Lal Mohammad vs State of Madhya Pradesh and Another

Manindra Mohan Shrivastava, J.—By this petition, the petitioner has assailed legality and validity of order dated 17th February, 1989 (Annexure A-7), by which a penalty of withholding three increments with cumulative effect and withholding promotion for next five years has been imposed on the petitioner by the State Government. Case of the petitioner is that when the petitioner was working as Ranger, a departmental enquiry was initiated by issuing a charge sheet dated 27-4-1981 (Annexure A-1). The charges leveled therein related to the period between 26-12-1977 to 6-10-1978. On 4-12-1981, the petitioner submitted his reply (Annexure A-2), denying the charges. Shri R.L. Awasthi, Conservator of Forest, Durg Circle, was appointed as Enquiry Officer. He conducted the enquiry, examined number of witnesses of prosecution as well as defence and finally an enquiry report was submitted on 24-9-1982 (Annexure A -3). In the said report, Enquiry Officer concluded that the charges leveled against the petitioner were not found proved and the petitioner was exonerated of the charges.

Further case of the petitioner is that for four years, no further order was passed in the departmental enquiry. Then the petitioner received a telegram dated 20-11-1986 (Annexure A-4) requiring him to appear before the Divisional Forest Officer, Rajnandgaon on 3-12-1986 for departmental enquiry. After receipt of the telegram, petitioner appeared before the Authority on 3rd December, wherein his statement was recorded. Petitioner was informed by the new Enquiry Officer that he was enquiring into the same matter in relation to which enquiry report was submitted earlier on 24-9-1982. On 3rd, 4th & 5th December, 1986, witnesses were examined and the petitioner was compelled to cross-examine those witnesses without any preparation and legal assistance. Enquiry Officer in this manner closed the enquiry without giving the petitioner further opportunity to lead his own evidence in defence to controvert the evidence collected afresh against the petitioner. The enquiry was closed on 6-12-1986. Thereafter, the impugned order dated 17-2-1989 (Annexure A-7) has been passed imposing major penalty on the petitioner.

Respondents in their return have stated that on submission of enquiry report dated 24-9-1982 (Annexure A-3), same was perused by the State Government and it was found that it lacked in material particulars, therefore, the State Government again appointed one V.K. Shrivastava as Enquiry Officer for conducting the enquiry afresh vide its order dated 9th January, 1985 (Annexure R-1). Petitioner was given full opportunity by the Enquiry Officer and was allowed to cross-examine witnesses of the prosecution. Petitioner himself submitted and gave statement on 3-12-1986 that he was ready for the enquiry. It has also been stated that no enquiry report was liable to be served. After receipt of enquiry report, the Government perused the same and after obtaining concurrence from the Public Service Commission, passed the impugned order dated 17-2-1989. Respondents have also submitted that the petitioner had a remedy of statutory appeal and without resorting to said remedy of appeal, the petitioner approached this Court.

Learned counsel for the petitioner argued that the enquiry report prepared subsequently in the second round of enquiry was not supplied to the petitioner and, therefore, the impugned order of punishment is vitiated. It has also been contended that without assigning any reason whatsoever and without commenting on first enquiry report and without appreciating the evidence recorded by the first Enquiry Officer, after 4 years, the enquiry was illegally reopened afresh. It is also contended that fair and reasonable opportunity of hearing was not afforded, resulting in violation of the Article 311 of the Constitution of India. It has also been argued that the punishment has been imposed by the Disciplinary Authority without issuance of show-cause notice and without serving or furnishing copy of enquiry report, which is violative of provisions contained in Rule 15 of the M.P./C.G. Civil Services (Classification, Control & Appeal) Rules, 1966 (hereinafter referred to as "the Rules of 1966"). Learned counsel for the petitioner further argued that the decision of the Government to hold enquiry afresh was based on disagreement with the first enquiry report dated 24-9-1982 and, therefore, it was incumbent upon the respondents to give the petitioner an opportunity by communicating the reasons of disagreement before taking any decision to initiate enquiry afresh. Learned counsel for the petitioner referring to averments made in para 6 (ii) of the petition, argued that due and proper opportunity to defend against the charges were not afforded to the petitioner, which has vitiated the impugned order. It has also been argued that the de novo enquiry is not permissible under the law and in any case, the decision of the second Enquiry Officer to re-examine the witnesses without recording any opinion, is violative of the provision contained in Rule 14 (22) of the Rules of 1966. Learned counsel for the petitioner placed reliance on the judgments of the Supreme Court in the cases of Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., , Punjab National Bank and Others Vs. Sh. Kunj Behari Misra, , Haryana Financial Corporation and Another Vs. Kailash Chandra Ahuja, , State of U.P. and Others Vs. Saroj Kumar Sinha, L.I.C. of India and Another Vs. Ram Pal Singh Bisen, Anirudh Dwivedi Vs. The State Chief Commissioner, Bharat Scout and Guide and Another, Uma Nath Pandey and Others Vs. State of U.P. and Another, Kailash Chandra Parwal Vs. State of M.P. and others, .

Per contra, submission of learned counsel for the respondents is that the Government was justified in ordering further enquiry as it was found that the enquiry report submitted earlier was incomplete and full of mistakes. Therefore, new Enquiry Officer and Presenting Officer were appointed to hold the enquiry, wherein the petitioner was given full opportunity to cross-examine witnesses. It is stated that in the new enquiry report, charges were found proved, which were relied upon by the Disciplinary Authority and the impugned order was rightly passed which does not call for any interference. It has also been argued that the petitioner ought to have exhausted his remedy of statutory appeal and without availing that remedy, instant petition has been filed which is liable to be dismissed on this ground alone. Learned counsel for the respondents further submitted that the petitioner did not raise any objection during enquiry and is not entitled to any benefit as he has failed to establish any prejudice caused to him on account of re-examination of the prosecution witnesses recorded earlier. Reliance has been placed upon judgment of the Supreme Court in the case of Oriental Insurance Co. Ltd. Vs. S. Balakrishnan,

I have considered the rival submissions made by learned counsel for the parties and perused the records.

In so far as objection with regard to filing of instant petition without availing alternative remedy of statutory appeal is concerned, taking into consideration that this petition was filed before the Tribunal in the year 1989 and has remained pending since then and further that the petitioner has now retired from service during pendency of the petition in the year 2000, I am not inclined to dismiss the petition on this ground.

Petitioner has assailed the impugned order dated 17-2-1989, firstly on the ground that before passing the impugned order, the second enquiry report was not supplied to him and, therefore, in view of law laid down by the Supreme Court in the cases of Saroj Kumar Sinha (supra), B. Karunakar (supra), Umanath Pandey (supra) & Haryana Financial Corporation (supra), the impugned order is liable to be set aside only on his ground.

This contention of learned counsel for the petitioner cannot be accepted, as in the present case, the impugned order of punishment has been passed on 17-2-1989 i.e. prior to judgment of Supreme Court in the case of Union of India and others Vs. Mohd. Ramzan Khan, Mohd. Ramzan Khan''s case (supra) was decided by the Supreme Court vide judgment dated 20th November, 1990. In the case of B. Karunakar (supra), the Supreme Court held that the delinquent is entitled to a copy of Enquiry Officer''s report. As law laid down in the judgment of Mohd. Ramzan Khan (supra) is applicable prospectively w.e.f. 20th November, 1990 and the orders of punishment passed prior to the decision in Mohd. Ramzan Khan''s case without furnishing the report of Enquiry Officer, it would not be susceptible to attack on the said ground of non-furnishing of the enquiry report. The contention of learned counsel for the petitioner is therefore rejected.

The next contention of learned counsel for the petitioner that before ordering de novo enquiry, respondents ought to have communicated to the petitioner reasons for disagreement with the earlier enquiry report and obtain petitioner''s reply before decide to hold de novo enquiry, requires to be rejected for the reason that present is not a case where the Disciplinary Authority after disagreeing with the earlier enquiry report proceeded to impose penalty on the petitioner. In the present case what the respondents have done is that finding the earlier report as incomplete and containing mistakes have decided to hold further enquiry. Thereafter, another enquiry report was submitted, which was considered by the Disciplinary Authority. From the impugned order dated 17-2-1989, it is reflected that the second enquiry report found the petitioner guilty of charges, which was made basis for imposition of penalty. It is not a case that the Disciplinary Authority disagreed with the findings contained in the enquiry report, reached to its own conclusion and proceed to pass an order of punishment. In this view of the matter, the ratio of the judgment of the Supreme Court in the case of Kunj Behari Misra (supra) is not applicable to the facts and circumstances of the present case.

After issuance of the charge sheet to the petitioner, enquiry was held and initially an enquiry report was prepared and submitted on 24-9-1982. A perusal of the said enquiry report would show that the Enquiry Officer conducted detailed enquiry, recorded statements of prosecution witnesses, as also defence witnesses and after detailed and meticulous examination and marshaling of oral and documentary evidence available on record, came to the conclusion that the charges against the petitioner are not made out. The said enquiry report runs into as many as 55 pages. The matter remained there without any further decision for 4 years. A perusal of order dated 9th January, 1985 (Annexure R-1) shows that respondents invoked its authority under Rule 15 (1) of the Rules of 1966 on the ground that the earlier enquiry report was incomplete and contained mistakes. Based on such vague conclusion, respondents proceeded to appoint another Enquiry Officer and Presenting Officer. It is averred in the return that after submission of the enquiry report, the same was perused and as it lacked in material particulars, the Government again appointed an Enquiry Officer for conducting enquiry afresh. The order dated 9th January, 1985 shows that as the enquiry report was found incomplete and containing mistakes, again, enquiry is being held with appointment of a new Enquiry Officer and Presenting Officer.

In the petition, it has been averred by the petitioner that when he appeared before the Enquiry Officer pursuant to telegram (Annexure A-4), he was told that the Enquiry Officer was enquiring into the same matter which was over in the year 1982. In fact, no new charge sheet has been issued to the petitioner. A perusal of order dated 9th January, 1985 (Annexure R-1) shows that in substance, the Disciplinary Authority invoked its power under Rule 15 (1) of the Rules of 1966. Taking into consideration the averment made by the parties and contents of order dated 9th January, 1985, I come to conclusion that the Disciplinary Authority directed fresh enquiry by Appointing new Enquiry Officer and Presenting Officer on the same charges. Such a course of action is not permissible under the law.

A perusal of Rule 15 (1) of the Rules of 1966 would show that once an enquiry report was submitted, the Disciplinary Authority may, for reasons to be recorded by it in writing, remit the case to the Enquiring Authority for further enquiry and report. The second option open to the Disciplinary Authority is provided under Rule 15 (2) that if it disagrees with the findings of the Enquiring Authority on any article of charge, then it may record its own reason for disagreement and record its own finding on such charge, if the evidence on record is sufficient for the purpose. In a case where Disciplinary Authority is in agreement with the conclusion of Enquiry Officer, it may pass final order of punishment or exoneration, as the case may be.

The Disciplinary Authority has no power under the Rules to order enquiry afresh on the conclusion that enquiry report is incomplete or incorrect. Such a conclusion would only entitle the Disciplinary Authority to remit the matter to the Enquiry Officer for further enquiry and not to order a fresh enquiry by appointing a new Enquiry Officer and Presenting Officer. The powers of the Disciplinary Authority in the matter of departmental enquiry against a Government servant are those which are conferred under the statutory Rules of 1966 framed by the Governor in exercise of powers conferred under proviso to Article 309 of the Constitution of India. The conduct of departmental enquiry against a Government servant is regulated by provision of law and various authorities including Disciplinary Authority are empowered to act within the four-corners of the provisions of law and not beyond it. The Disciplinary Authority does not enjoy any plenary or unlimited authority and jurisdiction to act in the manner it likes. While acting as a Disciplinary Authority, scope and extent of its power and authority are circumscribed by the provisions contained under the statutory rules.

Examination of the statutory scheme under Rule 15, as referred to above, leads to the inevitable conclusion that once an enquiry report was submitted, the Disciplinary Authority may remit the case to the Enquiry Authority, that too for reasons which are required to be recorded in writing to the Enquiring Authority. This would imply that the case is to be remitted to the same Enquiry Officer. In the present case, a new Enquiry Officer has been appointed. Though the Disciplinary Authority may appoint new Enquiry Officer in appropriate circumstances like the earlier Enquiry Officer, for any reason, is not available or has disqualified itself etc. However, no such circumstance has been brought on record by the respondents. It lends support to the conclusion that what the Disciplinary Authority has intended to do, is to hold enquiry afresh on the same charges, as it was not satisfied with enquiry report submitted before it.

The exercise of power to remit the case for further enquiry is also not unbridled, but there is an important rider in the form of statutory obligation cast on the Disciplinary Authority to record reasons in writing for such a decision to remit the case for further enquiry. Even assuming for arguments'' sake, as has been argued by learned counsel for the respondents, that what in substance was intended was to remit the case for further enquiry, the mandatory requirement of recording reasons in writing has also been violated. What order dated (Annexure R-1) records is a mere conclusion without any reason to come to such conclusion. The requirement of recording reasons has been incorporated under the provision as a cheque against an arbitrary and whimsical action, in case the enquiry report is not to the liking of the Disciplinary Authority. It has been recorded hereinabove that in the earlier round of enquiry, the Enquiry Officer conducted enquiry by examining prosecution and defence witnesses and a very meticulous examination of oral and documentary evidence on record was undertaken by the Enquiry Officer in its 55 pages enquiry report. The Disciplinary Authority sought to brush aside the same by merely stating . In the considered opinion of this Court the Disciplinary Authority clearly exceeded its power in appointing a new Enquiry Officer and Presenting Officer and to hold a fresh enquiry into the charges leveled against the petitioner firstly-because no such course of action could be adopted as the same is impermissible under the Rules and secondly assuming that it was intended only to order further enquiry, in ordinary course, it should be remitted to same Enquiry officer and that too by recording reasons in writing.

Even though numbers of opportunities were granted to respondents and even a direction was issued to place on record the enquiry report prepared subsequently, respondents have not produced the same.

Rule 14 (22) of the Rules of 1966 empowers the succeeding enquiry officer to act on the evidence recorded by his predecessor or partly recorded by itself. If the succeeding Enquiry Authority forms an opinion that after examination of any of the witnesses, whose evidence has already been recorded, is necessary in the interest of justice, it may recall, examine, cross-examine and re-examine any such witnesses. From the averments made and the documents available on record, it is found that the new Enquiry Officer recorded the statement of the prosecution witnesses who were examined earlier. No material has been brought on record to show that the new Enquiry Officer was appointed only for further enquiry and that he formed an opinion as a succeeding Enquiry Authority that further examination of any of the witnesses whose evidence was already recorded, was necessary in the interest of justice, before recalling those witnesses who were earlier examined and cross-examined. This also lends support to the case of petitioner that it is not a case of further enquiry, but a fresh enquiry by a newly appointed Enquiry Officer.

In view of the aforesaid discussion and analysis, it is not necessary for this Court to consider other submission of the petitioner. Action of the Disciplinary Authority in appointing a new Enquiry Officer and holding enquiry afresh is declared illegal being in excess of power in authority conferred under Rule 15 of the Rules of 1966. Consequently, the impugned order dated 17th February, 1989 (Annexure P-7), which is based on the second enquiry report, is hereby set aside.

Though, ordinarily in view of the aforesaid findings, this Court would have remitted the matter back to the Disciplinary Authority to take fresh decision in accordance with the provisions contained in Rule 15 of the Rules of 1966, taking into consideration that the departmental enquiry was initiated in the year 1981, the first enquiry report was submitted on 29-4-1982 and that the petitioner has also retired from service on 30th November, 2000, it would be rather harsh and unjust to again subject the petitioner to another round of enquiry almost 10 years after his retirement.

Petition is accordingly allowed with all consequential benefits. No order as to costs.