1982 Supreme(MP) 361

G. L. Oza, J.
Moolchand Nemdeo v. State of M.P.
M. P. No. 381 of 1981 (J); Decided on 9-7-1982.

Headnote:(1) Constitution of India -- Art. 311-- departmental enquiry -- when bad in law -- evidence recorded never supplied to Civil servant -- statement recorded believed his back -- such enquiry is bad in law.

        (2) Civil Services (Classification, Control and Appeal) Rules, 1966 (MP) -- R. 18 -- joint enquiry under -- no sanction of competent authority allowing joint enquiry shown -- joint enquiry is bad:

        The petitioner was found guilty of the charge only on the basis of his confessional statement and the report sent by him to the District Vigilance Officer in which it is alleged that he had confessed the guilt. The report of the Enquiry Officer also shows that although in his statement he had confessed his guilt. yet he had submitted an application explaining the circumstat1ces under which the confessional statement was recorded. He has, therefore used the terminology retracted confession. It is, therefore, clear that the only evidence on the basis of which he has been found guilty by the Enquiry Officer, was his own statement recorded and his report to the District Vigilance Officer.

        Held : It is not disputed that when charge-sheet was served on the petitioner, copies of documents on which the department wanted to rely, were given and were mentioned along with the charge-sheet. It is also not in dispute that in the list of documents on which reliance was placed and was given along with the charge-sheet, this confessional statement or his report to the District Vigilance Officer were not shown as the documents on which the department wanted to rely. It is also not in dispute that in the charge-sheet also it was no where indicated that the department proposed to prove the charge on the basis of the statement made by the petitioner and a report sent by him to the District Vigilance Officer.

        It is, therefore, clear that when the petitioner went to face the departmental enquiry, he was never given any notice of the evidence which ultimately was relied against him. It is also clear that he had no opportunity to cross-examine the Officer who recorded his statement and the District Vigilance Officer to whom the report was sent by the petitioner.

        It is contended by the learned Dy. Advocate General that this opportunity was lost by the petitioner as he did not remain present and witnesses were examined in his absence and order to proceed exparte was passed. But it is apparent that when the petitioner was never given any indication that witnesses may be examined to prove the confessional statement or the report which is said to be confessional, his absence is also not material.

        Apart from it, the departmental enquiry record itself shows that the petitioner had sent a telegram expressing his inability to attent on account of illness and although the Officer conducting the enquiry proceeded ex parte, yet he intimated the petitioner of the next date, but there is nothing to indicate that on the next date, the petitioner was told about the evidence which was recorded in his absence and was afforded an opportunity to cross-examine these witnesses. It is, therefore, plain that the only evidence which is being used against the petitioner, was not recorded in his presence and he was never given any notice of that evidence at any stage of enquiry. The petitioner has made a grievance that he had no opportunity to meet the evidence which is considered against him and this contention of the petitioner is fully established from the circumstances discussed above.

        As regards the enquiry being conducted by the Irrigation Department when the petitioner was in the service of the Education Department, there is no material on the basis of which it could be said that the sanction, as contemplated under rule 18 was obtained. In the return, reliance bas been placed on rule 18, but no document has been produced to indicate that a competent authority had passed the order for joint enquiry. The Order, Annexure A which is the order of dismissal passed against the petitioner, only shows that the authority passing that order, has passed it on the basis of the departmental enquiry conducted by the Irrigation Department, but this enquiry was conducted jointly as the persons involved were of Education and Irrigation Departments and this joint enquiry was sanctioned as contemplated under rule 18, is not borne out from any document produced before me. On this account also the petitioners grievance appears to be justified. Petition allowed.