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High Court Of Madhya Pradesh
P. V. Dixit, C. J. and R. J. Bhave, J.
GHANSHYAMDAS SRIVASTAVA - Appellant
Versus
STATE OF M.P. - Respondents
Misc. Petn. 487 Of 1966
Decided On : 11/15/1967
When the petitioner failed to appear before the Enquiry Officer although the enquiry was adjourned several times in order to enable him to appear and ultimately wrote back to the Enquiry Officer that he would not participate in the enquiry, be cannot complain that no 0ppJrtunity of bearing in respect of the charges was given to him at the enquiry. A Government servant who failed to avail himself of the opportunity afforded to him to show cause cannot complain that no opportunity was given to him. AIR 1962 SC 1344 & (1955) 1 SCR 1011 relied on. [Para 4]
(2) Constitution of India - Art. 311 (2) - amendment in - position not changed -opportunity at the penalty stage - Government servant not entitled to adduce fresh evidence.
The amendment made in article 311 (2) only clarifies the position that existed before the said article was amended. The new article 311(2) makes it plain that there will be an enquiry stage at which a reasonable opportunity must be given to the delinquent officer of being heard in respect of the charges. It also says that if it is proposed after enquiry to impose on the delinquent officer any penalty, then he shall be given a reasonable opportunity of making representation on the penalty proposed.
The words "but only on the basis of the evidence adduced during such enquiry" occurring at the end of the amended clause (2) of article 311 leave no doubt that the Government servant is not entitled to adduce fresh or additional evidence at the second stage. The second stage is confined to making a representation against the proposed punishment on the basis of the evidence adduced during the enquiry at the first stage. (1955) 2 SCR 1331 & 1958 SCR 1080 referred to. [Para 7]
(3) Constitution of India - Art.311 (2) - representation on the penalty proposed - scope of - not confined to the quantum or nature of punishment – it can also be urged that on evidence charges are not proved.
The making of a representation on the penalty proposed at the second stage does not mean that at that stage the Government servant can canvass only the question of the quantum or nature of the punishment. At that stage the Government servant can also urge that the charges levelled against him have not been proved or established and that no penalty of any kind should be imposed on him or that on the findings reached at the enquiry the proposed penalty should not be imposed on him. [Para 7]
(4) Constitution of India - Art. 311 (2) - actual conduct of enquiry – may be entrusted to any other official by the disciplinary authority.
The actual conduct of the enquiry can be entrusted by the disciplinary authority to any other official. (1955) 2 SCR 1331 relied on. [Para 7]
( 1 ) THE petitioner Ghanshyam-das Shrivastava, who was employed as a ranger in the Forest Department, seeks it writ of certiorari for quashing an order passed by the Government on 8th June 1966 dismissing him from service.
( 2 ) THE applicant's dismissal was as a a sequel to a departmental enquiry on charges of misappropriating Government money to the extent of Rs. 1200, proceeding on leave without obtaining prior sanction, failing to submit weekly diaries during certain periods, disobedience of the orders of the Divisional Forest officer, Bastar Plantation Division, with regard to the construction of temporary lagour shed, late submission of cash accounts and antedating certain payments. The initiation of the enquiry, the applicant's suspension and the appointment of an enquiry Officer were all done by the Government. The charges in respect of which the enquiry was held were also authorized by the Goverment. The enquiry was held by Shri Ansari, Divisional Forest Officer. South Bastar Division. When the applicant was informed of the charges and of the appointment of Shri Ansari as the Enquiry Officer. he raised an obiection to the appointment of Shri Ansari as the enquiry Officer on the ground that Shri Sur. Conservator of Forests, and Shri Kalia, divisional Forest Officer, Plantation Division who were very friendly with each other, were not well disposed towards him and that Shri Ansari was a subordinate of Shri Sur. This objection was reiected by the Government. The petitioner then again moved the Government for appointment of another Enquiry Officer, this time saying that he wanted to examine Shri Ansari as a witness. The Government turned down this request as, according to it, it was wholly unnecessary to examine shri Ansari. The Enquiry Officer first asked the applicant to attend the enquiry on 12th January 1665. When he failed to attend, he was directed to appear before the enquiry Officer on 15th January 1965. This time also the applicant did not attend the enquiry and wrote back to the Enquiry Officer that as his request for the appointment of another Enquiry Officer was not granted and as Shri Ansari was not included "in the list of defence witnesses", he would not attend the enquiry. The Enquiry Officer again fixed a date for the commencement of the enquiry and asked the applicant to appear on 9th February 1965 and file his reply on or before that date. The petitioner again reiterated his obiection to the appointment of Shri ansari as the Enquiry Officer and ultimately wrote back to him tha he was withdrawine from the enquiry
( 3 ) THE enquiry was, therefore, held ex parte against the applicant. The Enquiry officer examined Shri Kalia, Shri Masa, Shri Ram Lal, Shri Shyam Singh, Shri Bhim and some other persons in support of the charges and gave a report to the government that all the seven charges leveled against the petitioner had been prima facie established On the basis of the Enquiry Officer's report, a notice was issued to the petitioner to show cause why he should not be dismissed from service. The applicant gave his reply which the Government did not find satisfactory. The Government also consulted the Public Service Commission. After considering the petitioner's reply and the advice of the Public Service Commission, the State Government found that all the charges except one. namely charge No. 7, had been fully established. In regard to charge No. 7 the Government came to the conclusion that it was partly Droved to the extent that certain payments made to five persons were antedated The Government, therefore, passed the impugned order dismissing the petitioner from service.
( 4 ) HAVING heard learned counsel for the parties we have reached the conclusion that this application must be dismissed. When the petitioner failed to appear before the Enquiry Officer although the enquiry was adjourned several times in order to enable him to appear and ultimately wrote back to the Enquiry Officer that he wou
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