Madhya Pradesh High Court
Shyam Narayan Sharma vs The State Of Madhya Pradesh on 27 October, 2016
WP-15230-2014
(SHYAM NARAYAN SHARMA Vs THE STATE OF MADHYA PRADESH)
27-10-2016
For Petitioner : Shri Rajendra Tiwari, senior counsel
with Shri Rajkumar Tripathi, Advocate.
For Respondent/State : Shri S. Chatterjee, PL
This petition filed under Article 226 of the Constitution challenges the show-cause notice dated 21/07/2014 (Annexure P-1) whereby petitioner was directed to show- cause as to why his services should not be dismissed on the basis of enquiry report prepared by the four member committee.
2. Briefly stated, the fact are that petitioner after completion of degree of M.Sc preferred his candidature for appointment as Lecturer in the respondent Department. Before entering the respondent Department, the petitioner was working in the Telecommunication Department. He obtained NOC from the erstwhile department and submitted his candidature in the present department. The petitioner was selected by the Public Service Commission and appointed as Lecturer. The petitioner completed his probation period successfully and was confirmed by the respondents.
3. Shri Rajendra Tiwari, learned senior counsel submits that petitioner while working as Lecturer submitted his candidature for the post of Principal by direct recruitment. He was selected and was appointed as Principal Higher Secondary School. He further submits that petitioner was served with a charge sheet under Rule 14 of M.P Civil Services (CCA) Rules, 1966 (hereinafter called as CCA Rules) on 11/10/2006. Only one charge was made against the petitioner relating to submission of false experience certificate for the post of Principal. The petitioner denied the charge and therefore, an inquiry was constituted against the petitioner. The inquiry officer submitted his report on 04/06/2010 (Annexure P-21). By taking this court to the inquiry report, learned counsel for petitioner submitted that allegations against the petitioner were not found proved and inquiry officer exonerated the petitioner. It is specifically contended that the disciplinary authority has not taken any final decision on the said inquiry officer's report. The petitioner was neither exonerated nor disciplinary authority decided to disagree with the findings of the inquiry officer report. Shri Tiwari submits that in the meantime, W.P No. 9704/2003 was filed by Shri Ramraj Tripathi and others against the petitioner. Against the order of the writ court dated 02/12/2004, the said two persons prefer W.A No. 110/2006, which was decided by the Division Bench on 28/10/2010 (Annexure P-4). It is urged that the department did not bring it to the notice of the writ court that petitioner stood exonerated from the aforesaid charge by the report of enquiry officer. This court while affirming the order of the writ court, disposed of the writ appeal by directing the committee to examine the question of eligibility of the present petitioner and other persons for the post of Principal, Government Higher Secondary School. A time limit was fixed to undertake the aforesaid exercise. This Court further observed that before passing any order, the committee shall provide an opportunity of hearing to the petitioner as well as to other similarly situated respondents therein. Shri Tiwari submits that in the operative portion of the order passed in the said W.A, it was made clear by the court that âin case the said Committee has yet not decided the same, it was directed to be decided.â To elaborate, Shri Tiwari contended that since decision was already taken in the shape of inquiry report (Annexure P-21), it was no more open for the said committee to take a different decision while proceeding further. Learned counsel for the petitioner further submits that the respondents issued a show-cause notice dated 18/10/2011 (Annexure P-27 with the rejoinder to the petition. In turn, the petitioner filed his reply and explained his position. The said show-cause notice was cancelled by impugned show-cause notice dated 21/07/2014 (Annexure P-1). Criticizing this order, the learned counsel for the petitioner submits that the respondents have conducted some inquiry behind the back of the petitioner and prepared an inquiry report. The said report is supplied to the petitioner along with the said show- cause notice. Petitioner's response is invited and he was directed to show-cause as to why his services should not be dismissed as per Rule 10(ix) of CCA Rules. Shri Tiwari submits that the said course adopted by the respondents is totally unknown to law. The respondents already initiated inquiry, in which no charge was found to be proved against the petitioner as per the report of the inquiry officer. This report was not taken to its logical end. The disciplinary authority did not take any decision on the said report. During pendency of this disciplinary proceedings, another show-cause notice on the same subject was wholly impermissible. In addition, it is submitted that Rule 10(ix) deals with major punishment of dismissal from service. An employee can be dismissed only after following âdue processâ. As per Rule 14 of the CCA Rules, major punishment can be imposed upon an employee only when full fleged inquiry is being conducted. In the present case, learned counsel for the petitioner submits that said course was not open to the petitioner because such inquiry is already pending and no final decision is taken by the disciplinary authority on the report of inquiry officer dated 04/06/2010. Lastly, it is submitted that decision making process by the respondents is contrary to law and against the settled legal position. Reliance is placed on AIR (1999) 7 SCC 739 (Yoginth D Bagde Vs. State of Maharashtra) it is urged that the impugned show-cause notice amounts to giving post decisional hearing to the petitioner. The respondents on the basis of ex parte report have already taken a decision to dismiss the services of the petitioner. This course is totally unknown to law. Reliance is placed on AIR 1978 SC 1536 (Ram Sarup Vs. The State of Haryana), AIR 1990 SC 857 (JC Yadav & ors Vs. State of Haryana, 1991 Supp (2) SCC 421 (H.C. Putt Swamy & ors Vs. Hon'ble Chief Justice of Karnataka High Court of Bangalore; and AIR 2001 SC 1176 (Buddhinath Chaudhary & ors Vs. Abhikumar & ors) in support of the contention that appointment without requisite experience is permissible. He also relied on (2012) 8 SCC 430 (Kavita Salunke Vs. State of Maharashtra) and (2012) 1 SCC 549 (Dattu Vs. State of Maharashtra & ors) with regard to termination on the basis of invalid caste certificate.
4. Shri S Chatterjee, learned Panel Lawyer opposed the relief on the basis of averments of the return. He contended that writ against the show-cause notice is not maintainable. Reliance is placed on (2012) 11 SCC 565 (Secretary Ministry of Defence Vs. Prabhash Chandra Mirdha) He further stated that the show-cause notice is issued in consonance with the directions issued by this Court in the aforesaid writ appeal. The petitioner can very well file detailed reply and putforth his defence. Reliance is also placed on averments of additional return and it is contended that issue relating to experience was duly considered by duly constituted four member committee. The said committee gave its findings, which were supplied to the petitioner along with the show-cause notice. It is open to the petitioner to putforth his defence in detail, which will be considered by the competent authority. At this stage, no interference is warranted. Parties confined their arguments to the extent indicated herein above.
5. I have parties at length and perused the record.
6. At this stage, I am not inclined to given any finding whether petitioner possess requisite experience or not. This aspect is subject matter of inquiry and thus the judgments cited in this regard cannot be considered at this stage. This is settled in law that whenever disciplinary proceeding is called in question, it is the decision making process which is subject matter of judicial scrutiny. If the said process is polluted and is not in consonance with the principles of natural justice or the relevant rules, interference can be made. No doubt, the scope of interference is limited against the show- cause notice. Correctness of allegations cannot be gone into at this stage of issuance of show-cause notice. Further, it is trite law that show-cause notice can be interfered with if it runs contrary to any statutory provision or it is barred by law. If it is issued by incompetent authority, it can be interfered with.
7. As noticed, the petitioner was served with charge sheet dated 11/10/2006, the charges against the petitioner reads as under:-
â vkjksi&i= vkjksi dzekad&1 ;g fd vkids }kjk izkpk;Z m0ek0fo0 ds in ij p;u gsrq o"kZ 1994 esa 'kS{kf.kd vuqHko laca/kh vlR; izek.k i= izLrqr dj dnkpj.k fd;k gSA vkidk mDr d`R; e0iz0flfoy lsok ¼oxhZdj.k fu;a=.k rFkk vihy½ fu;e 1965 ds fu;e&3 ds foijhr gksdj dnkpj.k dh Js.kh esa vkrk gSAâ (Emphasis Supplied)
8. If this charge is examined in juxta position to the allegation mentioned in the show-cause notice (Annexure P-1), it will be crystal clear that allegations against the petitioner in both the proceedings are exactly same. This relates to educational experience on the strength of which petitioner occupied the post of Principal. Respondents have not mentioned anything in the notice (Annexure P/1) as to what action has been taken on the inquiry officer's report (Annexure P/21). As per Rule 15 of the CCA Rules, the disciplinary authority is obliged to take decision on the inquiry officer's report. Merely because inquiry officer exonerated the petitioner, it cannot be presumed that petitioner stood exonerated. That presumption can be drawn only when competent disciplinary authority takes such decision on that. This is also trite that disciplinary authority on the basis of material available on record can disagree with the findings of the inquiry officer. Surprisingly, disciplinary authority kept the sword of disciplinary proceeding hanging on the head of the petitioner pursuant to the charge sheet dated 11/10/2006. The department issued another show-cause notice dated 21/07/2014. I wonder why parties appearing in W.A No. 1100/2006 did not inform the writ appellate court about the findings of inquiry officer dated 04/06/2010 when the said W.A was decided on 28/10/2010. I am unable to read the order passed in WA No.1100/2006 in the manner suggested by the respondents. The order of the Division Bench cannot be construed in the manner respondents have understood it. This is settled in law that court's order cannot be interpreted contrary to law. As per statutory mandate of CCA Rule, an employee can be dismissed by invoking Rule 10 (ix) only when he is subjected to full-fledged disciplinary inquiry. The Rule 16 of the CCA Rules prescribes summary enquiry. After summary enquiry, only certain minor statutory punishments can be inflicted. In the present case, admittedly, the respondents have constituted the committee behind the back of the petitioner. Petitioner has not been permitted to participate in the said proceedings. The said report was forwarded with the show-cause notice by directing the petitioner to show cause as to why his services should not be dismissed. At the cost of repetition, it is clear that charge mentioned in the charge sheet dated 11/10/2006 and show cause notice dated 21/07/2014 is exactly same. The allegation mentioned in the aforesaid charge-sheet makes it clear that the respondents have treated the alleged conduct of the petitioner as âmisconductâ. For dismissing an employee for a major misconduct, a statutory procedure is prescribed under the CCA Rules. No doubt, this Court permitted the respondents to proceed against the petitioner on the basis of the report of the Committee while passing the order dated 28.10.2010 in W.A. No.1100/2006. However, I am unable to read the said direction of this Court in the manner suggested by the learned Panel Lawyer. This Court directed the respondents to provide opportunity of hearing to the present petitioner. The opportunity of hearing has to be read in view of the rule which governs nature of hearing. Rule 14 of CCA Rules is the codification of principles of natural justice in the form of a Statute. This is trite law that if law prescribes that a thing should be done in a particular manner, it has to be done in the same manner or not at all. The other methods are forbidden. ( See: AIR 1959 SC 93 (Shri Baru Ram Vs. Smt. Prasanni and others), 2002 (1) SCC 633 ( Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala and Others), 2011 (2) MPLJ 690 (Satyanjay Tripathi & Anr. Vs. Banarasi Devi).
9. It is noteworthy that while arguing WA No.1100/2006, the parties did not inform the Division Bench that for the same set of misconduct, a disciplinary proceeding is pending against the petitioner. The respondents are required to take that pending disciplinary proceedings to a logical end. These aspects are required to be seen by the respondents while implementing the order passed by this Court in WA No.1100/2006. The respondents by issuing impugned notice have invoked Rule 10(ix) of the CCA Rules. This provision deals with imposition of major penalty of dismissal. Such penalty cannot be inflicted by way of issuing show-cause notice or by conducting summary inquiry. The respondents if intend to proceed on the basis of Committee's report, they have to address two issues. Firstly, whether they can institute another disciplinary proceeding on same charge when earlier one is still pending and no final order is passed pursuant to aforesaid enquiry report. Secondly, the respondents must remember that major penalty of dismissal can be inflicted only after holding a proper disciplinary proceedings as per CCA Rules. No doubt, Rule 19 of CCA Rules is an exception but those necessary ingredients for invoking Rule 19 are not available here.
10. For the reasons stated above, impugned show cause notice cannot be permitted to stand. The same is hereby set aside. The respondents are directed to proceed against the petitioner by taking into account the aforesaid findings. The petition is allowed. No cost.
(SUJOY PAUL) JUDGE tarun