1 W.P No.7622/2005 (S) HIGH COURT OF MADHYA PRADESH AT JABALPUR WRIT PETITION NO.7622/2005 (S) PETITIONER : UMAKANT DWIVEDI Vs. RESPONDENTS : STATE OF M.P AND ANOTHER. Present : Hon'ble Shri Justice R.S. Jha. For the petitioner : Shri Manoj Chaturvedi, Advocate. For respondents : Shri S. M. Lal, Govt. Advocate. -------------------------------------------------------------------------------- O R D E R (08/11/2011) The petitioner has filed this petition being aggrieved by order dated 9.12.1999 passed by the Disciplinary Authority imposing a punishment of compulsory retirement upon the petitioner as well as order dated 10.3.2005 passed by the Appellate Authority affirming the said order. 2. The brief facts, leading to the filing of the present petition, are that the petitioner, who at the relevant time was working as a Block Development Officer and was posted at Panagar, District Jabalpur, was served with a charge sheet on 16.3.1992 wherein as many as five 2 W.P No.7622/2005 (S) charges were levelled against him relating to demand of illegal gratification in the implementation of the Jeevandhara Scheme; giving benefit to unqualified persons under the said Scheme; making illegal recovery from the dwellers of Indira Avas; making illegal recovery from the villagers and misappropriation of Government fund; and asking for illegal gratification from the villagers for providing dwelling houses. Pursuant to the charge sheet, an enquiry was conducted against the petitioner and the inquiry report was submitted on 21.9.1995 wherein charge nos.1 to 3 and 5 were found to be proved while charge no.4 was not found proved. Subsequent to the submission of the inquiry report, the Dy. Commissioner, Development issued a letter on 26.11.1996 asking the officer concerned to re-inquire into the matter and submit a report. Thereafter, order dated 22.1.1997 was passed by the authority imposing a punishment of compulsory retirement upon the petitioner. Being aggrieved the petitioner filed an appeal against the said order which was allowed by order dated 19.6.1997 and the matter was remanded back to the Disciplinary Authority with a direction to record specific findings in respect of the charges as it was held by the Appellate Authority that 3 W.P No.7622/2005 (S) the charges levelled against the petitioner were not established in the enquiry. The Disciplinary Authority, after remand, issued the impugned order dated 9.12.1999 affirming the previous order passed by the authority and again imposed a punishment of compulsory retirement upon the petitioner. The petitioner, being aggrieved, filed an appeal against the impugned order which was returned back stating that there was no provision of appeal, as a result of which the petitioner was forced to file O.A No.2273/2000 before the M.P. State Administrative Tribunal which was ultimately transferred to this Court and was registered as W.P No.14969/2003. The aforesaid Writ Petition was allowed by order dated 10.5.2004, and the matter was again remitted back to the Appellate Authority to decide the appeal of the petitioner by giving elaborate directions, in the following terms:- “In view of the aforesaid the order passed by the appellate authority as contained in Annexure P/11 stands quashed. The matter stands remitted to the authority to pass a fresh order after considering the grounds mentioned in the memo of appeal. It needs no special emphasis to state that the appellate authority shall also dwell upon the 4 W.P No.7622/2005 (S) facet whether the punishment imposed on the petitioner was proportionate to the allegations made. I may further clarify that any authority while dealing with an appeal has the ample power to scan and x-ray the facts in proper perspective to scrutinize the finding and to record a finding that the principles of natural justice had been complied with or not and further whether there is a real and acceptable evidence on record to impose the punishment. In addition, the said authority is also required to see that the punishment that is imposed is commensurate with the allegations made. The concept of commensuration or doctrine of proportionality is the requirement of law and no authority should travel away from this. Mr. Tripathi, learned counsel for the petitioner has urged with vehemence that the petitioner has been imposed an onerous, unacceptable and rigorous punishment. The appellate authority would be well advised to address itself to the same and pass appropriate order on considering other facets that could have been originally done. The exercise shall be completed within a period of three months from the date of order passed today.” Pursuant to the aforesaid directions of this Court the impugned order dated 10.3.2005 has been passed by the Appellate Authority again affirming the penalty. 5 W.P No.7622/2005 (S) Being aggrieved by which the petitioner had filed the present petition before this Court. 3. It is submitted by the learned counsel for the petitioner that the impugned orders of punishment deserve to be quashed as the same have been imposed upon the petitioner in view of the fact that the petitioner had incurred the wrath of the ruling political party at the relevant point of time as an unpleasant incident against one of the elected representative had taken place in the village while implementing the scheme of the Government as a result of which the petitioner has been made a scape goat and has been punished. It is further submitted that the Collector had constituted a committee of three officers to conduct a preliminary fact finding enquiry in respect of the charges against the petitioner and the aforesaid committee submitted its report on the basis of which the enquiry was initiated against the petitioner. It is stated that the petitioner has been found guilty by relying only upon the fact finding enquiry in the disciplinary proceedings and no independent finding, on the basis of the evidence produced in the departmental enquiry, has been recorded which is evident from the fact that the enquiry officer has only examined the three members of the 6 W.P No.7622/2005 (S) aforesaid fact finding committee but have not examined any of the witnesses who have alleged to have paid illegal gratification to the petitioner in the departmental enquiry nor has the petitioner been given any opportunity to cross examine these persons and in such circumstances the entire enquiry conducted by the authorities stands vitiated. It is further submitted that the Appellate Authority, in the first instance as well as this Court in the previous writ petition filed by the petitioner, have found several lacuna in the enquiry and have also recorded a finding to the effect that the charges levelled against the petitioner were not properly established on the basis of the evidence and documents on record inspite of which the authorities have recorded a finding against the petitioner without applying their mind to the issues raised by the petitioner which amounts to perversity and, therefore, the impugned orders deserve to be quashed. 4. The learned Govt. Advocate for the respondents, per contra, submitted that the incident was enquired into by the Fact Finding Committee in which as many as 69 villagers were examined who have categorically stated that the petitioner sought illegal gratification through clerk Shri Sanjay Jain, Shri Krishna Lal Garg and Shri 7 W.P No.7622/2005 (S) Patel and on that basis the departmental enquiry was initiated against the petitioner. It is further submitted that even in the departmental enquiry the officers who had conducted the Fact Finding Inquiry were examined who have categorically stated that the aforesaid 69 witnesses had specifically implicated the petitioner and, therefore, no fault can be found with the findings of fact recorded by the disciplinary authority which do not warrant interference by this Court under Articles 226 & 227 of the Constitution of India as this Court does not sit as an appellate authority or a Fact Finding authority upon the findings recorded by the disciplinary authority. It is submitted that the present case, being one of concurrent finding of facts, does not warrant any interference by this Court and the petition filed by the petitioner deserves to be dismissed. 5. I have heard the learned counsel for the parties at length. It is settled law that disciplinary proceedings are open to judicial scrutiny only in cases of no evidence, perversity, breach of principles of natural justice and Wednesbury unreasonableness as has been held by the Supreme Court in the cases of Yoginath D. Bagde vs. State of Maharashtra and Another, (1999) 7 SCC 739 and Kumaon Mandal Vikas Nigam Ltd. vs. 8 W.P No.7622/2005 (S) Girija Shankar Pant, (2001) 1 SCC 182. The issues raised in the present petition have to be examined keeping the aforesaid limitations laid down by the Supreme Court in mind. 6. It is submitted by the learned counsel for the petitioner that the present case is one of no evidence as well as perversity as the respondents, without any primary or original evidence being adduced in the departmental enquiry, has held the petitioner guilty as charged only on the basis of the statement of witnesses recorded in the preliminary fact finding enquiry held prior to initiation of the departmental enquiry. It is submitted that the authorities could have arrived at the finding only on the basis of the evidence adduced during the departmental enquiry itself after recording the statement of the witnesses and giving an opportunity of cross-examining them to the petitioner and as the respondents have failed to do so, the action of the respondents is perverse and patently illegal. 7. From a perusal of the list of witnesses attached to the charge sheet as well as the impugned orders passed by the authority, it is clear that only three persons; namely Shri R. K. Choksey, SDO (Rural) Jabalpur, Shri A. 9 W.P No.7622/2005 (S) K. Agrawal, S.D.O Jabalpur and Shri N. K. Shrivastava, Asstt. Project Officer, Jabalpur, have been examined as witnesses who were the members of the Fact Finding Committee to establish the charges against the petitioner. It is also clear from the list of documents attached alongwith the charge sheet that the two documents, relied upon by the authorities to substantiate the charges against the petitioner, were the report of the Fact Finding Committee and the statement of the 69 villagers recorded during the Fact Finding Inquiry. 8. It is undisputed and established from a perusal of the record that none of these persons/villagers whose statements were recorded during the fact finding enquiry have been summoned or examined as witnesses by the authorities in the departmental proceedings nor have they been summoned as witnesses to affirm the statement made by them in the Fact Finding Inquiry. It is also clear and undisputed that, as these persons were never summoned as witnesses in the departmental enquiry, the petitioner has not been given any opportunity to cross examine them to establish his innocence. It is also clear from a perusal of the impugned order of punishment that no independent 10 W.P No.7622/2005 (S) decision has been arrived at by the disciplinary authority by adducing evidence separately in respect of each charge in the departmental proceedings and that the findings recorded against the petitioner are based only upon the Fact Finding Inquiry report and the statement of the witnesses recorded behind the back of the petitioner by the Fact Finding Committee. 9. Even otherwise, from a perusal of the enquiry report, Annexure P-3, and the impugned order dated 9.12.1999, Annexure P-9, as well as the order of the appellate authority dated 10.3.2005 issued after remand it is clear that there is no evidence, direct or indirect, whatsoever to the effect that the petitioner has personally demanded any money or illegal gratification from any of the villagers/complainants, which finding of fact has been recorded by the Appellate Authority in its first order of remand dated 19.6.1997 inspite of which the authorities have recorded a finding of guilt against the petitioner on the basis of the statement of the villagers recorded in the fact finding enquiry, by the Fact Finding Committee, wherein they have stated that they paid money/illegal gratification to clerk Shri Sanjay Jain, Shri Krishna Lal Garg and Shri Patel for being delivered to the petitioner. 11 W.P No.7622/2005 (S) 10. From the aforesaid analysis it is clear that the evidence collected during the Fact Finding Inquiry, even if accepted, only indicated that the villagers paid certain amount of money to one clerk Shri Sanjay Jain, Shri Krishna Lal Garg and Shri Patel for being given to the petitioner but there is no allegation or statement whatsoever to the effect that any illegal gratification or bribe was ever demanded, paid or accepted by the petitioner. 11. It is also pertinent to note, at this stage, that the petitioner has made a clear and specific statement in the appeal as well as in the petition to the effect that the authorities have also proceeded departmentally against Shri Sanjay Jain, Shri Krishna Lal Garg and Shri Patel in respect of the aforesaid charges and all three have been exonerated while the petitioner has been singled out and punished with a major penalty of compulsory retirement. The aforesaid statement of the petitioner has neither been denied or controverted by the respondents and is accordingly accepted as true and correct moreso as orders passed in their cases were produced during the hearing of the petition. 12 W.P No.7622/2005 (S) 12. Before proceedings any further it would be relevant, at this stage, to consider the procedure prescribed by the M.P. Civil Services (Classification, Control & Appeal) Rules, 1966 (hereinafter referred to as the Rules of 1966), for imposing penalties upon an employee which is contained in Rule 14 therein. Rule 14(3) & 14(4) of the Rules of 1966, requires the disciplinary authority to deliver a copy of the article of charge, statement of imputations of misconduct, a list of documents and witnesses by which the article of charge is proposed to be established against a Government servant and requires him to submit his reply thereto. Rule 14(14) of the Rules of 1966, requires the disciplinary authority to produce oral and documentary evidence by which article of charges are proposed to be proved and further provides that the witnesses shall be examined by and on behalf of the Officer and may be cross examined by and on behalf of the Government servant. Similar provisions in respect of production, examination and cross- examination of witnesses on behalf of the Government servant is provided under Rule 14(17) of the Rules of 1966. 13. The aforesaid provisions make it abundantly clear that a Government servant has to be given full 13 W.P No.7622/2005 (S) opportunity to examine the documents relied upon by the disciplinary authority against him and also to have the witnesses examined before him in the departmental enquiry itself and thereafter to cross-examine them. The procedure prescribed under Rule 14 of the Rules of 1966, also makes it clear that the statutory provisions require the disciplinary authority to prove and establish the charges against the petitioner in the departmental enquiry and there is no provision in the Rules which empowers the disciplinary authority to record a finding against the Government servant on the basis of the Fact Finding/Preliminary Enquiry conducted prior to initiation of the disciplinary proceedings or on the basis of the statement of persons made before such a Fact Finding/Preliminary Enquiry without producing and examining such witnesses and permitting the petitioner to cross-examine them. 14. In fact the Supreme Court in the case of State of Mysore and Others vs. Shivabasappa Shivappa Makapur, AIR 1963 SC 375, while dealing with such cases, has held that the statement given by a witness previously behind the back of the party, is required to be put to him again in the disciplinary proceedings and is required to be admitted in evidence and thereafter a 14 W.P No.7622/2005 (S) copy thereof should be given to the party and he should be given an opportunity to cross-examine him. It has further been held that the rules of natural justice are sufficiently complied with when previous statements given by the witnesses are read over to them, marked on their admission, copies thereof are given to the party and he is given an opportunity to cross-examine them, in the following terms in para-6:- “(6). .....Discussing next what those rules required, it was observed that the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the examination of the witness will in its entirety, take place before the party charged, who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him, and admitted in evidence, a copy thereof is given to the party, and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word, and sentence by sentence, is to insist on bare technicalities, and rules of natural justice are matters not of form but of 15 W.P No.7622/2005 (S) substance. In our opinion they are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged, and he is given an opportunity to-cross-examine them.” 15. The aforesaid decision of the Supreme Court was again considered and relied upon in the case of Kuldeep Singh vs. The Commissioner of Police and others, AIR 1999 SC 677, wherein it has been held that reasonable opportunity, as contemplated by Article 311(2) of the Constitution of India, has to be provided which means “Hearing” in accordance with the principles of natural justice which requires that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them, in para-32, in the following terms:- “32. Apart from the above, Rule 16(3) has to be considered in the light of the provisions contained in Article 311(2) of the Constitution to find out whether it purports to provide reasonable opportunity of hearing to the delinquent. Reasonable opportunity contemplated by Article 311(2) means "Hearing" in accordance with the principles of natural justice under which one of the basic 16 W.P No.7622/2005 (S) requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them. Where a statement previously made by a witness, either during the course of preliminary enquiry or investigation, is proposed to be brought on record in the departmental proceedings, the law as laid down by this Court is that a copy of that statement should first be supplied to the delinquent, who should thereafter be given an opportunity to cross-examine that witness.” In the aforesaid case, the Supreme Court infact set aside the punishment imposed upon the petitioner therein based upon statement of witnesses who were not produced in the departmental enquiry, in the following terms in paras 35 & 41. “35 Having regard to the law as set out above, and also having regard to the fact that the factors set out in Rule 16(3) of the Delhi Police (F&A) Rules, 1980, did not exist with the result that Rule 16(3) itself could not be invoked, we are of the opinion that the Enquiry Officer was not right in bringing on record the so-called previous statement of witnesses Radhey Shyam and Rajpal Singh. 41. Smt. Meena Mishra, appearing as a witness for the Department, denied having 17 W.P No.7622/2005 (S) made any payment to the appellant on that day. The labourers to whom the payment is said to have been made have not been produced at the domestic enquiry. Their so- called previous statement could not have been brought on record under Rule 16(3). As such, there was absolutely no evidence in support of the charge framed against the appellant and the entire findings recorded by the Enquiry Officer are vitiated by reason of the fact that they are not supported by any evidence on record and are wholly perverse.” 16. In the case of A. Sudhakar vs. Postmaster General, Hyderabad and Another, (2006) 4 SCC 348, the Supreme Court has enumerated the procedural requirements, based on the principles of natural justice embodied under Rule 311(2) of the Constitution of India, which are required to be followed in the disciplinary proceedings, in the following terms in paras 25 & 26:- “25. In terms of Article 311 (2) of the Constitution, the procedural requirements which were required to be followed were as under: (i) opportunity to the officer concerned to deny his guilt and establish his innocence which means he must be told that what the charges against him are and the allegations on which such charges are based; 18 W.P No.7622/2005 (S) (ii) he must be given a reasonable opportunity to cross-examine the witnesses produced against him and examine himself or other witnesses on his behalf; and (iii) he must be given opportunity to show cause that the proposed punishment would not be proper punishment to inflict which means that the tentative determination of the competent authority to inflict one of the three punishments must be communicated to him. 26. It is well-settled that those principles of natural justice are not embodied principles. The requirements contained in Article 311(2) of the Constitution in view of the decision of this Court in Khem Chand v. Union of India, (1958) SCR 1081, are held to be as a part of the principle of natural justice. The courts in the aforementioned situation are required to see as to whether non-observance of any of the said principles in a given case has resulted in denial of justice. If there had been substantial compliance of the procedure, the court may not interfere. (See. State of U.P. v. Om Prakash Gupta (1969) 3 SCC 775 and Kuldeep Singh vs. The Commissioner of Police and others, AIR 1999 SC 677.” 17. In the case of Rajkishore Pandey vs. Rewa- Sidhi Gramin Bank and another, 1989 MPLJ 530, it 19 W.P No.7622/2005 (S) has been held by a Division Bench of this Court that the findings recorded in the Fact Finding Inquiry cannot be made the basis for punishing a person in a departmental proceedings without independently examining the witnesses in the Departmental Enquiry again and without giving an opportunity of cross-examining them to the delinquent officer, in the following terms in para 12:- “12. Thus after examining the aforesaid facts and circumstances of the case and the decisions of the Supreme Court, it is now clear that normally the evidence on which the charges are sought to be proved must be led in the enquiry itself in the presence of the delinquent officer and unless there are compelling reasons the enquiry authority should not bring on record the previously recorded statements of the witnesses before the delinquent officer concerned for cross- examination after furnishing him a copy of those previously recorded statements. In the present case, neither the record of the departmental enquiry nor the return filed by the respondents goes to show any reasons which compelled the Enquiry Officer to resort to the aforesaid procedure, that is to say, to take on record the previously recorded statements of the witnesses by the C.B.I Inspector and to accept and rely on the same, instead of recording the evidence of the witnesses in the enquiry proceedings in 20 W.P No.7622/2005 (S) the presence of the petitioner, even though the said previously recorded statements were neither read over to most of the witnesses nor the witnesses read the same by themselves before saying that those statements be treated as their statements in the enquiry proceedings. Since the Enquiry Officer in his report as well as the disciplinary authority has formed the opinion that the misconduct was established against the petitioner on the basis of collective