Madhya Pradesh High Court
Arvind Sharma vs The State Of Madhya Pradesh on 24 October, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 24th OF OCTOBER, 2024
WRIT PETITION No. 32901 of 2024
ARVIND SHARMA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Nitin Agrawal - Advocate for the petitioner.
Shri M.S. Jadon - Government Advocate for the State.
Shri D.P. Singh - Advocate alongwith Surya Pratap Singh - Advocate
for the respondent No.4
ORDER
The present petition under Article 226 of the Constitution of India has
been filed by the petitioner seeking following reliefs:
i. That the order dated 03.10.2024 Annexure P/1 may
kindly be quashed and further reinstate the petitioner with all
consequential benefits.
ii. Any other suitable order or direction deemed fit in
the circumstances of the case be issued in favour of the
petitioner.”
[2] Short facts of the case are that the petitioner was appointed on the
post of Assistant Manager by the Society vide resolution dated 11.10.2006Signature Not Verified
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which was confirmed by respondent No.3 vide order dated 29.11.2006. In the
month of January, 2024, the respondent No.4 had appointed respondent
No.7/Dilip Meravi on the post of Manager in the respondent/Society.
Immediately, after his appointment, the respondent No.6 had issued six
articles of charges to the petitioner as evident from Annexure P/4, dated
22.04.2024. After issuance of the charge-sheet, the petitioner duly submitted
his reply to the aforesaid charges and denied the charges levelled against him
therein. Thereafter, vide letter dated 03.08.2024 the Inquiry
Officer/respondent No.8 had informed the petitioner to appear in the
departmental proceedings on 13.08.2024 at 12.00 PM.
[3] On 13.08.2024, the petitioner appeared and sought time to adduce
further evidence by way of filing an application. Thereupon, time was
granted to him and the date for his appearance was fixed on 30.08.2024. In
the meantime, a letter dated 14.08.2024 vide Annexure P/7 has been received
by the petitioner from the respondent/department of preponing of the date for
further appearance on 17.08.2024 at about 11.00 AM. But due to the
petitioner being ill and was not in a position to appear on 17.08.2024, had
sent an application seeking further time for his appearance in the
departmental proceedings through e-mail and Whatsapp alongwith his
medical certificate. Thereafter, without giving any intimation to the petitioner
for his further appearance, only on the basis of report of the Enquiry
Officer/respondent No.8, the impugned order dated 03.10.2024 has been
passed by the respondent No.7 whereby the petitioner was terminated from
service. Aggrieved by the aforesaid, the present petition has been filed.
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[4] Learned counsel for the petitioner has vehemently argued that the
impugned order dated 03.10.2024 has been passed by respondent No.7 is
arbitrary, illegal and in utter violation of the principals of natural justice, as
the same has been passed without providing the inquiry report as well as
without affording opportunity to respond to it and the departmental
proceedings were concluded behind his back and though a detailed reply to
the allegations levelled against him was submitted by the petitioner but the
contents therein were not adhered to.
[5] It was further argued that the petitioner was terminated from
service without affording any opportunity of hearing and also the inquiry
report on the basis of which the petitioner has been removed, was carried out
behind his back, therefore, the impugned order was bad in law.
[6] It was further argued that the appointment of the petitioner was
made 20 years ago which was duly confirmed by the Deputy Registrar vide
order dated 29.11.2006 but in the enquiry report, it was recoded that the
appointment of the petitioner was never confirmed which is incorrect on the
face of the record and the entire exercise of departmental enquiry and
passing of the impugned order was nothing but a formality with a
predetermined mind to terminate the petitioner on flimsy grounds.
[7] It was further submitted that though a detailed reply was submitted
by the petitioner but the contents therein were not adhered to and though the
allegations were refuted by the petitioner, only on the basis of report of
Inquiry Officer straightaway the order of termination was passed which
makes the order vulnerable.
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[8] On the basis of the aforesaid submissions, it was prayed that the
present petition deserves to be allowed and the order impugned Annexure
P/1 is liable to be set aside.
[9] Per contra, Government Advocate for the State as well as counsel
for the respondent No.4 had opposed the prayer so made by counsel for the
petitioner and had prayed for dismissal of the present petition alleging that
no illegality has been committed by the learned authority below in passing
the impugned order herein.
[10] Heard counsel for the parties and perused the record.
[11] It is well established principle of law that the scope of judicial
review in departmental enquiry is very limited. The High Court can interfere
with the departmental proceedings only if the proceedings were conducted
contrary to the well established principle of law or the enquiry report is based
on no evidence or where the competence of Authority has been challenged.
None of the ingredients are present in the present case.
[12] The Supreme Court in the case of State of Karnataka and another
Vs. N. Gangraj reported in (2020) 3 SCC 423 has held as under:
“8. We find that the interference in the order of
punishment by the Tribunal as affirmed by the High Court
suffers from patent error. The power of judicial review is
confined to the decisionmaking process. The power of
judicial review conferred on the constitutional court or on the
Tribunal is not that of an appellate authority.
9. In State of A.P. v. S. Sree Rama Rao, AIR 1963 SC
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1723, a three-Judge Bench of this Court has held that the
High Court is not a court of appeal over the decision of the
authorities holding a departmental enquiry against a public
servant. It is concerned to determine whether the enquiry is
held by an authority competent in that behalf, and according
to the procedure prescribed in thatbehalf, and whether the
rules of natural justice are not violated. The Court held as
under : (AIR pp. 1726-27, para 7)
“7. … The High Court is not constituted in a
proceeding under Article 226 of the Constitution a court
of appeal over the decision of the authorities holding a
departmental enquiry against a public servant : it is
concerned to determine whether the enquiry is held by
an authority competent in that behalf, and according to
the procedure prescribed in that behalf, and whether the
rules of natural justice are not violated. Where there is
some evidence, which the authority entrusted with the
duty to hold the enquiry has accepted and which
evidence may reasonably support the conclusion that the
delinquent officer is guilty of the charge, it is not the
function of the High Court in a petition for a writ under
Article 226 to review the evidence and to arrive at an
independent finding on the evidence.”
10. In B.C. Chaturvedi v. Union of India, (1995) 6
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SCC 749 : 1996 SCC (L&S) 80], again a threeJudge Bench
of this Court has held that power of judicial review is not an
appeal from a decision but a review of the manner in which
the decision is made. Power of judicial review is meant to
ensure that the individual receives fair treatment and not to
ensure that the conclusion which the authority reaches is
necessarily correct in the eyes of the court. The court/tribunal
in its power of judicial review does not act as an appellate
authority to reappreciate the evidence and to arrive at its own
independent findings on the evidence. It was held as under :
(SCC pp. 759- 60, paras 12-13)
“12. Judicial review is not an appeal from a
decision but a review of the manner in which the
decision is made.
Power of judicial review is meant to ensure that
the individual receives fair treatment and not to ensure
that the conclusion which the authority reaches is
necessarily correct in the eye of the court. When an
inquiry is conducted on charges of misconduct by a
public servant, the Court/Tribunal is concerned to
determine whether the inquiry was held by a competent
officer or whether rules of natural justice are complied
with. Whether the findings or conclusions are based on
some evidence, the authority entrusted with the power
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to hold inquiry has jurisdiction, power and authority to
reach a finding of fact or conclusion. But that finding
must be based on some evidence. Neither the technical
rules of the Evidence Act nor of proof of fact or
evidence as defined therein, apply to disciplinary
proceeding. When the authority accepts that evidence
and conclusion receives support therefrom, the
disciplinary authority is entitled to hold that the
delinquent officer is guilty of the charge. The
Court/Tribunal in its power of judicial review does not
act as appellate authority to reappreciate the evidence
and to arrive at its own independent findings on the
evidence. The Court/Tribunal may interfere where the
authority held the proceedings against the delinquent
officer in a manner inconsistent with the rules of natural
justice or in violation of statutory rules prescribing the
mode of inquiry or where the conclusion or finding
reached by the disciplinary authority is based on no
evidence. If the conclusion or finding be such as no
reasonable person would have everreached, the
Court/Tribunal may interfere with the conclusion or the
finding, and mould the relief so as to make it
appropriate to the facts of each case. 13. The
disciplinary authority is the sole judge of facts. Where
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appeal is presented, the appellate authority has co-
extensive power to reappreciate the evidence or the
nature of punishment. In a disciplinary inquiry, the strict
proof of legal evidence and findings on that evidence
are not relevant. Adequacy of evidence or reliability of
evidence cannot be permitted to be canvassed before the
Court/Tribunal. In Union of India v. H.C. Goel, (1964)
4 SCR 718 : AIR 1964 SC 364, this Court held at p. 728
that if the conclusion, upon consideration of the
evidence reached by the disciplinary authority, is
perverse or suffers from patent error on the face of the
record or based on no evidence at all, a writ of certiorari
could be issued.”
11. In High Court of Bombay v. Shashikant S. Patil,
(2000) 1 SCC 416 : 2000 SCC (L&S) 144, this Court held
that interference with the decision of departmental authorities
is permitted if such authority had held proceedings in
violation of the principles of natural justice or in violation of
statutory regulations prescribing the mode of such enquiry
while exercising jurisdiction under Article 226 of the
Constitution. It was held as under : (SCC p. 423, para 16)
“16. The Division Bench [Shashikant S. Patil v.
High Court of Bombay, 1998 SCC OnLine Bom 97 :
(2000) 1 LLN 160] of the High Court seems to have
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approached the case as though it was an appeal against
the order of the administrative/disciplinary authority of
the High Court. Interference with thedecision of
departmental authorities can be permitted, while
exercising jurisdiction under Article 226 of the
Constitution if such authority had held proceedings in
violation of the principles of natural justice or in
violation of statutory regulations prescribing the mode
of such enquiry or if the decision of the authority is
vitiated by considerations extraneous to the evidence
and merits of the case, or if the conclusion made by the
authority, on the very face of it, is wholly arbitrary or
capricious that no reasonable person could have arrived
at such a conclusion, or grounds very similar to the
above. But we cannot overlook that the departmental
authority (in this case the Disciplinary Committee of the
High Court) is the sole judge of the facts, if the enquiry
has been properly conducted. The settled legal position
is that if there is some legal evidence on which the
findings can be based, then adequacy or even reliability
of that evidence is not a matter for canvassing before the
High Court in a writ petition filed under Article 226 of
the Constitution.”
12. In State Bank of Bikaner & Jaipur v. Nemi Chand
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Nalwaya, (2011) 4 SCC 584:(2011) 1 SCC (L&S) 721, this
Court held that the courts will not act as an appellate court
and reassess the evidence led in the domestic enquiry, nor
interfere on the ground that another view is possible on the
material on record. If the enquiry has been fairly and
properly held and the findings are based on evidence, the
question of adequacy of the evidence or the reliable nature of
the evidence will not be ground for interfering with the
findings in departmental enquiries. The Court held as under:
(SCC pp. 587-88, paras 7 &”7. It is now well settled that the
courts will not act as an appellate court and reassess the
evidence led in the domestic enquiry, nor interfere on the
ground that another view is possible on the material on
record. If the enquiry has been fairly and properly held and
the findings are based on evidence, the question of adequacy
of the evidence or the reliable nature of the evidence will not
be grounds for interfering with the findings in departmental
enquiries. Therefore, courts will not interfere with findings of
fact recorded in departmental enquiries, except where such
findings are based on no evidence or where they are clearly
perverse. The test to find out perversity is to see whether a
tribunal acting reasonably could have arrived at such
conclusion or finding, on the material on record. The courts
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matters, if principles of natural justice or statutory
regulations have been violated or if the order is found to be
arbitrary, capricious, mala fide or based on extraneous
considerations. (Vide B.C. Chaturvedi v. Union of India,
(1995) 6 SCC 749 : 1996 SCC (L&S) 80, Union of India v.
G. Ganayutham, (1997) 7 SCC 463 : 1997 SCC (L&S) 1806
and Bank of India v. Degala Suryanarayana, (1999) 5 SCC
762 : 1999 SCC (L&S) 1036, High Court of Bombay v.
Shashikant S. Patil, (2000) 1 SCC 416 : 2000 SCC (L&S)
144].)
***
10. The fact that the criminal court subsequently
acquitted the respondent by giving him the benefit of doubt,
willnot in any way render a completed disciplinary
proceeding invalid nor affect the validity of the finding of
guilt or consequential punishment. The standard of proof
required in criminal proceedings being different from the
standard of proof required in departmental enquiries, the
same charges and evidence may lead to different results in
the two proceedings, that is, finding of guilt in departmental
proceedings and an acquittal by giving benefit of doubt in the
criminal proceedings. This is more so when the departmental
proceedings are more proximate to the incident, in point of
time, when compared to the criminal proceedings. The
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findings by the criminal court will have no effect on
previously concluded domestic enquiry. An employee who
allows the findings in the enquiry and the punishment by the
disciplinary authority to attain finality by non-challenge,
cannot after several years, challenge the decision on the
ground that subsequently, the criminal court has acquitted
him.”
13. In another judgment reported as Union of India v.
P. Gunasekaran, (2015) 2 SCC 610 : (2015) 1 SCC (L&S)
554, this Court held that while reappreciating evidence the
High Court cannot act as an appellate authority in the
disciplinary proceedings. The Court held the parameters as to
when the High Court shall not interfere in the disciplinary
proceedings : (SCC p. 617, para 13) “13. Under Articles
226/227 of the Constitution of India, the High Court shall
not: (i) reappreciate the evidence; (ii) interfere with the
conclusions in the enquiry, in case the same has
beenconducted in accordance with law; (iii) go into the
adequacy of the evidence; (iv) go into the reliability of the
evidence; (v) interfere, if there be some legal evidence on
which findings can be based. (vi) correct the error of fact
however grave it may appear to be; (vii) go into the
proportionality of punishment unless it shocks its
conscience.”
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14. On the other hand the learned counsel for the
respondent relies upon the judgment reported as Allahabad
Bank v. Krishna Narayan Tewari, (2017) 2 SCC 308 : (2017)
1 SCC (L&S) 335, wherein this Court held that if the
disciplinary authority records a finding that is not supported
by any evidence whatsoever or a finding which is
unreasonably arrived at, the writ court could interfere with
the finding of the disciplinary proceedings. We do not find
that even on touchstone of that test, the Tribunal or the High
Court could interfere with the findings recorded by the
disciplinary authority. It is not the case of no evidence or that
the findings are perverse. The finding that the respondent is
guilty of misconduct has been interfered with only on the
ground that there are discrepancies in the evidence of the
Department. The discrepancies in the evidence will not make
it a case of no evidence. The inquiry officer has appreciated
the evidence and returned a finding that the respondent is
guilty of misconduct.
15. The disciplinary authority agreed with the findings
of the enquiry officer and had passed an order of punishment.
An appeal before the State Government was also dismissed.
Once the evidence has been accepted by the departmental
authority, in exercise of power of judicial review,the
Tribunal or the High Court could not interfere with the
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findings of facts recorded by reappreciating evidence as if the
courts are the appellate authority. We may notice that the said
judgment has not noticed the larger Bench judgments in State
of A.P. v. S. Sree Rama Rao, AIR 1963 SC 1723 and B.C.
Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1996 SCC
(L&S) 80 as mentioned above. Therefore, the orders passed
by the Tribunal and the High Court suffer from patent
illegality and thus cannot be sustained in law.”
[13] Further in the matter of State Bank of India and others Vs.
Ramesh Dinkar Punde reported in (2006) 7 SCC 212 , The Supreme Court
has held a under:
“6. Before we proceed further, we may observe at this
stage that it is unfortunate that the High Court has acted as an
Appellate Authority despite the consistent view taken by this
Court that the High Court and the Tribunal while exercising
the judicial review do not act as an Appellate Authority:
“Its jurisdiction is circumscribed and confined to
correct errors of law or procedural error, if any,
resulting in manifest miscarriage of justice or violation
of principles of natural justice. Judicial review is not
akin to adjudication on merit by reappreciating the
evidence as an Appellate Authority.” (See Govt. of A.P.
v. Mohd. Nasrullah Khan [(2006) 2 SCC 373 : 2006
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9. It is impermissible for the High Court to
reappreciate the evidence which had been considered by the
inquiry officer, a disciplinary authority and the Appellate
Authority. The finding of the High Court, on facts, runs to
theteeth of the evidence on record.
12. From the facts collected and the report submitted
by the inquiry officer, which has been accepted by the
disciplinary authority and the Appellate Authority, active
connivance of the respondent is eloquent enough to connect
the respondent with the issue of TDRs and overdrafts in
favour of Bidaye.
15. In Union of India v. Sardar Bahadur [(1972) 4 SCC
618 : (1972) 2 SCR 218] it is held as under: (SCC p. 623,
para 15)
A disciplinary proceeding is not a criminal
trial. The standard proof required is that of
preponderance of probability and not proof beyond
reasonable doubt. If the inference that lender was a
person likely to have official dealings with the
respondent was one which a reasonable person
would draw from the proved facts of the case, the
High Court cannot sit as a court of appeal over a
decision based on it. The Letters Patent Bench had
the same power of dealing with all questions,
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either of fact or of law arising in the appeal, as the
Single Judge of the High Court. If the enquiry has
been properly held the question of adequacy or
reliability of the evidence cannot be canvassed
before the High Court. A finding cannot be
characterised as perverse or unsupported by any
relevant materials, if it was a reasonable inference
from proved facts. (SCR p. 219)
16. In Union of India v. Parma Nanda [(1989) 2 SCC
177 : 1989 SCC (L&S) 303 : (1989) 10 ATC 30] it is held at
SCC p. 189, para 27 as under:
“27. We must unequivocally state that the
jurisdiction of the Tribunal to interfere with the
disciplinary matters orpunishment cannot be
equated with an appellate jurisdiction. The
Tribunal cannot interfere with the findings of the
inquiry officer or competent authority where they
are not arbitrary or utterly perverse. It is
appropriate to remember that the power to impose
penalty on a delinquent officer is conferred on the
competent authority either by an Act of legislature
or rules made under the proviso to Article 309 of
the Constitution. If there has been an enquiry
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principles of natural justice what punishment
would meet the ends of justice is a matter
exclusively within the jurisdiction of the
competent authority. If the penalty can lawfully be
imposed and is imposed on the proved misconduct,
the Tribunal has no power to substitute its own
discretion for that of the authority. The adequacy
of penalty unless it is mala fide is certainly not a
matter for the Tribunal to concern itself with. The
Tribunal also cannot interfere with the penalty if
the conclusion of the inquiry officer or the
competent authority is based on evidence even if
some of it is found to be irrelevant or extraneous
to the matter.”
17. In Union Bank of India v. Vishwa Mohan [(1998)
4 SCC 310 : 1998 SCC (L&S) 1129] this Court held at SCC
p. 315, para 12 as under:
“12. After hearing the rival contentions, we are of
the firm view that all the four charge-sheets which were
enquired into relate to serious misconduct. The
respondent was unable to demonstrate before us how
prejudice was caused to him due to non-supply of the
enquiryauthority’s report/findings in the present case. It
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absolute devotion, diligence, integrity and honesty
needs to be preserved by every bank employee and in
particular the bank officer. If this is not observed, the
confidence of the public/depositors would be impaired.
It is for this reason, we are of the opinion that the High
Court had committed an error while setting aside the
order of dismissal of the respondent on the ground of
prejudice on account of non-furnishing of the enquiry
report/findings to him.”
18. In Chairman and MD, United Commercial Bank v.
P.C. Kakkar [(2003) 4 SCC 364 : 2003 SCC (L&S) 468] this
Court held at SCC pp. 376- 77, para 14 as under:
“14. A bank officer is required to exercise higher
standards of honesty and integrity. He deals with the
money of the depositors and the customers. Every
officer/employee of the bank is required to take all
possible steps to protect the interests of the bank and to
discharge his duties with utmost integrity, honesty,
devotion and diligence and to do nothing which is
unbecoming of a bank officer. Good conduct and
discipline are inseparable from the functioning of every
officer/employee of the bank. As was observed by this
Court in Disciplinary Authority-cum-Regional Manager
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(L&S) 1194] it is no defence available to say that there
was no loss or profit resulted in case, when the
officer/employee acted without authority. The very
discipline of an organisation more particularly abank is
dependent upon each of its officers and officers acting
and operating within their allotted sphere. Acting
beyond one’s authority is by itself a breach of discipline
and is a misconduct. The charges against the employee
were not casual in nature and were serious. These
aspects do not appear to have been kept in view by the
High Court.”
19. In Regional Manager, U.P. SRTC v. Hoti Lal
[(2003) 3 SCC 605 : 2003 SCC (L&S) 363] it was pointed
out as under: (SCC p. 614, para 10) “If the charged employee
holds a position of trust where honesty and integrity are
inbuilt requirements of functioning, it would not be proper to
deal with the matter leniently. Misconduct in such cases has
to be dealt with iron hands. Where the person deals with
public money or is engaged in financial transactions or acts
in a fiduciary capacity, the highest degree of integrity and
trustworthiness is a must and unexceptionable.”
20. In Cholan Roadways Ltd. v. G.
Thirugnanasambandam [(2005) 3 SCC 241 : 2005 SCC
(L&S) 395] this Court at SCC p. 247, para 15 held:
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“15. It is now a well-settled principle of law that
the principles of the Evidence Act have no application
in a domestic enquiry.””
[14] In the present case, admittedly, the charge sheet has been issued
by a person who was a complainant and on whose complaint, departmental
inquiry has been initiated. Though, after issuance of the charge-sheet dated
22.04.2023, the Inquiry Officer and the Presenting Officer were appointed
by the CEO, District Cooperative Central Bank Maryadit but as and when
the report of the Inquiry Officer was submitted, the complainant who was the
Disciplinary Authority himself had passed the impugned order dated
03.10.2024 whereby punishment of removal from service has been imposed.
[15] Another glaring fact which is evident from the impugned order is
that nowhere it has been mentioned that any notice was issued to the
petitioner and the inquiry report was furnished alongwith the
notice, which goes to show that the proper procedure for
conducting departmental inquiry was not followed and the entire
departmental inquiry was conducted in a very arbitrary manner and against
the proposition of law that the complaint cannot issue a charge-sheet in a
departmental inquiry nor can act as a judge on of own cause and while acting
as a disciplinary authority can pass an order.
[16] Thus, in light of the aforesaid discussion and the judgments
quoted hereinabove, this Court prima facie finds that the entire departmental
inquiry is vitiated, therefore, without calling any response from the
respondents deems it fit to quash the departmental inquiry and remit theSignature Not Verified
Signed by: PAWAN KUMAR
Signing time: 07-11-2024
06:29:27 PM
NEUTRAL CITATION NO. 2024:MPHC-GWL:18720
21 WP-32901-2024
matter back to respondent No.4 for initiating fresh inquiry after giving proper
opportunity of hearing to the petitioner in accordance with law.
[17] With the aforesaid observations, the present petition is allowed
and disposed of.
(MILIND RAMESH PHADKE)
JUDGE
pwn*
Signature Not Verified
Signed by: PAWAN KUMAR
Signing time: 07-11-2024
06:29:27 PM