IN THE HIGH COURT OF CHATTISGARH AT BILASPUR
WP No 1328 of 2003
Narendra Kumar Mishra
State of Chhattisgarh and others
! Shri Rajendra Tiwari Senior Advocate with Shri Sunil Otwani Advocate and Shri Amitabh Gupta Advocates for the petitio
^ Shri N K Agrawal Deputy Advocate General with Shri A S Kachhawaha Government Advocate for the respondents No 1 and 2
Honble Mr Justice Satish K Agnihotri
O R D E R
(Passed on 12TH Day of December, 2006)
This order of the Court is passed by Justice Satish K.Agnihotri.
1. The present writ petition filed under Article 226/227
of the Constitution of India impugns the order dated
19.8.1999 (Annexure P/2) passed by the Inspector General of
Police, Bilaspur Range, terminating services of the
petitioner with payment of subsistence allowance for
suspension period and order dated 2.5.2002 (Annexure P/3)
passed by the Director General of Police, Raipur/respondent
2. The undisputed facts in nutshell are that a charge- sheet containing three charges, firstly, the petitioner made wrong entry in the Rojnamacha Sanha on 7.2.1999 indicating that the petitioner proceeded to Bihar for arrest of the accused Saudha Bhaina when in fact the petitioner along with other employees left for Bihar on 11.2.1999. The wrong entry in the Rojnamacha is violative of the Regulation No. 634 of the Chhattisgarh/Madhya Pradesh Police Regulations. Secondly, the petitioner committed misconduct under Rule 17 of the Madhya Pradesh Civil Services (Leave) Rules, 1977 (hereinafter referred to as "the Rules, 1977") and Rule 3 (3) of the Madhya Pradesh Civil Services (Conduct) Rules, 1965 (hereinafter referred to as "the Rules, 1965") by remaining absent without reporting back to the office and sending the Revolver with other officer. Thirdly, committed misconduct under Rule 3 (2) and (3) of the Madhya Pradesh Civil Services (Conduct) Rules, 1965 by sending a sick report from residence at Raigarh.
3. Mr. T. Ekka, Sub Divisional Officer (Police), Sakti, District Janjgir-Champa was appointed as Enquiry Officer. The enquiry officer concluded the enquiry on 16.7.1999 and sent the enquiry report on 23.7.1999 to the Superintendent of Police, Janjgir-Champa, who in turn submitted the same to the Inspector General of Police, Bilaspur Range. On the basis of report submitted by the enquiry officer, the Inspector General of Police, Bilaspur Range by order dated 19.8.1999 (Annexure P/2) terminated the petitioner from his services with further penalty of payment of subsistence allowances only during the suspension period.
4. Being aggrieved, the petitioner filed an appeal before the Director General of Police. The Director General of Police, Raipur dismissed the appeal filed by the petitioner, vide order dated 2.5.2002 (Annexure P/3), stating that there was no merit in the appeal and no error in the order passed by the Inspector General of Police.
5. The petitioner being further aggrieved filed another appeal on 12.6.2002 before the Home Secretary, Government of Chhattisgarh, Raipur, which is still pending consideration.
6. The case of the petitioner is that the petitioner was
appointed as Sub-Inspector on 1.6.1983 by the Inspector
General of Police of erstwhile State of Madhya Pradesh and
later on services of the petitioner was confirmed as Sub-
Inspector on 16.6.1983.
7. Incident of waylaying and plundering was reported on 2.2.1999, the petitioner, as Station House Officer of the Police Station, Baradwar, received the information that one Fekulal, Teacher of the Middle School, while carrying salary of pay centre Kaitha was waylaid and plundered by some miscreants near Chhitapararia. After receiving this information, the petitioner recorded Dehati Nalishi 00/99 and proceeded to the spot for investigation.
8. The petitioner registered Crime No. 21/99 under Section 394 and 397 of the Indian Penal Code. In the meanwhile, the Superintendent of Police, Shri Raj Kumar Dewangan also reached the spot and constituted several teams to carry-out further investigation. The petitioner was also head of one such team.
9. The petitioner along with his team raided house of Lakhan Bhaina at Kekrabhat, but could not find Lakhan Bhaina. On enquiry from his mother, it was found that Lakhan Bhaina belongs to Police Station Katras, District Dhanbad in Bihar. On 3.2.1999, the petitioner along with his team members proceeded to Bihar in search of Lakhan Bhaina and his associates.
10. On the intervening night of 5/6.2.1999, the petitioner raided the house of Lakhan Bhaina and caught him and on his instruction raided the house of Saudha Bhaina, who however managed to escape from the spot, but a sum of Rs. 1,98,600/- was recovered from his sister-in-law.
11. The petitioner further along with team members, reported at Police Station, Baradwar with Lakhan Bhaina at 6 o'clock in the morning on 7.2.1999. On the same day, the petitioner along with his team raided several places at Kekrabhat and arrested Mohit Chandra and Bagharai Bhaina and other accused persons and also seized a sum of Rs. 8,05,000/- from their custody.
12. Thereafter, the petitioner deposited the aforesaid
amount. The said accuseds were placed in the police
custody. On 8.2.1999 news was also published in a local
13. Shri Rajendra Tiwari, learned Senior Advocate with Shri Sunil Otwani and Shri Amitabh Gupta, learned Advocates for the petitioner challenged the validity of the impugned orders on the following grounds:
(i) The alleged charge-sheet issued was never
served on the petitioner in the manner as
prescribed under Rule 30 of the M.P./C.G.
Civil Services (Classification, Control, and
Appeal) Rules, 1966 (hereinafter referred to
as "the Rules, 1966"). The
respondents/employer despite knowing the fact
that the petitioner was sick and undergoing
treatment in Bhubaneswar, allegedly affixed
the charge-sheet at his residence at Raigarh,
which was never received by the petitioner.
(ii) The enquiry was concluded ex-parte without
affording proper opportunity of hearing to
the petitioner. The petitioner was not served
with the enquiry report before the impugned
order of termination was passed. The
petitioner was not served with the dismissal
(iii) Non-service of the charge-sheet and the
enquiry report has prejudiced the case of the
petitioner, as the petitioner had no occasion
to put forward his case by cross-examining
witnesses produced by the
respondents/employer and otherwise to prove
his ignorance before the enquiry officer.
(iv) The petitioner was further prejudiced by not
placing his case properly before the
appellate authority in absence of the
documents and evidences produced before the
(v) The petitioner could not object the
appointment of the enquiry officer, as he had
bias against the petitioner.
14. Learned counsel for the petitioner contended that the
entire disciplinary proceedings were bad and vitiated as the
charge-sheet was not served on the petitioner (delinquent
employee). Learned counsel for the petitioner further
contended that the entire departmental proceedings, order of
termination passed consequent thereupon be quashed as bad
15. Shri N.K. Agrawal, learned Deputy Advocate General with
Shri A.S. Kachhawaha, learned Government Advocate appearing
for the respondents would submit that an attempt was made to
serve the charge-sheet on the petitioner in person on
24.3.1999. In absence of the petitioner, the charge-sheet
was affixed on his house in presence of the witnesses. On
3.5.1999, notice was issued at his official residence at
Sakti, which could also not been served. Thereafter, a
publication of the notice was made in the newspapers in
Dainik Bhaskar on 26.5.1999, Dainik Navbharat on 28.5.1999
and Dainik Kankarm on 28.5.1999, having publication in
16. Learned counsel for the respondents next contended that after initiation of the enquiry, several notices were sent by registered post, informing the dates of hearing, which could not be served upon the petitioner. The inquiry was concluded ex-parte on 16.7.1999. Learned counsel for the respondents further contended that publication of the notices and affixing the charge-sheet at his official address is sufficient compliance of Rule 30 of the Rules, 1966 and as such the charge-sheet was duly served upon the petitioner. The petitioner did not deliberately participate in the enquiry and the ex-parte enquiry was concluded. Learned counsel for the respondents last contended that the petitioner cannot complain of denial of principle of natural justice when the petitioner himself, despite sufficient notice, did not participate in the departmental proceedings. Learned counsel for the respondents further denied that any application with regard to his sickness and treatment at Bhubaneswar was made or received in the office of the Superintendent of Police.
17. I have heard learned counsel for the parties, perused the pleadings and documents appended thereto. It is evident that the charge-sheet was not actually served on the petitioner. Affixation of the charge-sheet on the official and permanent residence of the delinquent employee is not sufficient compliance of Rule 30 of the Rules, 1966. Rule 30 of the Rules, 1966 reads as under: "30. Service of orders, notices etc.- Every order, notice and other process made or issued under these rules shall be served in person on the Government servant concerned or communicated to him by registered post."
Rule 30 prescribes for manner of service. The
statutory provision clearly contemplates that order,
notice and other process made or issued under these
rules shall be served in person on the Government
servant concerned or communicated to him by
registered post. There is no provision for service
of any notice or any other process or the charge-
sheet, initiated under Rule 14 of these Rules, by
any other means including publication.
18. Initiation of the departmental proceedings begins with
service of the charge-sheet. The charge-sheet was not served
on the petitioner, but thereafter notices for initiation of
the departmental enquiry and fixing of dates in the
departmental enquiry was, firstly, published in the
newspapers and thereafter, some of the notices were sent by
registered post also. Subsequent publication of notices of
initiation of the enquiry and subsequent communication of
dates of departmental proceedings by registered post do not
come under the ambit and scope of actual service of the
charge-sheet. Thus, the entire proceedings are vitiated and
the impugned orders passed thereupon are also bad.
19. In the case of Union of India and others Vs. Mohd.
Ramzan Khan1, the Supreme Court held that the disciplinary
proceeding is quasi-judicial in nature. There is a charge
and a denial followed by an inquiry at which evidence is led
and assessment of the material before conclusion is reached.
These facets do make the matter quasi-judicial and attract
the principles of natural justice. The delinquent employee
must be served charge-sheet in actual term to enable him to
file his reply to the charges before inquiry, recording of
evidence and the submissions made on the basis of the
material made available to the inquiry officer before his
20. In the case of Union of India and others Vs. K.V.
Rankiraman and others2 , the Supreme Court observed that "it
is only when a charge-memo in a disciplinary proceedings or
a charge-sheet in a criminal prosecution is issued to the
employee that it can be said that the departmental
proceedings/criminal prosecution is initiated against the
21. In the case of Delhi Development Authority Vs. H.C.
Khurana3, the Supreme Court with regard to initiation of the
departmental proceedings has held in para 9, as under:-
"9. The question now, is: What is the stage, when it can be said, that `a decision has been taken to initiate disciplinary proceedings' ? We have no doubt that the decision to initiate disciplinary proceedings cannot be subsequent to the issuance of the charge-sheet, since issue of the charge- sheet is a consequence of the decision to initiate disciplinary proceedings. Framing the charge- sheet, is the first step taken for holding the enquiry into the allegations, on the decision taken to initiate disciplinary proceedings. The charge-sheet is framed on the basis of the allegations into the allegations made against the government servant; the charge-sheet is then served on him to enable him to give his explanation; if the explanation is satisfactory, the proceedings are closed, otherwise, an enquiry is held into the charges; if the charges are not proved, the proceedings are closed and penalty follows. Thus, the service of the charge-sheet on the government servant follows the decision to initiate disciplinary proceedings, and it does not precede or coincide with that decision. The delay, if any, in service of the charge-sheet to the government servant, after it has been framed and dispatched, does not have the effect of delaying initiation of the disciplinary proceedings, inasmuch as information to the government servant of the charges framed against him, by service of the charge-sheet, is not a part of the decision-making process of the authorities for initiating the disciplinary proceedings."
22. In the case of Union of India and others Vs. Dinanath
Shantaram Karekar4, the Supreme Court observed in para 10,
"10. Where the disciplinary proceedings are intended to be initiated by issuing a charge-sheet, its actual service is essential as the person to whom the charge-sheet is issued is required to submit his reply and, thereafter, to participate in the disciplinary proceedings. So also, when the show- cause notice is issued, the employee is called upon to submit his reply to the action proposed to be taken against him. Since in both the situations, the employee is given an opportunity to submit his reply, the theory of "communication" cannot be invoked and "actual service" must be proved and established. It has already been found that neither the charge-sheet nor the show-cause notice were ever served upon the original respondent, Dinanath Shantaram Karekar. Consequently, the entire proceedings were vitiated."
23. In the case of State of U.P. Vs. Shatrughan Lal and
another5, the Supreme Court observed in para 10, as under:-
"10. It has also been found that during the course of the preliminary enquiry, a number of witnesses were examined against the respondent in his absence, and rightly so, as the delinquents are not associated in the preliminary enquiry, and thereafter the charge-sheet was drawn up. The copies of those statements, though asked for by the respondent, were not supplied to him. Since there was a failure on the part of the appellant in this regard too, the Tribunal was justified in coming to the conclusion that the principles of natural justice were violated and the respondent was not afforded an effective opportunity of hearing, particularly as the appellant failed to establish that non-supply of the copies of statements recorded during preliminary enquiry had not caused any prejudice to the respondent in defending himself."
24. Learned counsel for the respondents heavily relied on
observations of the Supreme Court in the case of Viveka Nand
Sethi Vs. Chairman, J& K Bank Ltd. and others6. The Supreme
Court in the case of Viveka Nand Sethi Vs. Chairman, J& K
Bank Ltd. and others (supra) observed in para 22 as under:-
"22. The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. [See Gurjeewan Garewal (Dr.) v. Dr. Sumitra Dash3.] The principles of natural justice are required to be complied with having regard to the facts situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in the vacuum without reference to the relevant facts and circumstances of the case. (See State of Punjab v. Jagir Singh4 and Karnataka SRTC v. S.G. Kotturappa5.)
25. The Supreme Court in the case of Om Prakash Mann Vs.
Director of Education (Basic) and others7, cited by learned
counsel for the respondents, observed in para 9, as under:-
"9. By now it is well-settled principle of law that
the doctrines of principle of natural justice are
not embodied rules. They cannot be applied in a
straitjacket formula. To sustain the complaint of
violation of the principle of natural justice one
must establish that he has been prejudiced by non-
observance of the principle of natural justice. As
held by the High Court the appellant has not been
able to show as to how he has been prejudiced by non-
furnishing of the copy of the enquiry report. The
appellant has filed a detailed appeal before the
Appellate Authority which was dismissed as noticed
above. It is not his case that he has been deprived
of making effective appeal for non-furnishing of
copy of enquiry report. He has participated in the
enquiry proceedings without any demur. It is
undisputed that the appellant has been afforded
enough opportunity and he has participated
throughout the enquiry proceedings, he has been
heard and allowed to make submission before the
26. The decisions cited hereinabove by learned counsel for
the respondents are not applicable to the facts of the
present case. In the present case, the entire departmental
proceedings were bad as the first step by the enquiry
proceeding i.e. actual service of the charge-sheet on the
delinquent employee by the respondents was not done. The
mode adopted by the respondents by alleged affixation of the
charge-sheet on the residence of the petitioner is not one
of the mode prescribed under Rule 30 of the Rules, 1966.
Subsequent publication of notice or communication of dates
by registered post is not sufficient compliance of the first
step of the enquiry, leading denial of opportunity to the
petitioner, to file reply and put forward his case
effectively before the enquiry officer. The petitioner has
successfully established the prejudice caused to him by non-
service of charge-sheet on the petitioner. In view of clear
findings with regard to service of the charge-sheet, stated
above, it is not necessary to go into other points raised by
27. The petitioner has clearly submitted that he was not
gainfully employed elsewhere and has suffered mental agony
and financial liability. The respondents are not in a
position to controvert the submission of the petitioner.
Thus, in the facts and circumstances of the case, the
petitioner is entitled to 50% back wages flowing from
quashing of the impugned orders.
28. As a result and in view of the well-settled principle
of law, the impugned orders dated 19.8.1999 (Annexure P/2)
passed by the Inspector General of Police and 2.5.2002
(Annexure P/3) passed by the Director General of Police are
quashed as the departmental inquiry was vitiated. However,
this order shall not come in the way of the
respondents/authorities to initiate a fresh departmental
inquiry, if so advised, in accordance with law.
29. The writ petition is accordingly allowed. No order as
J U D G E