Madhya Pradesh High Court
D.P. Gautam vs The State Of Madhya Pradesh on 14 September, 2022
Author: Maninder S Bhatti
Bench: Maninder S Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S BHATTI
ON THE 14th OF SEPTEMBER, 2022
WRIT PETITION No. 13563 of 2016
BETWEEN:-
D.P. GAUTAM S/O SHRI RAM LAL PRASAD GAUTAM,
AGED ABOUT 54 YEARS, OCCUPATION: WORING AS
RURAL AGRICULTURE EXTENSION OFFICER IN THE
O/O SUB DIVISIONAL AGRICULTURE OFFICER
FARMERS WELFARE AND AGRICULTURE
DEVELOPMENT DEPARTMENT SUB DIVISION REWA
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAHUL MISHRA, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH ITS
PRINCIPAL SECRETARY FARMERS WELFARE AND
AGRICULTURE DEVELOPMENT DEPARTMENT
VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
2. DIRECTOR FARMER WELFARE AND AGRICULTURE
D EPARTM EN T VINDHYACHAL BHAWAN BHOPAL
(MADHYA PRADESH)
3. JOINT DIRECTOR FARMER WELFARE AND
AGRICULTURE DEPARTMENT REWA DIVISION
(MADHYA PRADESH)
4. DEPUTY DIRECTOR FARMER WELFARE AND
AGRICULTURE DEPARTMENT DISTT. REWA (MADHYA
PRADESH)
5. SHRI R.K. PANDEY SENIOR AGRICULTURE
DEVELOPMENT OFFICER REWA NAIGARHI TEH.
MAUGANJ REWA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SANJEEV SINGH, PANEL LAWYER)
This petition coming on for admission this day, the court passed the following:
ORDER
Signature Not Verified Signed by: ASTHA SEN Signing time: 9/20/2022 5:34:34 PM 2 The petitioner has filed this petition praying for the following reliefs:
"i. To issue a writ in the nature of "Certiorari" to quash the impugned order of minor punishment dated 22/04/2016 (Annexure P/6) whereby the petitioner has been punished with stoppage of one increment with non-cumulative effect.
ii. To issue a writ in the nature of "Mandamus" command the respondents to restore the increment and revised his salary/pension.
iii. To declare that the actions of the respondents adopted entire procedure imposition of minor punishment relates to stoppage of one increment is illegal and arbitrary.
iv. To quash the order of recovery dated 09/09/2015 and further direct to the respondents that the petitioner is not liable to deposit entire pecuniary loss of Rs.38,003/- as per the finding of inquiry report, regarding which matter is remitted back to the disciplinary authority for fresh consideration.
v. To grant any other writ/direction/relief which this Hon'ble Court deemed fit and proper may also be granted in the facts and circumstances of the case, including cost of the litigation in favour of the petitioner."
The facts as elaborated in the petition reflect that the petitioner was proceeded against on the strength of show cause notices. The first show cause notice dated 28/05/2014 (Annexure P/11) was issued against the petitioner by which the allegation of misappropriation of Rs.38,003/- was levelled against the petitioner. By other show cause notice dated 24/03/2015 (Annexure P/1), the petitioner was called upon to explain his conduct as regards two communications dated 22/12/2014 as well as 05/03/2015. The show cause notice dated 28/05/2014 (Annexure P/11) was ultimately ensued in conduct of departmental inquiry and after submission of inquiry report, disciplinary authority passed the order of recovery dated 09/09/2015 (Annexure P/14). So far as show cause notice dated 24/03/2015 (Annexure P/1) is concerned, on the basis of the same, a penalty of withholding two increments with non cumulative effect was imposed vide order dated 23/05/2015 (Annexure P/3). Thus, assailing the order dated 23/05/2015, the petitioner Signature Not Verified Signed by: ASTHA SEN Signing time: 9/20/2022 5:34:34 PM 3 filed an appeal, memorandum of the same has been brought on record as Annexure P/4 dated 11/06/2015 and assailing the order dated 09/09/2015, the petitioner has filed another appeal, the memo of appeal is also filed along with the petition as Annexure P/5 dated 16/09/2015. The Appellate Authority clubbed together both the appeals and decided the same by a composite order dated 22/04/2016 (Annexure P/6) wherein Appellate Authority modified the order of penalty pertaining to withholding two increments by reducing it to withholding of one increment and so far as order of recovery of amount of Rs.38,003/- was concerned, the same was not interfered with by the Appellate Authority, thus, assailing the order passed by the Appellate Authority, this petition has been filed.
Learned counsel for the petitioner contends that so far as the order dated 09/09/2015 (Annexure P/14) as regards recovery of Rs.38,003/- against the petitioner is concerned, the same on the face of it, is misconceived inasmuch as the Inquiry Officer, categorically concluded in his inquiry report that the present petitioner was partly liable to pay the amount of Rs.38,003/- as the charge was found to be partly proved.
Learned counsel while taking this Court to internal page 9 of the inquiry report submits that the second last paragraph of the inquiry report unequivocally concluded that the said amount of Rs.38,003/- was not deposited on account of fault attributed to the then Senior Agriculture Development Officer Shri R.K. Pandey as well, therefore, the entire liability could not have been fastened upon the present petitioner.
Learned counsel further submits that so far as the order pertaining to withholding of increment is concerned, once the allegations were categorically controverted/denied by the petitioner by filing reply to the show cause, the respondents were duty bound to conduct an inquiry inasmuch as, once the allegations are controverted, thus, in view of the law laid down by the Apex Court in the case of O.K. Bhardwaj Vs. Union of India & Anr. reported in (2001) 9 SCC 180, an inquiry ought to have been conducted by the respondents.
Signature Not Verified Signed by: ASTHA SEN Signing time: 9/20/2022 5:34:34 PM 4Learned counsel also submits that a perusal of order dated 23/05/2015 reflects that the same is non speaking as the same does not deal with the detailed reply of the petitioner which is contained in Annexure P/2. Learned counsel for the petitioner submits that in paragraph 9 as well as operative paragraph of the reply, the petitioner categorically stated that the petitioner was willing to putforth his stand before higher authorities, thus, the Joint Director, Agriculture Development, Rewa could not have proceeded with the inquiry inasmuch in the reply of the petitioner, the allegations were levelled against the same authority.
Learned counsel submits that a perusal of the order impugned passed by the authority reflects that the penalty imposed against the petitioner is shockingly disproportionate and does not commensurate with the charges levelled against the petitioner, thus, while relying upon the decision of this Court in the case of Ku. Shailija R. Jeswani Vs. State of M.P. and Ors. reported in 2000 (3) MPHT 85 (NOC) and also in the case of Bholeram Soni Vs. Union of India and Ors. reported in 2015 (1) MPWN 52 learned counsel submits that the impugned order deserve to be quashed and respondents be directed to extend all consequential benefits to the petitioner.
Per contra, learned counsel for the respondent submits that the authority upon issuing a show cause to the petitioner proceeded to hold a full fledged departmental inquiry, which ensued in inquiry report, which is brought on record as Annexure P/13 and the Inquiry Officer concluded that the charge against the petitioner was partly proved, therefore, the authority passed the order impugned dated 09/09/2015 (Annexure P/14).
Learned counsel further submits that the petitioner's conduct was unbecoming of an employee inasmuch as the petitioner was in the habit of leveling misconceived and baseless allegations against the superior. The petitioner also directly communicated with Signature Not Verified Signed by: ASTHA SEN Signing time: 9/20/2022 5:34:34 PM 5 the Minister concerned without seeking departmental permission and, thus, the show Cause Notice dated 24/03/2015 was issued to the petitioner. The petitioner was granted adequate opportunity of hearing and the petitioners replied to the show cause which is contained as Annexure P/2 and upon taking into consideration the reply of the petitioner, the authority passed the order dated 23/05/2015 (Annexure P/3). Learned counsel also submits that, even the appellate authority upon due consideration of the petitioner's grievance, has modified the penalty by reducing it with one increment with non cumulative effect and so far as recovery of Rs.38,003/- is concerned, the same has not been interfered with by the appellate authority. Thus, the order passed by the appellate authority is just and proper and no interference is warranted Heard rival submissions of the parties and perused the record.
A perusal of show cause notice dated 24/03/2015 reflects that the cognizance against the petitioner was taken by the disciplinary authority on the basis of a representation dated 05/03/2015 Annexure-P/9 as well dated 22/12/2014 (Annexure P/8). A perusal of the communication dated 05/03/2015 Annexure-P/9 reflects that the said representation was made to Joint Director, Farmer Welfare and Agriculture Development, wherein allegations were levelled against the Joint Director, Farmer Welfare and Agriculture Development himself. A perusal of paragraph 2 of the said application/representation dated 05/03/2015 (Annexure P/9) reflects that the specific allegations were leveled against the Joint Director, Farmer Welfare and Agriculture Development, shri S.C. Singadiya, thus, Shri Singadiya could not have issued a show cause notice to the petitioner inasmuch as the allegations were levelled against Shri singadiya himself who was holding the post of Joint Director, Farmer Welfare and Agriculture Development.
Even in the petitioner's reply to the said show cause notice contained in Annexure P/2 dated 04/04/2015 again the petitioner levelled serious allegations against Shri S.S. Signature Not Verified Signed by: ASTHA SEN Signing time: 9/20/2022 5:34:34 PM 6 Singadiya, Joint Director, Farmer Welfare and Agriculture Development. A perusal of paragraph 5 and 9 as well as last paragraph of the reply, palpably reflect that the specific allegations were levelled against the signatory of show cause notice dated 24/03/2015, even the show cause notice itself was issued on the basis of the representation dated 05/03/2015 in which also the allegations were levelled against the same authority. While taking into consideration the principle of no nemo iudex in causa sua (no one can be a judge in his own cause), Shri S.S. singhadiya, in all fairness, should not have issued the show cause notice in as much as the allegations were levelled against him only.
Moreover, even upon receipt of reply submitted by the petitioner contained in Annexure P/2, Shri S.S. Singadiya, the then Joint Director, Farmer Welfare and Agriculture Development could not have passed the order dated 23/05/2015 (Annexure P/3). Unfortunately, this aspect of the matter was not even considered by the Appellate Authority while passing the order impugned dated 22/04/2016, though the Appellate Authority modified the order of imposing minor penalty by deciding to withheld one increment with non cumulative effect yet, the Appellate Authority was required to consider as to whether shri S. S Singadiya could have issued show Cause Notice as well as pass the order impugned dated 23/05/2015 when the allegations were levelled against him only?
So far as the order impugned dated 09/09/2015 is concerned, the same also goes contrary to the conclusions arrived at by the Inquiry Officer. The Inquiry Officer, in his inquiry report, specifically concluded that the allegation as regards recovery of Rs.38,003/- was partly proved against the petitioner and in second last paragraph of the enquiry report, the lapse was attributed to the then Senior Agriculture Department Officer, Shri R.K. Pandey. Thus, if the Appellate Authority, decided to differ with the inquiry report, the same was required to assign the reasons and extend opportunity of Signature Not Verified Signed by: ASTHA SEN Signing time: 9/20/2022 5:34:34 PM 7 hearing to the petitioner as well. A perusal of the order dated 09/09/2015 as well as the order of Appellate Authority dated 22/04/2016 does not deal with the findings arrived at in the enquiry report. The Inquiry Officer categorically concluded that the allegations as regards recovery of Rs.38,003/- was partly proved against the present petitioner.
Thus, in the considered view of this Court, the order impugned dated 22/04/2016 (Annexure P/6), deserves to be and accordingly is quashed and the matter is remitted back to the Appellate Authority to pass an order afresh by taking into consideration the above discussed aspects of the matter within a period of 90 days from today,.
If the Appellate Authority decides the appeal in favour of the petitioner, all consequential benefits be extended to the petitioner within a further period of 60 days from the date of order to be passed by the Appellate Authority.
Accordingly, the petition stand allowed to the extent indicated herein above.
(MANINDER S BHATTI) JUDGE Astha Signature Not Verified Signed by: ASTHA SEN Signing time: 9/20/2022 5:34:34 PM