for the parties and perused the record.

I find force in the argument of Shri Newaskar, learned Deputy Govt. Advocate, to the extent he stated that this Court while exercising powers of judicial review under Article 226 of the Constitution, is not obliged to sit as an appellate authority to reweigh or re-appreciate the evidence. This is settled in law that this Court while dealing with the cases of disciplinary enquiry is only required to examine the decision making process and if there is a flaw in the decision making process which prejudices the other side, this Court can very well interfere in the matter. Accordingly, the basic question is whether there is a flaw in the decision making process which prejudices the petitioner in any manner.

The enquiry officer in his report found the charges proved (except charge No. 3). The petitioner submitted his detailed reply to enquiry officer''s report vide Annexure P/15. A bare perusal of this Annexure shows that the petitioner has taken enough pain to deal with every charge which was alleged against him. He discussed and analyzed the case in his reply with a view to prove himself as innocent. The disciplinary authority in his report (Annexure P/2) only stated that the petitioner''s reply was filed. There is no application of mind on the reply of the petitioner by the disciplinary authority. In other words, the disciplinary authority has not dealt with, discussed or considered the reply of the petitioner in his punishment order. I am unable to uphold the contention of Shri Newaskar that disciplinary authority is not required to deal with the reply of the petitioner against the enquiry officer''s report. In the opinion of this Court where the enquiry officer has prepared a detailed report, it may not be necessary for the disciplinary authority to again deal with the charges and findings etc. but all the same, the said authority is obliged to consider the reply to the enquiry officer''s report submitted by the delinquent employee. The word ''consider'' has a definite connotation in law. It means a proper application of mind by the authority. If the only requirement is to supply enquiry officer''s report and the representation of the employee upon it is not to be considered by the disciplinary authority, supplying the copy of the enquiry report will be of no meaning. Accordingly, in my opinion, the disciplinary authority should at lease briefly deal with the contentions of the delinquent employee which shows proper application of mind on the representation submitted by the delinquent employee. Mere mentioning that reply is filed by the delinquent employee will not serve any useful purpose. In Roop Singh Negi Vs. Punjab National Bank and Others, the Apex Court in para 23 opined that the order of disciplinary authority and appellate authority are not supported by any reasons, and therefore, interference was made. In this view of the matter, I am unable to uphold the order of the disciplinary authority which does not show any application of mind on the delinquent employee''s representation against enquiry officer''s report. I find support from a Constitution Bench judgment of Supreme Court reported in Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., wherein the Apex Court opined as under:-

The supply of the copy of the report is neither an empty formality, nor a ritual, but aims to digress the direction of the disciplinary authority from his derivative conclusions from the report to the palliative path of fair consideration. The enquiry officer is a delegate of the disciplinary authority, he conducts the inquiry into the misconduct and submits his report, but his findings or conclusions on the proof of charges and his recommendations on the penalty would create formidable impressions almost to be believed and accepted unless they are controverted vehemently by the delinquent officer.

On the basis of aforesaid, I am unable to uphold the order of the disciplinary authority. The order of the appellate authority suffers from same legal infirmity. The appellate authority is also under a legal and statutory obligation to consider every aspect which is raised in the appeal. This point was considered by the Supreme Court in Ram Chander Vs. Union of India (UOI) and Others, The ratio decidendi of this case is consistently followed by various Courts including this Court in Mohammad Idris Vs. Registrar General, M.P. High Court, Jabalpur and another, and another). Recently in Vijay Singh Vs. State of U.P. and Others, , the Apex Court has taken the same view. If the appellate authority''s order (Annexure P/1) is examined in juxtaposition to the appeal preferred by the petitioner, it will show that the petitioner''s contentions raised in the appeal are not dealt with and considered by the appellate authority. Thus, the appellate authority has failed to follow the principles of natural justice, equity and fair play. This order runs contrary to the statutory requirement of consideration of the appeal.

In the considered opinion of this Court, non-consideration of reply of the petitioner to enquiry officer''s report caused great prejudice to him. The petitioner preferred the said reply with a view to canvass his defence and to demolish the story of the prosecution. If such defence is not taken into consideration, the petitioner is certainly prejudiced, and therefore, I find serious flaw in the decision making process which caused prejudice to the petitioner. The result is inevitable. Annexures P/1 and P/2 cannot be permitted to stand for the reasons stated above. Consequently, this petition is allowed. The impugned orders, Annexure P/1 dated 21.6.2006 and P/2 dated 3.6.2005 are set aside. The liberty is reserved to the respondents to proceed against the petitioner from appropriate stage. No costs.