1 HIGH COURT OF MADHYA PRADESH: BENCH: INDORE (SINGLE BENCH: HON.MR.JUSTICE PRAKASH SHRIVASTAVA) WRIT PETITION NO.1371/2003 Shambhu Singh Pawar S/o Late Shri Shankar Singh Pawar .... Petitioner Vs. MP State Industrial Development Corporation & another .... Respondent WRIT PETITION NO.1394/2003 Girishkumar Sharma S/o Late Narayandas Sharma .... Petitioner Vs. Managing Director, MP State Industrial Development Corporation & another .... Respondent For petitioner: Shri D.M.Kulkarni with Shri P.J.Mehta, Advocate. For respondents: Shri Amit Agrawal with Shri Rohit Mangal, Advocates. ----------------------------------------------------------------------------------- Whether approved for reporting:- ____________________________________________________ O R D E R (Passed on 11th August, 2011) THIS order will also govern the disposal of Writ Petition No.1394/2003. [2] These Writ Petitions have been filed by the petitioners' 2 challenging the penalty orders dated 10/1/2002 (Annexure P.1) by which they have been dismissed from service and the appellate orders dated 18/12/2002 by which the orders of dismissal have been maintained in appeal. [3] Since in the two Writ Petitions, similar charges were levied against the petitioners, the enquiry proceedings were separately but simultaneously conducted, the similar orders of punishments have been passed and they have been challenged on similar grounds, therefore, these Writ Petitions are decided together. [4] The petitioner in Writ Petition No.1371/2003 was working as Assistant Engineer (Project) and the Petitioner in Writ Petition No.1394/2003 was working as Executive Engineer. A departmental enquiry was initiated against the petitioners for committing irregularities and dereliction of duty in construction of the Surface drain in EPIP, Pithampur. It was alleged that the work was done under the supervision of the petitioners and the said work was not up to the standard and in the execution of the said work, negligence and financial irregularities were committed. The petitioners' were issued the charge sheet and they had filed the reply. Separate enquiries were conducted against them and enquiry officer had submitted the reports against them. In respect of the petitioner Shambhu Singh Pawar, the charge Number 1, 2 and 3 were proved, charge No.4 was not proved and Charge No.5 was partly proved. In 3 respect of the petitioner Girish Kumar Sharma, the charge No.1,2 and 3 were proved, 4 was not proved and 5 was partly proved. The petitioners were given show cause notices along with the enquiry report proposing the punishment of the dismissal from the service. Replies were submitted by the petitioners and thereafter the orders dated 10/1/2002 were passed imposing the punishment of dismissal from service. The petitioners had preferred appeal against the said order of punishment which were dismissed by orders dated 21/5/2003. The impugned punishment orders and appellate orders in respect of the two petitioners are separate orders passed on the same day. [5] Learned counsel for the petitioners submitted that during the enquiry, the documents were demanded by the petitioners but were not supplied. He submitted that additional witnesses were examined and documents were produced in the enquiry which were not disclosed and not supplied along with the charge sheet and the copies of the additional documents filed during the enquiry were not given to the petitioners. He further submitted that the petitioners were examined first in the enquiry and they were not allowed to cross examine the prosecution witnesses. He further submitted that 100% measurement was directed by the Enquiry Officer during the enquiry which was not permissible and that the petitioners were not examined generally in the enquiry and no documents were exhibited. 4 [6] Learned counsel appearing for the respondents submitted that the procedure prescribed under the relevant Rules have been followed and the departmental enquiry does not suffer from any procedural irregularity, therefore, no interference of this Court is required. [7] I have heard the learned counsel for parties and perused the record. [8] It is not disputed that M.P. Civil Services (Classification Control and Appeal) Rules, 1966 are applicable in the present case. The Rule 14 deals with the procedure to be followed for imposing the penalties. [9] The first contention of the counsel for the petitioners is that the documents were demanded by the petitioner but they were not supplied by the respondents and in this regard he has relied upon the request letters dated 29/12/1999 and 10/1/2000 (Annexure P.5 in WP No.1371/2003 and Annexure P.14 in WP No.1394/2003). The said request letters are vague where neither the details of the documents demanded were mentioned nor their relevancy was disclosed. This request was made prior to the filing of the reply to the show cause notice. Such a vague request if not responded to by the concerned respondents will not vitiate the enquiry. [10] Learned counsel for the petitioner has next contended that the witnesses and documents not mentioned in the list of witnesses and 5 documents given along with the charge sheet were produced and examined. Under Sub Rule 11 of Rule 14, the Enquiry Officer may require the presenting officer to produce the evidence by which he proposes to prove the article of charge, in respect of the charge which is not admitted by the delinquent employee. Sub Rule 14 of Rule 14 provides that on the date fixed for enquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. Sub Rule 15 provides for production of additional evidence during the course of enquiry. The enquiry proceedings indicate that on 26/6/2000 when the delinquent employees had denied the charges, the Presenting Officer had given the list of documents and witnesses on the basis of which he had proposed to prove the charges. The petitioners were given an opportunity by the enquiry officer to produce their own list of documents and witnesses, in response to which they had stated that they did not want to produce any additional evidence or file additional documents except those which were mentioned in their reply to the charge sheet. The petitioners at that stage had not objected to the list of witnesses and documents which were given by the presenting officer and were disclosed to the petitioner and taken note of in the enquiry proceedings. Therefore, now at this stage, it is not open to them to raise the grievance in this regard. 6 [11] The counsel for petitioner has also raised ground that copies of the additional documents, which were produced by the presenting officer during the enquiry, were not given to the petitioner. Sub Rule 15 of Rule 14 makes it clear the disciplinary authority has the discretion to allow the presenting officer to produce evidence not included in the list given to the government servant or to himself call for new evidence or recall or re-examine any witness and in such a case the government servant is entitled to have, if he demands, a copy of list of further evidence proposed to be produced. The enquiry proceedings dated 26/6/2000 indicates that the petitioners had not demanded the additional documents, when they were produced by the presiding officer. In terms of the Rule 14(15), such documents were required to be supplied to the petitioners only in case of a demand of those documents by the petitioners. [12] The next contention of the counsel for petitioner is that the petitioners were examined first in the enquiry proceedings. Sub Rule 9 of Rule 14 requires the enquiry officer to ask the delinquent employee whether he is guilty of any of the article of charge and record the plea taken by the delinquent employee. The proceedings indicate that at the commencement of the enquiry, general questions were asked by the enquiry officer from the petitioner in respect of the charges leveled against him, therefore, such a course adopted by the enquiry officer will not vitiate the enquiry proceedings. 7 [13] The next contention is that the petitioners were not allowed to cross examine the witnesses produced by the presiding officer in support of the charge. The Sub Rule 14 of Rule 14 gives discretion to the delinquent employee to cross examine the witnesses produced by the presiding officer. The proceedings which were conducted before the enquiry officer have been produced and each page of these proceedings bears the signature of the petitioners. There is no request at any stage by the petitioner to cross examine the witnesses. If the petitioners during the enquiry themselves had chosen not to cross examine the witnesses, then at this stage they cannot make any complaint in this regard. The petitioners have also raised the plea that they were not examined generally and that the documents were not exhibited in the enquiry. The strict Rules of Evidence do not apply in the enquiry proceedings. In the enquiry, the procedure prescribed in Rule 14 was required to be followed which does not require the enquiry officer to mark exhibits in the documents. [14] It is worth noting that the Supreme Court in the matter of Union of India Vs. T.R.Varma reported in AIR 1957 SC 882 has held that:- “Para 10:- Now, it is no doubt true that the evidence of the respondent and his witnesses was not taken in the mode prescribed in the Evidence Act; but that Act has no application to enquiries conducted by tribunals, even though they may be judicial in character. The law requires that such tribunals should observe rules of natural justice in 8 the conduct of the enquiry and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court of Law. Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross- examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them. If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed. Vide the recent decision of this Court in New Prakash Transport Co. V. New Suwarna Transport Co.; 1957 SCR 98;(S) AIR 1957 SC 232(C) where this question is discussed”. [15] Even otherwise on the perusal of the enquiry proceedings, it is noticed that the evidence was concluded on 14/7/2000. The enquiry officer had given time till 17/8/2000 to the parties to produce any further evidence. On 17/8/2000 the petitioners had appeared before the enquiry officer and submitted the letters dated 17/8/2000 stating that they did not want to produce any further witnesses or evidence and the evidence be closed. In the said letters, the petitioner did not raise any such objection which they have raised before this Court in the present Writ Petition. On the contrary, they themselves had made a request for treating the evidence as complete in the enquiry. 9 These letters have not been disputed by the petitioners before this Court. Thus, it is not open to the petitioner now to raise any such complaint before this Court. [16] This Court also in the matter of P.K. Shukla Vs. Mandla Balaghat Regional Rural Bank and Others reported in 2006(1)MPHT 153 has taken the view that if the petitioner participated in the enquiry without any objection and had submitted himself to the enquiry and on the principles of acquiescence at the stage of Writ Petition the objection taken cannot be sustained. [17] The petitioners have also raised an objection that the enquiry officer had directed 100% measurement during the course of the enquiry. The order dated 7/2/2000 filed in WP No.1371/2003 is perused in this regard. This is not an order by the enquiry officer but it is an order passed by the Managing Director of the respondents, directing 100% measurement of the work by a team of eight persons by which it was specifically directed that the said measurement was to be done in the presence of the present petitioners. Thus, the petitioner cannot have any grievance in this regard. Even otherwise it is found that no such grievance was raised by the petitioner before the enquiry officer in this regard. [18] The learned counsel for petitioners has also raised the ground that since the statement of the witnesses recorded during the preliminary enquiry were not supplied, therefore, the enquiry is 10 vitiated. In this regard he has placed reliance upon the judgment of the Supreme Court in the matter of State of UP Vs. Shatrughan Lal dated 30th July, 1998 in Civil Appeal No.2469/1982. The said judgment has no application in the facts of the present case because in the present case, the statements of the witnesses recorded during the preliminary enquiry have not been relied upon in the main enquiry. The petitioner has also relied upon the judgment of the Supreme Court in the matter of State of MP Vs. Chintaman Sadashiva Waishampayan reported in AIR 1961 SC 1623 which relates to the denial of opportunity to cross examine the witnesses and supply of copies of documents to which the public servant was entitled, but in the present case the petitioner had full opportunity to cross examine the witnesses and demand the documents, but they had waived the said right by not cross examining the witnesses and not demanding the copies or inspection of the additional documents produced during enquiry. It is not the petitioners case that the documents which were mentioned in the list of documents given in the charge sheet were not supplied to them. [19] Thus, considering the aforesaid, I do not find any merit in the present Writ Petitions. The enquiry has been conducted by following the procedure prescribed under the Rules. The principles of natural justice have duly been followed. The petitioners had not raised any such objections before the enquiry officer which they are 11 trying to raise before this Court which appear to be an afterthought on the part of the petitioner to fish out the grounds for challenging the enquiry proceedings. During the enquiry, the charge have duly been proved against the petitioners and looking to the nature of charges which have been found proved, the punishment imposed is commensurate to the charge. [20] In view of the aforesaid, no ground for interference is made out and the Writ Petitions are accordingly dismissed. Original order is placed in WP No.1371/2003 and a copy whereof be placed in the record of connected WP No.1394/2003. (Prakash Shrivastava) JUDGE VM