Dismissed

Vasant Chouhan v. Registrar High Court of Mp Jabalpur

Chhattisgarh HC1 Sept 2005WP/729/1985

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed a writ petition by a retired Naib Nazir challenging his dismissal from service. The court held that the enquiry findings were supported by evidence, the examination of the Sessions Judge did not violate rules, and the claim of non-supply of relevant documents failed.

What did the court decide?

Writ petition dismissed; dismissal order dated 24.9.1982 and appellate order dated 01.11.1985 upheld.

Vasant Chouhan Vs Registrar High Court… — Pension and Retirement Benefits | Chhattisgarh HC (2005)

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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

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ORDER

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Posf for j . y .2005 SdlSunil Kumar Sinha Judge 30. g .2005

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HIGH COURT OF CHHATHSGARH BILASPUR N

‘ .P. c.7290 1985

Vasanf Chauhqn

Vs.

The Registrar; High Courf of Madhyq Pmdesh (now^{Chhaffisgar'h)} and ofher's

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Shri Prafu” Bharaf, counsel for fhe pefifioner. Shri Manindr'a Shrivasfava, Sr. Advocate with Shri Afroz Khan, for fhe responden'fs.

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0RD§R ( 1^. 7.2005)

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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 ‘chaiienged against him, has ihe vaiidify of his dismissai order dared 24.9.1982 (Annexur'e P71)' and fhe 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 respecf 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

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1‘

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concerned property^of this case was liquor which was to be des'rr'oyed as per the order dated 09.3.1981. On inscfion,pe 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,e who sought time which was granted upto 04.04.1981 for production of the said property. On 06.4.1981 some proprtey was produced by the petitioner which was again V inspected by the concerned authority on 08.4.1981 and on such ipectionns it was found that the property (liquor) which was produced by the petitioner was not of the make of that Company, which was ealierr deposited in Ma/kanah It was found that 66 bottsle of Capital Blazer Malted Whisky which were never deposited were produced^andone bottle^ofwhiskyws a found in excess and two bottles of Beer were found in s hort. Tush 66 bottles of Blazer Malted Whisky which were never deposited were found lateron on 08.4.198 1 in the second inspection. On these facts, the petitiorne was served with a charge sheet dated 22.5.1981 containing the following carges.h

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(i)

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That he was Naib Nazir Malkhana from 10.6.1980 to 08.4.1981:

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'(ii)

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That as Senior Naib Nazir, it was his duty to properly^keepthecase property of the cases deposited in Malkhana;

(iii)

(iV)

(V)

That in Criminal Case No.239/1980 two homes of Beer & 65 quarter baffles of whisky^were found^{shartandhedefalcafedit;}

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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

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Thai the aforesaid act of the petitioner amounts to gross negligence and misconduct under the MP. Civil Services (Classification, Controi and Appeal) Rules 1966.

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(quoted^{fromoriginalversion)}

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(3) The petitioner filed his reply to the aforesaid charge sheet and thereafter a departmental^{enquirywasconductedby} the enquiring officer and an enquiry report dated 19.5.1982^was submitted holding the charges, leveled against the petitioner, to be The disciplinary authority concurred with the proved. ‘by findings recorded the enquiring officer and issued a^noticeof proposed punishment^tothe 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^{orderdated24.9.1982was} passed^{bythedisciplinary} 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.

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(4) At fhe arguments, learned counsel for 'l'he petitioner raised fhe foliowing grounds:

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(1) The finding recorded by fhe enquiring officer hoiding The pefii'ioner guilty^of the main charges were perverse §

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(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;

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(3) The documents demanded by the petitioner for defending his case were not supplied to him which violates the principles of natural justice and the entire enquiry vitiates on these counts.

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‘the

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(4) That the appeal of petitioner^{wassJperficially} dismissed by the appellate authority and the appellate authority did not apply his mind before passing^{oftheappellateorder.}

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(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^{asthe’documentsdemandedby} the petitioner were not relevant documents for the lawful disposal of the proceedings of

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fhe enquiry. No rules were violated by calling Shr'i V.D. Vajpai as a wifness in 'lhis enquiry as The rules do permit^forThesame. ”(he The appeal of 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.

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(6) I have heard the learned counsel for the parties at length and have also perused the records of the writ petition.

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(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. , Vsarja 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^{offactsandtheHighCourtmaynot} interfere with the factual findings but the availability of judicial^{revieweveninthe} case of departmental cannot be doubted He proceedings further submitted that an effected person can come to the court and show that the findings recorded in the disciplinary proceedings^{arebasedonnoevidenceorthefindingsaretotally} He also referred to the decision of 5her' Baho’tr^- perverse. VsUnion 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^withthe misconduct alleged against him.

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(8) There is no doubt in the mind of this Court regarding . these principles. It has been held by the Apex Court^inthecase of @maan Manda! Woes Nigam Lfd (supra) that the judicial

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rel

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W -7

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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 conscience of the court, the judicial review is always at the instance of an judicial permissible 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 “in enquiry officer has noted in his report in a broader sense view of oral, documentary and circumstantial evidence as adduced in the enquiry" would not in principle satisfy the rule of sufficiency of evidence.

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(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

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, 7.“

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defails and thereafefr he has been cross examined by the petitioner. The stafemeni of 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 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^{thetribunalortheHighCourttointerferewith} the disciplinary matters or punishment cannot be equated with the appellate jurisdiction. The t ribunal or the High Court cannot interfere with the findings of the enquiry officer or competent authotyri where they are not arbitrary or utterly perverse. -¥(Please^see Union of India Vs Parmananda - AIR 1989 $.61 1185) I am not incledin to accetp the first argument advanced by learned counsel for the petitioner and the same is rejected.

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(10) About t he second point, learned counsel for the petitioner submitted that Shri V.D.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 werebyh the rules in relation to enquiry have been violated. I am not inclined to admit this ‘ agt.rumen advanced by learned cunselo for the petitioner. It is true that Shri Vajpai was not cited as a witness in the charge

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shéef bu'r fhe order sheaf of the enquiry^{dated10.11.1981,} filed as Annexure R—2,would show That after^{closingofTheevidence} by The presenfing officer,^'the enquiring^Officers10 mom^Tooka reasoned decision that in The facts and circumstances^offhis case, Shri VD Vajpai, The fhen District and Sessions Judge^was an important witness who was required^tobeexamined in this case, and in this manner, he was directed^{toberequestedto} 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^{closeofthecaseon} behalf of the disciplinary authority,^{theenquiringauthoritymay,} 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^{thenewevidenceorrecallandre-} examine any witness and in such^{acasetheGovernmentServant} shall be entitled to have if he demands it, a copy of the list of further^evidence proposed^tobe produced^{andanadjournment} of the inquiry for three clear days before the production^of such new evidence, exclusive of the^{dayofadjournmentandthe} day to which the enquiry is adjourned. It has further been provided^thatthe enquiring officer shall give^{theGovernment} servant an opportunity of inspecting^{suchdocumentsbeforethey} are taken on the record. The enquiring authority may^alsoallow the Government Servant to produce^{newevidence,ifitisofthe} opinion that the production^{ofsuchevidenceisnecessaryinthe} interest of justice. These provisions clearly indicate^thatthe enquiring officer was well within luls jurisdiction to call any

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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 case, the enquiring officer had taken a present 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.

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(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 question it has to be borne in mind that a delinquent officer is

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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 'fo officer 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 'rhe documen‘l’s, as absence of copy of such documenf will no-r prejudice^{fhedelinquen‘lofficer."} 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 'l'he 1'he enquiry officer +0 supporf charges does nof amoum‘ +0 viola'rion of principles of nafural jus‘l’ice.

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(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'ihesedocumenfswere} 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 The peTiTioner. peTiTioner^{hasalsonoTshownasTohowThesedocumenTsaremaTerial} 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^ThecaseofThe peTiTioner and The documenTs were,in facT, maTerial and relevanT documenTs, eiTher for The of defending The case of The purpose peTiTioner^orforThe purpose^{ofcrossexaminaTionofTheDisTricTand} 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

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"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 caudse prejudiced To .I'he‘ employee. If is imporfani fo mention This fact +ho'r fhough fhe pe'l'i'rioner has menfionedⁱⁿ his^{applicationdated15.1.1982thatthesedocumentsare} required by him as the case is fixed for^{examinationof} 5hri V.D. Vajpai on 22.1.1982 but^{neitherduringtheexaminationnorduringthe} cross examination^of 5hri^{V.‘D.Vajp'aion04.5.1982the} petitioner^had raised this objection and he had cross examined him at length. Therefore, it would appear- on record^thatno grievance^wasmadeby the on the score of nn-production/supplyo of any such petitioner documents and he participated in the proceedings in a normal manner and the enquiry cannot^{besaidtobevitiatedbynon-supplyofsuch} documents. I am not inclined to accept^{thisargumentadvancedby} learned conselu for^the petitioner^{thattheenquiryvitiateson} this ground^as it violates the principles^of natural justice because the documents demanded were^{notsupplied.tohim.} (13) Now coming to the last point^{raisedbylearnedcounselforthe} petitioner^aboutthe dismissal of appeal^{bytheappellateauthority,} the copy of complete file of M.P.High Court bearing No.III-18275/82 containing the^{notesheetsandorders,whichhasbeenshown} to me by the counsel for the respondents, would^{showthatafter} receiving the appeal in the Registry^ofthethen M.P. High Court, a comment was called from District and Sessions Judge, Bastar and after considering^eachandevery 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^{necessaryorders} and the some was submitted before^{theRegistraron25.10.1985andtheRegistrarafter}

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Sunil ^{Kumar Sinha} Judge
1.126%

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lRao/

Vasant Chouhan v. Registrar High Court of Mp Jabalpur

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Vasant Chouhan v. Registrar High Court of Mp Jabalpur

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