Madhya Pradesh High Court
Vishnu Prasad Malviya vs The State Of Madhya Pradesh on 11 December, 2017
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE MS.VANDANA KASREKAR
WRIT PETITION NO.18540/2016
Vishnu Prasad Malviya
Vs.
State of M.P. and another
Shri Siddharth Gupta, learned counsel for the petitioner.
Shri Ashish Barnad, learned Govt. Advocate for
respondents.
ORDER
(11/12/2017) The petitioner has filed the present writ petition challenging the order dated 01/09/2016 passed by respondent No.1 thereby imposing the punishment of withholding of 50% of pension with cumulative effect upon the petitioner.
2. The petitioner was posted as Joint Director, Town and Country Planning Department at Raipur from 1998. Joint Director was authorised to issue/permit/authorise development of limited local and community shops on a residential land. The State Government by its orders dated 08/01/1987 and 15/03/2000 authorised the Joint Director, T&CP for issuing development permission as per Raipur Development Plan to various private applicants. The petitioner being duly authorised by the State Government issued certain 2 development permission in Raipur between 1998and 2000 after due verification of the plot size/applied area and within the permissible limits of FAR and FSI. The permissions were issued only after duly scrutinizing the various applications along with their respective documents as well as planning norms. Thereafter a charge sheet was issued to the petitioner on 29/08/2001 alleging three charges against him. The petitioner filed its reply to the said charge sheet on 27/10/2001. In the reply the petitioner has denied all the allegations made against him. The State Government vide order dated 02/03/2002 has rejected the defence of the petitioner and on 08/11/2002 presenting officer forwarded his precise to the enquiry officer. In the said precise also no statutory provision or any order of the Government was referred to, on the basis of which the prosecution alleged that various development permissions were issued illegally by the petitioner. The petitioner filed detailed reply before the enquiry officer on 02/09/2002. Thereafter the enquiry officer proceeded with the enquiry and he recorded statement of three witnesses for prosecution. It has been stated that none of the prosecution witnesses could substantiate any of the 3 charges particularly charge No.1. The petitioner has also examined two witnesses before the enquiry officer. Both of them supported the permission issued by the petitioner stating that they were issued within the authority and powers delegated to him by the State Government, however, no documentary evidence or material was taken into consideration by the Enquiry Officer.
3. The enquiry officer submitted his report on 11/07/2003 and the same was forwarded to the disciplinary authority for consideration. The enquiry officer, in the enquiry report, has found charge No.1 proved while charge No.2 and 3 partially proved. The enquiry report was not supplied to the petitioner till February, 2010 and, thus, it was not within his knowledge. In the meantime, the petitioner has submitted number of representations to the respondents for quashment of departmental enquiry. Thereafter the matter was placed before the Incharge Minister of the Department of Housing and Environment, Chhattisgarh. Incharge Minister vide his official note sheet dated 11/05/2007 has held that no charge was made out against the petitioner and the pending enquiry be closed against him. Thereafter the file was forwarded to 4 the Chief Minister, Chhattisgarh through his Principal Secretary. The Chief Minister directed the concerned department to verify the various aspects and documentary material which had come on record before the concerned Minister and after the decision of the Chief Minister, Chhattisgarh, it was never open to the State Government to have reviewed the entire matter. Thereafter acting on the instructions of the Chief Minister, Chhattisgarh, Special Secretary of the concerned department examined the entire enquiry report and documentary material that has come before the State Government. He after examination found that only Charge No.1 was proved while charge No.2 was partially proved and charge No.3 was not proved at all against the petitioner. Accordingly, he forwarded the matter for consideration of the Secretary, State of Chhattisgarh for taking final decision in the matter on 11/11/2008.
4. Thereafter the Secretary also considered the entire matter and concurring with the findings of Special Secretary who himself found only charge No.1 proved and other two charges were not proved against the petitioner. Accordingly, the file was forwarded to the Minister Incharge of the 5 department for his approval. The matter remain pending upto February, 2010. When the petitioner was shifted to Madhya Pradesh, then the file pertaining to entire departmental enquiry was also transferred to Madhya Pradesh. Thereafter communication dated 24/02/2012 was issued to the petitioner along with copy of enquiry report seeking explanation against the said enquiry report. The petitioner has filed detailed reply to the said notice on 07/08/2012. Along with reply, the petitioner has annexed a list of all those development permissions whichwere similar in nature for limited commercial use in residential premises/land issued by all other Joint Directors of the State of Madhya Pradesh and Chhattisgarh. However, without considering the reply of the petitioner, respondent No.1 has issued termination order dated 07/02/2013. On the very same day, the Division Bench of this Court vide order dated 07/02/2013 passed in Writ Appeal No.97/2013 has issued direction to the State Government to pass an appropriate orders on the show cause notice issued against the petitioner after taking into consideration of the objections taken by the petitioner in the reply. The said writ appeal was filed by the petitioner 6 against the order dated 22/11/2013 passed in W.P. No.552/2013. Since the order of termination was completely mala fide and contrary to the directions passed by this Court, the petitioner has filed Contempt Case No.333/2012 before this Court. In the said contempt proceeding, the State Government has given an undertaking to withdraw the termination order issued against the petitioner. Accordingly, the State Government vide order dated 18/03/2013 has withdrawn the order of termination.
4. Thereafter the petitioner has submitted a detailed representation on 26/03/2013 in which the petitioner has raised an objection with regard to conducting of second round of enquiry against him after decision was taken by the concerned Minister for exonerating him from all charges. The said representation was forwarded by RDA to the State of Chhattisgarh. A summary report was prepared on 29/11/2013 and in this report the department proposed that only one charge has been found to have been proved while other two charges were not proved and, therefore, punishment of compulsory retirement instead of termination be imposed on the petitioner. The said punishment of compulsory 7 retirement was proposed on 12/02/2014 by the Under Secretary on the instruction of his superior officers to the Portfolio Minister. The concerned Minister approved the summary through his endorsement dated 31/05/2014. In the meantime, the petitioner retired from his service on 31/05/2014 and the entire matter was sent for reconsideration to the department on the ground that since the petitioner has retired from his post, therefore, different nature of punishment needs to be imposed upon him. Accordingly, the concerned department on 16/06/2014 proposing imposition of punishment of stoppage of 5% of pension for one year. Thereafter the matter was internally pending with the respondents authorities, however, without any kind of information or intimation of any nature to the petitioner, all of a sudden in the second week of September, 2016, he received impugned communication dated 01/09/2016. Through the impugned order the department communicated the decision of 50% of pension with cumulative effect upon the petitioner. Being aggrieved by that order, the petitioner has filed the present writ petition.
5. Learned counsel for the petitioner submits that the 8 impugned order dated 01/09/2016 is illegal, arbitrary, violative of principles of natural justice. He submits that no notice or any opportunity of hearing was given to the petitioner before passing the order of punishment as contemplated under Rule 8 of M.P. Civil Services (Pension) Rules, 1976 (hereinafter referred to as 'the Pension Rules'). The disciplinary authority has not applied its independent and objective mind to the various representations of the petitioner against the report of enquiry officer. The disciplinary authority has not considered any documentary material/evidence referred to by the petitioner for rebutting various charges levelled against him. He further submits that in the present case when different officers of the respondents- authorities have recorded different conclusions/findings against the enquiry officer's report recommending the different sets of punishment, therefore, in such circumstances, before passing the order of punishment, the respondents should have issued notice to the petitioner. The report of M.P.P.S.C. was also never issued to the petitioner. He was also not heard by MPPSC before passing the impugned order. He further submits that under Rule 8 and 9 of the Pension 9 Rules, 50% of pension can be withheld when the delinquent employee is guilty of grave misconduct which implies violation of official secrets or any misconduct resulting into conviction after criminal trial from the competent Court and both these situations are not existing in the present case. The Minister Incharge earlier has exonerated the petitioner from the charges and, therefore, after exoneration, the second enquiry on the same set of charges is impermissible in law. The enquiry officer, in his report, found that out of three charges, two charges were not found proved against the petitioner, therefore, in such circumstances, imposition of punishment of withholding of 50% of pension with cumulative effect is too harsh and excessive. He further submits that the enquiry report was prepared way back in the year 2002 and final order was passed in the year 2016, therefore, the entire enquriy is vitiated because of delay and latches. Learned counsel for the petitioner has relied upon the judgment passed by the Apex Court in the case Union of India and others Vs. R.P. Singh, reported in (2014) 7 SCC
340. He also relied upon the judgments passed by this Court in the cases of Dr. Shyam Sharma Vs. State of M.P. & 10 others, reported in 2015(2) MPLJ 458 and Saroj Kumar Shrivastava Vs. State of M.P. & others reported in 2015(2) MPLJ 568.
6. The respondents have filed their reply and in the reply the respondents have stated that while the petitioner was posted as Joint Director, Town and Country Planning, Raipur, a charge sheet was issued by the State Government on 28/08/2001 alleging three charges against him. Imputation of charges was very clear giving specific instances of issuing land development permissions contrary to the provisions of the Act of 1973 and M.P. Nagar Palika (Registration of Colonizer) Rules, 1998. In the first charge, six such instances and in charge No.3, 4 instances were mentioned. In charge No.2, 12 instances were mentioned with specific details. All such permissions were prima facie contrary to the statutory provisions as well as in sheer contraventions with the Master Plan of 1991 of Raipur Town. As result of such illegal and irregular sanctions, open land, lands reserved for recreational/park purposes have been occupied by colonizers and they developed huge residential colonies over such lands. Even agricultural lands falling in the planning 11 area have been subjected to such illegal sanctions. Explanation submitted by the petitioner did not convey any convincing reply and, therefore, full-fledged enquiry in terms of the provisions contained in the Rules of 1966 as adopted by the successor State of Chhattisgarh was decided to be initiated. Vide order dated 02/03/2002 enquiry officer as well as presenting officer were appointed. The petitioner has participated in the said enquiry proceeding and the petitioner did not allege anything adverse with regard to the proceeding held by the enquiry officer or any mala fide against the enquiry officer. The petitioner was allowed to cross-examine the departmental witnesses and also to induct the defence witnesses which he had availed. After holding departmental enquiry thoroughly in accordance with law and established procedure, enquiry officer prepared detailed enquiry report and after considering the evidence came on record, all three charges were found to be proved against the petitioner.
7. After receiving report of enquiry officer, disciplinary authority, in order to confirm findings obtained certain information with regard to Charge No.2 and 3 from the Director of Town and Country Planning, Raipur. When the 12 file was placed before the Portfolio Minister, he recommended for closure of the departmental enquiry and after recommendation, the matter was again thoroughly examined by the disciplinary authority. After detailed consideration, disciplinary authority found charge No.1 proved, charge No.2 partially proved and charge No.3 was not found proved. Looking to the nature of charges found proved/partially proved, disciplinary authority proposed the major punishment of compulsory retirement. The said enquiry report was supplied to the petitioner on 24/02/2012. The petitioner has filed his reply to the said report. After forming such opinion, punishment of dismissal from service was proposed and the matter was sent to the MPPSC for its concurrence.
8. MPPSC vide letter dated 29/12/2012 approved punishment so proposed by the disciplinary authority. Consequently, vide order dated 07/02/2013 the petitioner was dismissed from the service. While passing such punishment, the State Government was not aware about the order dated 07/02/2013 passed by this Court in Writ Appeal No.97/2013 whereby disciplinary authority was directed to take a decision 13 in the matter after considering certain preliminary objections raised by the petitioner in his reply to show cause. Taking into consideration such a situation, the State Government vide order dated 18/03/2013 withdrew final order of punishment and the petitioner was reinstated in serice. The petitioner thereafter again submitted his explanation/ representation which had to be considered by the disciplinary authority in terms of the directions issued by this Court as in the intermediate period, the petitioner stood retired on attaining his age of superannuation on 31/05/2014. As the petitioner has been retired, therefore, the respondents have passed the impugned order thereby withholding 50% of the pension permanently of the petitioner after taking concurrence from the MPPSC. Cabinet of Ministers also approved the punishment proposed on the petitioner on 17/05/2016. The respondents have also submitted that the scope of interference in the matter of enquiry is very limited unless there is any breach of statutory rules or mala fide on the part of the disciplinary authority is substantiated. So far as quantum of punishment is concerned, the respondents have stated that the punishment of compulsory retirement was 14 proposed against the petitioner while he was in service, therefore, punishment which has been inflicted has equalized the similar impact and, thus, the same is also justified and proper. In light of aforesaid discussion, learned Govt. Advocate submits that no case is made out warranting interference by this Court in exercise of extraordinary jurisdiction.
9. Heard learned counsel for the parties and perused the record.
10. The petitioner was working on the post of Joint Director, Town and Country Planning, Raipur from 1998. He was authorised to approve the development plan and granting permission for residential as well as limited commercial purposes. The petitioner being authorised by State Government has issued certain development permission in Raipur between 1998 and 2000 after due verification. On the basis of these permissions, a charge sheet was issued to the petitioner on 28/08/2001 which alleged the following charges:
(a) The permissions under Section 29/30 of the Adhiniyam of 1973 were issued for 15 various commercial activities contrary to Raipur Development Plan 1991 over the lands having residential land use and, thus, committed misconduct in discharge of official duties.
b) Various development permissions under the Adhiniyam of 1973 were issued without seeking NOC or consent letter from Raipur Development Authority and hence committed misconduct in discharge of official duties.
c) Various development permissions were issued without seeking any Colonizer Registration Certificate from the concerned applicant under the M.P. Nagar Palika (Registration of Colonizer) Rules, 1998.
11. The petitioner submitted his reply to the said charges denying the allegations made therein. The State Government vide its communication dated 23/02/2002 has rejected the defence of the petitioner and decided to institute departmental enquiry. Thereafter the petitioner has submitted his detailed reply before the enquiry officer on 02/09/2002. Thereafter the respondents have proceeded with enquiry by appointing enquiry officer. Before enquiry officer, the prosecution has 16 examined three witnesses and the petitioner has examined two witnesses on his behalf. The enquiry officer has then submitted his report. The report was placed before the concerned Minister for his approval. The Minster through his official note sheet dated 11/05/2007 has held that no charge was made out against the petitioner and the pending enquiry be closed against him.
12. Thereafter again the file was forwarded to the office of the Chief Minister, Chhattisgarh through his Principal Secretary. On the instructions of Chief Minister, Chhattisgarh, Special Secretary of the concerned department has examined the entire enquiry report and the documentary evidence and after examination, he found that only charge No.1 was proved, charge No.2 was partially prove and charge No.3 was not proved against the petitioner. The matter was forwarded for consideration before the Secretary of State of Chhattisgarh. The file was then forwarded to the Minister Incharge of the Department for his approval. During this period in February, 2010 the petitioner was shifted to the State of Madhya Pradesh and, therefore, the entire departmental enquiry file was also forwarded to the State of 17 Chhattisgarh. Thereafter a second show cause notice was issued to the petitioner on 24/2/2012 along with enquiry report. The petitioner has filed detailed reply to the said show cause notice on 07/08/2012, however, without considering the reply submitted by the petitioner, respondent No.1 has passed the termination order dated 07/02/2013. In pursuance of the directions issued by this Court on 07/02/2013 in Writ Appeal No.97/2013, the entire matter was reconsidered by the State Government and the State Government has decided to withdraw the termination order dated 07/02/2013. Accordingly, the said order was withdrawn on 18/03/2013.
13. The petitioner thereafter submitted his representation for quashment of the departmental enquiry. The departmental, accordingly, proceeded the pending file of the departmental enquiry against the petitioner. Thereafter summary report was prepared. In the meantime, the petitioner was retired from the service, therefore, on the basis of summary report, the respondents have passed an order dated 16/06/2014 thereby proposing punishment of withholding of 5% pension for a period of one year. 18 However, to the utter surprise of the petitioner, the petitioner has received the order dated 01/09/2016 thereby his 50% of pension with cumulative effect has been withheld permanently. Being aggrieved by that order, the petitioner has filed the present writ petition.
14. Rule -8 of the Pension Rules provides for pension subject to future good conduct. Sub-rule (3) of Rule 8 reads as under :
"(3) In a case not falling under sub-rule (2), if the authority referred to in sub-rule (1) considers that the pensioner is prima facie guilty of grave misconduct, it shall before passing an order under sub-rule (1) :-
(a) Serve upon the pensioner a notice specifying the action proposed to be taken against him and the ground on which it is proposed to be taken and calling upon him to submit, within fifteen days of the receipt of the notice or such further time not exceeding fifteen days as may be allowed by the pension sanctioning authority, such 19 representation as he may wish to make against the proposal; and
(b) take into consideration the representation, if any, submitted by the pensioner under clause (a).
As per said rules, if the pensioner is prima facie guilty of grave misconduct, then upon giving notice proposing action taken against him. The pension, after considering representation, if any submitted by him, can be withheld. The grave misconduct has been defined under Explanation attached to sub-rule (5) of Rule 8 of the Pension which reads as under :
"(5) An appeal against an order under sub-
rule (1), passed by any authority other than the Governor, shall lie to the Governor and the Governor shall in consultation with the State Public Service Commission pass such order on the appeal as he deems fit.
Explanation.-in this rule,-
(a) the expression "serious crime" includes a crime involving an offence under the 20 Official Secrets Act, 1923 (No.19 of 1923);
(b) the expression "grave misconduct"
includes the communication or disclosure of any secret official code or pass word or any sketch, plan, model, article, note, document or information such as is mentioned in section 5 of the Official Secrets Act, while holding office under the Government so as to prejudicially affect the interests of the general public or the security of the country."
As per this explanation, grave misconduct includes the communication or disclosure of any secret official code.
15. In the present case, no such allegation has been made against the petitioner. It is further to be noted that before withholding the pension, no notice or any opportunity of hearing was given to the petitioner. The enquiry officer, in his report, has found that only one charge has been found to be proved while two other charges were not proved. Looking 21 to the nature of charges, as it does not involve any financial implication, the punishment of withholding of 50% pension permanently appears to be harsh and disproportionate. In the present case, the enquiry was initiated against the petitioner in the year 2001 and the order of punishment was passed against the petitioner in the year 2016 i.e. after the period of more than 15 years. The respondents have also not given any explanation for the delay caused in conducting the departmental enquiry and, therefore, the departmental enquiry is liable to be quashed on the ground of delay also. It is also to be noted that in the present case, the earlier the matter was placed before the concerned Minister and the Minister in his official note sheet dated 11/05/2007 has held that no charge was made out against the petitioner and the pending enquiry be closed against him. In spite of that, the respondents have continued with the departmental enquiry and passed the order of punishment.
16. This Court in the case of Dr. Shyam Sharma (supra) in para14 has held as under :
""14. As has been pointed out, after retirement of a Government servant 22 what would be circumstances on account of which pension can be withdrawn, are not indicated in the rules. Only in such case where the enquiry is initiated after retirement the circumstances are shown in Rule 9(2)
(b) of the Rules. If the said analogy is applied in the present case, the misconduct of the petitioner even if proved, would not attract a major penalty of removal or dismissal from service had the petitioner remained in service. Even otherwise, there is no charge of financial irregularity levelled against the petitioner and lost to the Government. Therefore, provisions of Rule 9(4)(c) of the Rules would not be attracted. As such the order of withholding 50% pension of the petitioner cannot be sustained."
17. So far as non-supply of the report by the MPPSC is concerned, the Supreme Court in the case of R.P. Singh (supra) in para- 12, 21 and 23 has held as under :
"12. We will be failing in our duty if 23 we do not take note of the submission of Mr. W.A. Qadri that the decision in S.N. Narula case is not an authority because the Tribunal has set aside the order of the disciplinary authority on the ground that it was a non-speaking order. Be that as it may, when the issue was raised before this Court and there has been an advertence to the same, we are unable to accept the submission of Mr. Qadri. The said decision in S.N. Narula case is an authority for the preposition that the advice of UPSC, if sought and accepted, the same, regard being had to the principles of natural justice, is to be communicated before imposition of the punishment.
21. At this juncture, we would like to give our reasons for our respectful concurrence with S.K. Kapoor. There is no cavil over the proposition that the language engrafted in Article 320(3)(c) does not make the said Article mandatory. As we find, in T.V.Patel's case, the Court has based its finding on the language employed in Rule 32 of the Rules. It is not in dispute that the said Rule from the very 24 inception is a part of the 1965 Rules. With the efflux of time, there has been a change of perception as regards the applicability of the principles of natural justice. An Inquiry Report in a disciplinary proceeding is required to be furnished to the delinquent employee so that he can make an adequate representation explaining his own stand/stance. That is precisely what has been laid down in the B.Karunakar case. .................................."
23. We have referred to the aforesaid decision in B. Karunakar case in extenso as we find that in the said case it has been opined by the Constitution Bench that non-supply of the enquiry report is a breach of the principle of natural justice. Advice from the UPSC, needless to say, when utilized as a material against the delinquent officer, it should be supplied in advance. As it seems to us, Rule 32 provides for supply of copy of advice to the government servant at the time of making an order. The said stage was in prevalence before the decision of the Constitution Bench. After the said decision, in our considered opinion, the 25 authority should have clarified the Rule regarding development in the service jurisprudence."
Thus, as per this judgment, the non-supply of the enquiry report is a breach of natural justice and advice from UPSC should be supplied in advance and if the same is not done, the enquiry is vitiated on the count of violation of natural justice.
18. Thus, in light of the aforesaid discussions, this writ petition is allowed and the impugned order dated 01/09/2016 is hereby quashed. The respondents are directed to release the entire arrears of pension to the petitioner within a period of three months along with interest @ 6% per annum. There shall be no order as to cost.
(Ms. Vandana Kasrekar) JUDGE ts Digitally signed by TULSA SINGH Date: 2017.12.12 10:44:34 +05'30'