High Court of Madhya Pradesh Bench at Gwalior DIVISION ...€¦ · A.A.Khan checked Shri Anil Kumar Bhatnagar, Technician Grade -1 as per existing procedure of the plant and he found

1 Writ Petition No.5548/08

High Court of Madhya PradeshBench at Gwalior

DIVISION BENCH : Hon.Shri Justice Sanjay Yadav & Hon.Shri Justice Vivek Agarwal

Writ Petition No.5548/2008

Anil Kumar Bhatnagar …... Petitioner

Vs.Union of India & Ors. …..Respondents

---------------------------------------------------------------------------------------Shri Prashant Sharma, learned counsel for the petitioner.Shri Vivek Khedkar, learned Assistant Solicitor General for therespondents/Union of India.--------------------------------------------------------------------------------------- Whether approved for Reporting :

Order (Passed on this 10th day of January, 2019)

Per Justice Vivek Agarwal :

This writ petition has been filed by the petitioner being

aggrieved by order passed by the Central Administrative Tribunal,

Jabalpur Bench, on 7th May, 2008 in O.A.No.669/2006, whereby

challenge put forth by the petitioner to the order passed by the

General Manager, Government Opium and Alkaloid Works,

Neemuch, terminating his services as has been confirmed by the

Chief Controller of Factories, New Delhi, in appeal, has not been

entertained and OA has been dismissed.

2. Brief facts leading to the present case are that petitioner,

who was working as a Technician Grade I at Government Opium

and Alkaloid Works, Neemuch, was intercepted by the security

official namely Lance Naik A.A.Khan deputed by Central Industrial

Security Force (CISF) on 7th October, 1994 at about 7.00 pm and

he was found in possession of 540 gms of SR Morphine from

Nutch Filter of the production building. Charge against the

petitioner was that he was attempting to commit theft and


smuggle out such material and in doing so contravened the

provisions of Rule 3 of the Central Civil Services (Conduct) Rules,

1964.

3. It is submitted by learned counsel for the petitioner that he

has been falsely implicated in the case and in fact a criminal case

was also registered against him and consequent to that he had

faced said criminal case No.6/1995 before the Court of Second

Additional Sessions Judge, Neemuch, wherein vide judgment

dated 20.10.1996, Annexure P/4, petitioner has been acquitted

for want of non-compliance of the provisions of Sections 50 and

55 of the NDPS Act.

4. Learned counsel for the petitioner further submits that as

per Annexure-II to the Charge-sheet there is statement of

imputation of misconduct of misbehaviour in support of articles of

charges framed against the petitioner and the relevant portion of

the said statement of imputation reads as under :-

“ARTICLE-1That the said Shri Anil Kumar Bhatnagar,

while functioning as Technician Grade-1 in theGovt. Opium and Alkaloid Works, Neemuchattempted to commit theft and smuggle out 540gms of S.R. Morphine from Nutch Filter of theProduction Building, Govt. Opium & AlkaloidWorks, Neemuch. On 7.10.1994 No.7217344Lance Naik Shri A.A.Khan, C.I.S.F. unit was onduty from 13.00 to 21.00 hours at ProductionBuilding exit gate. On duty Lance Naik ShriA.A.Khan checked Shri Anil Kumar Bhatnagar,Technician Grade -1 as per existing procedureof the plant and he found that he was takingout some materials concealed in his left sidepant pocket and when questioned about thematerials, Shri Bhatnagar tried to run away, butwas caught by Lance Naik A.A.Khan andrecovered 540 gms. S.R. Morphine and thenblowed his whistle. On hearing the whistleNo.922332409 Constable Sanjeev Kumar ofRA Gate II and No.854370038 Constable C.F.Parihar of STP, Shri V.K.Harit Senior ScientificOfficer and Shri G.Kumara Swami, ChemicalEngineer who were on duty in Production


building reached the spot. Meanwhile ongetting information some other C.I.S.F. andemployee/workers, shift incharge No.7021110SI/Exe Birju Singh, No.701500010 SI/ExeR.C.Verma also reached the ProductionBuilding gate. In presence of them on enquiryabout the material Shri Anil Kumar Bhatnagarstated he was stealing morphine and alsostated that he collected it from Nutch Filter.”

5. It is further submitted by the learned counsel for the

petitioner that main prosecution witness in the case is Lance Naik

Shri A.A.Khan, who had checked the petitioner as per existing

procedure of the plant and had found that he was taking out such

material concealing in his left side pant pocket. It is submitted that

as per the statement of imputation Lance Naik A.A.Khan had

recovered 540 gms of SR Morphine and then had blown the

whistle, when other prosecution witnesses had gathered

knowledge of such interception and recovery, and therefore, Shri

A.A.Khan is the key prosecution witness who has not been

examined by the prosecution and has been given up. All other

prosecution witnesses are hearsay witnesses.

6. Enquiry Officer vide his enquiry report dated 8.12.1999

proved the charges on the basis of evidence of prosecution

witness, namely Shri V.K.Harit, In-charge SSO, who deposed that

search was made in front of him and in the search such morphine

was recovered from the pocket of the petitioner. Attention of this

Court is specifically invited to questions No.8 & 9, which were put

to the aforesaid prosecution witness, and its answer, which reads

as under :-

Þiz'u&8 vkidks vfuy HkVukxj ls ekjQhu cjken djus dhfjiksVZ fdlus nh \mRrj& vfuy dqekj HkVukxj dh tsc ls inkFkZ esjs le{kcjken fd;k x;k] ftls Jh vfuy dqekj th- vks- }kjk ekjQhugksuk crk;kAiz'u& 9 pktZ eseks ds mica/k&2 vkfVZdy&1 esa iafDr 7 ls'kq: gksus okys okD; esa iafDr 12 ls ;k Li"V gksrk gS fdcjkenxh ekjQhu vkids xsV ij igqWpus ls igys gh ykUl


uk;d Jh ,-,-[kku us djyh FkhA mlds izdk'k esa vkidk D;kdFku gS\ blds izdk'k esa vkids mij okys iz'u ds mRrj dksD;ks u vlR; ekuk tkos \mRrj& pktZ eseksa ds mica/k&2 vkfVZdy 1 ds bUVjfiVslu dslaca/k esa eq>s dqN ugha dguk gS] ijarq Jh vfuy dqekjHkVukxj ls ekjQhu dh cjkenxh esjs le{k gqbZ Fkh ,oa iwoZ dsiz'u dk esjs }kjk fn;k x;k mRrj lgh gSA ß

7. In this context, attention is also invited to question No.8 and

its answer given by Shri V.K.Harit and it is pointed out that Shri

V.K.Harit is not a witness of seizure, and therefore, evidence

given by Shri V.K.Harit is not sufficient to prove charges against

the petitioner. It is submitted that when as per the imputation of

charges Lance Naik A.A.Khan had blown the whistle after making

search and recovery from the person of the petitioner, then there

was no occasion for making second search & recovery from the

petitioner specifically when as per the imputation of charges all

the persons including Shri V.K.Harit had reached the gate of

production building after getting intimation from other persons. It

is pointed out that in examination-in-chief Shri V.K.Harit has

admitted that on 7.10.1994 at about 7.05 pm one Constable of

CISF had informed him that Anil Kumar (charged officer) was

taking some suspicious material in the pocket of his pant and they

wanted to carry out search in his presence, then he (Shri

V.K.Harit) informed Production Manager Shri Vidya Prakash and

then Vidya Prakash asked him to wait for some time as he

wanted to inform the General Manager and during that period of

waiting, he was called by the Assistant Commandant,

C.I.S.F.G.O., Neemuch, when search was carried out.

8. It is submitted that since as per the imputation of charge

Lance Naik A.A.Khan had already recovered suspicious material,

therefore, in absence of any evidence led by Shri A.A.Khan,

merely on the basis of evidence given by other prosecution


witnesses who are either hearsay witnesses or tutored witnesses,

charges against the petitioner could not have been proved, and

therefore, it is a good case for acquittal from the charges and

consequential quashing of the impugned orders of termination

order passed in appeal by the Chief Controller of Factories, New

Delhi, so also order passed by the Central Administrative

Tribunal, rejecting the OA.

9. Learned counsel for the respondents on the other hand

submits that mere dismissal of criminal case on technical ground

will not throw out the case of the respondents and there are

different parameters of evaluating evidence which is led in a

criminal case and which is to be led in a departmental enquiry. It

is submitted that in a criminal case the charge is to be proved

beyond reasonable doubt, whereas in a departmental enquiry on

the basis of preponderance of probabilities a charge can be

established. It is also submitted that in fact in a criminal case the

onus to prove a charge is on the prosecution, whereas in a

departmental enquiry not only prosecution has to prove a charge,

but also the charged officer has to show that charge framed

against him is not correct. Reading extensively from the evidence

given by prosecution witnesses, specially Shri V.K.Harit, SSO In-

charge SRM Section, who has deposed in his examination-in-

chief that during search from the person of Shri Anil Bhatnagar,

some suspicious material was recovered from the pocket of his

pant and at the same time, Manager Production and General

Manager had also reached to the site, it is submitted that this

statement of Shri V.K.Harit is supported by Shri C.P.Parihar,

Constable CISF, Shri Sanjeev Kumar, Constable CISF, Shri Birju

Singh, Sub-Inspector CISF and Shri R.C.Verma. Therefore, it is


submitted that impugned orders of termination, as have been

affirmed by the appellate authority and also the order of Central

Administrative Tribunal do not call for any interference and the

petition is liable to be dismissed and be dismissed as such.

10. Learned counsel for the petitioner on the other hand

submits that evidence of prosecution witnesses is not without any

blemish. He has drawn attention to the statement given by Shri

V.K.Harit to police Station, Neemuch and pointed out that as per

the statement given to the police, Shri Harit deposed that the

charged officer was given an option that his search is to be

carried out and he can give such search before a Gazetted officer

or a Magistrate and thereafter Shri Mahesh Dubey, Sub-Inspector

police, obtained his signatures so also signatures of one Mr.

BKumar Swamy and Ranjeet Kumar Dey and thereafter Anil

Bhatnagar gave his consent for such search and thereafter Shri

Dubey and Shri Harit gave their search to Anil Bhatnagar.

Panchnama was prepared and thereafter search from Anil

Bhatnagar was made and from left pocket of Shri Anil Bhatnagar

a green-blue polythene was recovered which was containing

drenched black material which Shri V.K.Harit saw and found it to

be morphine produced in the factory. It is pointed out that this is

contrary to the imputation of charges as contained in article of

charges attached alongwith the charge-sheet. Similarly, it is

pointed out that Shri C.P.Parihar in his cross-examination has

categorically deposed that when he reached the place of incident,

then he saw that Birju Singh, B.L.Verma and Shri A.A.Khan

alongwith other officers of the plant and Shri Anil Bhatnagar were

standing there and some black colour material was lying in a blue

colour polythene on the floor. He was not knowing what was the


content of the polythene and no measurements were taken in

front of him. Thereafter he was asked to proceed on his duty, and

therefore, he proceeded on his duty.

11. Similarly, referring to the evidence of Sanjeev Kumar,

another prosecution witness, it is pointed out that Shri Sanjeev

Kumar in his examination-in-chief has categorically deposed that

no search was carried out in front of him. Thereafter, he

proceeded towards the Assistant Commandant and saw a

polythene containing black/brown colour substance. He has

further stated that no search was carried out in front of him. It is

also pointed out that so called letter of confession was never

produced in original and this fact is reflected from the objection

which was raised on behalf of the defence Assistant to cross-

examination of Shri V.K.Harit, therefore, such so called

confessional statement being not produced in original has no

value in the eyes of law. It is further submitted that Birju Singh,

another prosecution witness, has also deposed that he had

reached the place of incident where A.A.Khan had intercepted the

petitioner upon receiving phone call from Sanjeev Kumar. Shri

Sanjeev Kumar deposed that he had reached there on hearing

emergency whistle blown by Shri A.A.Khan and Shri A.A.Khan

had asked Sanjeev Kumar to inform the control room about

intercepting Shri Anil Bhatnagar. Thus, it is pointed out that all the

prosecution witnesses whether it be Sanjeev Kumar or Birju

Singh or V.K.Harit, they all had collected there after whistle was

blown by Lance Naik Shri A.A.Khan and since as per the

imputation of charges, Lance Naik A.A.Khan had already

recovered 540 gms of S.R. Morphine and had then blown his

whistle, therefore, none of the prosecution witnesses are


witnesses of seizure or recovery.

12. As per the provisions contained in Central Civil Services

(Classification, Control and Appeal) Rules, according to which

charge-sheet was issued and enquiry has been conducted, Rules

14(3), 14(11) and 14(14) are most relevant. They are reproduced

as under :-

“14. Procedure for imposing major penalties(3) where it is proposed to hold an inquiry againsta Government servant under this rule and Rule15, the Disciplinary Authority shall draw up orcause to be drawn up-

(i) the substance of the imputations ofmisconduct or misbehaviour into definiteand distinct articles of charge;(ii) a statement of the imputations ofmisconduct or misbehaviour in support ofeach article of charge, which shallcontain-

(a) a statement of all relevant factsincluding any admission orconfession made by theGovernment servant;(b) a list of documents by which,and a list of witnesses by whom,the articles of charge are proposedto be sustained.

(11) The Inquiring Authority shall, if theGovernment servant fails to appear within thespecified time or refuses or omits to plead,require the Presenting Officer to produce theevidence by which he proposes to prove thearticles of charge, and shall adjourn the case to alater date not exceeding thirty days, afterrecording an order that the Government servantmay, for the purpose of preparing his defence-

(i) inspect within five days of the order orwithin such further time not exceedingfive days as the Inquiring Authority mayallow, the documents specified in the listreferred to in sub-rule (3);(ii) submit a list of witnesses to beexamined on his behalf;

Note.- If the Government servant applies orally orin writing for the supply of copies of thestatements of witnesses mentioned in the listreferred to in sub-rule (3), the Inquiring Authorityshall furnish him with such copies as early aspossible and in any case not later than three daysbefore the commencement of the examination ofthe witnesses on behalf of the DisciplinaryAuthority.


(iii) give a notice within ten days of theorder or within such further time notexceeding ten days as the InquiringAuthority may allow, for the discovery orproduction of any documents which are inthe possession of Government but notmentioned in the list referred to in sub-rule (3).

Note.- The Government servant shall indicate therelevance of the documents required by him to bediscovered or produced by the Government.(14) On the date fixed for the inquiry, the oral anddocumentary evidence by which the articles ofcharge are proposed to be proved shall beproduced by or on behalf of the DisciplinaryAuthority. The witnesses shall be examined by oron behalf of the Presenting Officer and may becross-examined by or on behalf of theGovernment servant. The Presenting Officer shallbe entitled to re-examine the witnesses on anypoints on which they have been cross-examined,but not on any new matter, without the leave ofthe Inquiring Authority. The Inquiring Authoritymay also put such questions to the witnesses asit thinks fit.”

13. Rule 14(3) (ii) provides that the statement of the

imputations of misconduct or misbehaviour in support of each

article of charge shall contain -(a) a statement of all relevant facts

including any admission or confession made by the Government

servant. Similarly, sub-rule 11 of Rule 14 provides that if the

Government servant fails to appear within the specified time or

refuses or omits to plead, then Inquiring Authority shall require the

Presenting Officer to produce the evidence by which he proposes

to prove the articles of charge.

Sub-rule 14 of Rule 14 provides that oral and documentary

evidence by which the articles of charge are proposed to be

proved shall be produced by or on behalf of the Disciplinary

Authority. The witnesses shall be examined by or on behalf of the

Presenting Officer and may be cross-examined by or on behalf of

the Government servant.


14. A conjoint reading of the aforesaid three sub-sections

clearly reveals that statement of imputation of misconduct

contains statement of all relevant facts, therefore, as per

Annexure II enclosed with the charge-sheet, the relevant fact is

that-

“On 7.10.1994 No.7217344 Lance Naik ShriA.A.Khan, C.I.S.F. unit was on duty from 13.00to 21.00 hours at Production Building exit gate.On duty Lance Naik Shri A.A.Khan checkedShri Anil Kumar Bhatnagar, Technician Grade-1 as per existing procedure of the plant and hefound that he was taking out some materialsconcealed in his left side pant pocket and whenquestioned about the materials, Shri Bhatnagartried to run away, but was caught by LanceNaik A.A.Khan and recovered 540 gms. S.R.Morphine and then blowed his whistle.”

15. Thus, in the light of such relevant fact as per the provisions

contained in sub-rule 11 of Rule 14 the Presenting Officer was

required to produce the evidence by which he proposed to prove

the article of charge and as per sub-rule 14 of Rule 14 was

required to produce oral and documentary evidence by which the

articles of charges are proposed to be proved on behalf of the

Disciplinary Authority, but in the present case, prosecution

witnesses have been arbitrarily believed by the enquiry officer,

Disciplinary Authority, so also the Appellate Authority as if

recovery was made in front of them, whereas it is apparent from

the chronology of facts narrated above that all the witnesses

examined by the prosecution had gathered after hearing the

whistle or being informed thereafter by Mr. Sanjeev Kumar,

Constable of RA Gate 2, who was asked by Shri A.A.Khan to call

for the officers, therefore, evidence of Shri V.K.Harit, Shri Vidya

Prakash, Shri C.P.Parihar, Shri R.C.Verma and Shri Birju Singh is

not in support of article of charge, but is contrary to the article of


charge. The only witness who could have deposed in support of

article of charge as he had allegedly made recovery of 540 gms

of SR Morphine from the pocket of the petitioner before blowing

his whistle has been strangely not examined by the prosecution

and as is apparent from the proceedings in the departmental

enquiry was given up by the prosecution on 31.8.1999, therefore,

in fact there is no evidence led by the prosecution on behalf of the

Disciplinary Authority to prove the charge that any seizure of

contraband material was made by Shri A.A.Khan, and therefore,

this Court is of the opinion that enquiry officer has wrongly proved

the charges without there being any evidence in support of

imputation of charge. In fact, even the learned Central

Administrative Tribunal has though referred to admission of the

petitioner, but has failed to advert to the fact that neither there

was any report of chemical analyst exhibited before the

departmental enquiry officer to show that material allegedly

seized was morphine, nor there was any evidence on record to

point out that any seizure was made from the person of the

petitioner in front of prosecution witnesses on the basis of whose

deposition petitioner has been dismissed. It is true that acquittal

in a criminal case cannot be a ground for discharge in

departmental enquiry as has been discussed by the Central

Administrative Tribunal, but at the same time, misconduct of a

Government servant is required to be proved in terms of the

article of charge. As per the provisions contained in Rule 14(3),

the articles of charges are statements of facts and such

statements of facts were required to be proved by the prosecution

through cogent evidence. There is no material on record and Shri

Vivek Khedkar, learned Assistant Solicitor General for the Union


of India, admits that no such material was produced before the

enquiry officer so to point out that why so called letter of

confession was not produced in original by the Presenting Officer

and what prevented the authority from production of such original

document. It is also true that in the name of such letter of

confession no detailed preliminary enquiry was conducted. It is

also true that departmental authorities are not like Civil Courts

and only documentary evidence, copies of which were supplied to

the petitioner, can be the basis of the findings, as has been held

by the Supreme Court in the case of Tara Chand Vyas Vs.

Chairman and Disciplinary Authority as reported in (1997) 4

SCC 565, but in the present case, it is apparent from the list of

documents alongwith the charge-sheet that even such

confessional letter allegedly written by the charged officer has not

been made part of the charge-sheet, therefore, without proving

such document, no inference could have been drawn in regard to

such alleged confession. Thus, in the opinion of this Court, since

imputation of charges which are in the form of statements of facts

have not been proved by the prosecution as the prosecution is

required to prove such facts and evidence to be led to support

such facts and it is not vice versa that imputation of facts are to

be fitted into evidence led by the prosecution, it is a good case for

allowing the petition and setting aside the impugned orders of

termination.

16. As it is informed by Shri Vivek Khedkar, learned ASG, that

petitioner has since attained the age of superannuation, we direct

that he shall be entitled to notional reinstatement with payment of

notional benefits including back-wages and other consequential

benefits. Let such amount be paid within three months from


today, failing which such amount shall carry interest at the rate of

8% per annum.

(Sanjay Yadav) (Vivek Agarwal) Judge Judge

ms/-

Documents

High Court of Madhya Pradesh Bench at Gwalior DIVISION ...€¦ · A.A.Khan checked Shri Anil Kumar Bhatnagar, Technician Grade -1 as per existing procedure of the plant and he found