Ku.Sunita Ghosh vs State Of M.P. And Ors.

The petitioner filed Original Application before the State Administrative Tribunal at Jabalpur registered as O.A. No. 2076/93. Upon abolition of

Tribunal, this case was transferred to High Court and registered as Writ Petition No. 2302/2005.

While the petitioner was working as a supervisor at CCF, Unit, Ghodhari under Department of Rehabilitation, a departmental enquiry was instituted

against him by issuance of charge-sheet on 22-12-1986 alleging two sets of charges. It was alleged that the petitioner failed to make proper entries in

various records and was liable for disciplinary action. Along with charge-sheet, statement of allegations, list of documents were also attached but there

was no list of witnesses. As charges related to number of documents particularly, daily production register which did not form part of the documents in

the list of documents, the petitioner moved an application for inspection of daily reports register. The petitioner moved an application for supply of

documents on 24-08-1887. He was allowed inspection and inspection of documents except those which were mentioned in his subsequent letter dated

18-05-1987. A reply was then filed by the petitioner on 28-05-1987 by which the charges were denied. The departmental enquiry proceeded after

appointment of the enquiry officer and presenting officer.

The petitioner had serious objection to the appointment of Mr. L.M. Sharma, Assistant Manager as presenting officer on the ground that the petitioner

had submitted the complaint alleging corruption and enquiry against Mr. L. M. Sharma in conspiracy with Mr. L. R. Sharma, Senior in the office of

Commissioner and that they started harassing him, as a result of which, the charge-sheet was issued against him. However, the petitioner's request

was rejected. In the departmental enquiry, though no witness was proposed to be examined as per the charge-sheet on 07-12-1987, Mr. L. R. Sharma,

Senior Accounts Officer appeared as witness along with certain documents, including audit notes. The petitioner during his cross examination

requested for production of records so that petitioner could effectively cross examine the witness who was produced. All of a sudden without notice,

the case was adjourned for 16-06-1988. However, thereafter Mr. Sharma did not come, the enquiry officer completed enquiry. The petitioner raised a

grievance and then commissioner passed order directing enquiry officer to call Mr. Sharma for examination and cross examination so as to affording

opportunity of hearing to the petitioner. Mr. Sharma, however, did not appear and another officer along with the records was sent whom the petitioner

refused to cross examine because examination in Chief, Mr. L. R. Sharma was recorded as witness. Petitioner was however, allowed to lead defence

witnesses and finally enquiry report was prepared on 28-02-1991 in which charge No. 1 except in some parts was found proved and charge No. 2

was fully proved. The disciplinary authority issued notice to the petitioner, obtained his reply and then again issued show cause notice proposing

penalty. After obtaining reply an order of imposition of removal from service was imposed on the petitioner vide order dated 24-08-1992. An appeal

was preferred by the petitioner which too was dismissed on 04-05-1993 giving rise to present petition.

Learned counsel for the petitioner would submit that for more than one material irregularities and violation of principles of natural justice, whole

enquiry is vitiated. It is argued that along with the charge-sheet, respondents did not enlist daily goods register, whereas, entire charge No. 1 proceeds

on comparison of finished goods register with daily goods register. Moreover, the documents referred in charge No. 2 were also required to be

inspected and though the petitioner applied for inspection of the documents pertaining to charge those were not disclosed to the petitioner much less

inspection but made basis to hold charge proved. Next submission is that the petitioner prayed for legal assistance but was not allowed to the petitioner

whereas, looking to the complexities of the nature of case, the petitioner required assistance of a legal expert. Denial of petitioner's request resulted in

violation of principles of natural justice. It is next submitted that Mr. L. R. Sharma against whom the petitioner had made serious allegations of he

being a connivance with Mr. L. M. Sharma, was not allowed to be effectively cross examined. He was not listed as witness and suddenly during

enquiry with certain records which were not disclosed to the petitioner thus the petitioner was deprived of effective cross examination . When the

petitioner sought production of original records, the case was adjourned, therefore, Mr. Sharma was required to appear on the next date. Mr. Sharma

never appeared thereafter, despite order passed by the competent authority.

Thus, proper enquiry was not made and the enquiry officer on the basis of oral evidence of Mr. L.R. Sharma sought to corroborate the documentary

evidence and held charge No. 1 proved, therefore, this vitiates the enquiry. It is submitted that the findings are based on conjecture and surmises and

without valid proof of the charges against the petitioner. The allegations that the petitioner was maintaining finished goods register, as well as daily

goods register was denied by the petitioner but the enquiry officer proceeded as if the petitioner had admitted that he used to maintain these records.

Moreover, the enquiry officer mentioned that there are discrepencies in the entries made in finished goods register and daily reports register. There is

no material basis disclosed in the report that the petitioner had maintained and made entries in the two records. The enquiry officer proceeded only on

certain assumptions and the defence taken by the petitioner as contained in his defence brief dated 26-12-1990 were completely ignored by the

enquiry officer. Disciplinary authority did not apply his mind to the specific defence of the petitioner and without proof of the fact that entries of the

two registers were actually made by the petitioner, proceeded to hold the petitioner guilty. On charge No. 2 , it is submitted that the finding is

completely vitiated as evidence of this charge is based on documentary evidence and those documents were never shown to the petitioner. Learned

counsel for the petitioner would also submit even if it is because of certain minor discrepency in the record , there is no charge or any material to show

that the petitioner had illegally removed the stock causing loss, therefore, imposition of penalty of removal being grevious penalty was wholly

unwarranted and uncalled for.

On the other hand, Learned State counsel would submit that though initially Mr L. R. Sharma was not named as witness, the fact remains that the

petitioner did not cross examined him. He would submit that in so far as, further requirements of cross examination is concerned, it was an attempt on

the part of the petitioner to somehow stall the enquiry. Since cross-examination was substantially complete, the evidence of L.R. Sharma is admissible

and were could be taken into consideration to record finding of guilt against the petitioner. He would further submit that the petitioner was afforded

opportunity to lead defence witness. The petitioner was working as supervisor. In his reply he has admitted that there were certain discrepencies in

the entries made in the finished goods register and daily goods register and some gate passes were prepared, some were left blank which leads to

reasonable inference that the petitioner wanted to take undue advantage of illegal removing of manufactured products which could not happen

because of the scrutiny and supervision. He would also submit that participation of presenting officer shall not vitiate the enquiry unless it is proved

that while the presenting case of the prosecution, the presenting officer prevailed upon the enquiry officer to deny the petitioner fair enquiry. The

petitioner's prayer for legal assistance is not permissible under the rules. The prosecution itself did not engage legal practitioner. The petitioner was not

justified in demanding legal assistance. As it was found that there was various discrepencies in the maintenance removal of the petitioner from service

could not be said to be shockingly disproportionate to misconduct so as to warrant interference against the quantum of punishment. It needs to be

noted here that the respondents have failed to produce the departmental enquiry before this Court.

The Charge-sheet against the petitioner consists of two parts, the first charge relates to discrepancies in the entries made in the finished goods

register and daily goods register. In the statements of charge-sheet, it has been alleged that the petitioner used to maintain two registers. The second

charge relates to irregularities in maintenance of bills records and it is alleged that because of the irregularities and incorrect entries made a situation

of dispute between the establishment and purchaser institutions arose.

In support of the charges levelled against the petitioner, the respondent listed three documents along with list of documents. It, however, appears

that as the charge number 1 was that the petitioner did not make proper entries in the finished goods register on the basis of entries made in the daily

reports register the petitioner intended to inspect notes for the relevant periods and application was moved by him on 24-02-1987 for inspection of

documents. The petitioner, however, was allowed inspection of the records, but all the documents which were relevant for the purposes of charge

number 2 were withheld which is clear from the contents of the letter dated 18-05-1987 as below :

“ Your office fails to produce the Bill No. 249/3/9/85, 448 or 248, 251 and Bill No. 249 to 267 respectively, and Audit note for that period also not

available.â€​

This Court finds that the entire charge number 2 is based on documentary evidence and, infact, the enquiry officer in his enquiry report held charge

number 2 proved on the basis of those documentary evidence namely bill number 249 & 448 or 248, 241, 251 and bill number 248 to 267. The finding

of the enquiry officer in this regard, as far as charge number 2 is concerned, is as below :

^^bl laca/k esa 'kklu i{k dk xokg Jh ,y-vkj- 'kekZ us vius eq[; dFku esa dqN Hkh ugha dgk gS blh izdkj vkjksih deZpkjh us Hkh vius cpko i{k esa fyf[kr

tokc fnukad 28-05-87 esa fypjj gS og vkjksi dks Lohdkj ugh djrk ysfdu Liâ€V :i ls dksbZ izek.k }kjk vkjksi dk [k.Mu ugha fd;k x;k gSA izfrijh{k.k esa

vkjksih deZpkjh }kjk iwNs x;s iz'u ds mRrj esa bl ckr dks Lohdkj fd;k fd 3550 iksyks dh rqyuk esa 600 iksyks dk dher fuf'pr :i ls de gksxhA

eSus lh0lh0,Q0 ;wfuV] ?kksM+kjh dk lkexzh iznk; laca/kh Ogkmpj ns[kkA Ogkmpj ua 249 fnukad 03-06-85 tks fd dk;Zikyu ;a=h] yksd fuekZ.k

foHkkx] jk;qij ds uke tkjh fd;k x;k gS blesa jkf'k dz0 42558-45 iSls dk mYys[k gS tcfd iqu% fcy ua0 4481 tks okLro esa 248 gS esa okLrfod jkf'k

34666-15 ntZ dh tkdj tkjh dh xbZ vr% ;g vkjksih fl} ik;h x;hA vkjksih deZpkjh us 3510 iksyks dk izksQkeZ bUokbl crk;k tcfd okLrfod lIykbZ 600

iksyks dk fd;k x;kA eSus fcYl ua0 251 ,oa 249 dk voyksdu fd;kA vkjksi izekf.kr gSA ^^

Thus, it is amply clear that as far as charge number 2 is concerned, all those documents which were not supplied despite demand alone were made

basis. Therefore, as far as, charge number 2 is concerned, the evidence and punishment of the petitioner on this charge cannot be sustained in law.

Though, the petitioner has sought to assail the fairness of enquiry procedure on the ground that he was not provided legal assistance as provided

under Rule 14 of Civil Services (Classification, Control and Appeal) Rules, 1966, the ground is not made out because the department did not bring any

legal practitioner to present its case as presenting officer. There is nothing on record to show that the petitioner sought permission of the department to

engage departmental assistance, therefore on that count, the enquiry cannot be said to be vitiated.

The respondents while issuing charge-sheet did not intend to lead any oral witness in support of the charges, so with the the charge-sheet, no list of

witnesses was attached. But then, on 07-12-1987, Mr. L.R. Sharma , Senior Account officer suddenly appeared to depose as one of the prosecution

witness. In paragraph 20 of the writ petition, the petitioner has clearly stated that no notice of examination of witness was given. There is no specific

denial of this fact nor respondents have filed on record, any document to prove that prior to 07-12-1987, any notice was given to the petitioner. Thus,

without any prior notice of examination of prosecution witness was examined. No other material has been placed before this Court that the petitioner

had previous notice that on 07-12-1987, any prosecution witness will be examined. This certainly was most unfair and infact prejudiced the petitioner's

right of efffective cross examination. Moreover, when the petitioner demanded production of records so as to confront the witness and impeach its

credibility, records being not available, enquiry was adjourned to 16.6.1988, whereafter, Mr. L.R. Sharma never appeared.

The petitioner raised a grievance before the Commissioner and the Commissioner passed an order on 15-05-1989 directing that the witness be re-

examined and petitioner be afforded opportunity of cross-examination of the said witness along with the production of original records. Thereafter, on

the next date of hearing before the enquiry officer, who had earlier submitted the enquiry report, though the petitioner came out with the allegations

that he was no afforded opportunity , the enquiry was again closed. On a grievance made vide letter dated 06-09-1989 to the Commissioner, the

Commissioner again passed an order on 12/17 April 1990 and the enquiry was once again remanded for affording the petitioner proper opportunity of

hearing. It would thus appear, time and again, enquiry was proceeding in a most unfair and inorderly manner. Sometimes, the witness though not

disclosed, suddenly made to appear and deposed. The records which were not disclosed to the petitioner were being referred to during the enquiry by

the witness. Full proper opportunity of cross-examination of the witness was not being afforded to the petitioner and enquiry was closed without

allowing defence witness.

It is reflected from the records that finally Mr. L.R. Sharma, did not appear in the enquiry to subject him to cross-examination by the petitioner.

For reasons best known to the respondent, order was passed for sending the Chief Accounts Officer Mr. V. B. S. Johri, to be examined along with

the records for the purpose of records examination. This is reflected from the order dated 23-11-1990 Annexure A-34. The petitioner, however,

refused to cross examine this witness and rightly so because the purpose of cross-examination is the afforded opportunity to impeach credibility of

testimony as deposed by the witness in the examination in chief. Once, Mr. L. R. Sharma was examined as the witness either he should have been

subjected to cross examination by the the petitioner or Mr. L. R. Sharma ought to have been given up. None was done. Without affording the

petitioner full opportunity to cross-examine Mr. L. R. Sharma, the enquiry officer proceeded with the enquiry taking on record ealier recorded

testimony of Mr. L. R. Sharma. The reading of the enquiry report in so far as charge number 1 in various parts is concerned, this Court finds that the

enquiry officer has relied upon the oral testimony of Mr. L. R. Sharma. This vitiated the finding based on the evidence of Mr. L. R. Sharma on first

charge against the petitioner. The evidence of a witness whose cross-examination has not been allowed, for whatever reasons, looses evidentially

value.

This Court finds that, before initiation of departmental enquiry against the petitioner who had completed almost entire service carrer and had hardly

5-7 years left for his retirement, was subjected to departmental enquiry soon after petitioner had made the complaint against the functioning of Mr. L.

M. Sharma, Assistant Manager. The petitioner has plced on record the copy of complaint dated 05-05-1986. The petitioner has made serious

allegations against Mr. L. M. Sharma, Assistant Manager posted in the same unit where the petitioner was working, in his complaint he has stated as

below :-

^^ mlds }kjk fd;s x;s Hkzâ€Vkpkjksa esa ls ,d uequk vkids le{k izLrqr djrk gwWa ,d fcy lyaXu dj jgk gwWa tks mDr bZdkbZ ls djhc 50 gtkj :0 ewY;

ds ikbi iznk; djus ds laca/k esa gS mDr fcy esa fcy uacj o fnukad u gksus ds lkFk lkFk iznk; djus ds fy, vkMZj uacj dk Hkh mYys[k ugha gSA lkFk gh

bl fcy ls laca/k xsVikl dzekad 10 Hkh ogk miyC/k ugha gSA^^

From this, it appears that petitioner had made similar allegations against Mr. L. M. Sharma, on which the charge-sheer were issued against the

petitioner. But then, the competent authority chose to appoint Mr. L. M. Sharma as the presenting officer to which the petitioner seriously objected to

vide his application dated 05-08-1987. However, the petitioner's application was rejected without any application of mind vide memo dated 23-09-1987

by recording that prayer for change of enquiry officer cannot be accepted. Infact, petitioner did not pray to change enquiry officer but change of

presenting officer. It would thus be clear that competent authority did not look into the allegations made by the petitioner. According to the petitioner,

Mr L. M. Sharma, Assistant Manager and Mr. L. R. Sharma, the chief Accounts officer in the said office were acting hand in glove, hatched

conspiracy against the petitioner because the petitioner had made complaints. According to the petitioner, as soon as petitioner made complaint against

Mr. L. M. Sharma on 05-05-1986, Mr. L. R. Sharma started harrassing him by issuing notices, one of which, issued on 15-05-1986, is placed on

record as Annexure(146) (A-15-A). the contents of the said letter given by Mr. L. R. Sharma is as below:

^^funsZ'kkuqlkj vkidks lpsr fd;k tkrk gS fd vius ofjâ€B vf/kdkjh ds fo:} f'kdk;rs vki vknru dj jgs gSA ;g vuq'kklughurk gSA Hkfoâ€; esa vki vius dke ls

gh vius dks lyaXu j[ks ,oa f'kd;r djus dh izo`fRr ij vadq'k yxk;s vU;Fkk vkids fo:} vuq'kklfud dk;Zokgh dh tk ldsxhA**

The aforesaid facts are relevant because in the departmental enquiry, one against whom the petitioner had made serious allegations and

complaints, was appointed as presenting officer and was not changed despite objection. The other, who is alleged to be in league with presenting

officer was suddenly made to appear in enquiry without records to depose against the petitioner and he was not allowed to be fully cross-examined by

the petitioner. The enquiry, in this manner, was completely vitiated by unfair treatment meeted out to the petitioner.

The enquiry report was prepared by the enquiry officer on 28-02-1991. Before that, the petitioner had submitted the detailed defence brief on 26-

12-1990 Annexure (A-35). In his defence, petitioner categorically stated that neither finished goods register nor daily reports register nor gate passes

nor bill books were maintained by him and there is no evidence or documents in his writing. Therefore, it was necessary for the enquiry officer to

record evidence regarding the issue but enquiry officer proceeded to record finding based on so called admission of the petitioner which was nowhere

found. Apart from charge number 2, which for reasons stated hereinabove, is not made out, for serious violations noticed by this Court, charge number

1 which relates to discrepancies in the entries of the finished goods register and daily goods reports register , no proper enquiry was held. However,

the enquiry officer has noted certain discrepancies in the entries made, there is no evidence to show that the entries were made in these two records.

The petitioner has made serious allegations that he was falsely implicated that these records were not written nor the entries were not made by him.

Errorneous approach of the enquiry officer is reflected from following observation made by him.

^^fu;e 14 ¼18½ ds varxZr lk/kkj.k iz'u ijh{k.k esa vipkjh deZpkjh }kjk izLrqrdrkZ vf/kdkjh ls dksbZ Hkh iz'u ugha fn;k x;k rFkk fyf[kr izfrosnu

fnukad 26-12-90 dks izLrqr fd;k ftlesa vkjksiks dh vlR;rk izekf.kr ugha gksrh gSA^^

The enquiry officer entertained a wrong notion of law that the burden was on the delinquent employee to prove that the charges were not made

out against him.

Curiously enough, the enquiry officer has first analysed the defence evidence. After going through the records of the present case this Court does

not find any stage where petitioner admitted that he made entries in various records. On what basis the enquiry officer proceeded to record that the

petitioner admitted that he made entries, is not known.

Charge number 1 relates to certain discrepencies in the entries made and nothing more. Moreover, these entries were not made in different

registers with regard to the production of finished products. There is corresponding allegations on the petitioner that on the basis of these entries, the

petitioner illegally and dishonestly wanted to remove finished products or cause financial loss. On these conjecture and surmises, conclusion was

reached upon that the petitioner was responsible for these discrepant entries in the finished goods register. Viewed from any angle, the entire enquiry

conducted by the enquiry officer and orders passed by disciplinary authority cannot be sustained in law for want of just and fair enquiry, violation of

principles of natural justice and perversity. In the result, the petition is allowed, impugned orders of dismissal is set aside.

It is relevant to state that during the pendency of the petition, the petitioner died and his legal representatives, two daughters were allowed to

prosecute the petition as it entails certain monetary benefits. It is, as therefore, to be ordered that deceased petitioner shall be deemed to continue in

service till he attained the age of superannuation. All other consequential benefits which he would have got, including monetary benefits as salary and

pension and other retiral dues after his death would be liable to be paid to the petitioners.

Petition is accordingly allowed. No costs.