Madhya Pradesh High Court
Kamta Prasad Jatav vs The State Of Madhya Pradesh on 12 September, 2019
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
W. P. No. 20310/ 2017
THE HIGH COURT OF MADHYA PRADESH
W. P. No. 20310/ 2017
(Kamta Prasad Jatav Vs. The State of M.P. & Another)
JABALPUR; Dated: 12/09/2019
Shri B.D. Singh, learned counsel for the
petitioner.
Shri Akshay Pawar, learned Panel Lawyer for
the respondents/ State.
Since pleadings are complete, with consent of learned counsel for the parties, matter is heard finally.
2. This petition is preferred against the order dated 16.02.2017 (Annexire-P/17) passed by the disciplinary authority whereby punishment of withholding pension @15% for the period of seven years, has been inflicted upon the petitioner by exercising the provisions of Rule 9 of the M.P. Civil Services (Pension) Rules, 1976 (hereinafter referred to as 'the Rules, 1976').
3. The petitioner has assailed the order mainly on the grounds that the events for which charge-sheet was issued to him, were relating to the incident that took place more than four years preceding to the institution of enquiry and as such, the enquiry was barred under Rule 9(2)(b)(ii) of the Rules, 1976, as the petitioner stood retired on 30.04.2012. It is also alleged by the petitioner that the action of the respondents was full of malice as the officers against whom the petitioner raised a voice 2 W. P. No. 20310/ 2017 regarding their involvement in corruption, as such, they were waiting for a right time to take revenge from the petitioner and on the date of retirement, a charge-sheet was issued to him.
4. Learned counsel for the petitioner has contended that in reply to the charge-sheet, charges were suitably replied and denied, the respondents should have, therefore, proved the charges beyond all reasonable doubts, but they hopelessly failed to do so. On this premise, the petitioner sought quashment of the order impugned. He has also sought quashment of the charge-sheet issued on 02.02.2013.
5. To resolve the controversy involved in the case, certain facts which are needed to be considered are mentioned hereinbelow:-
The petitioner was initially appointed as Rural Agriculture Extension Officer in the respondent's department and got promoted to the post of Additional Director, Agriculture. At the relevant point of time, the petitioner was on deputation from 22.11.2005 to 05.09.2009 as General Manager in the M.P. State Seed Farm Development Corporation and was also having the charge of the post of Secretary of the Corporation from 12.06.2006 to 10.08.2009. The petitioner got superannuated from the Agriculture Department on 30.04.2012 after attaining the age of superannuation i.e. 3 W. P. No. 20310/ 2017 60 years. After retirement, the petitioner was served with a charge-sheet dated 02.02.2013 (Annexure-P/2) which was communicated to him vide Covering Letter dated 11.11.2013. The charge-sheet contained four charges which were relating to the period from 22.11.2005 till 05.09.2009 when the petitioner was on deputation in M.P. State Seed Farm Development Corporation.
6. In the charge-sheet, no specific date of incident has been narrated, but the petitioner raised an objection regarding validity of the charge-sheet on the ground that the events in respect of which, departmental proceedings have been instituted, took place more than four years prior to such institution and as such, the enquiry is barred under Rule 9(2)(b)(ii) of the Rules, 1976. The petitioner has also explained the charges and the event relating to the same so also the respective periods when such events took place, they are as follows:-
"1. The petitioner was appointed as an Enquiry Officer in a departmental enquiry vide order dated 29.05.2006, but, he did not conduct any enquiry;
2. The petitioner removed one Pawan Kumar Vishwakarma for not submitting certificate of typing test vide order dated 23.04.2008 which was stayed by this Hon'ble Court;
3. The petitioner prepared amended minutes nd of 82 Board meeting dated 08.05.2008 without obtaining the signature of the MD and the Chairman; and
4. The petitioner produced a list of 19 daily wagers for regularization to the Principal Secretary 4 W. P. No. 20310/ 2017 vide letter dated 25.04.2008, contrary to the law laid down by Supreme Court."
7. The petitioner in response to the charge-sheet issued to him, submitted a written brief on 02.02.2016 explaining therein that there is nothing against him and all the charges are frivolously levelled with malice. Despite that, enquiry report was submitted by the Enquiry Officer on 21.03.2016 (Annexure-P/15) holding that all the charges were found proved. The disciplinary authority finally passed an order on 16.02.2017 inflicting the punishment upon the petitioner with stoppage of pension for a period of seven years @15%.
8. The respondents have filed the reply mentioning therein that the charges levelled against the petitioner were relating to the incidents that took place between 22.11.2005 and 05.09.2009. It is further specified regarding each and every charge, like Charge No.1 took place during the period 22.11.2005 and 05.09.2009; Charge No.2 between 12.06.2006 and 07.08.2009 and Charges No.3 and 4 also between 12.06.2006 and 07.08.2009. As per the respondents, looking to the period of incidents, the outer limit for issuance of charge-sheet was 06.08.2013 and it was issued on 12.02.2013, therefore, it was well within the period of limitation as prescribed under Rule 9(2)(b)(ii) of the Rules, 1976. It is contended by the respondents in their reply that there was no illegality committed by the respondents in issuing charge-sheet to the petitioner 5 W. P. No. 20310/ 2017 under the respective rule of Rules, 1976. It is further contended that in such matters, the scope of judicial review is very limited and it can be done only in a decision-making process but not in the decision.
9. Relying upon the decisions reported in (2008) 5 SCC 569 [Chairman & Managing Director, VSP & Others Vs. Goparaju Shri Prabhakar Hari Babu], (2009) 15 SCC 620 [Chairman-cum-Managing Director, Coal India Limited & Another Vs. Mukul Kumar Choudhari], (2010) 11 SCC 233 [General Manager (P), Punjab & Sind Bank & Others Vs. Daya Singh], it is submitted by the respondents that the order passed by the disciplinary authority does not suffer from any infirmity and it is not a case of violation of principle of natural justice in decision-making process, therefore, no interference is called for.
10. Learned counsel for the petitioner is basically attacking the charge-sheet and also the order of punishment mainly on the ground that all the events which were found basis for framing the charges, relate to the period i.e. four years prior to institution of enquiry. He further submits that the charge-sheet was in fact communicated on 11.11.2013, therefore, the said date is material for the reason that the petitioner is a retired employee and the date of communication has to be considered as the date of institution. As per the 6 W. P. No. 20310/ 2017 petitioner, the enquiry was clearly barred by Rule 9(2)
(b)(ii) of the Rules, 1976 and as such, he has claimed that the entire departmental proceedings deserve to be quashed.
11. In support of his contentions, learned counsel for the petitioner has placed reliance upon the decisions reported in (1996) 9 SCC 395 [State of Uttar Pradesh & Another Vs. Shrikrishna Pandey], (2014) 13 SCC 666 [Punjab State Power Corporation Limited, Patiala & Others Vs. Atma Singh Grewal], 2002 (2) MPLJ 348 [N.M. Hedaoo Vs. M.P. Electricity Board, Jabalpur], 2015(2) MPLJ 526 [R.K. Jain Vs. State of M.P. & Another] and 2016 (1) MPLJ 168 [Shiv Kumar Tiwari Vs. M.P. State Electricity Board & Others].
12. I have heard the argument of learned counsel for the parties and perused the record.
13. As per the main contention of learned counsel for the petitioner, it is apt to go through the charges levelled against the petitioner in the charge-sheet, which is available on record as Annexure-P/2. From Charge No.1, the incident as narrated in the same, took place on 29.05.2006 when the petitioner was appointed as an Enquiry Officer, but he could not complete the enquiry within a period of three years. The appointment of the petitioner as Enquiry Officer was made on 29.05.2006.
7 W. P. No. 20310/ 2017As alleged by the petitioner, this incident is much prior to the period of four years from the date of institution of the charge-sheet.
14. Looking to the Charge No.1 levelled against the petitioner, it is apparent that it is beyond the period prescribed under Rule 9(2)(b)(ii) of the Rules, 1976. Not only this, but in view of the law laid-down by this Court in the case of S.D. Bind Vs. Union of India & Others reported in 2015(1) MPLJ 74, wherein the Division Bench of this Court has held that- "any irregularity while performing the duty, cannot be considered to be a misconduct. His negligence or carelessness do not form part of the misconduct and therefore, no disciplinary proceeding can be initiated. "
15. Thereafter, as per the Charge No.2, the petitioner while performing the duties, has found that one employee namely Shri Pawan Vishwakarma was not eligible to be continued in service as he did not possess Hindi Typing Pass Certificate. Even this allegation does not form any misconduct and the petitioner has not removed the said employee, but has given his opinion to the higher authority and the said employee was removed from service on 23.04.2008 and recommendations made by the petitioner were made much prior to that. Thus, the incident took place more than four years preceding to the issuance of charge-sheet and it is also not a misconduct.
8 W. P. No. 20310/ 201716. Further, as per Charge No.3, the petitioner while holding the post of Secretary in the Beej Nigam, alleged to have been unnecessarily interfered in the proceedings of 82nd meeting of Board of Nigam and without getting the signatures of the Managing Director and President of the Nigam, got the proceedings issued. The said proceedings got published on 08.05.2008 i.e. much prior to four years from the date of issuance of the charge-sheet. It is also not a misconduct as per the law laid-down by the Division Bench in the case of S.D. Bind (supra).
17. Likewise, in respect of Charge No.4, it is alleged that in a list of daily-wagers to be regularized, the petitioner has named certain persons who were not eligible to be regularized. Before finalizing the list, the petitioner has not scrutinized the cases of daily-wagers properly and this was considered to be serious carelessness on his part and as such, the same is not a misconduct. The said incident also took place in the year 2008, which is prior to four years of the date of institution of the charge-sheet.
18. Considering the aforesaid existing state of affairs and the facts of the case, it is apparent that the grounds on which the charge-sheet as well as the order of punishment are assailed, have substance and there is force in the contentions raised by learned counsel for the 9 W. P. No. 20310/ 2017 petitioner.
19. Looking to the nature of charges, it is also clear that they are of very simple showing negligence and carelessness of the petitioner while performing the duties. There was no opinion given by the disciplinary authority as well as the Enquiry Officer that if during the service, this charge-sheet had been issued, the petitioner would have been dismissed from service, meaning thereby that the charges were simple in nature and as per the discussion made hereinabove, no misconduct is made-out, as such, issuance of charge-sheet for the allegations which do not constitute any misconduct, is itself an arbitrary and illegal exercise on the part of the respondents.
20. In the case of Shiv Kumar Tiwari (supra), this Court has observed as under:-
"4. A perusal of the said rules will indicate that the enquiry, if initiated, while the delinquent employee was in service would have to remain continue even after superannuation/retirement of the employee concerned and is required to be conducted in the same manner as if the employee was in service. However, the aspect that what type of penalty could be imposed on a retired government servant and what would be the nature of that penalty, has not been explained in this part of Rule 9. It would be clear from the reading of Rule 9(2)(b) of the Pension Rules that where the enquiry is initiated after the retirement of the delinquent employee, the penalty can be imposed for recovery from the retiral dues, if any pecuniary loss is caused to the government by negligence of breach of order by such delinquent employee. The penalty of reducing the pension can be imposed only if the misconduct is said to be such grave that the employee could have been dismissed from service, had he remained in the service."10 W. P. No. 20310/ 2017
21. Further, in the case of R.K. Jain (supra), the Court has observed as under:-
"5. The moot question, which is to be looked into, is what should be the procedure for imposing penalty on a retired Government servant and to what extent penalty can be imposed on a retired Government servant, if a departmental enquiry was initiated during the service of the Government servant and has remained continued after his retirement. The right of Governor to withhold or withdraw the pension is prescribed under Rule 9 of the Pension Rules, which needs elaborate discussion and, therefore, same is reproduced below :
"9. Right of governor to withhold or withdraw pension.- (1) The Governor reserves to himself the right of withholding or withdrawing a pension or part there of, whether permanently or for a specified period, and of ordering recovery from pension of the whole or part of any pecuniary loss caused to the Government if, in any departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon reemployment after retirement:
Provided that the State Public Service Commission shall be consulted before any final orders are passed:
Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below [the minimum pension as determined by the Government from time to time];
2(a) The Departmental proceedings [x x x], if instituted while the Government servant was in service whether before his retirement or during his reemployment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced, in the same manner as if the Government servant had continued in service:
Provided that where the departmental proceedings are instituted by an authority subordinate to the Governor, that authority shall submit a report regarding its findings to the Governor.
(b) The departmental proceedings, if not instituted while the Government servant was in service whether before his retirement or during his reemployment:-
(i) shall not be instituted save with the sanction of the Governor;
(ii) Shall not be in respect of any event which took place more than four years before such institution; and
(iii) shall be conducted by such authority and in such place as the Government may direct and in 11 W. P. No. 20310/ 2017 accordance with the procedure applicable to departmental proceedings:-
(a) in which an order of dismissal from service could be made in relation to the Government servant during his service in case it is proposed to withhold or withdraw a pension or part thereof whether permanently or for a specified period; or
(b) in which an order of recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders could be made in relation to the Government servant during his service if it is proposed to order recovery from his pension of the whole or part of any pecuniary loss caused to the Government.
(3) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution.
(4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-
rule (2), a provisional pension and death-cum- retirement gratuity as provided in (rule 64), as the case may be, shall be sanctioned :
Provided that where pension has already been finally sanctioned to a Government servant prior to institution of departmental proceedings, the Governor may, by order in writing, withhold, with effect from the date of institution of such departmental proceedings fifty per cent of the pension so sanctioned subject however that the pension payable after such withholding is not reduced to less than [the minimum pension as determined by the Government from time to time :
Provided further that where departmental proceedings have been instituted prior to the 25th October, 1978, the first proviso shall have effect as it for the words "with effect from the date of institution of such proceedings" the words "with effect from a date not later than thirty days from the date aforementioned," had been substituted :
Provided also that -
(a) If the departmental proceedings are not completed within a period of one year from the date of institution thereof, fifty per cent of the pension withheld shall stand restored on the expiration of the aforesaid period of one year;
(b) If the departmental proceedings are not completed within a period of two years from the date of institution the entire amount of pension so withheld shall stand restored on the expiration of the aforesaid period of two years; and
(c) If in the departmental proceedings final 12 W. P. No. 20310/ 2017 order is passed to withhold or withdraw the pension or any recovery is ordered, the order shall be deemed to take effect from the date of the institution of departmental proceedings and the amount of pension since withheld shall be adjusted in terms of the final order subject to the limit specified in sub-rule (5) of rule 43.
(5) Where the Government decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant.
(6) For the purpose of this rule -
(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension form an earlier date, on such date; and
(b) judicial proceedings shall be deemed to be initiated -
(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and
(ii) In the case of civil proceedings, on the date the plaint is presented in the court."
6. x x x
7. x x x
8. The other part of this Rule contained in sub-rule (2)(b) of Rule 9 of the Pension Rules contemplates that in case the departmental enquiry is not instituted when the Government servant was in service, shall not be instituted save with the sanction of the Governor, shall not be in respect of any event which took place more than four years before such institution, and shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings. The most important part prescribed in this Rule is the nature of the penalty, which could be imposed and in what circumstances such a penalty is required to be imposed. It is specifically prescribed that such enquiry would be in respect of a misconduct for which a penalty of dismissal from service could be imposed, had the Government servant not been retired, if the charges are proved. The other part of the penalty is recovery of the loss caused to the State by the negligence or breach of orders by the Government servant concerned."
22. Likewise, in the case of Atma Singh Grewal 13 W. P. No. 20310/ 2017 (supra), it has been held that-
"2. The Respondent filed the Writ Petition in the High Court seeking quashing of the said charge sheet on the ground that it was barred in view of Rule 2.2(B) of the Punjab Civil Service Rules 2 reserves right with the Government to withhold or withdraw a pension or a part of it under certain circumstances viz. when in judicial proceedings or departmental proceedings, such an employee is found to have committed grave misconduct or negligence. It also provides for recovery of peculiar loss, if caused. However, second proviso to the aforesaid provision stipulates the time limit within which the departmental inquiry can be instituted, in respect of an ex- employee if it was not stated while such a Government officer was in service. The precise language of second proviso is as follows:-
"Such departmental proceedings, if not instituted while the officer was in service whether before his retirement or during his re-employment:-
(i) shall not be instituted save with the sanction of the Government;
(ii) shall not be in respect of any event which took place more than four years before such institution; and if he has retired, the event should not be more than 4 years old.
(iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service.
3. In the present case since the changes were of the year 2002 and charge sheet served in the year 2008, it was manifest that the alleged event took place much more than 4 years before the serving of charge sheet and after his retirement. In this ground the learned Single Judge quashed the said chargesheet dated 7.1.2008. The petitioners chose to file appeal before the Division Bench which has also been dismissed by the Division Bench vide impugned judgment dated 20.8.2009."
23. In the case of Shri Krishna Pandey (supra), the Supreme Court has observed as under:-
"6. It would thus be seen that proceedings are required to be instituted against a delinquent officer before retirement. There is no specific provision allowing the officer to continue in service nor any order passed to allow him to continue on re-employment till the enquiry is completed, without allowing him to retire from service.14 W. P. No. 20310/ 2017
Equally, there is no provision that the proceedings be initiated as disciplinary measure and the action initiated earlier would remain unabated after retirement. If Rule 351- A is to be operative in respect of pending proceedings, by necessary implication, prior sanction of the Governor to continue the proceedings against him is required. On the other hand, the rule also would indicate that if the officer caused pecuniary loss or committed embezzlement etc. due to misconduct or negligence or dereliction of duty, then proceedings should also be instituted after retirement against the officer as expeditiously as possible. But the events of misconduct etc. which may have resulted in the loss to the Government or embezzlement, i.e., the cause for the institution of proceedings, should not have taken place more than four years before the date of institution of proceedings. In other words, the departmental proceedings must be instituted before lapse of four years from the date on which the event of misconduct etc. had taken place. Admittedly, in this case the officer had retired on March 31, 1987 and the proceedings were initiated on April 21, 1991. Obviously, the event of embezzlement which caused pecuniary loss to the State took place prior to four years from the date of his retirement. Under these circumstances, the State had disabled itself by their deliberate omissions to take appropriate action against the respondent and allowed the officer to escape from the provisions of Rule 351-A of the Rules. This order does not preclude proceeding with the investigation into the offence and taking action thereon."
24. Considering the above, it is apparent that the charge-sheet issued to the petitioner is liable to be quashed only on the ground that the same is contrary to the provisions of Rule 9(2)(b)(ii) of the Rules, 1976, as it was issued beyond the period prescribed under the respective Rule.
25. In view of the aforesaid, there is no iota of doubt that not only the charge-sheet but the order of punishment passed by the disciplinary authority, are absolutely arbitrary, illegal and without application of mind. If overall circumstances are taken note of, then it is 15 W. P. No. 20310/ 2017 clear that the petitioner was unnecessarily harassed and action of the respondents was full of malice. In my opinion, the whole exercise right from the date of issuance of charge-sheet till the date of inflicting punishment by the disciplinary authority, is contrary to law.
26. Accordingly, the petition is allowed and not only the charge-sheet but the order of punishment also deserve to be and are hereby set-aside. The respondents are directed to release the amount, if any, which has been withheld in pursuance to the order of punishment and the same be paid to the petitioner within a period of three months from today with interest @ 6% per annum over the withheld amount. If the amount is not paid within the said period, then the interest shall be paid to the petitioner @ 9% till the actual payment is made to the petitioner.
27. With the aforesaid, the petition stands allowed.
Certified Copy as per rules.
No order as to costs.
(SANJAY DWIVEDI) JUDGE Prachi Digitally signed by PRACHI KUNTE Date: 2019.10.04 11:36:21 +05'30'