l*luui WBINWW>.yAiB ^ ^ 1^)0 QA^S^]93^J. BEF_ E:^B_M^.^®IffIIS£KjffCTi^&IBUlTAE,,J£B&SVB. ^-£5T^yw~302^y-~ >. A. N0.*=—:—--of 19S5 Qia.tt Pashpa ShuiEla;. aged about 56 ysars, w/o Stari E.K.Shytclas Matron (Bostel Maaager), Govt. 6irls Post-Graduate Hostal, Kalibadi^ beliind post-offlee, Baipur (E.P«). NON-APPlIQAIIISi State pf Madtiya Pradesh, Ihrough_s Ifae Sepretary, Higher Sducation (Gollegiats Branch), Vallabh Bhawan, Bhopal (M.P.). 2. Ooiaaissioner of Higher Bducation, (Collegiate Branoti), Higher Bduoation Directorate, Satpura Bhawffi; Fifto Floor, Bhopal (M.P.) 3» Pri.aca.pals Govt. Qirls Post-Graduate Gollege, near Gl-ffil Lines, Bilaspar (M.P.)---~ 7-"-' •—• Dy. Director of High.er Bdueation, (Gollegiate Braia.ch)3 Satpura Btiawan, Fifth ]?ldor,~Bhopal (M.Ji.) Appiicjffixus^gDa.^sH.Qej^-QF-sm ^f^KS^s •fs".<;?""'^a ^ ^k. 'S'^s^'^ '':^ t^'il '.'l:'~w.v. 's^^'i; ^" ..0< ogT HIGH COURT OF CHHATTISGARH, BILASPUR SINGLE BENCH : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA.J. - Writ Petition (Sl N0.902/2005 PETITIONER Smt. Pushpa Shukla RESPONDENTS Versus State of Madhya Pradesh & Ors. ORDER ^s POST ONt"' JUNE.2010 Sd/- Manindra Mohan Shrivastava Judge .!. ",&., i !c^»s. 8 '!:, ,"a"'"18 1 \ x^yi/ '»»;'• -^ ^ sC HIGH COURT OF CHHATTISGARH : BILASPUR SmGLE BENCH : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA.J. Writ Petition ISl No.902/2005 PETITIONER Smt. Pushpa Shukla RESPONDENTS Versus State of Madhya Pr&desh & Ors. Appearance: Shri Awadh Tripathi, counsel for the petitioner. Shri Bhaskar Payasi, Panel Lawyer for the State. O RDER (Passed on J4_.06.2010) 1. By this petition, the petitioner has assailed legality and validity of the departmental enquiry and the order of imposition of penalty dated 23rd January, 1993 (Annexure A-34) by which two increments have been withheld with cumulative effect, further mentioning that the promotion would g.lso be effected. Pedtiqner has also prayed for quashing the condition of living 24 hrs. in the hostel as mentioned in order dated 31.8.1977 (Annexure A-l), as also order dated 30th August, 1990 in so far as it relates to petitioner's posdng in Government Girls College, Raipur and order dated 24.3.1987 (Annexure A-39) by which leave has been granted without pay. Pedtioner has also prayed for declaration that the petitioner is holding vocational post and endtled to vacation, • weekly holidays, gazetted holidays and compensatory leave. Petitioner has prayed for issuance of command to take work for 8 hrs. per day. ".f. -2- ,6i•y Petitioner further prayed for a direction to give her full salary and other benefits of the period of suspension. 2. While the petitioner was working as Matron in Govt. Post Graduate Girls College Hostel, Bilaspur, a departmental enquiiy was initiated by issuing a charge sheet dated 7.2.1987 (Annexure A-14). Petitioner submitted her reply dated 23.2.1987 (Annexure A-15). Thereafter, additional charges were leveled vide letter dated 17.3.1987/26.3.1987 (Annexure A-16) which was replied vide reply dated 8.4.1987 (Annexure A-17). Vide order dated 25.3.1987 (Annexure A-18), Enquiiy Officer was appointed. After conduct of enquiry, Enquiry Officer submitted his report, which led to issuance of show-cause nodce dated 17.9.1990 (Annexure A-29) stating that two charges have been found proved and, therefore, two increments with cumulative effects are proposed to be stopped by way of punishment. Petitioner submitted her reply dated 1.10.1990 (Annexure A-30). As no final orders were being passed, petitioner filed an Original Application No. 1102/1992 before the State Adrainistrative Tribunal in which an order was passed by the Tribunal on 8th Januaiy, 1993 directing respondents to pass final order. Thereafter, vide impugned order dated 23.1.1993 (Annexure A- 34), order of iinposition of penalty was passed. Pedtioner preferred an appeal on 7.2.1993, but the said appeal remained undecided. 3. Learned counsel for the petitioner assailed the order of imposition of penalty on several grounds. Leamed coynsel for the petitioner would ^ubmit'that the entire departmental enquiry and the consequent order of imposition of penalty is vitiated on account of several illegalities and irregularities, as also on account of violation of principles of natural justice. -3- 9: (?-1 -•>-.." 4. It is submitted that the order of enquiry is perverse and charges are not proved. Elaborating the submissions, learned counsel for the petitioner argued at length submitting that though the petitioner requested for supply of letter No. 1415/86-87 mentioned in the list of documents, the sarae was not supplied and instead, a new document letter No. 1460 dated 6.12.1986 was added in the list of documents. The enquiry officer at the very beginning of the enquiry, without examination of prosecution witnesses, insisted upon the petitioner to answer a questionnaire (Annexure A-19), which is not contemplated in the procedure of enquiry as prescribed in Rule 14 of theM.P./C.G. Civil Services (Classification, Control SE Appeal) Rules, 1966 (for short "the Rules of 1966'} In this raanner, Enquiry Officer insisted upon the petitioner to disclose her defence even before disclosure of the prosecution case. Though demanded, copy of quesdonnaire was not supplied at that stage. Petitioner also demanded copy of rules which required the petitioner to reside in the hostel building 24 hrs., but no such document was supplied stating thaf there are no such rules. 5. It is also argued that the Enquiry Officer did not allow the Defence Assistant to stay in the hall where enquiry was being conducted and witnesses were being examined. It is contended that prosecution witnesses did not depose anything in their examination-in-chief, but the Enquiry Officer required the petitioner to cross-examine thein stating that those witnesses had already given their statement during preliminary enquiry. In the submission of learned counsel for the petitioner, the procedure adopted by the Enquiry Officer was in complete violation of the procedure statutorily prescribed in Rule 14 of -4- -a3 the Rules of 1966 and non-recording of statements of prosecution witnesses in the presence of the petidoner rendered the entire enquiry illegal. The statements ofthose prosecution witnesses were recorded in some preliminary enquiiy and not in the presence of pedtioner and therefore unless they are examined before the petitioner during the course of enquiry, so called preliminary statements could not be used as substahtive piece of evidence to prove the case of the prosecution against the petitioner. 6. Next contention of learned counsel for the petitioner is that vide order dated 25.3.1987 (Annexure A-18), Commissioner, Higher Education appointed Enquiiy Officer, but thereafter Dy. Director, Higher Education without any authority and jurisdiction changed Enquiry Officer vide order dated 5.12.1988 (Annexure' P-21). The Deputy Director being equivalent to the rank of Professor, which is lower than that of the Principal, Dy. Director acted illegally in changing the Officer senior in rank to him as Enquiry Officer. This vitiated the whole enquiry and, consequently, the order of penalty is also rendered illegal. 7. It is argued that petitioner had filed an application dated 26.4.1989 (Annexure A-22) for supply of relevant documents. Petitioner also applied for supply of certain copy of order sheets, questionnaire and other documents vide application dated 26.4.1989 [Annexure A/23 (1)], but the applications were rejected in a most arbitrary manner. Petitioner had sought inspection of the original documents and an application (Annexure A-24) was submitted, but petitioner was never •allowed inspection of original documents presumably for the reason that Officer was not.having the original records. Later on, original records were brought and the petitioner was allowed inspection. In so -5- -< ^, :^ ** far as opportunity to cross-examine prosecution witness Ku. Bhattachaiya is concerned, it is submitted that Enquiry Officer put the certain questions to that witness and when the petidoner thereafter sought to cross-examine in view of the answers given by the witness, petitioner was not given further opportunity to cross-examine. Petitioner raised an objection to the manner in which the statements were being recorded vide her application dated 26.4.1989 which was rejected. 8. Next important submission of learned counsel for the petitioner is that the entire departmental enquiry is vitiated on account of serious violation of principles of natural justice inasmuch as petitioner was not allowed to lead defence witnesses. Petitioner had submitted a list of as many as 12 witness in two different applications (Annexure A-26 SE A- 27), however, those two applicadons were rejected by recording "beyond reference, note reserved". Petitioner moved another application [Annexure A -27 (1)] praying that reasons of rejection be disclosed but on the same, no orders were passed by the Enquiiy Officer. Learned counsel for the petidoner next contends that petitioner was seriously prejudiced in her defence inasmuch as the Enquiry Officer did not allow the petitioner to examine the doctor who treated her and whose medical certificate was submitted by the petitioner. This precluded the petitioner from bringing on record evidence that her absence was not deliberate nor malafide, but was bona Hde, as she was ill. It is further argued that the Enquiry Officer did not maintain records and enquiiy was being conducted on loose sheets. Documents were also not exhibited. /f g ^^^. -6- r \3S~--€/F ^•'iETse''^' ^t .•<. 9. It has been strenuously argued that the enquiry report (Annexure A-32) is no enquiry report in the eye of law. The enquiiy report has not been prepared in accordance with statutory mandate of Rules of 1966. The same is completely non-speaking as there is no discussion of the evidence on record, defence of the petitioner, nor any finding recorded upon marshaling of evidence. No reasons have been assigned as to why the defence'of the pedtioner has been disbelieved. The enquiiy report only records bald conclusions. It is further submitted that the Disciplinary Authority/Coinmissioner, Higher Education without application of mind to the allegations, evidence on record, defence of the petitioner, imposed the penalty by merely accepting the conclusions of the Enquiry Officer, which itself was illegal and defective. Thus, without application of mind, the Enquiry Officer and Disciplinary Authority have mechanically imposed punishment without there being any finding of guilt. 10. It is lastly subniitted that while imposing major penalty of withholding two increments with cumulative effect, respondents illegally considered previous record without any notice to the petitioner of this aspect in the show-cause nodce dated 17.9.1990 (Annexure A-29). 11. Per contra, submission of learned counsel for the respondents is that the penalty has been imposed by impugned order dated 23.1.1993 (Annexure A-34) after full-fledged departmental enquiry and upon due examination of the inquiry report having found proved that the petidoner' violated the order of the Director/Principal and created hindrance in Youth Festival and arrangements of the hostel. It is subraitted that the conclusion of the Enquiry Officer as recorded in the enquiry report shows that the Enquiry Officer duly applied its mind to / ./-' •' ^. .^. -7- ^ />- the entire material evidence on record and thereafter reached to the conclusion. Learned counsel for the respondents referred to the statements of witnesses recorded during preliminary enquiry to submit that they had deposed against the petitioner. It has been submitted that as original records were not available, the respondents are opposing the case of the petitioner on the basis of the records of preliminaiy enquiiy and documents placed on record by the petitioner. In the additional submission filed by the respondents upon receipt of the departmental enquiry record, it has been submitted that the petitioner has been given adequate opportunity to defend herself. 12. I have heard learned counsel for the parties and perused the records. 13. In the present case, finding that though an appeal was preferred, but the same has not been decided, direction was issued to respondents to decide the appeal and communicate to the petitioner within 6 weeks. The order passed by the Tribunal was however not coinplied with. Vide order dated 4.2.2010, though respondents were directed to produce entire original records of Departmental Enquiry failing which adverse inference shall be drawn, those records were not produced before this Court. 14. In so far as imposition ofpenalty vide order dated 23.1.1993 (Annexure A-34) is concerned, a perusal of impugned order shows that the Commissioner, Higher Education, in his capacity as Disciplinary Authority has agreed with the conclusion of the Enquiry Officer and ' proceeded to impose penalty on the pedtioner. The impugned order shows that the Disciplinary Authority has not recorded any independent finding on the charges held proved by the Enquiiy Officer. ^ /; ^""1- ^•' ^ All that has been recorded in the order is that the Disciplinary Authority agrees wifh the conclusion of the Enquiry Officer. A perusal of the enquiry report (Annexure A-32) shows that the Enquiiy Offlcer has only recorded vague conclusion in few lines in his ciyptic non- speaking report. The enquiiy report does not show that the Enquiry Officer considered the specific charges with reference to the material, oral and docUmentary evidence on record laid by the prosecution. It also does not show that the Enquiry Officer considered the defence of the petitioner. To say the least, the conclusion of the Enquiry Officer is not only different from what has been alleged against the petitioner, it is without least application of inind and is mechariical. It is crystal clear that the Enquiry Officer completely abdicated his duties enjoined under the statutory rules while recording conclusions of guilt. 15. In the matter of departmental enquiry against a Govt. servant, the exercise of disciplinary action is governed by rules framed by the Governor in exercise of constitutional powers conferred under Ardcle 309 of the Constitution of India which are statutory and have the force of law. M.P./C.G. Civil Services (Classification, Control SE Appeal) Rules, 1966 regulate the power of Disciplinary Authority to take disciplinary acdon against his subordinate and impose penalty. These Rules are binding not only on the delinquent employee, but also on the Disciplinary Authority as well as Enquiry Officer and they are bound to comply with the saine scrupulously, as imposidon of penalty results in serious civil 'consequences. It casts stigma on a Govt. servant. In the present case, the petitioner has suffered penalty of withholding two increraents with cumulative effect which will also effect the promotion. Pedtioner has been deprived of full salaiy in respeet of suspension •sys ^ allowance for the period from 15th January, 1987 till 30th August, 1990. 16. Provisions contained in Rule 14 of the Rules of 1966 coniprehensively regulate the procedure for imposing penalty. After examination of witnesses, the Enqiury Officer is enjoined with the duty to prepare a report in the manner prescribed under sub-rule 23 of Rule 14 of the Rules of 1966. Sub-rule 23 (i) ofthe Rues of 1966 read as under:- "(23) (i) After the conclusion of the inquiry, a report shall be prepared and it shall contain- (a) the articles of charge and the statement of the imputations of misconducts of misbehaviour; (b) the defence of the Government servant in respect of each articles of charge; (c) an assessment of the evidence in respect of each article of charge; and (d) the finding on each article of charge and the reasons therefor." 17. A perusal of the aforesaid provision shows that the enquiiy report shall contain the article of charges and the statement of the imputation of misconduct or misbehaviour. It shall also contain the defence of the Govt. servant in respect of each article of charges. It also requires Enquiry Officer to assess the evidence in respect of each article of charge and then record its finding on each article of charge and the reasons therefor. Aforesaid provision is safeguard and a cheque against arbitrary and whimsical exercise of Authority. The Enquiry Officer is duty bound to consider evidence in respect of each article of charges and make assessment, meaning thereby that the Enquiry Officer has to apply his mind by marshaling evidence and recording reasons for its finding. The rule in mandatory terms requires the Enquiry Officer to consider the defence of the Govt. servant in respect of each article of A?"~s- \ E S-»..—_ 1 t^ •• ^•w;^^ ^ Y "fe^J.^ '%£^-y'' -10- ^ charge. Use of word "shall coupled with the object of such provision clearly establishes that provision contained in sub-rule 23 (i) ofRule 14 of the Rules of 1966 is mandatoiy and there is no discretion left with the Enquiry Authbrity to consider or not to consider the defence or to assess or not to assess the evidence on record. Recording of reasons being requirement of statute, is indispensable. 18. From the record, it is established that the petitioner did not admit his guilt. If enquiry report is scrudnized with reference to mandatory statuary requireinent, it is no enquiry report at all in the eye of law. The enquiry report is therefore an outcome of total non-application of mind by the Enquiiy Officer much less in compliance with mandatory requirements ofsub-rule 23 (i) ofRule 14 ofthe Rules of 1966. 19. Though it is well settled that the Disciplinary Authority, while agreeing with the conclusion of the Enquiry Officer, is not required to record detailed separate reasons in respect of the charges, present is not a case where the Enquiry Officer submitted a report before the Disciplinary Authority in accordance with law. In the peculiar circumstances of the present case, it was incumbent on the part of Disciplinary Authority to have applied its mind on each article of charges and record its own reasons before arriving at finding of guilt and imposing penalty on the petidoner. A combined reading of the enquiry report and the order of punishment shows that neither the Enquiiy Officer nor Disciplinaiy Authority have applied their mind and the mechanical exercise of power by Enquiry Officer was confirmed in the saine mechanical manner by the Disciplinary Authority. The order of Disciplinary Authority does not even show that petitioner's reply to show-cause notice was considered. Even perusal of show cause-notice /. ..-.^ ''i'*'5."-» '.-^'^: -11- •->s~u '^ '-'•' dated 17.9.1990 (Annexure A -29) would show that the Disciplinary Authority did not consider anything except the report of Enquiry Officer which itself was wholly illegal. 20. Against the order of penalty, petidoner preferred a detailed appeal before the Appellate Authority vide its Appeal dated 7.2.1993 (Annexure.A-35). In the appeal, the petitioner raised substantial issues and serious inaterial irregularities and illegality comraitted in holding enquiry against the petitioner as also serious violation of principle of nata-iral justice. Even though, the Tribunal had directed the respondents to decide the appeal of the petitioner, the Appellate Authority acted with impunity and did not decide the appeal of the petitioner. 21. Though the petitioner has raised several grounds in his petition to establish that entire enquiry was vitiated on account of several illegalities and irregularities, as also violation of principle of natural justice, in view of what has been recorded above, there is no need for this Court to deal with those submissions, as it is found that for reasons stated hereinabove, the impugned order of penalty and the enquiry report both are illegal and unsustainable in law. The enquiry report is accordingly declared illegal. Consequently, impugned order dated 23.1.1993 (Annexure A-34) is hereby set aside. Petitioner is entitied to all consequential benefits. 22. In so far as oi-der dated 24.3.1987 (Annexure A-39) regarding grant of leave without pay is concerned, as the order of punishment has been set aside, the respondents shall reconsider this aspect and pass fresh \ order with regard to entitlement of leave in accordance with the /• '. -12- '3^-' ^c provisions contained in the relevant and applicable leave rules. Respondents shall also pass fresh order with regard to period of suspension in accordance with relevant rules in view of the order of this Court. In so far as prayer for setdng aside posting order dated 30.8.1990 is concemed, the order does not suffer froni any illegality so as to warrant any interference. Upon revocation of suspension, petitioner was'posted as Hostel Manager in Govt. Girls College, Raipur vide order dated 30th August, 1990 of the Dy. Director, Directorate Higher Education, Bhopal. Submission of learned counsel for the petitioner that said order is by way of punishment, cannot be accepted. The posting of the petitioner is only consequent upon revocation of the suspension order. Though the petition records that order dated 30.8.1990 of the Dy. Director, Directorate Higher Education is under challenge, what has been placed on record is order dated 19.9.1990 passed by the Principal, in compliance of order dated 30.8.1990. Moreover, taking into consideration that the said order was passed way back in the year 1990, challenge to posdng of the petitioner at Raipur is rejected. Petitioner's prayer for quashing condition of leaving 24 hrs. in hostel as mentioned in Annexure A-l does not survive in view of subsequent order of posting dated 20th Januaiy, 1982 (Annexure A-3), wherein no such condidon was imposed. Later on vide order dated 4th December, 1982 (Annexure A-4), an accomraodation was also allotted. Petitioner has not brought to the notice of this Court that after her posting at Raipur, any such condition was imposed. Therefore, there is no need to dwell into that aspect any more. Petitioner sought direction to respondents to take work for 8 hrs. per day from the petitioner in the background of order passed by the Principal requiring her to remain present 24 hrs in the hostel at Bilaspur. However, as fhe petitioner was -13- •:»fe..;r. subsequently posted at Raipur vide order dated 30.8.1990 of the Director, Higher Education and it is not a case of the petitioner that even after her posdng at Raipur, same condidon has been imposed, the said grievance does not survive for consideration. In so far as petitioner's prayer for declaration that the petitioner holds vacational post and therefore entitled for vacation and weekly holidays, respondents have not come out with any specific reply in this regard. In the petition, petitioner has merely claimed that she holds vacational post, but no specific provision of the service rules, instructions, guidelines brought to the notice of this Court. In this view of the matter, it would be open for the pedtioner to raise this grievance in separate petition, if the grievance sdll subsists. 23. Petition is accordingly allowed to the extent and in the manner indicated above. 24. There shall be no order as to cost. Sd/- Manindra Mohan Shrivastava Judge Praveen