Madhya Pradesh High Court
Rajendra Kumar Sharma vs The State Of Mp on 4 September, 2019
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
The High Court of Madhya Pradesh
WP 18375 of 2019
Rajendra Kumar Sharma, vs. State of MP
Gwalior, dt. 04/09/2019
Shri Prashant Sharma, counsel for the petitioner.
Shri Ankur Mody, Additional Advocate General with Shri RK Soni,
Government Advocate for the respondents/ State.
This petition under Article 226 of the Constitution of India has been filed thereby challenging the order dated 04/07/2019 (Annexure P1) passed by the respondents/State, by which a minor penalty of stoppage of two increments without cumulative effect has been imposed.
For disposal of this petition, it is not necessary to mention the facts in detail. It is suffice to mention that earlier by order dated 07/01/2015, a minor penalty of stoppage of two increments without cumulative effect was imposed.
The said order was challenged by the petitioner by filing a Writ Petition No.6759 of 2015 which was allowed by this Court by order dated 01/08/2017, with the following observations:-
''In the present case, respondents by filing their return, have admitted this fact that though charge-sheet was issued to the petitioner and petitioner's reply was received, but no regular departmental inquiry was conducted as according to the respondents, it was not required. Therefore, in the light of the judgments of the Supreme Court in the case of O.K. Bhardwaj (Supra) and this Court in the case of Ajay Kumar Singh (Supra), this Court is of the opinion that once charge- sheet was issued, then it cannot be said that the respondents intended to take action against the petitioner under the provisions of Rule 16 of the M.P. Civil Services (classification, Control & Appeal) Rules. With the issuance of the charge- sheet, the respondents had intended to proceed under Rule 14 of the CCA Rules. Once they had intention of proceeding against the petitioner under Rule 14, then they could not have 2 called of the inquiry and issue the order of punishment and the impugned order passed in appeal without conducting inquiry. Thus, the impugned orders dated 08.09.2015 and 07.01.2015 are set-aside with liberty to the respondents that if they so deem proper and if the occasion still arises, they may conduct a detailed departmental inquiry against the petitioner and then take decision as to the action they propose to take.
With the aforesaid, petition is allowed.
Parties to bear their own costs.'' Thereafter, by the impugned order dated 04/07/2019 (Annexure P1), again the minor punishment of stoppage of two increments has been imposed.
Challenging the order passed by the respondent No.1, it is submitted by the Counsel for the for the petitioner that while deciding Writ Petition No.6759 of 2017, this Court had specifically held that if the respondents so deem proper and occasion still arises, then they may conduct a detailed departmental enquiry against the petitioner and then take decision as to the action they propose to take. It is submitted that the respondents have not conducted the departmental enquiry and without assigning any reason as to why holding of departmental enquiry is not necessary, have once again passed the impugned order, which runs contrary to the direction given by this Court in Writ Petition No.6759 of 2015.
Per contra, it is submitted by the Counsel for the State that in the impugned order the reasons have been assigned for holding the petitioner as a guilty and, therefore, the order dated 04/07/2019 passed by the respondents/ State is in accordance with law.
Heard the learned Counsel for the parties.
The Supreme Court in the case of O. K. Bhardwaj Vs. Union of 3 India & others reported in (2001) 9 SCC 180 has held as under :-
"3. While we agree with the first proposition of the High Court having regard to the rule position which expressly says that "withholding increments of pay with or without cumulative effect" is a minor penalty, we find it not possible to agree with the second proposition. 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.'' The co-ordinate Bench of this Court, in the case of Ashok Kumar Sharma Vs. Madhya Pradesh Madhya Kshetra Vidyut Vitaran Co. Ltd. & others by order dated 27-2-2018 passed in W.P. No.2200/2017 has held as under :-
''Taking the second issue first as to whether it was within the competence of the authority concerned to have inflicted the minor penalty of stoppage of one increment with non- cumulative effect for a period one year without holding a departmental enquiry as contemplated under Rule 14 of the Rules 1966, the same is settled at rest by the judgment rendered by the Supreme Court in O.K. Bhardwaj Vs. Union of India and others [(2001) 9 SCC 180] wherein it is held:
"3. While we agree with the first proposition of the High Court having regard to the rule position which expressly says that "withholding increments of pay with or without cumulative effect" is a minor penalty, we find it not possible to agree with the second proposition. 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.'' Even in Food Corporation of India Vs. A. Prahalada 4 Rao [(2001) 1 SCC 165] reliance whereon is placed by the respondent it is held that, "holding of regular departmental enquiry is a discretionary power of the disciplinary authority which is to be exercised by considering the facts of each case and if it is misused or used arbitrarily, it would be subject to judicial review. In the case at hand, no material has been commended at to establish that the disciplinary authority, assigned any reasons for not holding the departmental enquiry".
Furthermore, a Division Bench of this Court in Union of India and Anr. Vs. C.P. Singh [2004 (2) MPJR 252] had an occasion to examine the issue as to whether an inquiry can be dispensed with, in all cases where the penalty proposed is recovery of pecuniary loss caused by negligence or breach of orders categorized as minor penalty? Their lordships taking note of decisions in C.R. Warrier Vs. State of Kerala (1983 (1) SLR 608), V. Srinivasa Rao Vs. Shyamsunder (ILR 1989 Ker. 3455); G. Sundaram Vs. General Manager, Disciplinary Authority, Canara Bank (ILR 1998 Kar. 4005); O.K. Bhardwaj Vs. Union of India and [(2001) 9 SCC 180] and Food Corporation of India Vs. A. Prahalada Rao [(2001) 1 SCC 165] were pleased to observe:
"16. The position as can be gathered from the Rules and the aforesaid decisions can be summarised thus:
(i) In a summary inquiry, a show cause notice is issued informing the employee about the proposal to take disciplinary action against him and of the imputations of misconduct or misbehaviour on which such action is proposed to be taken. The employee is given an opportunity of making a representation against the proposal. The Disciplinary Authority considers the records and the representation and records of findings on each of the imputations of misconduct.
(ii) In a regular inquiry, the Disciplinary Authority draws up the articles of charge and it is served on the employee with a statement of imputation of misconduct, list of witnesses and list of documents relied on by the Department. The Disciplinary Authority calls upon the employee to submit his defence in writing. On considering the defence; the Disciplinary Authority considers the same and decides whether the inquiry should be proceeded with, or the charges are to be dropped. If he decides to proceed with the enquiry, normally an Inquiring Authority is appointed unless he decides to hold the inquiry himself. A Presenting Officer is appointed to present the case. The employee is permitted to take the 5 assistance of a coemployee or others as provided in the rules. An inquiry is held where the evidence is recorded in the presence of the employee. The employee is permitted to inspect the documents relied upon by the employer. The employee is also permitted to call for other documents in the possession of the Management which are in his favour. The delinquent employee is given an opportunity to rebut the evidence of the management by cross-examining the management witnesses and by producing his evidence both documentary and oral. Arguments written and/or oral-are received/heard. The delinquent employee is given full opportunity to put forth his case. Therefore, the Inquiring Authority submits his report. The copy of the report is furnished to the employee and his representation is received. Thereafter the Disciplinary Authority considers all the material and passes appropriate orders. The detailed procedure for such inquiries is contained in sub-rules (6) to (25) of Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968 corresponding to sub-rules (3) to (23) of Rule 14 of the Central' Civil Services (CCA) Rules, 1965 and M.R Civil Services (CCA) Rules, 1966.
(iii) The normal rule, except where the employee admits guilt, is to hold a regular inquiry. But where the penalty proposed is a 'minor penalty', then the Rules give the Disciplinary Authority a discretion to dispense with a regular inquiry for reasons to be recorded by him, and hold only a summary enquiry.
(iv) Though the Rules contemplate imposing a minor penalty without holding a regular enquiry, where the Disciplinary Authority is of the opinion that such enquiry is not necessary, such decision not to hold an enquiry can be only for valid reasons, recorded in writing. Dispensation with a regular enquiry where minor penalty is proposed, should be in cases which do not in the very nature of things require an enquiry, for example, (a) cases of unauthorised absence where absence is admitted but some explanation is given for the absence;(b) non-compliance with or breach of lawful orders of official superiors where such breach is admitted but it is contended that it is not wilful breach; (c) where the nature of charge is so simple that it can easily be inferred from undisputed or admitted documents; or (d) where it is not practicable to hold a regular enquiry.
6(v) But, even where the penalty proposed is categorized as minor penalty, if the penalty involves withholding increments of pay which is likely to affect adversely the amount of pension (or special contribution to provident fund payable to the employee), or withholding increments of pay for a period exceeding three year or withholding increments of pay with cumulative effect for any period, then it is incumbent upon the disciplinary authority to hold a regular inquiry.
(vi) Position before decision in FCI: Where the charges are factual and the charges are denied by the employee or when the employee requests for an inquiry or an opportunity to put forth the case, the discretion of the Disciplinary Authority is virtually taken away and it is imperative to hold a regular inquiry.
Position after decision in FCI: Where the Rules give a discretion to the Disciplinary Authority to either hold a summary enquiry or regular enquiry, it is not possible to say that the Disciplinary Authority should direct only a regular enquiry, when an employee denies the charge or requests for an inquiry. Even in such cases, the Disciplinary Authority has the discretion to decide, for reasons to be recorded, whether a regular enquiry should be held or not. If he decides not to hold a regular enquiry and proceeds to decide the matter summarily, the employee can always challenge the minor punishment imposed, on the ground that the decision not to hold a regular enquiry was an arbitrary decision. In that event, the Court or Tribunal will in exercise of power of judicial review, examine whether the decision of the Disciplinary Authority not to hold an enquiry was arbitrary. If the Court/Tribunal holds that the decision was arbitrary, then such decision not to hold an enquiry and the consequential imposition of punishment will be quashed. If the Court/Tribunal holds that the decision was not arbitrary, then the imposition of minor penalty will stand.
17. It is also possible to read the decisions in Bharadwaj and FCI harmoniously, if Bharadwaj is read as stating a general principle, without reference to any specific rules, that it is incumbent upon the Disciplinary Authority to hold a regular enquiry, even for imposing a minor penalty, if the charge is factual and the charge 7 is denied by the employee. On the other hand, the decision in FCI holding that the Disciplinary Authority has the discretion to dispense with a regular enquiry, even where the charge is factual and the employee denies the charge, is with reference to the specific provisions of a Rule vesting such discretion.
18. There is yet another aspect which requires to be noticed. Where the penalty to be imposed though termed as minor, is likely to materially affect the employee either financially or career-wise then it is not possible to dispense with a regular enquiry. In fact, this is evident from sub-rule (2) of Rule-11 which says that where the penalty to be imposed, though termed as minor penalty, involves withholding of increments which is likely to affect adversely the amount of pension or special contribution to provident fund, or withholding of increments of pay for a period exceeding three years or withholding of increments of pay with cumulative effect, then an enquiry as contemplated under Rule-9 (6) to (25) is a must. Thus, categorisation of penalties into 'major' and 'minor' penalties, by itself may not really be determinative of the question whether a regular enquiry is required or not.
19. While 'censure' and withholding of increments of pay for specified period may conveniently be termed as minor punishments, we feel very uncomfortable with 'recovery of pecuniary loss, for negligence or breach of 'orders' without stipulating a ceiling, being considered as a 'minor penalty'. 'Recovering small amounts, as reimbursement of loss caused to the employer byway of negligence or breach of orders from the pay of the employee can be a minor penalty. But can recovery of huge amounts running into thousands and lakhs, by way of loss sustained on account of negligence or breach of orders, be called as a minor penalty ? For example, in this case, recovery sought to be made from the petitioner is Rs. 75,525/- determined as being 50% of the total value of 74 rail posts. Theoretically, what would be the position if the loss was 740 or 7400 rail posts.? Does it mean that recovery of Rs. 7.5 lakhs or Rs. 75 lakhs can be ordered from the Government servant, still terming it as a minor penalty, without holding any enquiry ? It is time that the State and authorities take a second look as what is termed as 'minor penalty' with reference to recovery of losses.
8The recovery of pecuniary loss on account of negligence or breach of order though termed as a minor penalty may have disastrous consequences, affecting the livelihood of the employee, if the amount sought to be recovered is huge.
20. In the absence of any ceiling as to the pecuniary loss that can be recovered by treating it as minor penalty, it is necessary to find out whether there is any indication of the limit of amount that can be recovered without enquiry, by applying the procedure for imposition of minor penalties. We get some indication of the pecuniary limit in Rule-11 (2) which provides that if the minor penalty involves withholding of increments of pay for a period exceeding three years then a regular enquiry is necessary. Thus, we can safely assume that the pecuniary loss proposed to be recovered exceeds the monetary equivalent of increments for a period of three years, then a regular enquiry has to be held.
21. The fastening of pecuniary liability on the basis of negligence or breach of orders, involves decision on four relevant aspects:
(a) What was the duty of the employee?
(b) Whether there was any negligence or breach of order on the part of the employee while performing such duties?
(c) Whether the negligence or breach of order has resulted in any financial loss to the employer?
(d) What is the quantum of pecuniary loss and whether the pecuniary loss claimed include any remote damage and whether the employer has taken steps to mitigate the loss?
These are not matters that could be decided without evidence, and without giving an opportunity to the employee to let in evidence. Therefore, where the charge of negligence or breach of lawful order is denied, a regular enquiry is absolutely necessary before fastening financial liability on the employee, by way of punishment of recovery of pecuniary loss from the employees. However, having regard to the decision in FCI, regular inquiry can be dispensed with, for valid reasons, if the amount to be recovered is small (which in the absence of a specific provision, does not exceed the equivalent of three years increment at the time of imposition of penalty). Any attempt to fasten any higher monetary liability on an employee without a regular enquiry, by terming it as a minor penalty, would be a travesty of justice."
The careful reading of these decisions and applying the principle of law in the facts of present case, leaves no iota of doubt 9 that in the case at hand the disciplinary authority acted arbitrarily in dispensing from holding a regular departmental enquiry for no recorded reasons. Or even if there were reasons, the same were not communicated. '' Thus, it is clear that whenever the allegations are denied by the delinquent officer, then the disciplinary authority is under obligation to give a finding as to why the departmental enquiry is not required. Furthermore, the factual allegations which have been denied by the delinquent officer, cannot be held to be proved merely by saying that the reply submitted by the departmental officer is not satisfactory.
Thus, this Court is of the considered opinion that the impugned order dated 04/07/2019 passed by respondent No.1 is not only contrary to the direction given by this Court in Writ Petition No.6759 of 2015 but is contrary to the principles of natural justice as well as contrary to the provisions of Rule 16(1)(b) of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966. Accordingly, the order dated 04/07/2019 is hereby set aside.
Now, the only question for consideration is that whether the matter should be remanded back to the respondents for holding a departmental enquiry or not?
From the impugned order, it appears that the charge sheet was issued on 02/09/2013. Earlier, a minor penalty was imposed, which was set aside by this Court with liberty to the respondents to conduct a departmental enquiry.
However, in the impugned order dated 04/07/2019, the Avar Secretary, State of MP, PWD has mentioned as under:-
10**mDr ;kfpdk esa eku- mPp U;k;ky; Xokfy;j }kjk fnukad 01@08@2017 dks vkns'k ikfjr djrs gq, 'kkfLr vkns'k fnukad 07@01@2015 dks fujLr fd;k x;k vkSj ;g Lora=rk nh xbZ dh foHkkx ;fn mfpr le>s rks Jh 'kekZ ds fo:) fu;ekuqlkj dk;Zokgh djsaA** Thus, it appears that the respondents have deliberately misinterpreted and misquoted the order of the High Court. This Court had specifically held that if the respondents so deem proper and occasion so arises, then they may conduct a detailed departmental enquiry, but by misquoting the order of the High Court, the Avar Secretary, State of MP, PWD has mentioned that direction is to proceed in accordance with law. The words ''the liberty of conducting departmental enquiry'' has been deliberately omitted by the Avar Secretary, State of MP, PWD.
From the impugned order, it appears that the work orders were issued prior to posting of the petitioner and the final bills were also paid when the petitioner was not posted. However, it appears that some running bills were paid by the petitioner. In spite of mentioning that final bills were not paid during the period of posting of the petitioner but still the Avar Secretary has mentioned that at the time of payment of final bills, it was the duty of the petitioner to verify the quality of work. It is really surprising that when the petitioner was not posted at the time of payment of final bills, then how it can be said that it was the duty of the petitioner to verify the quality of work at the time of payment of final bills. Thus, it is clear that the respondent No.1 is acting with a mala fide intention and, therefore, they have even gone to the extent of misinterpreting and misquoting the order of the High Court. Under these circumstances, this 11 Court is of the considered opinion that no fruitful purpose would be served by remanding the matter back to the respondent No.1 for adjudication.
Accordingly, the order dated 04/07/2019 (Annexure P-1) is hereby quashed without any further liberty to the respondents to proceed against the petitioner. However, the respondents may proceed against those persons, who are responsible for payment of final bills.
Further, the Chief Secretary, State of MP, Bhopal is directed to look into the matter and to take necessary action against R.N.Chauhan, Avar Secretary, PWD, Vallabh Bhawan, Bhopal if the order dated 04/07/2019 (Annexure P1) is found to be passed out of mala fide.
With the aforesaid observations, the petition is allowed.
(G. S. Ahluwalia) Judge MKB MAHENDRA Digitally signed by MAHENDRA KUMAR BARIK DN: c=IN, o=HIGH COURT OF M.P. BENCH KUMAR GWALIOR, ou=P.S., postalCode=474011, st=Madhya Pradesh, 2.5.4.20=f592da990684fe30f8e1e29a4a1a 9e3451ee450d883083a8e4cc8020eee6f7c BARIK b, cn=MAHENDRA KUMAR BARIK Date: 2019.09.12 17:18:52 +05'30'