HIGH COURT OF CHHATTISGARH, BILASPUR SINGLE BENCH : gQN’BLE SHRI MANINDRA MOI-IAN SHRIVASTAVAJ. Writ Petition 1S! No.138/2005 PETITIONER Lal Mohammad Versus RESPONDENTS State of Madhya Pradesh and one anotkier ORDER ii POST 0N_[$ AUGUSTLgom av; a Mohan ShriVaSt Juéié man‘mdr s, Writ Petition 1S) No.13812005 PETITIONER Lal Mohammad Versus K RESPONDENTS State of Madhya Pradesh and one another Agyearance: Shri Manoj Paranjpe, counsel for the petitioner. Shri Bhaskar Payasi, Pane] Lawyer for the State. 0 R D E R (Passed on 1% 08.2010) (Annexure A-7), Withholding three increments with cumulative by which a penalty of effect and Withholding promotion for next five years has been imposed on the State Government. petitioner by the 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 submltted earller on 24 9 1982 On 3rd 4th 85 5th December 1986 w1tnesses were examined and the petltloner was compelled to cross— examme those w1tnesses 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. l2. 1986. Thereafter, the impugned order dated 17.2.1989 (Annexure A—7) has been passed imposing major penalty on the petitioner. ’ .yJ / . Respondents in their return Have stated that on submission of enquiry 3 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 againaappointed one V.K. Shrivastava as Enquiry Officer for conducting the enquiry afresh Vide its order dated 9th January, 1985. (Annexure R-l). Petitioner was given full opportunity by the Enquiry Officer and was allowed to cross-examine been stated that no enquuy report was hable to be served After receipt of enqulry report the Government perused the same and after obtalnmg concurrence from the Pubhc Serv1ce Commlssmn passed the resorting to said remedy of appeal, the petitioner approached this Court. . Learned counsel for the pet1ttoner 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 recoded by the first Enquiry Officer after 4 years the enquiry was illegally re opened afresh It is also contended that fair and reasonable opportunity of l T” A! 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 Serv1ces (ClaSSification Control 85 Appeal) Rules, 1966 (hereinafter referred‘to as "the\l€ f 1966”] Learned counsel for the petitioner further argued that the dec1s10n of the Government to hold enquiry afresh was based on disagreement With the first enquiry report dated 249 1982 and therefore, it was incumbent upon the f1’ o 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 ease, 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 E.C.I.L., Hyderabad 8n Ors. Vs. B. Karunakar 8a Ors.1, Punjab National Bank 85 Ors. Vs. Kunj Behari Misraz, Hagana Financial Corporation 85 another Vs. Kailash Chandra Ahuia3, State of U.P. 8n others Vs. Saroj Kumar Sinha", L.I.C. of India Vs. Rampal Singh5, Anirudh Dwivedi Vs. State Chief Commissioner, Bharat Scout and Guideé, Uma Nath Pandey 8n Ors. Vs. State of U.P. 8n Anr.7, Kailash Chandra Vs. State of M.P. 85 ors.8. 6.“ Per Eontra, submission of learned coun/sel for the respondents is that the Government was justified in ordering further enquiry as it was found that the enquiry repoi‘t submitted earlier was incomplete and full of mistakes. Therefore, new Enquiry Officer and Presenting Officer were 1AIR 1994 SC 1074 2 AIR 1998 SC 2713 3 2008 AIR SCW 6055 4 2010 AIR scw 1077 5 2010 AIR scw 1900 6 2009 (2) M.P.L.J. 166 7 2009 AIR scw 3200 8 2009 (4) M.P.L.J., 554 appointed to hold the enquiry, wherein the petitioner was given ful opportunity to cross—examine Witnesses. It is stated that in the new enquiry report, charges were found proved, which were relied upon by the Diseiplinary 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 round alone. Learned counsel for the g 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 Company Ltd. Vs. S. Balakrishnan9. 7. I have considered he rival submissions made by learned counsel for t the parties and perused th records. e T 8. In so far as objection with regard to filing of instant petition without availing alternative remedy of statutory appeal is concerned, taking ino cpnsideraon that this petition was filed before the Tribunal in the year 1989 and hasxemained pending since then and further that the petitioner has now retired fro service during pendency of the petition m in the year 2000, I am’not inclined to dismiss the petition on this ground. 9. Petitioner has assailed the impugned order dated 17.2.1989, firstly on the ground that before passing the impugned order, the second enquiry 9 (2003) ll SCC 734 t ti " {m 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) 8a Hariyana Financial Corporation(supra), the impugned order is liable to be set aside only on his ground. in the case of Union of India 8a Ors. 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 1° AIR 1991 SC 471 :{1991) 1 SCC 588 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. 11. After issuance of the charge sheet to the petitioner, enquiry was held and initially an enquiry report was prepared and submitted 0n 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 eagaibnst 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 yearsiA perusal of order dated 9th January, 1985 (Annexure R—l) shows that respondents invoked its authority under Rule 15 (1) of the Rules of f966-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 Officeri It is averred in the return that after submission l)“l of the enquiry report, the same was material particulars, g held with appointment of a new Enquiry Officer and Presenting Officer. e on record is sufficient for the the conclusion of Enquiry Officer, it may pass fmal order of punishment or exoneration, as the case may be. 14. The Disciplinary Authority has no power under the Rulos 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 nor 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 aIDisciplinary Authority, scope and extent of its power and authority i are circumscribed by the provisions contained under the statutory rule‘s“: /_ . Examination of the statutory scheme under Rule 15, as referred to ‘l 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 requirement reaSOI’IS has ed with as it was not satisfi ion Without any reason to come to such , -11- l 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 f 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. l 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 showthat the new Enquiry Officer was / appointed only for further enquiry and that he formed an opinion as a succeeding Enquiry‘Authorityi that further examination of any of the 1 witnesses Whose evidence was already recoded, was necessary in the interest of justice, before recalling those witnesses who were earlier examined and cross—examined. Thisalso 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. f l é? 19. In View of the aforesaid‘discussion and analysis, k it is not necessary for i, J this Court to consider other submission of the petitioner. Action of the Disciplinary Authority in appointing a new Enquiry Officer and holding 1, enquiry afresh is declared illegal being in excess of power in authority A conferred under Rule 15 of the Rules of 1966. Consequently, the H; impugned order dated 17m 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 é would have remitted the matter back to the Disciplinary Authority to with the provisions contained in Rule take fresh decision in accordance 15 of the Rules of 1966, taking into consideration that the departmental enquiry was initiated in the y report was submitted on 2 ear 1981, the first enquiry 9.4.1982 and that the petitioner has also retired from service on 30m November, 2000, it would be rather harsh and unjust to again subject the petitioner to another round of enquiry I almost 10 years after his retirement. l, 20. Petition is accordingly allowed with all consequential benefits. (ii . :7.» Manindra Mohan Shrivastava" Judge 71 i No order as to costs. Praveen ,t g