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Prabhakar Narayan Menjoge Vs. State of Madhya Pradesh Through Secretary to Forest Department and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 16 of 1963
Judge
Reported inAIR1967MP215; [1967(15)FLR10]; (1968)IILLJ290MP
ActsConstitution of India - Article 311(2)
AppellantPrabhakar Narayan Menjoge
RespondentState of Madhya Pradesh Through Secretary to Forest Department and ors.
Appellant AdvocateR.K. Pandey, Adv.
Respondent AdvocateA.P. Sen, Adv. General, ;H.L. Khaskalam and ;K.K. Dubey, Govt. Advs.
DispositionPetition dismissed
Cases ReferredSharmanand v. Superintendent
Excerpt:
.....supreme court in chmtaman's case, ajr 1961 sc 1623 and the decisions of this court in the cases just referred to, therefore, settle the question that if the witnesses examined at a departmental enquiry in support of a charge or charges against a civil servant had made statements during the course of a preliminary enquiry preceding the departmental enquiry, then, if the civil servant asks for copies of the statements made at the preliminary enquiry in order to enable him to exercise effectively the right of cross-examining the witnesses, the copies of those statements must be furnished to the civil servant......employed as a forester, seeks a writ of certiorari for quashing an order passed by the divisional forest officer, rajnandgaon, on 26th july 3962 dismissing him from service. the order of the divisional forest officer was upheld in appeal by the conservator of forests, raipur circle. a writ has been sought for quashing that order also.2. the material facts are that on complaints being received about illicit felling in reserved and protected forests in taragaon circle, where the petitioner was posted, with the connivance of the petitioner and some other employees of the forest department, a preliminary enquiry was held by the sub-divisional forest officer, kawardha. into the reports about illicit felling and it was found that illicit felling was indulged in on account of the negligence.....
Judgment:
ORDER

1. By this application under Articles 226 and 227 of the Constitution the petitioner, who was employed as a Forester, seeks a writ of certiorari for quashing an order passed by the Divisional Forest Officer, Rajnandgaon, on 26th July 3962 dismissing him from service. The order of the Divisional Forest Officer was upheld in appeal by the Conservator of Forests, Raipur Circle. A writ has been sought for quashing that order also.

2. The material facts are that on complaints being received about illicit felling in reserved and protected Forests in Taragaon Circle, where the petitioner was posted, with the connivance of the petitioner and some other employees of the Forest Department, a preliminary enquiry was held by the Sub-Divisional Forest Officer, Kawardha. into the reports about illicit felling and it was found that illicit felling was indulged in on account of the negligence and connivance of the petitioner. The applicant was then placed under suspension with his head-quarters at Gandai and attached to Range Officer, Gandai Range. Despite these orders fixing his head-quarters at Gandai. the applicant remained at Kawardha.

3. A departmental enquiry was then started against the petitioner on charges of gross neglect of duty and disobedience of the order fixing his headquarters during the period of suspension at Gandai. The departmental enquiry was conducted by Shri P. S. Mehta, Assistant Conservator of Forests, Rajnaiidgaon. He found both the charges to be established. Thereupon, a notice to show cause why he should not be dismissed from service was issued to the applicant on 4th May 1962 by the Divisional Forest Officer, North Drug Division, Rajnandgaon. A copy of the findings of the Enquiry Officer was also furnished to the petitioner along with the aforesaid notice. The petitioner gave his explanation denying the charges levelled against him which did not satisfy the Divisional Forest Offecer who accordingly made the impugned order of dismissal.

4. This petition first came up for hearing before a Division Bench. During the course of hearing before the Division Bench, one of the grounds on which it was urged that the departmental enquiry was vitiated was that during the cross-examination of some witnesses examined at the departmental enquiry the applicant learnt that they had also been examined in the preliminary enquiry, that copies of the statements given by these witnesses at the preliminary enquiry had not been supplied to him, so also a copy of the complaint which had been made against him and which led to his suspension had also not been given to him; that he was entitled as of right to get copies of these documents for the purpose of effectively cross-examining the witnesses produced to support the charges against him; and that as he was not given the copies, the departmental enquiry was vitiated. In support of this contention, strong reliance was placed on certain observations of this Court in Ramchandra Gopalrao v. The Deputy Inspector General of Police. AIR 1957 Madh Pra 126.

5. The Division Bench formed the view that the question raised was of general importance and that, therefore, the petition should be heard and disposed of by a Full Bench or the Full Bench should 'in its discretion, decide the following question'; -

'Whether, on the authority of AIR 1.957 Madh Pra 126, a person, against whom a departmental enquiry, is held, is entitled to receive, as of right and without his having to to ask for them specifically, the copies of depositions and reports of enquiry leading to the framing of the charges on which subsequently a departmental enquiry is held against him. and whether the failure to give such copies to him would vitiate the order of dismissal passed against him in a departmental enquiry which is otherwise proper and valid?'

Accordingly, the matter has come up before us.

6. In our judgment, instead of deciding only the question formulated by the Division Bench for decision, it would be proper to decide the entire petition itself. We, therefore, heard Shri R. K. Pandey, learned counsel for the applicant, on all the contentions he had to urge in support of the petition. Learned counsel first repeated before us the submission he had made before the Division Bench. So far as the question whether civil servant proceeded against is entitled to get for the purpose of cross-examining witnesses produced against him in the departmental enquiry copies of statement made by them in the preliminary enquiry held before the commencement of the formal departmental enquiry is concerned, that is concluded by the decision of the Supreme Court in State of M. P. v. Chintaman, AIR 1961 SC 1623. In that case Chintaman Waishampayan, a Sub-Inspector of Police against whom a departmental enquiry was held on some charges was not given copies of prior statements of two witnesses who were examined in the departmental enquiry and whose statements had been recorded earlier in a preliminary enquiry. He also wanted a copy of the application on the strength of which the preliminary enquiry was started against him.

The Supreme Court held that he should have been furnished with these copies and that failure to supply them made it almost impossible for Chintaman to submit the principal witnesses produced against him in the departmental enquiry to an effective cross-examination and that in substance deprived him of a reasonable opportunity to meet the charges against him. The same principle has been laid down by this Court in Govind Shankar Mehta y. State of M. P., 1963 MPLJ 139: (AIR 1963 Madh Pra 115), State of M. P. v. Gopinath, 1964 MPLJ 765 and Surendra Kumar v. State of M. P., 1965 MPIJ 204 following the decision of the Supreme Court in Chintaman's case AIR 1961 SC 1623 (Supra). It is important to note that in all these cases the civil servant concerned had asked for copies of the statements of the witnesses given at the preliminary enquiry. Those witnesses were examined in the departmental enquiry and copies of their statements had not been given to the civil servant even though he had made a request for them.

The decision of the Supreme Court in Chmtaman's case, AJR 1961 SC 1623 and the decisions of this Court in the cases just referred to, therefore, settle the question that if the witnesses examined at a departmental enquiry in support of a charge or charges against a civil servant had made statements during the course of a preliminary enquiry preceding the departmental enquiry, then, if the civil servant asks for copies of the statements made at the preliminary enquiry in order to enable him to exercise effectively the right of cross-examining the witnesses, the copies of those statements must be furnished to the civil servant. It has been held by this Court in Sharmanand v. Superintendent, Gun Carriage Factory of Jabalpur, 1960 MP LJ 110: (AIR I960 Madh Pra 178), that it is not for the department to decide whether the statements would lead to an effective cross-examination but for the delinquent to use them for cross-examination in his own way.

7. The decision in AIR 1957 Madh-Pra 126, (supra) does not lay down any proposition counter to that expounded by the Supreme Court in Chintaman's case, AIR 1961 SC 1633 (supra) and the general observations in Ramchandra Gopalrao s case, AIR 1957 Madh Pra 126, namely, that a person against whom a departmental enquiry is held is entitled to receive copies of depositions, cannot be read a meaning that the delinquent civil servant is entitled to demand copies of the statements of every witness examined at the preliminary enquiry, no matter whether he is or is not examined subsequently at the departmental enquiry, or that there is an obligation on the Enquiry Officer to. supply these copies even if the civil servant does not ask for them. The true position that emerges from the decision of the Supreme Court in Chintaman's case, ATR 1961 SC 1623 (supra) and the decisions of this Court in the cases referred to earlier is that it is only if the civil servant makes a request or demand lor the copies of the statements made by the witnesses at the preliminary enquiry that, be is entitled to get those copies if the witnesses] are examined at the departmental enquiry.

8. In the case before us, no request was ever made by the petitioner for being furnished with copies of the statements which some witnesses who were examined at the departmental enquiry had made in the course of the preliminary enquiry. Learned counsel for the petitioner was not able to say which copies for such statements the applicant had asked for and which were not given to him. It was said that an oral request to that effect was made before the Enquiry Officer, but in the return filed on behalf of the Divisional Forest Officer it has been averred that no such oral or written request was made by the petitioner to the Enquiry Officer. Learned counsel said that the return had been Bled by the Divisional Forest Officer supported by his affidavit; and that on the question whether the petitioner (lid or did no! make a request for copies, the officer who conducted the enquiry should have filed an affidavit.

The suggestion was that the averment in the return that the petitioner did not make any such request should not be acted upon. We are unable to hold that the petitioner made a request for the supply of copies of the statements simply because the Officer who conducted the enquiry has not filed an affidavit. The affidavit has been filed by a responsible officer, namely, the Divisional Forest Officer, and there is no reason to suppose that the statement therein that the petitioner did not make any request for copies has been made without any reference whatsoever to the Enquiry Officer. As the petitioner never asked for copies of the depositions made by certain witnesses at the preliminary enqquiry. he cannot now urge that the departmental enquiry is viliated because of non-supply of copies. The petitioner could not demand A copy of the complaint when he had not asked for it and when the same was not considered by the Enquiry Officer holding the departmental enquiry.

9. It was next submitted that in coming to the conclusion that the petitioner was careless and negligent in his duties, the Enquiry Officer took into account certain facts which never formed the subject-matter of any charge. It was said that the Enquiry Officer observed in his report that the applicant 'was not only careless and negligent but was a party to getting illegal things above. He is thus found guilty to a greater degree than what he is charged for in part 1 of charge No. 1'; that in the notice to show cause which was issued to him also it was stated that he was found guilty not only of being negligent and careless in performing his duties, but also of 'helping and suppressing forest offences, preparing false records and destroying Government documents and record'

We are unable to accept the contention that the petitioner was found guilty of an act for which he was never charged. What the Enquiry Officer said in his report was only to emphasize the enormity of the petitioner's carelessness and negligence in the discharge of his duties. The statement in the notice to show cause that the applicant was 'found guilty of helping and suppressing forest offences, preparing false records and destroying Government documents and records' must be read along with the earlier statement that be was found guilty of being negligent and careless in performing Government duty. So read, the first statement is only an amplification of the charge of negligence and carelessness. It cannot be read as finding the petitioner prima facie guilty of any act which did not form the subject-matter of any charge at the departmental enquiry.

10. Learned counsel also made the grievance that the register of 'bamboo felling' was not produced at the enquiry and thus the applicant was not given a reasonable opportunity of meeting the charge of conniving at illegal felling. The point has not been raised in the petition and learned counsel was not able to satisfy us how this has prejudiced the petitioner. It was also urged that the Conservator of Forests did not give him a personal hearing when he disposed of the appeal preferred by the petitioner against the order of the Divisional Forest Officer. This point has also not been raised in the petition and is really not of much consequance when according to us there is no infirmity of any kind either in the departmental enquiry or in the order of dismissal passed by the Divisional Forest Officer.

11. No other point was urged before us.

12. For the foregoing reasons, this petition is dismissed with costs. Counsel's fee is fixed at Rs. 100/-. The outstanding amount of tike security deposit after deduction of costs shall be refunded to the petitioner.


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