rT- V; ev^r' BBFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR C.G. 32g In thejttatter of W.P.NoJ ^ ~ /2003 PETITIONER ->•" ^^' ^s^" .»•* -^ ^ ^•^^' RESPONDENTS Narendra Kumar Mishra, aged about 44 years, S/o. Late Shri Gaut.am Mishra, (Terminated Sub /Inspector) ft^ ^T ^T^) p.S; Baradwar, Distt. Janjgir-Champa (Chhattisgarh), present resident of Sakti, Distt. Janjgir-Champa. Versus State of Chhattisgarh, through : Principle Secretary, Department ofHcme, Affairs, D.K.S. Bhawan, Raipur (Chhattisgarh). Director General of Police, Head Office of Police Department, Raipur (Chhattisgarh). 3) Superintendent of Police, Champa-Janjgir (Chhattisgarh) 1) ^" PETITION UNDER ARTICLE 226/22T OF THE CONSTITUTION OF INDIA FO^ ISSUANCE OF WRIT IN THE NATURE OF MANDAMUS, CERTIORARI AND /OR ANY OTHER COMMAND OF LIKE NATURE ^u.^&^.^-.^.^.. ^l^ AF^ IN THE HIGH COURT OF CHHATTISGARH : BILASPUR Wnt Petition No. 1328/2003 Petitioner Narendra Kumar Mishra Versus - Respondents : State of Chliatdsgarh & otliers ORDJER Postfor ^2 -12-2006 Sd/- Satish K. Agnihotri Judge ^) IN THE HIGH COURT OF CHHATTISGARH : BILASPUR Writ Petition No. 1328/2003 Petitioner Respondents Narendra Kudar Mishra Versus- State of Chhattisgarh & others Shri Rajendra Tiwad, Senior Advocate wifh Shn Snnil Otwaai, Advocate aad Shri Amitabh Gupta, Advocate for fhe petitioner. Shri N.K. Agrawal, Deputy Advocate General with Shri A.S. Kachhawalia, Govemmient Advocate for the respondents No. 1 aad 2. ORD_E_R (Passed on 11^ Day ofDecember, 2006) This order of fhe Court is passed by Justice Satish K. Agnihotd. The present writ petition filed under Article 226/227 of fhe Constitution of India impugns fhe order dated 19.8.1999 (Anuexure P/2) passed by fhe Inspector General of PoUce, Bilaspur Range, termmatmg services of fhe petiftoner wifh payinent of subsistence allowance for suspension period aad order dated 2.5.2002 (Aunexure P/3) passed by fhe Director General ofPoMce, Raipur/respondent No. 2. The undisputed tacts in nutsheU are fhat a charge-sheet contaniiag three charges, firstiy, fhe petitioner niade wrong entiy ia fhe Rojnamacha Saaha on 7.2.1999 mdicating that Uie petitioner proceeded to BihLar for arrest of fhe accused Saudha Bhama when io. fact fhe petitioner along wifh otiier employees left for Bihar on 11.2.1999. The wrong entiy in the Rojnaoiacha is violative of fhe Regulation No. 634 of the Chhattisgarh/Madhya Pradesh PoMce Regulations. Secondly, tlie petitioner coixunitted misconduct iiader Rule 17 of fhe Madhya Pradesh CivU Services (Leave) Rules, 1977 (hereiaafter referred to as "the Rules, 1977") and Rule 3 (3) of the Madhya Pradesh Civil Services (Conduct) Rules, 1965 (hereiaafter referred to as "the Rxiles, 1965") by remaming absent wifhout reporting back to fhe ofiice aad sending fhe Revolver wifh other ofiicer. Thirdly, coiniaitted inisconduct under Rule 3 (2) aiid (3) of fhe Madhya Pradesh Civil Services (Conduct) Rules, 1965 by sendiag a sick report froin residence at Raigarh. Mr. T. Ekka, Sub Divisional Officer (PoUce), Sakti, District Jaajgir-Chanipa was appoiated as Enquiry Officer. The enquiry officer concluded fhe enquiry on 16,7.1999 aad sent the enquiry report on 23.7.1999 to fhe Supermtendent of PoUce, Jaajgir-Chainpa, who ia tura submitted fhe saoie to tiie Inspector General of Police, Bilaspur Raage. On the basis of report subiaitted by the enquiry officer, the Inspector General of Police, Bilaspur Rao.ge by order dated 19.8.1999 (Annexure P/2) teniiiaated fhe petitioner frora his services with fiirther penally of paynient of subsistence aUowaaces only durmg fhe siispension period, Beiiig aggrieved, fhe petitioner filed an appeal beibre fhe Director General of PoUce. The Director General of PoUce, Raipur disinissed fhe appeal filed by fhe petitioner, vide order dated 2,5.2002 (Annexure P/3), statiiig fhat fhere was no aierit ia the appeal and no error ia flie order passed by ttie Inspector General of PoUce. •M^> 8. 9. The petitioner beiag furfher aggrieved filed anotiier appeal on 12,6,2002 before fhe Home Secretary, Goverament of Chhattisgarh, Raipur, which is stiU pending consideration. The case offhe petitioner is fhat ftie petitioner was appointed as Siib-Inspector on 1.6,1983 by fhe Inspector General of Police of erstwhile State of Madhya Pradesh aad later on services of tibie petitioner was conlinaed as Sub-Inspector on 16.6.1983. Incident ofwaylaymg and plundermg was reported on 2.2.1999, tlie petitioaer, as Station House OflBicer of ftie PoUce Station, Baradwar, received fhe infonnation that one Fekulal, Teacher of fhe Middle School, whUe carrying salary of pay centre Kaifha was waylaid aiid plundered by soine nuscreants near Chhitaparada, After receiviag fhis iaforoiation, fhe petitioner recorded Dehati Nallshi 00/99 aad proceeded to fhe spot for nivestigaUon. The petitioner registered Crime No. 21/99 under Section 394 aad 397 of the Indiaii Penal Code. In the meaowhile, the Superintendent of PoUce, Shri Raj Kumar Dewangaa also reached the spot aiid constituted several teaais to cany-out fiirther mvestigation. The petitioner was also head of one such teani. The petitioner along wifh his team raided house of Lakhan Bhaiaa at Kekrabhat, but could not fiad Lakhan Bhaiaa. On enquiry from his nioflier, it was found that Lakhaa BhaAaa belongs to PoMce Station Katras, Distdct Dhaabad ia Bihar. On 3.2.1999, the petitioner along wifh his teain laeiabers proceeded to Bihar in search of Lakhan Bhauia aad his associates. s^a.sac^a.^sa 10. On fhe iatervening night of 5/6.2.1999, fhe petitioner raided the house of Lakhan Bhama aad caught him aad on his mstruction raided fhe house of Saudha Bhaiaa, who however inaiiaged to escape froni fhe spot, but a suin ofRs, 1,98,600/° was recovered froni his sister-ia-law. 11. The petitioner farther along wifh teaiii nieiabers, reported at PoUce Station, Baradwarwifh Lakhaa Bhaina at 6 o'clock ia fhe moniiag on 7.2.1999. On the same day, fhe petitioner along witli his teain raided several places at Kekrabhat aiid arrested Mohit Chaadra aad Bagharai Bhama aad other accused persons aad also seized a suin of Rs. 8,05,000/- ironi fheir custody. 12. Thereafter, the petitioner deposited fhe aforesaid amount. The said accuseds were placed in fhe poUce custody. On 8.2.1999 news was also published in a local daUy. 13. Shri Rajendra Tiwad, leanied Senior Advocate wifh Shri Sximl Otwaai and Shri Amitabh Gupta, leamed Advocates for the petitioner chaUenged fhe validity of fhe unpugned orders on fhe followiag grounds: (i) The alleged charge-sheet issued was never sewed on fhe petitioner in. fhe niaaner as prescribed under Rule 30 of the M.P./C.G. CivU Services (Classification, Control, aad Appeal) Rules, 1966 (heremafter referred to as "the Rules, 1966"). The respondents/exnployer despite knowiag fhe fact fhat the petitioner was sick aiid undergoing treatment ia Bhubaneswar, aUegedly aftlxed fhe charge-sheet at his residence at Ra^arh, which was never received by fhe petitiouer, M^' (ii) The enquiiy was concluded ex-parte wifhout ajGfording proper opportiiaily of hearing to fhe petitioner. The petitioner was not served wifti the enquiry report before tiie iinpugned order of tenaiaation was passed. The petitioner was not served with fhe dismissal order also. (iii) Non-service of fh.e charge-sheet and fhe enquiry report has prejudiced the case of ftie petitioner, as fhe petitioner had no occasion to put forward his case by cross-examiauig witaesses produced by fhe respoudents/einployer aad ofherwise to prove his ignorance before fhe enquiry officer. (iv) The petitioner was furfher prejudiced by not placiag his case properly before fhe appellate aufhority ia absence of ftie docuinents aad evidences produced before the enquity officer. (v) The petitioner could not object fhe appomtment of the enquiry officer, as he had bias agamst the petitioner. 14. Leamed counsel for fhe petitioner contended that fhe entire disciplinary proceediiigs were bad aad vitiated as fhe charge-sheet was not ser^ed on the petitioner (delmquent employee). Learaed counsel for fhe petitioner ftirther contended fhat fhe entire departmental proceediags, order of termmation passed consequent thereupon be quashed as bad and iavaMd, ,^l^y 15. Shri N.K. Agrawal, leamed Deputy Advoacte General wifh Shri A.S. Kachhawaha, leamed Govemment Advocate appearmg for ffae respondents would submit that aa attempt was made to serve tlie charge-sheet on fhe petitioner in. person on 24.3. 1999. In absence of the petitioner, the charge-sheet was affixed on his house in presence of fhe witaesses, On 3.5.1999, notice was issued at his official residence at Sakd, which could also not been served. Thereafter, a pubUcation ofthe notice was made ia the newspapers ia Daiaik Bhaskar on 26.5.1999, Daiaik Navbharat on 28.5.1999 aad Dainik Kankarm on 28.5.1999, haviag pubUcation ia Bhubaaeswar. 16. Learaed coiiasel for fhe respondents next contended that after iaitiation of fhe enquiry, several notices were sent by registered post, informiag fhe dates of hearmg, which could not be served upon ffae petitioner, The iaquiry was concluded ex-parte on 16.7.1999. Learaed counsel for fhe respondents further contended fhat pubUcation of fhe notices aad afBxiag the charge-sheetat his official address is sufllcient coiapliance of Rule 30 of the Rules, 1966 aixd as such the charge-sheet was duly served upon fhe petitioner. The petitioner did not deliberately partlcipate in the enquiry and the ex-parte enquiry was concluded. Leamed counsel for fhe respondents last contended that ftie petitioner cannot complain of denial of prmciple of natural justice when ftie petitioner hiaisetf, despite szifHcient notice, did not participate ia the departmental proceediags. Leamed counsel for the respondents fiirther denied fhat any appMcation with regard to his sickaess aad .^^..^.^. .^r. w treatment at Bhubaaeswar was made or received in the ofiice of fhe Superuitendent of PoUce. 17. I have heard learaed counsel for the parties, perused fhe pleadings aad docuiaents appended fhereto. It is evident that tlxe charge-sheet was not actually served on ftie petitioner. Afiixation of tiie charge-sheet on fhe official aad permaaent residence of fhe delinquent exnployee is not sufficient coinpUaace ofRule 30 ofthe Rules, 1966. Rule 30 oftiie Rules, 1966 reads as iinder: "30, Seryice of orders, notices etc.- Every order, notice aad oftier process made or issued under these rules shall be served ia person on fhe Govenuiient servant concemed or coniniunicated to him. by registered post." Rule 30 prescribes for inaaner of service. The statutory provision clearly conteiaplates fhat order, notice aad other process niade or issued under these rules shaU be served in person on fhe Govemraent sen^aat concenied or conununicated to hiin by registered post. There is no provision for sen^ice of aiiy notice or aiiy other process or the charge-sheet, ioitiated under Rule 14 of fhese Rules, by aay other nieaas includiag pubUcation. 18. Initiation ofthe departmental proceediags begias wifh service of fhe charge-sheet The charge-sheet was not served on fhe petitioner, but thereafter notices for initiation of fhe departmental enquny and fixing of dates ia fhe departaiental enquiry was, j5rsUy, pubUshed ia the newspapers aad thereafter, sonie of the uotices were sent by registered post also. Subsequent publication of notices of iaitiation of fhe enquiry aad subsequent conuiiiuucation of dates of departmental ^^ proceedings by registered post do not come under the ambit aad scope of actual service of fhe charge-sheet Thus, fhe entire proceediags are vitiated aad the impugned orders passed fhereupon are also bad. 19. In the case of Union of India and others Vs. Mofad. Ramzan Kliaa1, th.e Supreme Court held that the disciplinary proceediag is quasi-judicial in nature. There is a charge and a denial followed by an iaquiiy at which evidence is led aiid assessinent of tiie inaterial belbre conclusion is reached. These facets do make the inatter quasi-judicial aad attoract flie principles of natural justice. The deUnquent exnployee inust be ser^ed charge-sheet ia actaal tenn to enable Tiim to file his reply to the charges before iaquiry, recorduig of evidence aad fhe submissions made on the basis of fhe material made available to fhie ifiquiry ofiicer before his conclusions. 20. In the case ofUniou of India and others Vs. K.V. Raaklrsuaan aaad others2 , fhe Suprenie Court observed fhat "it is ordy when a charge-memo m a disciplinaiy proceediags or a charge-sheet m a criminal prosecution is issued to the employee fhat it can be said fhat the departmental proceediags/crimiaal prosecution is irxitiated against fhe eiHployee.^ 21. In fhe case of DeUii Development Authority Vs. H.C. Khurana3, fhe Supreme Court wifh regard to initiatiou of fhe departinental proceediags has held in para 9, as under:- "9. The question now, is: What is fhe stage, when it caii be said, fhat tfa decision has been taken to iaitiate disciplmary ^ proceediags' ? We have no doubt fhat fhe decision to initiate disciplmary proceediags caanot be subsequent to fhe issuance of fhe charge-sheet, siace issue of fhe charge-sheet is a consequence of fhe decision to iaitiate discipliaary proceediags. Praimng fhe charge-sheet, is the first step taken ibr holdiag tihie enquiry into fhe allegations, on fhe decision taken to initiate disciplmary proceedirigs. The charge-sheet is framed on fhe basis of fhe allegations into the aUegations inade against the govemment servaat; the charge-sheet is fhen ser^ed on hiai to enable hiiii to give his explanation; tf the explaaation is satisfactory, fhe proceediags are closed, ofherwise, ao. enquny is held mto ffae charges; if fhe charges are not proved, the proceediags are closed and penalty foUows. Thus, fhe seryice of tiie charge- sheet on the goveminent ser^aat follows ftxe decision to mitiate discipUnary proceediags, aad it does not precede or couicide with fhat decision. The delay, if any, in. sen^ice of the charge-sheet to the goverament servant, after it has been framed aiid dispatched, does not have the effect of delaying iaitiation of the discipliaaiy proceednigs, iaasinuch as iafonnation to fhe govemxaent seryant of the charges franied agaiast hioi, by service of fhe charge-sheet, is not a part of the decision-makmg process of the aufhorities for iaifiatmg the discipliaary proceediags.w 22. In fhe case of IJnion of India aad others Vs. Dii&aaath Shaataysmi Karekar4, the Supreme Court obseryed m para 10, as under- "10. Where fhe disciplinary proceediags are iatended to be iaitiated by issuiag a charge-sheet, its actual ser^ice is essential as fhe person to whom fhe charge-sheet is issued is required to subinit his reply aad, thereafter, to pardcipate ia the discipliiiary proceediags. So also, when fhe show-cause notice is issued, fhe eniployee is called upon to subinit his reply to fhe action proposed to be taken agaiast him. Siace ia both the situations, the employee is given aa opportunity 10 .J: to subniit his reply, fhe fheory of "coiainunication" caanot be invoked aad "actual service" must be proved and established. It has akeady been found that neifhier fhe charge-sheet nor fhe show-cause notice were ever served upon fhe origiaal respondent, Diaanafh Shaataraia Kai'ekar. Consequently, the entire proceediags were vitiated/' 23. In fhe case ofState of U.P. Vs. Shatrughan' Lal aad smother5, fhe Supreine Court observed ia para 10, as under:- "10. It has also been found fhat dxiriag fhe course of fhe preluninary enquiry, a nuinber of^witaesses were examiaed against fhe respondent ia his absence, aad righfly so, as fhe deUnquents are not associated m the preltmmaiy enquiry, aiid fh-ereafter fhe charge-sheet was drawn up. The copies of fhose statenients, fhough asked for by fhe respondent, were not suppUed to hiia. Siace there was a failiire on the part of fhe appeUaat ia ftiis regard too, fhe Tribunal was justlfied ia commg to fhe conclusion that fbie principles of natural justice were violated and fhe rcspondent was not ajforded an eiiective opportunity of heariag, pardcularly as fhe appellant tailed to estabMsh tiiat non-supply of fhe copies of stateinents recorded durmg preUminary enquiry had not caused any prejudice to the respondent ia defendiag himself." 24. Learaed counsel for fhe respondents heavily reUed on obser^ations of fhe Supreiae Court iD. the case of Viveka Naad Sethi Vs. Chairman, J& K Bank Ltd. aad others6. The Supreine Court iii fhe case of Viveka Naad Sefhi Vs. Chairmaa, J& K Baiik Ltd. aiid others (supra) observed in para 22 as under:- <<22, The prmciple of natural justice, it is trite, is no unruly horse. When facts are adiiiitted, an enquiry would be an einpty foniiality. Even the priaciple of estoppel wiU apply, [See Gurjeewaa Garewal (Dr,) v. Dr, Sumitora Dash3.] The S^^^aSaES 11 w^ prmciples of natiiral justice are required to be compUed wifh haviag regard to fhe tacts situation obtamiiig fhereia, It caanot be put ia a straitjacket formxila. It cannot be applied WL fhe vacuuni wifhout reference to fhe relevaat facts aad circumstaaces of fhe case. (See State of Punjab v, Jagir Singh4 aad Kamataka SRTC v. S.G. Kotturappa5.) 25. The Supreme Court ia fhe case of Om Prakash Maaa Vs, Director of Ediieation (Basic) aad others7, cited by learaed counsel for the respondents, observed in para 9, as under:- "9. By now it is weU-settled principle oflaw fhat fhe doctrmes of prmciple of natural justice are not einbodied rLiles. They caanot be appUed ia a straitjacket formzila. To sustam fhe comiplaiiit of violation of fhe principle of natural justice one must estabMsh that he has been prejudiced by non-obsen?raace of fbe principle of natural justice. As held by fhe High Court fhe appellaat has uot been able to show as to how he has been prejudiced by non- furaishing of the copy of tihie enqiiiiy report. The appeUaat has lUed a detaUed appeal before fhe Appellate Aufhority which was disiaissed as noticed above. It is not his case fhat he has been deprived of inaMag effective appeal for non-furaishiag ofcopy of enquiry report. He has participated m the enquiry proceedifigs without aay deniur. It is undisputed that the appeUaiit has been afibrded enough opportunity aad he has participated fhroughout fhe enquuy proceediags, he has been heard aad allowed to make submission before fhe Enquiry Comimttee.'? 12 ^ 26^. The decisions cited hereinabove by learaed counsel for the respondents are not appUcable to fhe facts of the present case. In fhe present case, fhe entire departmental proceedings were bad as fhe tlrst step by the enquiry proceeding i.e. actual service of fhe charge-sheet on fhe delinquent eiaployee by the respondents was not done. The mode adopted by fhe respondents by aUeged afExation of the charge-sheet on fhe residence of fhe petitiouer is not one of the mode prescribed under Rule 30 of the Rules, 1966, Subsequent publication of uotice or communication of dates by registered post is not snfficient compUaace of fhe first step of the enquiiy, leading denial of opportunily to fhe petitioner, to file reply and put for^vard his case effectively before ftie enqiiiry officer. The petitioner has successfuUy estabUshed the prejudice caused to him. by non-service of charge-sheet on fhe petitioner. In view of clear findings witli regard to service of fhe charge-sheet, stated above, it is not uecessary to go into other poiats raised by fhe petiUoner. 27. The petitioner has clearly submitted tiiat he was not gainfaUy employed elsewhere aad has sufifered xnental agony aad finaacial Uability. The respondents arc not m a position to controvert fhe subinission of fhe petitioner. Thus, ia the facts aiid circunistaaces ofthecase, fhe petitioner is entitled to 50% back wages flowiag froxn quashing offh-e ii&pugned orders, 28. As a reszilt and ia view of fhe weU-setfled principle of law, thie ioipugned orders dated 19.8.1999 (Annexure P/2) passed by 13 ^n^ the Inspector General of PoUce and 2.5.2002 (Annexure P/3) passed by the Director General of PoUce are quashed as fh.e departmental iaquiry was vitiated. However, fhis order shaU not conie ia fhe way of fhe respondents/aufhLorities to uiitiate a fresh departoiental iiiquiiy, tf so advised, ia accordaace witii law. 29. The writ petition is accordiagly allowed. No order as to costs. Sd/- Satish K. Agnihotri Judge Bablu 1. (AIR 1991 SC 471) 2. {(1991)4SCC 109} 3. {(1993) 3 SCC 196} 4. {(1998) 7 SCC 569} 5. (AIR 1998 SC 3038) 6. {(2005) 5 SCC 337} 7. {(2006) 7 SCC 558}