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2015 Supreme(MP) 1155
IN THE HIGH COURT OF MADHYA PRADESH, (GWALIOR BENCH)
SUJOY PAUL, J.
Parmanand Sharma - Petitioners
Versus
State of M.P. and Ors. - Respondents
W.P. No. 570 of 2008
Decided On : 03-08-2015
For the Petitioner:S.K. Sharma, Advocate
For the Respondents:Vishal Mishra, Dy. Advocate General
The main legal point established in the judgment is the permissibility of de novo enquiry in employee disciplinary proceedings in cases of serious procedural flaws, as established by relevant precedents.
Headnote:
De Novo Enquiry - Employee Disciplinary Proceedings - Zila Sahkari Kendriya Bank Karmchari Seva Niyam, Rule 58 - K.R. Deb Vs. The Collector of Central Excise, Shillong (1971) 2 SCC 102 - Board of Management of S.V.T. Educational Institution and Anr. Vs. A. Raghupathy Bhat and Ors. (1997) 10 SCC 178 - Nand Kumar Verma Vs. State of Jharkhand and Ors. (2012) 3 SCC 580 - The court discussed the permissibility of conducting de novo enquiry in employee disciplinary proceedings, emphasizing the need for re-enquiry in cases of serious procedural flaws and the stage at which re-enquiry can be ordered.
Fact of the Case:
The petitioner, an employee, challenged the order directing reinstitution of an enquiry due to alleged procedural irregularities. The petitioner contended that the disciplinary authority had no power to institute a de novo enquiry.
Finding of the Court:
The court found that the disciplinary authority was justified in directing re-enquiry as the second enquiry was vitiated by the failure to record prosecution evidence, thereby following the principle of natural justice. The court dismissed the petition, stating that de novo enquiry is permissible in cases of serious procedural flaws.
Issues: The pivotal issue was whether de novo enquiry was permissible in the case, considering the alleged procedural irregularities and the petitioner's objection to the reinstitution of the enquiry.
Ratio Decidendi: The court relied on precedents such as K.R. Deb Vs. The Collector of Central Excise, Shillong (1971) 2 SCC 102, Board of Management of S.V.T. Educational Institution and Anr. Vs. A. Raghupathy Bhat and Ors. (1997) 10 SCC 178, and Nand Kumar Verma Vs. State of Jharkhand and Ors. (2012) 3 SCC 580 to establish the permissibility of de novo enquiry in cases of serious procedural flaws.
Final Decision: The court dismissed the petition, finding that the disciplinary authority was justified in directing re-enquiry due to the serious procedural flaws in the second enquiry, and that de novo enquiry is permissible in such circumstances.
SUJOY PAUL, J.
1. This petition filed under Article 226 of the Constitution challenges the order (Annexure P/12) whereby the disciplinary authority directed for reinstitution of enquiry. The brief facts necessary for adjudication of present controversy are that the petitioner is an employee of respondent No. 2. He was served with a charge sheet (Annexure P/8) dated 28.12.2004. Petitioner submitted his reply. Thereafter an enquiry officer was appointed by the disciplinary authority. The said enquiry officer submitted his report dated 01.06.2005 (Annexure P/9). Petitioner was aggrieved by this report because he was not afforded with adequate opportunity of defence in the enquiry. Hence, he filed representation dated 11.07.2006 (Annexure P/10). It is prayed therein that re-enquiry be conducted so that he can put-forth his defence. The disciplinary authority, in turn, by order dated 21.07.2006 (Annexure P/11) appointed Shri Gajendra Sharma as enquiry officer and reinstituted the enquiry afresh. The said enquiry officer submitted his report on 24.07.2006. Shri S.K. Sharma submits that petitioner was exonerated in the said report. The disciplinary authority has committed an error in passing the order Annexure P/12 whereby enquiry report was disallowed and de novo enquiry is instituted. Critisizing this order, it is contended by Shri S.K. Sharma that the disciplinary authority has not assigned any reason as to why the said report was erroneous and unacceptable. The said authority has no power to institute de novo enquiry. Reliance is placed on (1997) 10 SCC 178 (Board of Management of S.V.T. Educational Institution and Anr. Vs. A. Raghupathy Bhat and Ors.) and (2012) 3 SCC 580 (Nand Kumar Verma Vs. State of Jharkhand and Ors. (2012) 3 SCC 580).
2. Per Contra, Shri Purushottam Sharma, Advocate for the respondent No. 2, supported the order. He submits that as per relevant service regulations, petitioner has alternative remedy of appeal. Against Annexure P/12, he can file an appeal. Hence, this petition be not entertained. In addition, it is submitted that disciplinary authority, on the request of petitioner, directed the re-enquiry. Thereafter Shri Gajendra Sharma conducted the enquiry wherein prosecution was not given any opportunity. As per service rules, it was first right of the prosecution to lead evidence and establish the charges, then comes the role of defence. The Enquiry officer Shri Gajendra Sharma adopted a methodology which is totally unknown to the established procedure of conducting domestic enquiry. Considering the aforesaid, disciplinary authority disallowed his report and institute a fresh enquiry. This is in consonance with the principle of natural justice. No prejudice is caused to the petitioner. Lastly, it is contended that disciplinary authority is well within his power to pass such orders. Interestingly, Shri Purushottam Sharma also relied on the judgment of A. Raghupathy Bhat (supra).
3. No other point is pressed by the learned counsel for the parties.
4. I have heard learned counsel for the parties and perused the record.
5. The petitioner was admittedly served with a charge sheet. It contains serious allegations of financial irregularities, embezzlement or misappropriation. Initially the enquiry officer submitted his report on 01.06.2005 (Annexure P/8). Petitioner preferred representation dated 11.07.2006 contending that the said enquiry was an ex parte enquiry. He was not afforded with opportunity to put-forth his defence. The disciplinary authority by order dated 21.07.2006 (Annexure P/11) appointed Gajendra Singh Sharma as enquiry officer. This officer submitted his report on 24.07.2006. The disciplinary authority set aside his report and directed for conducting de novo enquiry. The bone of contention of Shri S.K. Sharma is that de novo enquiry is totally impermissible.
6. This is settled in law that in departmental enquiry, the initial burden to lead evidence and prove the charges lies on the shoulder of
