Madhya Pradesh High Court
Jagdish Chouhan (Baret) vs Home Department on 2 September, 2021
Author: Sujoy Paul
Bench: Sujoy Paul
1 WA No.497/2020
The High Court of Madhya Pradesh Bench at Indore
Case Number W.A.No. 497/2020
Parties Name Jagdish Chouhan (Baret)
Vs.
State of M.P. & Ors.
Date of Order 02/09/21
Bench Division Bench:
Justice Sujoy Paul
Justice Anil Verma
Judgment delivered Justice Sujoy Paul
by
Whether approved YES
for reporting
Name of counsel for Shri. L.C. Patne, learned counsel for the
parties appellant/petitioner.
Ms. Vinita Phaye, learned Govt. Advocate for
the respondents/State.
Law laid down *Disciplinary Proceedings - Show Cause
notice. Show cause notice was issued to the
petitioner as to why disciplinary proceedings
should not be initiated against him. The
appellant filed reply and denied the charges on
merits by giving explanation on facts. The
show cause notice aforesaid cannot be treated
to be a notice/charge-sheet whereby
departmental inquiry is initiated.
*Imposition of Minor Penalty-Procedure.
Where allegations mentioned in the show
cause notice are rebutted by giving factual
explanation, a regular departmental inquiry
should have been conducted before punishing
the employee.
*The minor punishment and proceedings
quashed - Whether matter should be
remitted back for conducting further
inquiry when employee is retired in the
meantime - No. Rule 9(1) of M.P. Civil
Services (Pension) Rules, 1976 shows that a
retired employee can be punished who is
2 WA No.497/2020
guilty of committing "grave misconduct".
Since disciplinary authority imposed a minor
punishment, it cannot be said that appellant
committed 'grave' misconduct. Thus, matter
cannot be remitted back for conducting further
inquiry. The appellant is entitled to get all
consequential benefits.
Significant 8 to 17
paragraph numbers
ORDER
nd (2 September, 2021) Sujoy Paul,J:-
This intra Court appeal filed under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 takes exception to the order of learned Single Judge dated 11/02/2020 passed in WP No.12730/2019 whereby the challenge to the disciplinary proceedings, punishment order and appellate order was turned down.
2) Draped in brevity, the relevant facts necessary for adjudication of this matter are that the appellant, an Assistant Sub-Inspector was served with a show cause notice dated 28/4/2015 (Annexure P/2). In turn, he filed his reply denied the charges and gave his factual explanation on 04/05/2015 (Annexure P/3). Thereafter, indisputably without conducting any departmental inquiry, the disciplinary authority/Superintendent of Police (SP), Neemuch imposed a punishment of stoppage of one annual increment without cumulative effect which will have no adverse impact on future increments/pension. Aggrieved, appellant preferred an appeal which was rejected by order dated 01/04/2016. Assailing the disciplinary proceedings, punishment and appellate orders, the appellant filed aforesaid writ petition. Contending inter alia i) the show cause notice was not for imposition of punishment, indeed it was a notice directing the petitioner to show cause as to why disciplinary proceedings should 3 WA No.497/2020 not be initiated. ii) No show cause notice/charge-sheet as contemplated under Rule 16 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (CCA Rules) or as per the analogous provision is Regulation 214 of M.P. Police Regulations was ever issued. iii) Without holding any inquiry, the punishment was imposed which runs contrary to principles of natural justice and judgment of Supreme Court reported in (2001) 9 SCC 180 (O.K. Bhardwaj vs. Union of India & Ors.). iv) The Disciplinary Authority although intended to inflict the punishment of stoppage of increment which does not have any future effect on further increments and retiral dues, fact remains that petitioner retired on attaining the age of superannuation on 30/06/2017. His previous increment was due on 01/07/2016 and, therefore, he stood retired a day before his next increment was due. Thus, his retiral dues were calculated on the basis of his last pay drawn which was devoid of the said increment. Thus, in fact and effect, the punishment has an adverse impact on his retiral dues i.e. pension, gratuity and leave encashment.
3) Shri L.C. Patne, learned counsel for the appellant submits that learned Single Judge has erred in not carefully considering the nature of show cause notice and treated it to be a justifiable and sufficient notice in consonance with principles of natural justice. Similarly, he gave an opinion that decision making process was correct and there was no procedural lapse whereas the judgment of Supreme Court in O.K. Bhardwaj (supra) clearly shows that in a case of this nature, where reply is filed on facts denying the charges, an inquiry should have been conducted. It is submitted that in a case of this nature where petitioner was subjected to a minor punishment, it is clear that Disciplinary Authority never intended to inflict major punishment and misconduct was never treated to be a major or grave misconduct.
Thus, even if this Court comes to the conclusion that decision making process was polluted being violative of principles of natural justice, the matter may not be remitted back for conducting further inquiry.
4 WA No.497/2020Reliance is placed on Rule 9(1) of M.P. Civil Services (Pension) Rules, 1976 (Pension Rules) and Regulation 226 (iv).
4) In support of his submissions, he placed reliance on (2016) 9 SCC 20 (Brajendra Singh Yambem vs. Union of India & Anr.) and judgment of this Court reported in (2015) 2 MPLJ 526 (Bholeram Soni vs. Union of India & Ors.) which is affirmed by the Division Bench and no interference was made by Supreme Court in SLP (Civil) Diary No(s).37447/2017.
5) Sounding a contra note, Ms. Vinita Phaye, learned Govt. Advocate for the respondents/State submits that a plain reading of show cause notice shows that petitioner was made aware about the charges. Sufficient opportunity was granted to file reply. After obtaining reply, the Disciplinary Authority passed the detailed punishment order dated 30/09/2015. Rule 16 of the CCA Rules makes it clear that after obtaining the reply to the show cause notice, a punishment can be inflicted. Holding of inquiry in a case of this nature was not essential. She supported the order of learned Single Judge.
6) Parties confined their arguments to the extent indicated above.
7) We have bestowed our anxious consideration on rival contentions and perused the record.
8) The learned Single Judge in the impugned order opined that there is no procedural lapse. Upon due observance of principles of natural justice, minor penalty has been imposed. The Authorities have applied mind and passed the orders impugned. It is further held that after fact finding inquiry, a show cause notice was issued and thereafter upon considering reply, the impugned punishment order was passed. No fault was found by learned Single Judge in the light of judgment of Supreme Court in the case of O.K. Bhardwaj (supra) and judgment of this Court in (2009) 4 MPJR S.N. 10 (Laxman Prasad Sharma & Ors. vs. State of MP & Ors.).
5 WA No.497/20209) In our view, the preliminary inquiry, the petitioner was not put to notice and he was not made aware as to what are the allegations/charges against him. Thus, fact finding inquiry report cannot become reason to punish the appellant. The relevant portion of the show cause notice reads as under:-
^^vr,o mijksDRk laca/k esa D;ksa u vkids fo:) foHkkxh; vuq'kklukRed dh dk;Zokgh lafLFkr dh tkos\ bl ckcr~ viuk Li"Vhdj.k bl dk c-lw- i= dh izkfIr ds 03 fnol esa vfuok;Z :i ls izLrqr djsaA Lej.k jgsa vkidk Li"Vhdj.k le;kof/k esa izkIr u gksus dh n'kk esa ;g ekuk tkdj mDr lanHkZ esa dqN ugh dguk gSA izdj.k esa ,d i{kh; dk;Zokgh dj fu.kZ; ys fy;k tkosxk] ftl gsrq vki Lo;a ftEesnkj gksxsA^^ (emphasis supplied)
10) The plain reading of the operative portion aforesaid shows that argument of Shri Patne has substantial force. The petitioner was not put to notice as to why he should not be punished, indeed notice was to the effect that as to why disciplinary proceedings should not be 'initiated' against the petitioner. In the case of (1991) 4 SCC 109 (Union of India vs. K.V. Jankiraman & Ors.), the Apex Court made it clear that disciplinary proceedings begins with issuance of charge memorandum. In the instant case, no charge memorandum was issued and on the basis of aforesaid show cause notice dated 28/04/2015 which was a notice for the purpose of 'initiating' the disciplinary proceedings, the petitioner was punished.
11) The reply of petitioner dated 04/05/2015 shows that petitioner has put forth his defence on merits. In other words, factual charges were rebutted by filing a factual reply. In O.K. Bhardwaj (supra), the Apex Court opined as under:-
"3. ..........Even in the case of a minor penalty an opportunity has to be given to the delinquent employee to have his say or to file his explanation with respect to the charges against him. Moreover, if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for. This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with."
(Emphasis Supplied) 6 WA No.497/2020
12) This view was followed by Division Bench of this Court in Bholeram (supra). The relevant portion reads as under:-
"8. In view of judgment of O.K. Bhardwaj (Supra), it is clear that when allegations are factual in nature and are denied by the delinquent employee, enquiry needs to be conducted in order to fulfill the requirement of principle of natural justice. As noticed, in the present case, the petitioner specifically denied the allegation of the charge sheet and put forth his defence on the basis of factual assertions. In our view, the petitioner had a valuable right as per principle of natural justice to put forth his defence by leading evidence in the enquiry. If enquiry would have been conducted, the petitioner would have been in a position to lead the evidence to establish that the delay was neither deliberate nor amount to misconduct. In such case, department also would have been in a position to lead the evidence to establish the charges. Tribunal has merely opined that looking to the type of charges imputed against the applicant, the decision of not conducting enquiry is justifiable. However, Tribunal has not assigned any reasons as to why the judgment of O.K. Bhardwaj is not applicable in the matter. Needless to mention that Tribunal was bound by the decision of Apex Court in O.K. Bhardwaj (Supra)."
(Emphasis Supplied)
13) In view of judgments of Supreme Court reported in (1999) 1 SCC 759 (Apparel Export Promotion Council vs. A.K. Chopra), (2007) 7 SCC 236 (Bank of India vs. T. Jogram), (2009) 8 SCC 310 (State of U.P. vs. Man Mohan Nath Sinha), (2020) 3 SCC 423 (State of Karnatka vs. N. Gangaraj) and (2020) 9 SCC 471 (Pravin kumar vs. Union of India), the judicial review on a disciplinary proceeding is mainly confined on the decision making process or in other words, on the aspect of procedural impropriety. If impugned disciplinary proceedings are tested on the anvil of principles of natural justice, it will be clear like cloudless sky that the show cause notice nowhere indicates that it 'initiates' the disciplinary proceeding. At the cost of repetition, the show cause notice directs the petitioner to file reply as to why disciplinary proceedings should not be 'initiated' against him. Thereafter, petitioner filed a reply on facts, but without holding any 7 WA No.497/2020 inquiry, the punishment order is passed. This violates the principles of natural justice and principle laid down in judgment of Supreme Court in O.K. Bhardwaj (supra) and judgment of this Court in Bholeram (supra). We are unable to countenance the disciplinary proceedings and unable to give a stamp of approval to the impugned order of learned Single Judge. In our considered opinion, the decision making process was clearly vitiated and there exists a serious procedural impropriety in the decision making process.
14) The ancillary question is whether in a case of this nature the matter should be remitted back to the department to complete the inquiry. Ordinarily, when disciplinary proceedings/punishment is interfered with for violation of principles of natural justice, Court remits the matter back to the department to conduct further inquiry from the stage defect is crept in and conclude the same by taking a fresh decision. However, we are not oblivious of the fact that petitioner stood retired on 30/06/2017. Thus, the question is whether the matter can be remitted back for completing the inquiry.
15) Relevant portion of Rule 9(1) of the Pension Rules reads as under:-
"9. Right of governor to withhold or withdraw pension.-(1) The Governor reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from pension of the whole or part of any pecuniary loss caused to the Government. If, in any departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement:
(Emphasis Supplied)
16) Regulation 226 (iv) of M.P. Police Regulations is reproduced as under:-
"(iv)With holding of increment either temporary or permanent (or grade reduction in the case of head Constables) is a suitable punishment for all cases of serious dereliction of duty. It may also be inflicted for culpable ignorance of police procedure, laziness or apathy 8 WA No.497/2020 in conducting the work of the police station ,and the like.
Fair warning should be given in every instance and opportunity for amendment afforded before the punishment is awarded."
(Emphasis Supplied)
17) A bare perusal of said Pension Rule makes it clear that this enabling provision can be invoked when pensioner is found guilty of "grave misconduct". If Police Regulations or CCA Rules are examined, it will be clear that punishments prescribed are of two kinds. The minor punishments are to be imposed for committing minor misconduct, whereas major punishments can be imposed for committing gross/grave/major misconduct. Thus, intention of law makers is clear that Rule 9 can be invoked only when the delinquent employee/pensioner is charged for committing grave/major misconduct. A plain reading of punishment order clearly shows that the disciplinary authority has not treated the misconduct as grave and, therefore, neither major penalty charge-sheet was issued to him followed by a full-fledged departmental inquiry nor a major punishment was imposed. Thus, in a case of this nature, where a minor punishment was imposed which was found to be defective, after the retirement of the employee, the matter cannot be remitted back for conducting further inquiry. We have recently taken this view in 2021(3) MPLJ 90 (State of M.P. vs. Vishnu Prasad Maran). The relevant portion reads as under:-
"11. ......In view of this discussion, the punishment of "Censure" even otherwise could not have been imposed. The imposition of "Censure", (the smallest punishment prescribed in CCA Rules) shows that in the opinion of the Governor the misconduct was not "grave" in nature. Hence, as per Pension Rules, there is no question of remitting the matter back to the Governor to pass appropriate punishment under the Pension Rules."
(Emphasis Supplied)
18) We are not oblivious of the fact that this judgment to some extent has been reviewed by this Court in RP No.129/2021, however, 9 WA No.497/2020 the aforesaid point was not subject matter of review. Thus, this point still holds the field.
19) In view of foregoing analysis, the order of learned Single Judge cannot be permitted to stand. Similarly, the order of punishment and appellate orders are liable to be interfered with.
20) Resultantly, the order of learned Single Judge dated 11/02/2020, the punishment order dated 30/09/2015 and appellate orders dated 01/04/2016, 10/07/2017 and 26/02/2019 are set aside. Resultantly, all consequential benefits be given to the appellant within 90 days from the date of production of copy of this order.
21) The appeal is allowed.
(Sujoy Paul) (Anil Verma)
Judge Judge
soumya
Digitally signed by
SOUMYA RANJAN
DALAI
Date: 2021.09.02
18:34:52 +05'30'