PRABHUDAYAL Vs. STATE OF M P

JUDGEMENT

(1.) THE petitioner, a dismissed Surveyor of the Department of agriculture of respondent State feels aggrieved by the order dated 22-9-1979 (Annexure P-10) passed by respondent No. 2 dismissing him from service following departmental Enquiry and seeks a writ of certiorari for quashing the same in this petition filed under Articles 226 and 227 of the Constitution of India.

(2.) THE facts of the case relevant for purposes of this petition are that the petitioner while working as a Assistant Soil Conservation Officer, Seoni was alleged to have committed an offence under Section 376 of the Indian Penal Code while on duty and was prosecuted for the same before the Addl. Sessions Judge, Seoni. The learned sessions Judge by his judgment dated 16-12-1969 found the petitioner guilty of the said offence and therefore, sentenced him to two years' R. I. and a fine of Rs. 100/ -. As a result of this conviction the petitioner was dismissed by an order dated 19-5-1970. It appears that the petitioner preferred an appeal against his conviction and sentence before the High Court where it was the subject matter of Criminal Appeal No. 50 of 1970. By its judgment dated 2-2-1971 (Annexure R-1) the High Court was of the view that the Sessions Judge has rightly come to the conclusion that the prosecutrix was subjected to sexual intercourse. It however was of the opinion that it was not proved beyond doubt that the sexual intercourse was committed without her consent. In this view of the matter the High Court held that the case against the petitioner was not proved beyond a reasonable doubt. The petitioner was accordingly acquitted. As a result of the acquittal by this court, the petitioner was reinstated in service on 22-3-1973. The Disciplinary Authority, however felt that there was sufficient ground for taking departmental action against the petitioner and therefore, a charge-sheet dated 17-1-1974 was issued by the Deputy Director of Agriculture alleging a conduct unbecoming of a government servant and indicipline (Annexure P. 3 ). The petitioner submitted his reply on 23-2-1974 to this charge-sheet and challenged the authority of the Deputy Director to act as Disciplinary Authority. It appears that his objection was found to be justified and hence by order dated 17-4-1974 (Annexure P-4) the said charge-sheet was cancelled. Thereafter, respondent Joint Director served the petitioner another charge-sheet on 1-7-1974, charging him with indiscipline and the conduct unbecoming of a Government servant by committing sexual intercourse with phulwantibai, a labourer during the course of employment. The petitioner denied these charges and demanded a Departmental Enquiry. The Joint Director thereafter appointed the Assistant Land Survey Officer as the Enquiry Officer for holding the enquiry into the charges. The Enquiry Officer by his report dated 22-4-1975 (Annexure p-3a) found the petitioner guilty of the charge. The respondent Joint Director acting on the aforesaid report served a show cause notice to enable the petitioner to submit his explanation to the proposed punishment of dismissal and after considering of the same dismissed the petitioner by order dated 19-9-1975. The petitioner preferred an appeal against the aforesaid dismissal before the respondent Director challenging the authority and jurisdiction of the Joint Director to pass the order of dismissal. The respondent Director by his order dated 6-8-1976 (Annexure P-6) came to the conclusion that the Joint Director could not have dismissed the petitioner and therefore, allowed the appeal. The respondent Director, however, found that only show cause notice and subsequent proceedings were vitiated on this account. He, therefore, ordered that a fresh show cause notice be issued to the petitioner in accordance with law. Thereafter, on 7-8-1976 a show cause notice was issued to which the petitioner submitted his reply. On consideration of the reply the impugned order dated 22-9-1979 has been passed dismissing the petitioner from service, (Annexure P-10 ). It is this order which is impugned in the present petition.

(3.) THE submission of the learned counsel for the petitioner is that since his disciplinary Authority was the respondent Director charge-sheet issued by the Joint director and the Enquiry Officer appointed by the Joint Director could not form the legal base for the impugned order of dismissal. It is further submitted that the entire finding of guilt is based on the High Court judgment which could not be accepted as evidence even in the Departmental Enqiury and hence the impugned order was bad in law. It is lastly submitted that even if facts alleged were accepted as true the same do not amount to any misconduct sufficient to warrant a disciplinary action.