Madhya Pradesh High Court
Sunil Kumar Shahu vs Madhya Pradesh Poorva Kshetra Vidhyut ... on 9 December, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2024:MPHC-JBP:63737
1 WP-16136-2020
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 9 th OF DECEMBER, 2024
WRIT PETITION No. 16136 of 2020
SUNIL KUMAR SHAHU
Versus
MADHYA PRADESH POORVA KSHETRA VIDHYUT VITRAN
COMPANY LIMITED AND OTHERS
Appearance:
Shri K.C.Ghildiyal - Senior Advocate with Shri Awadhesh Kumar
Ahirwar - Advocate for the petitioner.
Shri Aditya Khandekar - Advocate for the respondent.
ORDER
Being aggrieved by the order dated 21.04.2018 passed by the respondent No.3 and order dated 01.10.2020 passed by the respondent No.2, whereby a major penalty is imposed by the disciplinary authority and an appeal preferred against the same has been rejected, this petition has been filed.
2. It is the case of the petitioner that he was holding the substantive post of Assistant Engineer in the respondent No.1/Company. The respondent No.1 being a public sector company is an authority within the meaning of Article 12 of the Constitution of India and hence amenable to the writ jurisdiction. The petitioner was posted in Hindoria Distribution Center from 01.08.2012 to 16.12.2014, Damoh (City) Distribution Center from 09.01.2015 to 11.01.2016 and from 20.10.2016 onwards in Hatta Sub Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 06-01-2025 18:42:22 NEUTRAL CITATION NO. 2024:MPHC-JBP:63737 2 WP-16136-2020 Division. He was issued with a charge sheet containing four charges on 10.01.2017 and the petitioner was asked to submit a reply to the charge sheet within 15 days. He demanded relevant documents from the respondent No.3 to enable him to submit a reply to the charge sheet vide letter dated 31.01.2017. In pursuance to which respondent No.3 directed the Superintendent Engineer, Damoh to supply the photocopy of the documents requested by the petitioner vide letter dated 16.02.2017. The Superintendent Engineer instead of supplying the documents vide letter dated 03.03.2017 has directed the petitioner to inspect the documents in his office and submit the reply to the charge sheet. Again an application dated 06.03.2017 was filed seeking supply of the documents. The petitioner was waiting for supply of the relevant documents, in the meanwhile the authorities took a decision to initiate departmental enquiry vide order dated 21.04.2017. The enquiry officer conducted a detailed enquiry into the matter and submitted the report on 07.03.2018. After examining the witnesses and based upon the material collected on the record, the enquiry officer found the petitioner not guilty of Charge No.1, 3 and 4, however, Charge No.2 was found partially proved. The enquiry officer has held the petitioner guilty only on the ground that he should have enquired about collection and also as to how much amount is deposited in the Account of the company. It is argued that the enquiry report was forwarded to the disciplinary authority and a notice was issued to the petitioner on 17.03.2018 enclosing the copy of the enquiry report seeking an explanation on the enquiry report within 15 days. The petitioner submitted the reply to the notice pointing out the fact that he was not at all responsible Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 06-01-2025 18:42:22 NEUTRAL CITATION NO. 2024:MPHC-JBP:63737 3 WP-16136-2020 for the loss of Rs.63,500/- caused to the company. The respondent No.3 without considering the reply submitted by the petitioner imposed a major penalty of withholding of two increments with cumulative effect vide order dated 21.04.2018, further held that the period spent under suspension shall be treated as on duty for all purpose except that the petitioner will not receive anything more than the subsistence allowance. The disciplinary authority has found charge No.1 and charge No.2 proved against the petitioner.
3. It is argued that if the disciplinary authority is not agreeing with the enquiry report submitted by the enquiry officer, then the reasons for disagreeing should have been recorded in the order passed by the disciplinary authority. It cannot be an order simplicitor without assigning any reason for disagreeing. It is the valuable right of the employee against whom a departmental enquiry has been initiated the same has to be exercised judiciously, the same has not been done in the present case. The enquiry officer has found the petitioner not guilty of charge No.1, 3 and 4 and as far as charge No.2 is concerned, it was found partially proved. Thereafter, an appeal was preferred against the punishment order which was also dismissed by the Appellate Authority without considering the grounds raised by the petitioner. It is argued that under these circumstances, the order impugned is per se illegal and is unsustainable.
4. To buttress the submissions, counsel appearing for the petitioner has placed reliance upon the judgment passed by the Hon'ble Supreme Court in the case of National Fertilizers Ltd. v. P.K. Khanna reported in (2005) 7 SCC 597 as well as in the case of K.K. Sharma vs State of M.P. : WP Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 06-01-2025 18:42:22 NEUTRAL CITATION NO. 2024:MPHC-JBP:63737 4 WP-16136-2020 No.20123 of 2012 decided on 29.04.2024
5. Counsel appearing for the respondents has filed a reply denying all the petitioner's averments. It is agued that it is an order of punishment imposed by the competent authority after a detailed departmental enquiry into the matter. The review of the said order is impermissible. This Court cannot sit as a Appellate Authority and review the findings arrived at by the disciplinary authority. It has argued that merely non-supply of the documents cannot be the only reason to declare the enquiry vitiated. One has to plead and show the relevance of such documents and in absence of such documents some prejudice is being caused to him. He has relied upon the judgment passed by this Court in the case of Vikram Sharma Vs. State Bank of Indore reported in (2012) 1 MPLJ 172 . He has further relied upon the judgment passed by the Hon'ble Supreme Court in the case of State of U.P. Vs. Manmohan Nath Sinha reported in (2009) 8 SCC 310 , State of Maharashtra Vs. Sukhdev Singh reported in 1992 (3) SCC 700 , to substantiate the arguments regarding powers of the Court of judicial review in punishment orders after departmental enquiry. It is argued that a show cause notice was issued to the petitioner after submission of the enquiry report by the disciplinary authority, thereafter the impugned order has been passed inflicting punishment of major penalty, therefore, the procedure as required is fully complied with by the authority. He has further relied upon the judgment passed by the Hon'ble Supreme Court in the case of Union of India and others Vs. P. Gunasekaran reported in (2015) 2 SCC 610 , he has prayed for dismissal of the petition.
Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 06-01-2025 18:42:22NEUTRAL CITATION NO. 2024:MPHC-JBP:63737 5 WP-16136-2020
6. Heard the learned counsel for the parties and perused the record.
7. The undisputed facts in the petition are that the petitioner being an employee in the respondent/Department was served with the charge sheet imposing four charges upon the petitioner. The same reads as under :-
"आरोप कमांक एकः-
Wrong Payment Adjustment मद म बना स म अनुमोदन के के डट दान करना जैसा क ी सुनील कुमार साहू, सहायक अिभय ता (िनलं बत) दनांक 09.01.15 से 11.01.16 तक दमोह (शहर) वतरण के म पद थ थे। इस दौरान उनके ारा िनयम व तर के से बना स म अिधकार से अनुमोदन ा कये Wrong Payment Adjustment मद म दमोह (शहर) के 183 नं. व त ु उपभो ाओं को कुल रािश .8.91 लाख क छूट द गयी।
इस कार ी सुनील कुमार साहू, सहायक अिभय ता
(िनलं बत) ने िनयम व तर के से बना स म अिधकार
से अनुमोदन ा कये उपभो ाओं को .8.91 लाख क छूट
दान क , जसके िलए वे कठोर अनुशासना मक कायवाह
के पा ह।
आरोप कमांक दोः-
उपभो ाओं से कै प म ा रािश कंपनी खाते म जमा न
करना:
यह क ी सुनील कुमार साहू, सहायक अिभय ता
(िनलं बत) दनाक 20.01.16 से हटा उपसंभाग म पद थ थे।
इस दौरान उनके ारा हटा उपसंनाग के अ तगत हनौता • दतरण के के ाम-बलेह म दनांक 25.06.16 को कै प आयो जत कया गया, जसम 14 उपभो ाओं ारा कुल रािश . 63,500.00 जगा क गई, जनक रसीद भी उपभो ाओं क द गई परतु यह रािश कंपनी खाते म जमा नह ं क गई। इतना ह नह ं इन उपभो ाओं से ा रािश क हे रा-फेर करते हुए ी साहू ारा इन उपभो ाओं को सीसीबी के मा यम से कुल . 3.03.111.00 क े डट भी दान क गई जसका उनके ारा स म अिधकार से अनुमोदन भी ा नह ं कया गया।
इस कार ी सुनील कुमार साहू सहायक अिभय ता (िनलं बत) ने उपभो ाओं से ा रािश कंपनी खाते म जमा न कराते हुए रािश म हरा-फेर क । साथ ह िनयम व तर के से बना स म अिधकार से अनुगोदन ा कये 19 उपभो ाओं को कुल रािश 5.3.03.111.00 क छूट दान क जसके िलए वे कठोर अनुशासना मक कायवाह के मा ह। आरोप कमांक तीनः-
ी छ साल िसंह से ा रािश कंपनी खाते म जमा न करने तथा बना स म अनुमोदन के के डट दान करना :Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 06-01-2025 18:42:22
NEUTRAL CITATION NO. 2024:MPHC-JBP:63737 6 WP-16136-2020 यह क हनौता वतरण के के अ तगत ाम- दगी म ी छ साल िसंह के नास से घरे लू कने शन मांक 25367 था पत है . जसक बकाया रािश के संबंध म उपभो ा के पु ी पु य ताप िसह दनांक 30.7.10 को ी सुनील कुमार साहू, सहायक अिभय ता से हनौता वतरण के कायालय म िमले, जसके बल के संबंध म ी साहू क ी अिमत िसंह, लाइन प रचारक (सं वदा) से बात होने के उपरा त ी पु य ताप िसंह ारा 30.000/- ी अिमत िसंह, लाइन प रचारक सं वदा को दये परं तु उसक रसीद उपभो ा को दान नह ं क गई।
इसके उपरांत ी सुनील कुमार साहू सहायक अिभय ता (िनलं बत) ारा िनयम व तर के से बना स म अिधकार से अनुमोदन ा कये, सी.सी.बी. के मा यम द जा उपभो ा को . 59,652/ क के डट भी दान क गई, जसके िलए वे दोषी है ।
इस कार ी सुनील कुमार साहू सहायक अिभय ता (िनलं बत) ने उपभो ा से ा रािश कंपनी खाते म जमा न कराते हुए, रािश म हे रा-फेर क साथ ह िनयम व तर के से बना स म अिधकार से अनुमोदन ा कये ी छ साल िसंह को . 59,652/- क छूट दान क , जसके िलए वे कठोर अनुशासना मक कायवाह के पा है ।
आरोप मांक चार-
ह डो रया कायकाल म उपभो ाओं को बना स म अनुमोदन के के डट दान करना ी सुनील कुमार साहू सहायक अिभय ता (िनलं बत) दनांक 01.08.12 से 16.12.14 तक ह डो रया वतरण के म पद थ थे। इस दौरान उनके ारा िनयन व तर के से बना स म अिधकार से अनुमोदन ा कये 33 नं. व तु उपभो ाओं को कुल रािश .3.41,519/- क छूट द गई, जससे कंपनी को राज व क हािन हुई।
इस कार ी सुनील कुमार साहू सहायक अिभय ता (िनलं बत) ने िनयम व तर के से बना स म अिधकार से अनुमोदन ा कये उपभो ाओं को . 3,41,519/- क छूट दान क , जसके िलए वे कठोर अनुशासना मक कायवाह के पा है ।"
8. The petitioner vide letter dated 16.02.2017 requested for supply of the documents on the basis of which the said charge sheet has been issued. The respondent No.3 i.e. Chief Engineer directed the Superintendent Engineer to supply such documents to the petitioner. The Superintendent Engineer instead of supplying the documents asked the petitioner to inspect such documents in the office and submit the reply to the charge sheet and Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 06-01-2025 18:42:22 NEUTRAL CITATION NO. 2024:MPHC-JBP:63737 7 WP-16136-2020 thereafter, the departmental enquiry was concluded. The enquiry officer submitted the report to the disciplinary authority. The enquiry officer found that Charge No.1, 3 and 4 are not found proved against the petitioner but charge No.2 was found to be partially proved. Thereafter, a notice was served to the petitioner by the disciplinary authority on 17.03.2018 along with copy of the enquiry report asking for explanation which was submitted by the petitioner. The enquiry officer subsequently passed the impugned order dated 21.04.2018. The disciplinary authority found the charge No.1 and 2 fully proved against the petitioner. Meaning thereby, he has categorically shown his disagreement with the report submitted by the enquiry officer. The reason for showing the disagreement are not recorded by the enquiry officer. He has merely reiterated the facts of the enquiry. No specific reasons are assigned by the disciplinary authority why he is not agreeing with the report submitted by the enquiry officer.
9. It is the settled proposition of law that in cases the disciplinary authority is disagreeing with the findings recorded by the enquiry officer then he has to specifically give reasons for the disagreement and it is only after providing opportunity of hearing to the delinquent employee the order of punishment could have been passed. The Hon'ble Supreme Court in the case of Punjab National Bank & Ors. Vs. Kunj Behari Misra reported in (1998) 7 SCC 84 has considered the aforesaid aspect of the matter and has held as under:-
17. These observations are clearly in tune with the observations in Bimal Kumar Pandit case [AIR 1963 SC 1612 : (1964) 2 SCR 1 : (1963) 1 LLJ 295] quoted earlier and would be applicable at the first stage itself. The Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 06-01-2025 18:42:22 NEUTRAL CITATION NO. 2024:MPHC-JBP:63737
8 WP-16136-2020 aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the enquiry officer had given an adverse finding, as per Karunakar case [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority.
18. Under Regulation 6, the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 06-01-2025 18:42:22 NEUTRAL CITATION NO. 2024:MPHC-JBP:63737 9 WP-16136-2020 any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of enquiry as explained in Karunakar case [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] .
19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.
20. The aforesaid conclusion which we have arrived at is also in consonance with the underlying principle enunciated by this Court in the case of Institute of Chartered Accountants [(1986) 4 SCC 537 : (1986) 1 ATC 714] . While agreeing with the decision in Ram Kishan case [(1995) 6 SCC 157 : 1995 SCC (L&S) 1357 : (1995) 31 ATC 475] we are of the opinion that the contrary view expressed in S.S. Koshal [1994 Supp (2) SCC 468 : 1994 SCC (L&S) 1019 : (1994) 27 ATC 834] and M.C. Saxena [State of Rajasthan v. M.C. Saxena , (1998) 3 SCC 385 : 1998 SCC (L&S) 875] cases do not lay down the correct law.
10. The aforesaid judgment was subsequently followed in the case of State Bank of India and others Vs. Mohammad Badruddin reported in (2019) 16 SCC 69 which is reflected from para 25 of the judgment and also in the case o f Union of India and others Vs. Vishwas Nimgaonkar reported in 2021 1 Supreme 650.
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10. In the present case although the notice was issued to the petitioner by the disciplinary authority along with the copy of the enquiry report but the impugned order does not reflect assigning of any reason for disagreement with the enquiry report. On appeal being preferred, the Appellate Authority has passed an order dated 01.10.2020 affirming the order passed by the disciplinary authority, however, none of the grounds taken by the petitioner in the appeal has been taken note off. Under these circumstances, the impugned order of punishment by the disciplinary authority vide order dated 21.04.2018 is per se illegal.
11. In the backdrop of the aforesaid settled legal proposition of law by the Hon'ble Supreme Court, if the facts of the present case are analysed, it is apparently clear that the enquiry officer has not found the charge No,1, 3 and 4 proved against the petitioner. Charge No.2 was only found partially proved. If charge No.2 is seen then it can safely be said that there was a negligence on the part of the petitioner. However, no such misconduct could have been alleged against him. Even otherwise, there are no specific reasons assigned by the disciplinary authority to demonstrate his disagreement with the inquiry report and in passing the punishment order, coupled with the fact that the Appellate Authority has not considered the grounds which has been raised by the petitioner in the appeal, therefore, the impugned orders are unsustainable. The impugned orders passed by the Appellate Authority as well as the disciplinary authority being bad in law are hereby quashed. The matter is remanded back to the authorities from the stage of submission of the enquiry report to the disciplinary authority to reconsider the case of the Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 06-01-2025 18:42:22 NEUTRAL CITATION NO. 2024:MPHC-JBP:63737 11 WP-16136-2020 petitioner. The disciplinary authority is expected to follow the settled legal proposition of law prior to passing any fresh orders.
12. With the aforesaid observations, the petition stands allowed and disposed off.
(VISHAL MISHRA) JUDGE AM Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 06-01-2025 18:42:22