Madhya Pradesh High Court
Parimal Singh Prajapati vs State Of M.P. on 8 May, 2017
1
W.P. No.6328/2011(s)
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SB : HON'BLE MR. JUSTICE S.A. DHARMADHIKARI
W.P. No. 6328 of 2011 (s)
Parimal Singh Prajapati
Vs.
State of M.P. & Ors.
Whether reportable :- Yes /No
__________________________________________________________
For Petitioner : Shri D.K. Katare, Advocate.
For Respondents/State: Shri C.R. Roman, Govt. Advocate.
ORDER
(Delivered on this Day of 8th May, 2017)
1. By filing this petition under Article 226 of Constitution of India, the petitioner has assailed the legality, validity and propriety of show cause notice dated 12/08/2011 passed by the respondent No. 2/Director Sericulture (Silk), Bhopal proposing punishment for removal from service.
2. Brief facts leading to filing of this case are that the petitioner was duly selected and appointed on the post of Field Sericulture Officer on 31/01/1986 which is class-III post. The petitioner while posted in the office of Assistant Director Sericulture, Guna, he was deployed to look after the work of Mahatma Gandhi National Rural Employment Guarantee Scheme. The petitioner has submitted certain application to the Assistant Director for releasing of the fund for payment of labour charges, but he refused to release the amount and 2 W.P. No.6328/2011(s) demanded 5 % commission for releasing the same. When the petitioner refused to pay the commission, the respondent No. 3 got annoyed and did not release the fund for labour payment. At the instance of respondent No. 3, the petitioner was put under suspension on 11/08/2010. The said order was challenged in W.P. No. 4764/2010 (s), which was allowed by this Court vide order dated 02/12/2010. The order suspending the petitioner was quashed on the ground that the petitioner being gazetted officer, the Director has no power and authority to suspend the petitioner. Thereafter charge sheet was issued on 04/09/2010. The petitioner submitted an application requesting the respondents to keep the enquiry proceedings in abeyance in view of the fact that on the same set of facts and same incident a criminal case bearing No. 1740/2010 is pending consideration.
3. The contention of learned counsel for the petitioner is that enquiry was conducted behind his back, no notice was issued to the petitioner. The said fact is apparent from perusal of enquiry report Annexure P/10. The second contention of learned counsel for the petitioner is that on the basis of compromise the petitioner has been acquitted from the criminal charge and as such the petitioner cannot be punished on the same set of facts in which he has already been acquitted. The third contention of learned counsel for the 3 W.P. No.6328/2011(s) petitioner is that Rule 30 of M.P. Civil Services (classification, control and appeal) Rules have not been followed which provides that communication to the petitioner is must and in absence of such communication holding an ex-parte enquiry stands vitiated. The fourth contention of learned counsel for the petitioner is that the petitioner being gazetted officer, the respondent No. 2/Director is not appointing authority of the petitioner, but the appointing authority of the petitioner is State Government, therefore, issuance of notice by respondent No. 2/Director is liable to be quashed being wholly illegal and without jurisdiction.
4. On the other hand, learned Govt. Advocate for the respondents/State at the very threshold submits that against the show cause notice this petition is not maintainable, as such, the same deserves to be dismissed on this ground alone.
5. Heard learned counsel for the parties at length and perused the material available on record.
6. On bare perusal of the order dated 11/04/2008 Annexure R/1 along with return filed by the respondents/State it can be seen that an officer in the pay scale of Rs. 6500- 200 - 10500 has been declared as gazetted officer. Admittedly the petitioner is in the pay scale of Rs. 6500- 200 - 10500. In the return no specific pleadings have been mentioned by the respondents/State in regard to the fact as to whether the 4 W.P. No.6328/2011(s) petitioner could be issued show cause notice by the Director. In the case of the present petitioner, this Court has set aside the order of suspension in W.P. No. 4764/2010(s) vide order dated 02/12/2010 on the ground that the petitioner being a gazetted officer, the Director has no power and authority to suspend the petitioner.
7. Admittedly, in the present case, the show cause notice dated 12/08/2011 (Annexure P/1) has been issued by the Directorate of Sericulture, Bhopal, therefore, show cause notice itself has no leg to stand. As a consequence, this petition is allowed. The impugned order dated 12/08/2011 Annexure P/1 stands quashed and set aside. However, the respondents are at liberty to initiate fresh proceedings against the petitioner, if necessary, in accordance with law.
No order as to costs.
(S.A. Dharmadhikari) JUDGE (08/05/2017) Durgekar*