WWI IIHIIHHIIHHIHIIII m Tm: High wUm— w Mmm ”mica AI JwALLuMww ) . §DlstrlLt JAuuhLIWR) ‘ “/0? ' Nut. Nu. U1: 1985,. ‘ retigonerw VmmT “HwHAN a/O VIIHAL my wAUhAN ‘XI :x-benlor Nam Nazlr, Ufflce 0f District and besslons Juage, .JACaDALwh R/O Thakur Road, Ward Nb. 9, Jagdaiwr, Distrlct BASTA muiu) Versus /’ ‘l The heglstxar, High Court of wxddhya irrade‘vh Jabaiwrmx k ) AM) .Ihe Dlstrlct and sessmns Jugge, JALADALHK alstwact BAaTrxR LMA e) ’ ' r ' ‘ , , 3. snrl but. sruwvm, .Llnu aaaltlmai Dlstrlct Judge cum-'Enqulry wffl er C/O Raglafrdr, hlgn Lauri cf MJ. Jana¢ku1r\1\n.} ) mnnw mutt; muvu. 226/247 w m2 bumlirunwx _ w mum Rm mauma; m AxmwnImE; vvml/mwEH vR ulhtbl AJN Ryg. ‘ HI6H COURT OF CHHAmseARt-t BILAspuR M.P. No.729 o£ 1985 Vasanf Chauhan Vs. The Registrar, High Court af Madhya Pradesh (now Chhaffisgar'h) and ofher's \ ORDER Posf for j . y .2005 J i Sdl- Sunil Kumar Sinha Judge 30. g .2005 N HIGH COURT OF CHHATHSGARH BILASPUR ‘ .P. c.7290 1985 Vasanf Chauhqn Vs. The Registrar; High Courf of Madhyq Pmdesh (now Chhaffisgar'h) and ofher's Shri Prafu” Bharaf, counsel for fhe pefifioner. Shri Khan, Manindr'a for fhe responden'fs. Shrivasfava, Sr. Advocate with Shri Afroz 0RD§R ( 1 . 7.2005) Sum'J Ky_m_ar Sinha, g . (1) The petifianerJwho was warking as Seniar' Naib Nazir' and was dismissed from service on account of a departmem‘al enquiry conducfed against him, has ‘chaiienged ihe vaiidify of his dismissai order dared 24.9.1982 (Annexur'e P7 appelkrie order dafed 01.114985 (Annexur'e P-Zl)‘ (2) The facts siafed, aha iha'i the pefifioner was working as fhe Naib Nazir‘ in Disfr-icf and sesseions Courf, Jagdalpur‘ fr'am 10.6.1980. On 31.3.1981, fhe Disfr'icf and Sessions Judge held‘ inspection in Malkhana (Sfore room) in re 1)' and fhe specf of praberiy of Criminal Case No.239/1980 (3mm ofMJ’. -i/s- Pafro) whichwas decided by fhe J.M.F.C., Sukma, Camp a'i Jagdaipur‘ on 09.3.1981. This case was under‘secfion 34 of the Excise Aci' and fhe 1‘ 2_. concerned property of this case was liquor which was t be des'rr'oyed as per the order dated 09.3.1981. On inscfion, if was found that the property of this case (liquor) was no? found in accordance wifh the specification mentioned in property registered as Property No.2285. An explanation was called from the ptitioner, who sought time which s granted upto 04.04.1981 for production of the said property. On 06.4.1981 some proprt was produced by the petitioner which was again V inspected by the concerned authority on 08.4.1981 and on such ipection it was found that the property (liquor) which was produced by the petitioner was not of the make of that Company, which as ealier deposited in Ma/kana It was found that 66 botts of Capital Blazer Malted Whisky which were never deposited were produced and one bottle of whisky ws found in excess and two bottles of Beer were found in hort. Tus 66 bottles of Blazer alted Whisky which were never deposited were found lateron on 08.4.198 in the second inspection. On these facts, the petitior was served with a charge sheet dated 22.5.1981 ontaining the following carges. (i) That he was Naib Nazir Malkhana from 10.6.1980 to 08.4.1981: '(ii) That as Senior Naib Nazir, it was his duty to properly keep the case property of the cases deposited in Malkhana; o pe e wa ey i ns ; w r h le a s h M 1 ne c h (iii) That in Criminal Case No.239/1980 two homes of Beer & 65 quarter baffles of whisky were found shart and he defalcafed it; (iV) That 66 boh‘les of whisky of differ-en? make and qualify were found & fhe same were never deposiied and fhus he exchanged iha‘i from the case property; and (V) Thai the aforesaid act of the petitioner amounts to gross negligence and misconduct under the MP. Civil Services (Classification, Controi and Appeal) Rules 1966. (quoted from original version) (3) The petitioner filed his reply to the aforesaid charge sheet and thereafter a departmental enquiry was conducted by the enquiring officer and an enquiry report dated 19.5.1982 was submitted holding the charges, leveled against the petitioner, to be proved. The disciplinary authority concurred with the findings recorded ‘by the enquiring officer and issued a notice of proposed punishment to the petitioner on 14.7.1982. Reply to this notice was filed by the petitioner on 5.8.1982 and thereafter, after considering the reply, the impugned punishment order dated 24.9.1982 was passed by the disciplinary authority which was challenged by the petitioner in appeal and ultimately an appellate order dismissing the appeal was passed by the appellate authority on 1.11.1985. It is against these orders, the petitioner has filed this writ petition. 4w %S (4) At fhe arguments, learned counsel for 'l'he petitioner raised fhe foliowing grounds: (1) The finding recorded by fhe enquiring officer hoiding The pefii'ioner guilty of the main charges were perverse § (2) Shri VD. Vajpai, the then District and Sessions Judge was not cited as a witness in the charge sheet and he was examined by the enquiring officer thereby violating the rules; (3) The documents demanded by the petitioner for i i defending his case were not supplied to him which violates the principles of natural justice and the entire enquiry vitiates on these counts. (4) That the appeal of ‘the petitioner was sJperficially dismissed by the appellate authority and the appellate authority did not apply his mind before passing of the appellate order. (5) On the other hand learned counsel for the respondents submits that due and proper opportunity of hearing was awarded to the petitioner and the enquiry was conducted in reasonably fair manner. There was no violation of principles of natural justice as the’documents demanded by the petitioner were not relevant documents for the lawful disposal of the proceedings of _5_ fhe enquiry. No rules were violated by calling Shr'i V.D. Vajpai as a wifness in 'lhis enquiry as The rules do permit for The same. The appeal of ”(he pefilioner was also duly considered by fhe appellate aul'hority and if was found f0 be without any merit and the same was dismissed in accordance with law. (6) I have heard the learned counsel for the parties at length and have also perused the records of the writ petition. (7) Firstly, I will take up the ground regarding perversity in the findings of the enquiring officer. Referring to the decision rendered in the matter of Kunaan Algndal Wkas N_igam Ltd. , - Vs- arja 5hankar Pam“ and ofhers (2001} I 566' P9182, learned counsel for the petitioner submitted that while in a departmental proceedings, the disciplinary authority is the sole judge of facts and the High Court may not interfere with the factual findings but the availability of judicial review even in the case of departmental proceedings cannot be doubted He further submitted that an effected person can come to the court and show that the findings recorded in the disciplinary proceedings are based on no evidence or the findings are totally perverse. He also referred to the decision of 5her' Baho’tr - Vs- Union of India and other: (2002) 7 5d? 142 and submitted that the sufficiency of evidence must be taken as some evidence and it must link the charged officer with the misconduct alleged against him. (8) There is no doubt in the mind of this Court regarding . these principles. It has been held by the Apex Court in the case of @maan Manda! Woes Nigam Lfd (supra) that the judicial rel W -7 review of The adminis'trafive acfion is feasible and the same has ifs application To its fullest exfem‘ in even deparfmenfal proceedings where i’r is found fhaf the recorded findings are based on no evidence or fhe findings are fomlly perverse or legaliy untenable. If has further been held fha‘l' the judicial review of the adequacy or inadequacy of evidence is not permitted but in the event of there being a finding which otherwise shocks the judicial conscience of the court, the judicial review is always permissible at the instance of an effected person. The expression “sufficiency of evidence" as has been held in the matter of Sher Bahadur (Supra) would indicate about the existence of some evidence which links the charged officer with the misconduct It has been held that the evidence which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in law. The mere fact that the enquiry officer has noted in his report in a broader sense “in view of oral, documentary and circumstantial evidence as adduced in the enquiry" would not in principle satisfy the rule of sufficiency of evidence. (9) If we examine the present case, in light of the above broad principles, it would appear that many witnesses including the District and Sessions Judge were examined by the department. The Sessions Judge was examined as P.W.6. His statement has been filed as Annexure [2-4. He has deposed about the inspections conducted by him and has also proved the documents relating to the case. In his statement, para7, he has deposed about the change of bottles of whisky with all its 7.“ defails and thereafe he ha been cross examined by the petitioner. e stafemeni f this wifness alongwiih The documents exhibited by him clearly goes to show that there was evidence on record to link the charged officer with the misconduct alleged against him and this case cannot be classified as a case of no evidence on record or a case in which‘the l evidence so collected is neither relevant in the broad sense nor establishes any nexus between the alleged misconduct and the charged officer. The finding does not appear to be perverse or based upon no evidence on record and a judicial review about such a finding which is based on positive evidence on record would not be possible as it is settled principles of law that the jurisdiction'of the tribunal or the High Court to interfere with the disciplinar matters or punishment cannot be equated with th appellate jurisdiction. The ribunal or the High Court cannot interfere with the findings of the enquiry officer or competent authoty where they are not arbitrary or utterly perverse. (Please see -¥- ananda - AIR 1989 $.61 I am not incled to accet the first argument advanced by learned counsel for the petitioner and the same is rejected. (10) About he second point, learned counsel for the petitioner \ submitted tha Shri V.D.Vajpai, the then District and Sessions Judge was not cited as a witness in the charge sheet and he was examine by the enquiring officer wereby the rules in relation to enquiry have been violated. I am not inclined to admit this ‘ rumen advanced by learned cunsel for the petitioner. It is true that Shri Vajpai s not cited as a witness in the charge , fr s Th o y e t ri Union of India Vs Parm 1185) in p t t d h agt. o wa shéef bu'r fhe order sheaf of the enquiry dated 10.11.1981, filed as Annexure R—2,would show That after closing of The evidence by The presenfing officer, 'the enquiring Officer s10 mom Took a reasoned decision that in The facts and circumstances of fhis case, Shri VD Vajpai, The fhen District and Sessions Judge was an important witness who was required to be examined in this case, and in this manner, he was directed to be requested to give his evidence. Admittedly, the impugned enquiry was governed by the provisions of the MP. Civil Services (Classification, Control and Appeal) Rules 1966. Rule 15 of the aforesaid Rules provides that if it shall appear necessary before the close of the case on behalf of the disciplinary authority, the enquiring authority may, in its discretion, allow the presenting officer to produce the evidence not included in the list given to the Government Servant or may itself call for the new evidence or recall and re- examine any witness and in such a case the Government Servant shall be entitled to have if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the enquiry is adjourned. It has further been provided that the enquiring officer shall give the Government servant an opportunity of inspecting such documents before they are taken on the record. The enquiring authority may also allow the Government Servant to produce new evidence, if it is of the opinion that the production of such evidence is necessary in the interest of justice. These provisions clearly indicate that the enquiring officer was well within luls jurisdiction to call any , witness no‘t included in the lisf which according to him was an important witness for The purpose of this enquiry wifh certain restrictions which have been provided in the later part of this rule, like impediment of adjournment and supply of documents etc., In the present case, the enquiring officer had taken a decision to call Shri Vajpai on 10.11.1981 and he has fixed the case for 14.12.1981. In the facts and circumstances of the case, it cannot be said that the enquiring officer acted in violation of any rule and the enquiry vitiates on this count. (11) Now coming to the ground raised by learned counsel for the appellant, regarding non-supply of the important documents to him, first of all, his application in this regard is to be seen. Learned counsel submitted that an application dated 15.1.1982 was filed by him making demand of certain documents but the same were not supplied to him. A copy of this application has been filed as Annexure P—13. It has been mentioned in this application that the documents contained in serial no.1 to 11 were required by the petitioner before the proposed examination of Shri V.D. Vajpai, but it has not been mentioned therein as to how these documents are “relevant" and “material” documents for cross examining this witness. Regarding non-supply of the documents, while dealing with the matter of Chandmma Tewari -Vs— Union of India, AIR 1988 5.5. 117, the Apex Court held that “It is difficult to comprehend exhaustively the facts and circumstances which may lead to violation of principles of natural justice or denial of reasonable opportunity of defence. This question must be determined on the facts and circumstances of each case. While considering this t question it has to be borne in mind that a delinquent officer is IO en'ri‘rled fn have copies of maferial and relevan-f documenfs only which may include fhe copy of sfafemenf of witnesses recorded during ihe inves'rigafion or preliminary enquiry or- fhe copy of any ofher documerri which may have been relied in suppor'i' of fhe charges. If a documen'i' has no bearing on The charges or if if is no1' relied by 'rhe enquiry officer 'fo supporf The charges, or if such documenf or mal'erial was nof necessary for fhe cross examinafion of wifnesses during The enquiry, 1'he officer cannof insisf upon ‘rhe supply of copies of such documen‘l’s, as 'rhe absence of copy of such documenf will no-r prejudice fhe delinquen‘l officer." Non supply of fhe copies of documen'rs which are no? relevanf and which have no bearing on charges or which are no'r relied upon by 1'he enquiry officer +0 supporf 'l'he charges does nof amoum‘ +0 viola'rion of principles of nafural jus‘l’ice. (12) If, on 1hese principles, we examine +he case of 'rhe pefifioner regarding non-supply of ‘l'he demanded documenfs if would appear fhaf none of 'ihese documenfs were The parT of The charge sheeT nor They are menTioned as The documenTs To be relied upon by The deparTmenT To esTablish The charges leveled againsT The peTiTioner. The peTiTioner has also noT shown as To how These documenTs are maTerial and relevant Even if The counsel for The peTiTioner, could noT poinT ouT during The course of The argumenTs before This courT ThaT how ‘ The non-supply of These documenTs had prejudiced The case of The peTiTioner and The documenTs were,in facT, maTerial and relevanT documenTs, eiTher for The purpose of defending The case of The peTiTioner or for The purpose of cross examinaTion of The DisTricT and Sessions Judge who was examined as P.W.6 in This maTTer. On The basis of The auThoriTy referred To above, iT would be clear ThaT The applicaTion To supply The copies of documenTs is confined only To L "ma'ferial" and “reievan‘r” documents and fhe enquiry would be vi'ria‘fed only if The non supply of material and relevani documenfs, when demanded may have caud prejudiced To .I'he employee. If is imporfani fo mention This fac +ho'r fhough fhe pe'l'i'rioner has menfioned in his application dated 15.1.1982 that these documents are required by him as the case is fixed for examination of 5hri V.D. Vajpai on 22.1.1982 but neither during the examination nor during the cross examination of 5hri V.‘D. Vajp'ai on 04.5.1982 the petitioner had raised this objection and he had cross examined him t length. Therefore, it would appear- on record that no grievance was made by the petitioner on the score of nn-production/supply of any such do e i cuments and h participated in the proceedings n a normal manner and the enquiry cannot be said to be vitiated by non-supply of such documents. I am not inclined to accept this argument advanced by learned consel for the petitioner that the enquiry vitiateson his ground as it violates the principles of natural justice because the documents demanded were not supplied .to him. (13) Now coming to the last point raised by learned counsel for the petitioner about the dismissal of appeal by the appellate authority, the copy of complete file of M.P.High Court bearing No.III-18- 275/82 containing the note sheets and orders, which has been shown to me by the counsel for the respondents, would show that after receiving the appeal in the Registry of the then M.P. High Court, a comment was called from District and Sessions Judge, Bastar and after considering each and every point raised by the appellant, the complete appellate file of the appellant was prepared by the Dy. Registrar on 28.5.1985 and placed before the 0.5.D on 28.6.1985. The O.5.D.on 28.6.1985 passed necessary orders and the some was submitted before the Registrar on 25.10.1985 and the Registrar after se ‘ t a o u t Sunil Kumar Sinha Judge 1.126% lRao/