Madhya Pradesh High Court
Dr. S.M.H. Zaidi vs The State Of Madhya Pradesh on 21 August, 2024
NEUTRAL CITATION NO. 2024:MPHC-JBP:41690
1 WP-12478-2017
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 21st OF AUGUST, 2024
WRIT PETITION No. 12478 of 2017
DR. S.M.H. ZAIDI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Amit Khatri - Advocate for the petitioner.
Shri Kamalnath Nayak - Panel Lawyer for the respondents/State.
ORDER
Challenge in the present petition is made to order Annexure P/1 dated 30.07.2016, whereby the petitioner has been imposed the penalty of withholding of two increments without cumulative effect upon conclusion of departmental enquiry and further the order Annexure P/2 dated 28.04.2017, whereby the appeal of the petitioner has been dismissed.
2. The learned counsel for the petitioner submits that the petitioner was visited with a charge-sheet containing three charges in all. The charge No.1 related to the petitioner submitting his joining at Gairatganj, District Raisen on 21.05.2010, which was 23 days after his relieving from department of Minorities Welfare, Bhopal. Charge No.2 related to the petitioner submitting an application in the office of Dy. Director, Veterinary Services, District Raisen on 21.05.2010, and thereafter neither reporting back to the office nor submitting any other application and remaining continuously un-authorizingly absent from 22.05.2010 Signaturetill Notthe date of issuance of charge-sheet on 09.03.2012. The third charge related to Verified Signed by: BHARTI GADGE exerting undue influence on the departmental authorities by resorting to threat of Signing time: 07-09-2024 4.36.02 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:41690 2 WP-12478-2017 committing suicide and writing threatening letters to the authorities.
3. It is argued by learned counsel for the petitioner that the petitioner was earlier posted on deputation in the department of Minorities Welfare as Chief Executive Officer, M.P. Waqf Board. He was repatriated from deputation vide order dated 27.04.2010 and posted at Gairatganj, District Raisen. The petitioner had filed W.P. No.5809/2010 before this Court and against the repatriation order dated 27.04.2010 and on 03.05.2010, this Court had directed maintenance of status-quo in the said petition. The learned counsel further submits that thereafter the said petition was dismissed on merits on 17.05.2010, and after dismissal of the petition on merits, the petitioner reported to his repatriated place at Gairatganj, District Raisen on 21.05.2010, but the authority at Gairatganj, District Raisen refused to accept the joining of the petitioner and rejected his joining vide order dated 21.05.2010, which is available at Page No.67 of I.A. No.11525/2023. In the said order, it was mentioned that the posting of the petitioner has already been modified and he has now been posted to Dindori vide order dated 20.05.2010 which is available at Page No.62 of the same I.A. and therefore, the authorities rejected the joining of the petitioner. Thus, it is contended that the petitioner had no occasion to join again at Raisen as his joining was rejected.
4. It is further contended by learned counsel for the petitioner that thereafter the petitioner has filed W.P. No.7479/2010 challenging the order of the State Government dated 20.05.2010, whereby his posting was modified to Dindori and the said order was stayed by this Court on 10.06.2010. Thus there was no occasion for the petitioner to join at Dindori also. Learned counsel further submits that on 29.06.2012, directing the department to permit the petitioner to Signatureperform his duties at Gairatganj, District Raisen and thereafter the petitioner Not Verified Signed by: BHARTI GADGE Signing time: 07-09-2024 4.36.02 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:41690 3 WP-12478-2017 joined at Gairatganj, District Raisen and performing his duties since then. However, by wrongfully treating the petitioner to be wilfully absent from duties the orders Annexures P/1 and P/2 have wrongfully been passed.
5 . The learned counsel for the petitioner further submits that despite the petitioner making request to the State authorities to conduct the departmental enquiry by Commissioner, Enquiries and not by the enquiry officer appointed by his department, the said request was also not taken into consideration and the enquiry officer was biased against the petitioner. It is further contended that by submitting reply vide Annexure P/8 to the said request, the department gave wrong information to the Chief Secretary that the departmental enquiry against the petitioner has already been finalized, whereas this letter has been written on 31.10.2013, while enquiry officer in the present case was appointed in January, 2014. Thus the department of the petitioner gave a wrong information to the Chief Secretary on account of which proper enquiry officer could not be appointed by the Chief Secretary. It is further argued that the penalty order as well as the appellate order have been signed by the same person i.e. one Kalista Kujur, who is under Secretary in the Veterinary Department. The learned counsel further submits that the disciplinary authority in the order Annexure P/1 has also taken note of the fact that the petitioner has not vacated the official residence at Bhopal, which was allotted to him while he was under deputation and despite the fact that this was not even the charge against the petitioner and thus the impugned order has been passed on extraneous consideration.
6. Per contra , it is contended by learned counsel for State that the orders have been duly passed after giving opportunity of hearing to the petitioner and conducting full fledged departmental enquiry and upon taking a sympathetic Signature Not Verified Signed by: BHARTI GADGE view, the competent authority has awarded a minor penalty to the petitioner of Signing time: 07-09-2024 4.36.02 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:41690 4 WP-12478-2017 withholding two increments without cumulative effect.
7. Heard.
8. In the present case, the petitioner has been visited with order of minor penalty of withholding two increments without cumulative effect. There were three charges levelled against the petitioner. The first charge related to joining the duties after a period of 23 days upon being relieved from deputation on 27.04.2010. The learned counsel for the petitioner submits that there was no occasion for the petitioner to have joined the duties immediately thereafter because he intended to challenge the repatriation order before this Court and he filed W.P. No.5809/2010, in which status quo order was granted. Since by 03.05.2010. the petitioner had not joined at Gairatganj, District Raisen, there was no occasion for him to join at Gairatganj, District Raisen and when the said petition was finally dismissed on 17.05.2010 and he joined at Gairatganj, District Raisen on 21.05.2010. The said contentions of the petitioner are indeed substantiated from record and it is seen that indeed there was no occasion for the petitioner to join at Gairatganj, District Raisen as status quo order was prevailing in the matter of petitioner vide Annexure P/5 dated 03.05.2010 and shortly after the said status quo order was vacated, the petitioner joined at Gairatganj, District Raisen on 21.05.2010. Thus in the opinion of this Court, the findings given in the enquiry report regarding charge No.1 having been found proved cannot be given stamp of approval because the enquiry officer has not taken into consideration the documents relating to status quo order in favour of the petitioner and from a perusal of the enquiry report, it is evident that when the petitioner tried to place the said documents on record, the enquiry officer stated that the said documents Signatureare Notnot relevant to the case pending before him. Thus the findings as to charge Verified Signed by: BHARTI GADGE No.1 being contrary to the record and recorded in ignorance of the status quo Signing time: 07-09-2024 4.36.02 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:41690 5 WP-12478-2017 order of this Court dated 03.05.2010 do not seem to be proper.
9. So far as the charge No.2 is concerned, the said charge relates to not joining on duties till the issuance of charge sheet in the year 2012. The petitioner has been relieved from Bhopal where he was working on deputation. He joined at Gairatganj, District Raisen on 21.05.2010 and the authority refused to take joining of the petitioner on the ground that on 20.05.2010, the posting order of the petitioner has been modified and that he should join at Dindori as per the modified posting order and thus refused to accept the joining of the petitioner, rather rejected the joining of the petitioner.
10. The petitioner thereafter filed W.P. No.7479/2010 before this Court and on 10.06.2010, this Court passed interim order staying the modified posting order dated 20.05.2010, whereby the petitioner was transferred from Gairatganj, District Raisen to Dindori.
11. The petitioner admittedly did not join even at Gairatganj, District Raisen after getting stay of transfer from Gairatganj, District Raisen to Dindori. The learned counsel for the petitioner during the course of arguments submitted that the petitioner could not have joined again at Gairatganj, District Raisen, because earlier his joining dated 21.05.2010 has been rejected and the petitioner could not have joined back at Gairatganj, District Raisen also, because transfer order had been stayed.
12. The aforesaid contention does not appear to be justified because when the joining of the petitioner was rejected on 21.05.2010, there was no stay on transfer to Dindori. The transfer to Dindori was stayed by this Court on 10.06.2010 and as natural consequence of the said stay order, it was obligatory Signatureupon the petitioner to have again submitted his joining at Gairatganj, District Not Verified Signed by: BHARTI GADGE Signing time: 07-09-2024 4.36.02 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:41690 6 WP-12478-2017 Raisen, which the petitioner does not seem to have submitted at any point of time. On 21.05.2010, the petitioner had attempted to join at Gairatganj, District Raisen and as he had already been transferred to Dindori, his joining was rejected. The petitioner seems to have been floating in no man's land and seems to have not joined at Gairatganj, District Raisen, despite having stay of transfer to Dindori. The rejection of joining of petitioner on 21.05.2010 was when there was no stay on his transfer to Dindori, but when the said transfer to Dindori was stayed on 10.06.2010, the petitioner does not seem to have reported back at Gairatganj, District Raisen. The learned counsel for petitioner contended that the current charge at Raisen was given to some other person and unless the said person had handed back the charge, petitioner could not join. This contention is utterly misplaced because the matter of charge could have arisen only after the petitioner had joined. The petitioner avoided to rejoin. As recorded in the appellate order (Annexure P/2) various opportunities were given to the petitioner and reminders were also issued to him to report back at Gairatganj, District Raisen, but the petitioner did not join at Gairatganj, District Raisen. The appellate authority has taken note of reply of petitioner in para 4 of the order (Annexure P/2) that this Court had only ordered stay on the transfer order, but did not pass any order for joining of the petitioner. Para 4 of the said order specifically mentions various letters issued to the petitioner to join, but he avoided to join even at Gairatganj, District Raisen. Thus the finding as to charge No.2 does not appear to be perverse in any manner.
13. So far as the contention made by the petitioner that his request for change of enquiry officer submitted vide Annexure P/7 was not properly dealt with, it is seen that in the said request Annexure P/7, the petitioner has merely Signature Not Verified Signed by: BHARTI GADGE submitted that the then Commissioner Shri Raghuvansh Shrivastava is of the Signing time: 07-09-2024 4.36.02 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:41690 7 WP-12478-2017 same caste as the present Principal Secretary of the department namely Shri Prabhanshu Kamal. No specific allegations against the enquiry officer are levelled. Thus the letter Annexure P/7 does not contain a single word of real malice of the enquiry officer. Merely alleging malice is not sufficient unless some proper cause of the other person having malice against the petitioner had been submitted. Though, it is seen that the department has not indeed given proper information in the reply Annexure P/8 stating that the enquiry is in final stage, but notwithstanding the said reply Annexure P/8, the request of the petitioner vide Annexure P/7 not having disclosed any malice against the enquiry office, it does not appear to the Court that the petitioner had suffered any real prejudice by continuation of enquiry by enquiry officer appointed by the department. Even otherwise, there is no allegation by the petitioner that the same persons i.e. Raghuvansh Shrivastava and Prabhanshu Kamal, who were the Commissioner and Secretary of the department were at helm of affairs when the penalty order Annexure P/1 was issued in the year 2016 and appeal was decided in the year 2017. It is settled in law that enquiry officer's report is not binding on the disciplinary authority and disciplinary authority is at liberty to take its own decision.
14. The learned counsel for petitioner also raised the ground of Presenting Officer's brief not being provided and inspection of some documents not being allowed. However, learned counsel could not point out any prejudice to have been caused. In view of judgment of the Supreme Court in the case of State Bank of Patiala Vs. S.K. Sharma, reported in AIR 1996 SC 1669 , the petitioner is required to demonstrate prejudice.
15. The other ground taken is that the appellate order as well as the penalty Signature Not Verified Signed by: BHARTI GADGE order are signed by the same authority. It is seen that both the orders are Signing time: 07-09-2024 4.36.02 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:41690 8 WP-12478-2017 expressed in the name of Governor of the State. The executive Government of the State functions as per the Rules of Business framed under Article 166(3) of the Constitution of India. The disciplinary authority of the petitioner is the State Government and the appellate authority is Governor. It is settled in law that if some authority has been vested in the Governor, then it is not imperative that each and every case, the Governor himself would pass the order. Kindly see Nabam Rebia and Bamang Felix vs. Deputy Speaker, Arunachal Pradesh Legislative Assembly and others [(2016) 8 SCC 1].
16. A Full Bench of this Court in Writ Appeal No.968/2018 (State of M.P. and another vs. P.N. Raikwar) has dealt with the similar issue and it has been held by the Full Bench that authentication of an order of punishment in the name of Governor is an order of the State Government against which appeal would lie to the Governor and no appeal would lie to the Governor, if order is passed by him personally. Once the order is not passed by the Governor personally, but has been passed in the name of Governor, then an appeal would lie under the Service Rules. It is further held by the Full Bench that the appellate authority shall be Governor, but again it is not the power to be exercised by the Governor personally, but in terms of Rule of Business by the "Council of Ministers".
17. On the anvil of the aforesaid settled position of law held by the Full Bench, no relief can be granted to the petitioner on the ground that the orders Annexure P/1 and P/2 both are expressed in the name of Governor and signed by under Secretary.
18. Though this Court has held the finding of the enquiry officer as to charge No.1 to be perverse, but no perversity in charge No.2 is noted by this SignatureCourt in exercise Not Verified of its powers of judicial review under Article 226 of the Signed by: BHARTI GADGE Signing time: 07-09-2024 4.36.02 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:41690 9 WP-12478-2017 Constitution of India. Looking to the fact that the ultimate penalty awarded to the petitioner is minor penalty, this Court does not see any reason to modify the order of punishment or to remand the matter to the authority to modify the punishment or reconsider the punishment in charge No.2. This Court has not found the penalty to be disproportionate even in relation to charge No.2 only.
19. Consequently, the petition being devoid of merits stands dismissed.
(VIVEK JAIN) JUDGE b Signature Not Verified Signed by: BHARTI GADGE Signing time: 07-09-2024 4.36.02 PM