Madhya Pradesh High Court
Bholeram Soni vs Union Of India on 9 January, 2015
Author: Sujoy Paul
Bench: Sujoy Paul
1 WP.3021/2014
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(DB: Justice U.C. Maheshwari &
Justice Sujoy Paul.)
Writ Petition No.3021/2014
Bholeram Soni
Versus
Union of India and Others
-------------------------------------------------------------------------------------------------
Shri Satish Chandra Sharma, learned counsel for the petitioner.
Shri M.K. Sharma, learned counsel for the respondents.
-------------------------------------------------------------------------------------------------
ORDER
( 09 / 01 / 2015) Per Sujoy Paul, J This petition filed under Article 227 of the Constitution challenges the order of Central Administrative Tribunal ( Tribunal) passed in O.A. No. 191/2011 dated 02nd May, 2013. The Tribunal dismissed the said O.A. of the petitioner wherein the order of punishment dated 19.11.2007 and appellate order dated 07.05.2009 were called in question.
2. Brief facts necessary for adjudication of this matter are that petitioner was working as Senior Accountant with the respondent- department. As per petitioner, he has rendered 24 years of unblemished service with the department. A charge sheet dated 03.04.2007 under Rule 16 of the Central Civil Services ( Classification, Control and Appeal) Rules 1965 was served on him. These rules are hereinafter called as (CCA) Rules. Petitioner submitted his reply dated 18.05.2007 thereafter the disciplinary authority without conducting any enquiry, inflicted the punishment of stoppage of one increment without cumulative effect by order dated 19.11.2007. The petitioner unsuccessfully challenged this order in departmental appeal. The appeal was rejected by order dated 2 WP.3021/2014 07.05.2009. The petitioner feeling aggrieved by the punishment and appellate order aforesaid, preferred aforesaid OA. After completion of pleadings, the OA was heard and decided by the impugned order by the Tribunal.
3. Shri S.C. Sharma, learned counsel for the petitioner, raised singular contention. He submits that allegations mentioned in the charge sheet were factual in nature. Petitioner put forth his defence and stated that allegations are incorrect. In addition, he demonstrated the reasons for alleged delay in submitting the case of claimants before the authorities. Petitioner also prayed for conducting an enquiry as per Rule 16(1)(b) of CCA, Rules. Respondents have erred in not conducting the enquiry. Criticizing the order of the Tribunal, it is contended that Tribunal's order runs contrary to the law laid down by the Supreme Court in (2001) 9 SCC 180 ( O.K. Bhardwaj Vs. Union of India and Ors.). Reliance is also placed on ILR (2008) MP 746 (Ajay Kumar Singh Vs. State of M.P.). In nutshell, it is argued that respondents have erred in inflicting the punishment without conducting any enquiry.
4. Shri M.K. Sharma, learned counsel for the respondents, supported the order passed by the respondent-department. He submits that as per Rule 16(1)(b), it is the discretion of the disciplinary authority to decide whether an enquiry is required to be conducted or not. He relied on Govt. of India instruction (Annexure R/1) dated 28th October, 1985. On the strength of this instruction, it is contended that it was not obligatory on the part of the disciplinary authority to conduct the enquiry. In the peculiar facts of this case, the allegations were established on the basis of documentary evidence and, therefore, no enquiry was required. Neither the disciplinary authority nor the Tribunal have committed any error in dismissing the contention of the petitioner. No other point is pressed by learned counsel for the parties.
5. We have heard the parties at length and perused the record in the light of submissions.
6. A plain reading of charge sheet shows that allegation against the 3 WP.3021/2014 petitioner was that he was directed to issue last payment authority letter. The petitioner was sitting tight over the matter and did not submit the requisite case for 4 ½ months. In addition, it is alleged that in another case relating to one Nand Kishore Upadhyay, petitioner kept the file pending for 6 months. It is alleged that said conduct of petitioner shows that he is habitual in keeping the matters pending. The said conduct of the petitioner has tarnished the image of the department. In turn, petitioner filed his detailed reply dated 18.05.2007. In said reply he stated that he took prompt action on the file of Shri Gaya Prasad Kesharwani. The calculation sheet was approved on 21.08.2002 and on 27.08.2002 minus balance was also found. However, certain documents of said Shri Kesharwani were not available and, therefore, on the basis of pass-book the petitioner sent the proposal. This proposal, as contended by the petitioner, would have been cleared in 2002 itself but the then Asstt. Account Officer did not approve it and matter was transferred by order dated 31.01.2003. In addition, it is the case of the petitioner that delay was not caused by him and it is because of pendency of file for approval before other authorities. He further stated that the names of Nirmal Kumar Upadhyay and Nand Kishore Upadhyay were mixed in the same account. These were required to be bifurcated. The account was not properly maintained since 1973-74. This consumed time to rectify the same. In nutshell, the stand of the petitioner is that the delay is not attributable to him. He has rendered 24 years of unblemished service. No adverse CR is ever communicated to him. The delay is caused because of pendency of file before different authorities. At last, petitioner prayed for a direction to conduct a departmental enquiry under Rule 16(1)(b) of CCA, Rules.
7. The core issue is whether in the aforesaid factual backdrop, it was necessary to conduct the enquiry. Disciplinary authority opined that since the allegations are based on documentary evidence, there is no need to conduct a departmental enquiry. In the opinion of this Court, the point involve in this matter is no more res integra. The curtains are finally 4 WP.3021/2014 drawn by the Apex Court in the case of O.K. Bhardwaj (Supra). In the said case, the Apex Court opined as under :-
"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)
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 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).
9. As analyzed above, in our view, the disciplinary authority, appellate authority and Tribunal have missed the real point. Since facutal allegations were denied and petitioner gave explanation on facts and merits, in the fitness of things, the disciplinary authority should have conducted an enquiry as per Rule 16(1)(b) of CCA Rules. This would have been in consonance with the principle of natural justice. Apart from 5 WP.3021/2014 this, the discretion vested with the disciplinary authority to conduct an enquiry must be exercised in objective and judicious manner. The disciplinary authority in the present case has committed an error in not instituting the enquiry as per rules. Thus, we find flaw in the decision making process adopted by the department. Resultantly, the punishment order dated 19.11.2007 and the appellate order dated 07.05.2009 are set aside. The order of the Tribunal dated 02.05.2013 is also set aside. The matter is remitted back to the disciplinary authority to conduct the enquiry as per Rule 16(1)(b) of CCA Rules. It is open to the respondents to proceed against the petitioner from the said stage in accordance with law. It is made clear that this Court has not expressed any opinion on the merits.
10. Petition is allowed to the extent indicated above. No costs.
(U.C. Maheshwari) (Sujoy Paul)
Judge Judge
sarathe/-