ANAND NARAIN Vs. STATE OF M P

JUDGEMENT

(1.) BY an order dated 1 May 1961, the State Government directed that the petitioner, who was employed as Superintendent, Colonisation Department, gwalior, and who was found guilty of misconduct and breach of Government servants' Conduct Rules, be reduced in rank and posted as an. Upper Division clerk in the same department. In supersession of this order, the 'state government passed another order dated 30th May 1961 whereby he was permanently reduced to the rank of an Upper Division Clerk with a maximum salary of Rs. 150/- and the period, of his suspension, was not treated as on duty except for purposes of pension. By this petition under Article. 226, of the Constitution, he has challenged these two orders. (2) On 12th March 1959, the petitioner was suspended with immediate effect and thereafter a departmental enquiry was ordered against him on the following charges: (i) He got an application dated 26th May 1952 made by his minor son for the allotment of the land of one Shivnath Singh and suppressed therein the fact that the applicant was a minor, (ii) That in spite of the fact that pattas were distributed on 24th July 1951, it was stated in the application that pattas had not been distributed, (iii) That forged applications from Shri Mulaimsingh and others to facilitate the grant of a patta to his minor son. (iv) In contravention of Rules 3 (1) and 10 of the Madhya Bharat government Servants' Conduct Rules, he did not intimate the fact that, upon the death of his son, he came into possession of the land, (v) In contravention of Rule 11 of the said Rules, he failed to give intimation about the said. land. the State Government appointed the Collector of Morena as 'enquiry officer' but he deputed Shri S. N. Shrivastava Deputy Collector, Morena, to hold the enquiry. Upon service of the charge-sheet on the petitioner, he submitted: his explanation dated 22nd January 1960 in which he contested all the charges on factual and other grounds. On this date, even before any witness was examined against the petitioner, he was asked to submit a list of-his defence witnesses. In response to this, he filed on the adjourned date an application to say that the case was very old, that he had submitted his reply to the charges and that the case be decided on merits "on the basis of records". Thereupon, without recording any oral evidence, the Deputy Collector submitted his report dated 26th March 1960 to the effect that all the charges were proved. The Collector of Morena then heard the petitioner and made further report dated 2nd April 1960 holding that the charges (i), (ii), (iv) and (v) were fully, proved. This report was accepted by the State government which then, issued a show-cause notice dated 12th August 1960. In his reply dated 5th September 1950, 'the petitioner attacked the proceeding 'inter alia' on the ground that no enquiry was made, that no evidence was recorded and that some of the conclusions were mere surmises based on no evidence, which he could not rebut in any manner. Without specifically considering the petitioner's grievances against the conduct of the enquiry, the State Government passed the two impugned orders. 3. Although numerous grounds have been raised in support of the petition, only three of these were pressed before us. It was urged that when the Collector was appointed the 'enquiry officer', he could not have delegated the holding of the enquiry to a Deputy Collector. We consider that, when the authority competent to punish a delinquent civil servant entrusts the enquiry to a subordinate officer, that officer should himself make the enquiry and not delegate this duty to any other. However, we are of the view that this is only an irregularity which does not vitiate the enquiry unless it appears that it has prejudiced the civil servant 4. The second point is more substantial and we arc of opinion that it vitiates the enquiry. As we have indicated earlier, no oral evidence was recorded and, in that sense, there was no enquiry, though the charges could be proved only by evidence other than the application dated 26th May 1962 and the application made by mulaimsingh and others. It was urged before us that the petitioner himself wanted the case to be decided on merits "on the basis of records" and he could not now be heard to say that he was thereby prejudiced. In our opinion, this is not correct. The enquiry officer committed the initial mistake of requiring the petitioner to furnish a list of his defence witnesses before any witness was examined against him or he was told that certain documents on record fully established the charge against him. The petitioner's application dated 15th February 1960, in the circumstances, was merely an intimation that he did not want to read any oral evidence in his defence. It was open to him to rely upon cross-examination of the witnesses proposed to be examined against him and to say that he did not wish to lead any oral evidence in his defence. The argument that the petitioner induced the enquiry officer not to record any oral evidence does not bear examination, in his report the Deputy Collector stated: