Madhya Pradesh High Court
Suresh Chandra Tiwari vs The State Of Madhya Pradesh on 19 September, 2019
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1
THE HIGH COURT OF MADHYA PRADESH
WP-2111-2017
(Suresh Chandra Tiwari Vs. State of M.P. & Ors.)
Gwalior, Dated : 19/09/2019
Shri Nirmal Sharma, learned counsel for the petitioner.
Shri H.D. Mishra, learned Government Advocate for the
respondents/State.
In this petition under Article 226 of the Constitution of India, the petitioner has assailed the order dated 28/09/2016 (Annexure P/2) and order dated 03/01/2017 (Annexure P/1) whereby punishment of 10% cut in pension for a period of 10 years has been imposed upon the petitioner.
The brief facts leading to filing of this case are that the petitioner is retired from the post of Joint Collector. Earlier the petitioner was posted as Sub-Divisional Officer, Ashok Nagar from 22/08/2012 to 21/08/2013. During that period, the petitioner was appointed as Officer In-charge of the case which was filed by Kamal Singh Raghuvanshi registered as W.P. No.4045/2005 vide order dated 31/07/2012, the case was disposed of with the direction to complete the inquiry within a period of eight months and if the same is not completed within the aforesaid period, it would automatically stand closed. Allegation against the petitioner was that being OIC of the case, he did not complete the departmental enquiry as directed 2 within the time frame. No appeal was filed against the order. Due to said lapse, the government had to extend the benefit of pay scale, bonus, allowances and other benefits, due to which, government had to suffer loss.
A show-cause notice was issued to the petitioner to the effect that the aforesaid act is violation of Madhya Pradesh Civil Services Conduct Rules 1965 and for the said lapse, the petitioner is liable. The petitioner filed reply to the show-cause notice on 03/06/2015 stating that departmental enquiry could not be completed within time prescribed by the High Court since the record was not received from the High Court, therefore, the same could not be completed within the prescribed time limit.
Learned counsel for the petitioner contended that charge sheet was issued to the petitioner three days prior to his retirement, thereafter, permission was sought under Rule 9 of the M.P. Civil Services (Pension) Rules, 1976. The singular contention advanced by the learned counsel for the petitioner is that punishment was inflicted on the petitioner only on the basis of reply to the charge-sheet. No full fledged enquiry was conducted by the respondents, therefore, allegations cannot be held to be proved by the said authority particularly when charge sheet has been issued under Rule 14 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 and major 3 penalty has been imposed.
Learned counsel for the petitioner has placed reliance on the judgment of the Apex Court in the case of O.K. Bhardwaj Vs. Union of India reported int (2001) 9 SCC 180, Ajay Kumar Singh Vs. State of M.P. & Others, 2008 (2) MPLJ 541 and Bholeram Vs. Union of India and Others 2015 (1) MPLJ 626, wherein it has been held that charges are factual and if they are denied by the delinquent employee, then enquiry should be called for. This is the minimum requirement of the principle of natural justice and the said requirement can not be dispensed with.
On the other hand, by filing return, counsel for the respondents/State has contended that show-cause notice was issued and reply was filed by the petitioner. After considering the same, an enquiry having been conducted and the Collector, Ashok Nagar was asked to inform about financial loss caused to the State. Thereafter, it was informed that petitioner has caused loss of about Rs.1,54,620/-, therefore, proposal of deduction of 10% pension for 10 years from the petitioner was sent to the Public Service Commission on 23/09/2016. The approval for deduction of the said amount was granted by the Public Service Commission, therefore, penalty has been imposed upon the petitioner.
I have heard learned counsel for the parties and perused 4 the record.
The core issue is whether in the aforesaid factual backdrop, it was necessary to conduct the enquiry. In the opinion of this Court, the point involved in this matter is no more res integra. The Apex Court in the case of O.K. Bhardwaj (supra) has 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 can not be dispensed with"
(Emphasis Supplied) Admittedly, in the present case, no full fledged enquiry was conducted, no opportunity of hearing was granted to the petitioner. In view of the judgment of O.K. Bhardwaj (supra), it is clear that when allegations are factual in nature and are denied by delinquent employee, enquiry needs to be conducted in order to fulfill the requirement of principle of natural justice. As noticed, in the present case, no enquiry was conducted. It is mandatory to conduct the enquiry if charge sheet has been issued under Rule 14 of the Rules. Disciplinary Authority in the present case has committed error in not instituting the enquiry as per rules and inflicted major penalty. Resultantly, the impugned orders dated 28/09/2016 (Annexure P/2) and 5 03/01/2017 (Annexure P/1) cannot be permitted to stand and the same are accordingly set-aside. However, respondents shall be at liberty to conduct the enquiry as per rules from the stage of issuance of charge-sheet. If the respondents intend to enjoy the aforesaid liberty, the said exercise be done within a period of six months from the date of receipt of certified copy of the order passed today, failing which the said liberty shall stand abated.
The writ petition is allowed to the extent indicated herein above.
Certified copy as per rules.
(S.A. Dharmadhikari) Judge rahul RAHUL SINGH PARIHAR 2019.09.23 19:04:13 +05'30'