Madhya Pradesh High Court
Vijay Kumar Sahu vs Madhya Pradesh Sate Electricity Board on 16 March, 2018
1 W.P. No. 19545/2011
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE MS.VANDANA KASREKAR
WRIT PETITION NO. 19545/2011
Vijay Kumar Sahu
Vs.
Madhya Pradesh State Electricity Board & Others
Shri P.R. Bhave, learned senior advocate with Shri
P.K. Khare, learned counsel for the petitioner.
Shri Sharad Punj, learned counsel for respondents
No. 2 to 4.
ORDER
(16.03.2018) The petitioner has filed the present petition challenging the order dated 19.09.2008 as well as order dated 19.06.2010 passed by respondent No. 5 and 3.
2. Brief facts of the case are that the petitioner was suspended in contemplation of Departmental Enquiry and subsequently on 27.01.2006, a charge-sheet was issued to him on the ground that while he was posted as Office Assistant Grade-III in Accounts Section he had committed 2 W.P. No. 19545/2011 irregularities by extending favour to consumers for his personal gains. The petitioner thereafter submitted an application on 14.02.2006 thereby demanding the documents on the basis of which, charges have been levelled against him. The Executive Engineer vide letter dated 02.03.2006 has informed to the petitioner that the documents are not available in the office of Junior Engineer. It has further been mentioned in the reply that he can get the documents from the Divisional Office. Again on 01.05.2006, the petitioner submitted an application in which he has denied the charges in toto and has elaborately replied each and every allegations made against him. Again by letter dated 22.10.2007, the Assistant Engineer, Bandakpur under whose jurisdiction Hindauriya Distribution Centre falls informed the Executive Engineer that the documents which have been sought by the Executive Engineer and relate to the petitioner's charge-sheet are not available. The petitioner has also submitted an application on 16.03.2016 whereby 3 W.P. No. 19545/2011 he has requested that he will be allowed to get certified copies of the documents from the office of Junior Engineer, Hindauriya. Without supplying the documents to the petitioner, the respondents have appointed Presenting Officer and Presiding Officer by order dated 10.04.2006. Thereafter, a supplementary charge-sheet was issued to the petitioner in which further two charges have been levelled.
3. The petitioner submitted reply to the said additional charges. Thereafter an enquiry was proceeded against the petitioner and copy of the enquiry report was supplied to the petitioner along with show cause notice dated 11.12.2007. The petitioner submitted reply to the said show cause notice wherein, specifically mentioned that no document has been placed before the Inquiry Officer to established the charges. Neither any document which is mentioned in the charge-sheet has been placed before the Inquiry Officer. However, without considering the reply submitted by the petitioner, the respondents have passed an order dated 19.09.2008 thereby terminating the 4 W.P. No. 19545/2011 services of the petitioner and has also directed for recovery of an amount of Rs. 64,108.30/- from the terminal benefits of the petitioner.
4. Against the order of termination, the petitioner has preferred an appeal before the Chief Engineer on 10.10.2008. The appellate authority has asked the Superintending Engineer to give comments on the appeal preferred by the petitioner. Accordingly, the Superintending Engineer has sent his comments. However, in spite of these comments given by the Superintending Engineer in favour of the petitioner, the appeal preferred by the petitioner has not been decided. The petitioner has, therefore, submitted a representation on 14.12.2009. But in spite of the said representation, the appeal was not decided, the petitioner, therefore, constrained to file writ petition, i.e. W.P. No. 11855/2009 before this Court. The said writ petition was disposed of with a direction to the appellate authority to decide the appeal expeditiously in accordance with law. In pursuance of the direction issued by this 5 W.P. No. 19545/2011 Court, the appellate authority vide letter dated 19.06.2010 has informed that his appeal has been dismissed. But the order of appellate authority has not been served on the petitioner till date. The petitioner, thereafter, submitted a mercy appeal to the Chairman-cum-Managing Director, which was also dismissed. Being aggrieved by these orders, the petitioner has filed the present petition.
5. Learned senior counsel appearing on behalf of the petitioner argues that the order of punishment as well as the order of appellate authority are illegal, arbitrary and violative of principles of natural justice. He submits that the respondents have not supplied him the documents which were demanded by him and was annexed with the charge-sheet. The charges which were levelled against the petitioner are vague in nature and the charge-sheet has been issued on false and vague allegations. He further submits that the petitioner is not at all responsible for the charges levelled against him inasmuch as there was connivance between the consumers and Junior 6 W.P. No. 19545/2011 Engineers/Assistant Engineers. The documents were not produced before the Inquiry Officer. He further submits that the order passed by the appellate authority is a non speaking order and does not show any application of mind. He further submits that in spite of recommendation /comments of Superintending Engineer which were sought from him by the Chief Engineer, the appellate authority has not accepted the said recommendation made by the Superintending Engineer. In light of the aforesaid, learned senior counsel submits that the petition may be allowed and the impugned order be set aside.
6. The respondents have filed their reply and in the said reply, the respondents have stated that the petitioner had committed serious misconduct by misappropriation of the amount collected from the consumers and thus, the petitioner cannot shift his liability towards other officials. The petitioner was directed to file his reply to the said charge-sheet within 15 days from the date of issuance of the charge-sheet. However, the 7 W.P. No. 19545/2011 petitioner did not file his reply and insisted the respondents to supply the copy of some documents. Since, the documents as sought by the petitioner were not available in the office of Executive Engineer, the petitioner was asked to collect the same from the Divisional Office. It has further been submitted that the reply submitted by the petitioner to the said charge-sheet was not found to be satisfactory and not in consonance to the charges levelled against him. The petitioner was called by the Executive Engineer to peruse the records vide his letter dated 02.03.2006. However, the petitioner did not appear on that date. It has further been submitted that the petitioner has deposited the amount as mentioned in both the initial and supplementary charge-sheets which itself shows the admission of the petitioner that he has committed misappropriation of the funds and depositing the amount as guilty delinquent. It has further been submitted that on appeal being filed by the petitioner, the appellate authority had sought some comments from the then Superintendent 8 W.P. No. 19545/2011 Engineer and the comments which is given by the Superintending Engineer are nothing but a narration of the fact made by the petitioner in the appeal memo. Therefore, though, the Superintending Engineer has written in favour of the petitioner. However, the same is not based on the material available on record against the petitioner.
7. Heard learned counsel for the parties and perused the record as well as the orders. The petitioner was working as Office Assistant Grade-III was suspended in contemplation of the departmental enquiry. Thereafter, a charge-sheet was issued to him on 27.01.2006 alleging four charges regarding irregularities committed by him by extending favour to consumers for his personal gains. The petitioner, therefore, submitted an application on 14.02.2006 for demanding certain documents, on the basis of which the charges have been levelled against the petitioner. However, these documents were not supplied to the petitioner by the Executive Engineer on the ground that these documents are not available in the office and he was 9 W.P. No. 19545/2011 directed to collect the same from the Divisional Office. In absence of the documents supplied by the respondents, the petitioner has filed his reply to the said charge-sheet on 01.05.2006 denying all the charges levelled against him. Thereafter, Presenting Officer as well as Presiding Officer have been appointed by the Executive Engineer on 10.04.2006 for conducting departmental enquiry against the petitioner. Thereafter a supplementary charge-sheet has been supplied to the petitioner in which further two charges have been levelled. As per the petitioner during the course of the enquiry, the petitioner has not been afforded any opportunity to defend himself. The respondents have produced the copy of the departmental enquiry record before this Court. From perusal of the record, it reveals that the petitioner has admitted his charges and once, he has admitted the charges, then the respondents should not have proceeded with the enquiry and should have passed the order. However, in spite of the admission of charges by the petitioner, the respondents proceeded with the enquiry and 10 W.P. No. 19545/2011 without examining any of the witnesses and has passed the impugned order.
8. The inquiry officer, thereafter concluded the enquiry and submitted its report. The said report was supplied to the petitioner along with a show cause notice dated 11.12.2007. The petitioner submitted his reply to the said show cause notice. However, without considering the said reply, the respondents have passed an order of termination dated 19.09.2008. Against the order of termination, the petitioner has submitted an appeal to the appellate authority. The appellate authority had called for the comments from the Superintending Engineer on the appeal submitted by the petitioner. The Superintending Engineer has given his comments in favour of the petitioner. However, without considering those comments, the appellate authority passed an order thereby dismissing the appeal preferred by the petitioner.
9. From perusal of the order of the appellate authority, it is clear that the order of appellate authority is a 11 W.P. No. 19545/2011 non speaking order and the appellate authority has not considered any of the grounds raised by the petitioner in the appeal. The appellate authority has not also stated that why the comments given by the Superintending Engineer can be relied on.
10. From perusal of the order of appellate authority, it is also reveals that the appeal preferred by the petitioner was rejected on 18.08.2009 and annexure-P/16 which is served on the petitioner is only a communication. However, the order dated 18.08.2009 by which his appeal was rejected has not been supplied to the petitioner. The respondents have not filed the copy of the order dated 18.08.2009 on record by which the appeal of the petitioner has been rejected. The order Annexure-P/16 which has been supplied to the petitioner does not reflect any application of mind. So far as, departmental enquiry which is initiated against the petitioner is concerned, the respondents have stated that the petitioner has admitted guilty and deposited the amount, therefore, the punishment 12 W.P. No. 19545/2011 imposed on the petitioner is just and proper.
11. Thus, in light of the aforesaid, as the order passed by the appellate authority is a non speaking order, this writ petition is partly allowed. The order passed by the appellate authority dated 19.06.2010 is hereby set aside and the appellate authority is directed to decide the appeal preferred by the petitioner in accordance with law taking into account the comments made by the Superintending Engineer vide letter dated 14.11.2008, by speaking order within a period of three months from the date of receipt of certified copy of the order passed today.
(Ms.Vandana Kasrekar) Judge ashish Digitally signed by ASHISH KUMAR LILHARE Date: 2018.03.16 05:06:10 -07'00'