SHEOKUMAR TIWARI Vs. JANAPADA SABHA

JUDGEMENT

(1.) THE petitioner in this case seeks a writ of certiorari for quashing an order passed by the Chief Executive Officer of the Janapada Sabha Lakhnadon, on 14 June 1864 reducing him from the post of head clerk to the post of upper grade cierk and censuring him.

(2.) THE impugned order was passed as a sequel to a departmental enquiry held against the petitioner on as many as fourteen charges. The enquiry was conducted by the Deputy chief Executive Officer. Of the fourteen charges, he found that four charges had not been proved ; the other charges he found to be prima fade established. Accordingly he made a report to the Chief Executive Officer. On a consideration of the report the Chief Executive Officer found all the charges to be prima facie established. He therefore, issued a notice to the petitioner to show cause against the punishments proposed by him in his provisional order finding the charges to be prima facie established. A copy of the provisional order of the Chief Executive Officer as also a copy of the report of the Deputy Chief Executive Officer was furnished to the petitioner. The petitioner gave his explanation. After considering the explanation of the petitioner, the Chief Executive Officer came to the concision that four of the charges constituted criminal offences and that the petitioner should be prosecuted for them under Sections 409 and 477a of the Indian Penal Code. Ha found the remaining charges to be established and imposed the punishment of reduction in rank for the petitioner's fellare to deposit the cash box in the treasury from 22 October to 7 November 1962 though it contained Rs. 2,955. 24, and for his irregularities in retaining with himself various amounts daring certain periods and not keeping them in the cash box. The punishment of censure was imposed for the remaining charges which the Chief Executive Officer found to be established. It must be added that at the hearing of this petition, learned Counsel for the petitioner and the Government Advocate informed us that the applicant was prosecuted on the charges which the chief Executive Officer thought constituted criminal officers but he was ultimately acquitted of these charges.

(3.) IN our judgment this application must be granted on the short ground that the Deputy chief Executive Officer did not examine any witnesses in support of the charges as according to him, the charges framed against the petitioner were based on certain documents. He merely recorded the evidence of six witnesses whom the petitioner examined on his behalf. The failure to record the evidence of witnesses in support of the charges deprived the petitioner of an opportunity of cross-examining these witnesses and thus of an adtqute opportunity of defending himself. Rule 3 of the rules framed under Section 182 (2) (xv) of the Madhya Pradesh Local Government Act, 1918, inter alia lays down that no order of reduction shall be passed on any servent of a sabha (other than an order based on fortes which have led to his conviction in a criminal Court) unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The rule farther says that if the employee desires or if the authority cunosrned so directs an oral enquiry shall be held and at that enquiry oral evidence shall be heard as to such of the allegations as are not admitted and the person charged shall be entitled to cross-oxamine the witnesses, to give evidencing person and to have such witnesses called as he may wish, and the proceedings shell contain a sufficient record of the evidence. It 1b thus plain from this rule that when the petitioner did net admit the charges levelled againat him, it was assential for the enquiry officer to record the evidence of witnesses in support of the charges. As is evident from the fact that, the petitioner examined six witnesses on his behalf, he undoubtedly desired that an oral enquiry should be hold. That the failure to examine witnesses in support of the charges is a fatal is firmity in the proceedings cannot now be doubted in view of the decisions of the Supreme Court in Jagdish Prasad Saxena v. State of Madhya Bharat 1963-I L. L. J. 325; State of Madhya Pradesh v. Chintaman A. I. R 1961 S. C. 1623 and State of Bombay v. Neural Latif Khan 1966-II L. L. J. 595 and of this course is H. P. Verma v. State of Madhya Pradesh Miscellaneons Petition No. 361 of 1964, dated 18 December 1964 and R. N. Waghmare v. State of Madhya Pradesh Miscelianeout petition No. 215 of 1963, dated 6 February 1864. All these decisions hold that wherever statutory provision or a rule lays down that if it is desired by the charge-sheeted officer or if the authority concerned so directs an oral enquiry shall be held the holding of an oral enquiry in mandatory; it is obligatory on the authority concerned to record evidence in support of the charges as well as the evidence which the charge sheeted officer may lead in support of his pies ; and the failure to hold such an oral enquiry in a serious infirmity in the enquiry depriving the charge sheeted officer of a reasonable and adequate opportunity of defending himself against the charges.