Madhya Pradesh High Court
Daniel Ekka vs The State Of M.P. And Ors. on 25 February, 2020
Equivalent citations: AIRONLINE 2020 MP 1612
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
W. P. Nos. 4836/2005, 4837/2005, 4838/2005, 4839/2005,
4840/2005, 4841/2005 & 5623/2005
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
W. P. No. 4836/2005
(Prakash Kumar Dehariya Vs. The State of Madhya Pradesh & Others)
W. P. No. 4837/2005
(Shabbir Shah Vs. The State of Madhya Pradesh & Others)
W. P. No. 4838/2005
(Smt. Kashi Bai Vs. The State of Madhya Pradesh & Others)
W. P. No. 4839/2005
(Ravi Shankar Dubey Vs. The State of Madhya Pradesh & Others)
W. P. No. 4840/2005
(Suresh Kumar Garhwal Vs. The State of Madhya Pradesh & Others)
W. P. No. 4841/2005
(Ashok Kumar Garhwal Vs. The State of Madhya Pradesh & Others)
&
W. P. No. 5623/2005
(Daniel Ekka Vs. The State of Madhya Pradesh & Others)
Date of Order 25.02.2020
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay
Dwivedi
Whether approved for
reporting
Name of counsels for For Petitioners: Shri Devendra
parties Gangrade, Advocate.
For Respondents/State: Shri
Vikalp Soni, Government Advocate.
Law laid down Significant Para Nos.
Reserved on : 13.02.2020 Delivered on : 25.02.2020 2 W. P. Nos. 4836/2005, 4837/2005, 4838/2005, 4839/2005, 4840/2005, 4841/2005 & 5623/2005 (O R D E R) Since pleadings are complete, therefore, with the consent of learned counsel for the parties, the matters are heard finally.
2. These petitions are filed under Article 226 of the Constitution of India, involving identical question, therefore, they are being heard and decided concomitantly. For the purpose of convenience, facts of W.P. No.4836/2005 are being taken-up.
3. By the instant petition, the petitioner has questioned the validity, legality and propriety of order dated 02.04.2005 (Annexure-P/1) passed by respondent No.1 whereby the proceedings of Departmental Promotion Committee (DPC) convened on 18.08.2004 were cancelled assigning the reason that some complaint was made and was enquired about and on the basis of that enquiry report, decision had been taken for cancellation of the said DPC proceedings. Thereafter, by consequential order dated 02.06.2005 (Annexure-P/2), which is also impugned in this petition, respondent No.2 informed the Chief Medical and Health 3 W. P. Nos. 4836/2005, 4837/2005, 4838/2005, 4839/2005, 4840/2005, 4841/2005 & 5623/2005 Officer, Hoshangabad, that the proceedings of DPC held on 18.08.2004 were cancelled and instructed him to convene a review DPC according to the rules and instructions issued by the State Government from time- to-time.
4. The challenge is made by the petitioner mainly on the ground that the orders impugned suffer from violation of the principle of natural justice as before cancellation of the DPC proceedings, the petitioner has not been granted any opportunity of hearing and even no show-cause was issued to him.
5. To resolve the controversy involved in the case, certain facts in brief are required to be taken note of, they are as follows:-
That the petitioner was initially appointed in Class-IV category and thereafter, promoted to Class-III as per the provisions of the Rules known as Public Health & Family Welfare (Directorate of Health Services) Class-III Ministerial Services Recruitment Rules, 1989 [hereinafter referred to as 'the Rules, 1989'].
4
W. P. Nos. 4836/2005, 4837/2005, 4838/2005, 4839/2005, 4840/2005, 4841/2005 & 5623/2005 In pursuance to the circular issued in the year 1996 by the General Administration Department (GAD) of the State of Madhya Pradesh directing that the persons appointed on the post of Peon or other Class-IV categories, they should be considered for promotion to the post of Lower Division Clerk (Assistant Grade-III) taking note of the vacancies available. In the Rules, 1989, 15% quota has been prescribed for the post of Assistant Grade-III by promotion from the post of employees working in Class- IV category and that quota was later on enhanced to 25%. A copy of the said circular dated 24.05.1996 is available on record as Annexure-P/3.
A DPC was convened on 15.10.1998 and recommendations were made in favour of the petitioner and other persons for promotion to the post of Assistant Grade-III and orders of promotion were, accordingly, issued on 16.10.1998 (Annexure-P/5) in favour of the petitioner for promotion to the post of Assistant Grade- III on a pay-scale of Rs.3050-75-3950-80-4590.
Thereafter, a complaint was made to the 5 W. P. Nos. 4836/2005, 4837/2005, 4838/2005, 4839/2005, 4840/2005, 4841/2005 & 5623/2005 authority alleging some irregularity committed during the course of promotion of the petitioner and other employees as recommendations were made by the DPC held on 15.10.1998. A direction was issued on 27.10.1998 (Annexure-P/6) by the Office of Joint Director, Health Services, Bhopal, asking the Chief Medical and Health Officer, Hoshangabad, to cancel the orders of promotion which have been issued in pursuance to the recommendations made by the DPC held on 15.10.1998. Thereafter, on 13.11.1998, an order was issued by respondent No.3 and was communicated to the petitioner informing that his promotion to the post of Lower Division Clerk has been cancelled and accordingly, he was relieved from the said post to his original post of Peon.
Thereafter, again in pursuance to the instructions issued on 18.08.1999 for filling-up the post by convening a DPC, the same was convened on 18.08.2004 and promotion order was issued to the petitioner on 24.08.2004 (Annexure-P/9) promoting him to the post of Assistant Grade-III from the post of 6 W. P. Nos. 4836/2005, 4837/2005, 4838/2005, 4839/2005, 4840/2005, 4841/2005 & 5623/2005 Peon. The petitioner submitted his joining on 25.08.2004 (Annexure-P/10), in pursuance to the order of promotion and thereafter, started working on the said post.
On 02.04.2005, the order impugned has been issued, addressing to the Director, Health Services, Madhya Pradesh, Bhopal, apprising him about some complaint made pointing-out the irregularities committed in the meeting of the Departmental Promotion Committee and instructed him to cancel the proceedings of the said meeting and also asked him to issue appropriate instructions to the concerned Chief Medical and Health Officer. Then, the consequential order was issued on 02.06.2005 by the Director, Health Services to the Chief Medical and Health Officer, Hoshangabad, apprising him that the proceedings of DPC held on 18.08.2004 were cancelled.
6. By filing the instant petition, the petitioner is challenging the instructions issued by respondents No.1 and 2 so also cancellation of the DPC proceedings held on 18.08.2004 wherein recommendations were made in 7 W. P. Nos. 4836/2005, 4837/2005, 4838/2005, 4839/2005, 4840/2005, 4841/2005 & 5623/2005 favour of the petitioner and other persons for promotion to the post of Assistant Grade-III. This Court vide order dated 01.07.2005 has granted time to the State to file reply and also stayed the operation of the impugned orders Annexures-P/1 and P/2 i.e. dated 02.04.2005 and 02.06.2005 respectively. Since then, the petitioner is continued on the promotional post i.e. Assistant Grade-III and is performing the duties.
7. In this petition, the ground of challenge is that the orders impugned suffer from violation of the principle of audi alteram partem as no opportunity of hearing was provided to the petitioner and no notice was ever issued to him before cancellation of the DPC proceedings held on 18.08.2004.
8. Learned counsel for the petitioner has contended that as per the stand taken by the respondents, even on a complaint made against the irregularities in the proceedings of the DPC held on 18.08.2004, it is clear that there was no irregularity committed during the course of promotion to the post of Assistant Grade-III, as such, his promotion should not 8 W. P. Nos. 4836/2005, 4837/2005, 4838/2005, 4839/2005, 4840/2005, 4841/2005 & 5623/2005 have been cancelled.
9. The respondents have filed the reply stating therein that on a complaint received by the authority alleging gross illegalities and irregularities in the DPC proceedings, an enquiry was conducted in which the statement of the members of the DPC was recorded and record of the DPC was also screened. The authority, thereafter, reached to a conclusion that certain mandatory requirements have not been fulfilled; even the provisions of the Madhya Pradesh Promotion Reservation Rules, 2002, were also not followed. The names of the persons working in the Work Charged Contingency Establishment have also been considered. It is also pointed-out that ignoring the claim of the seniors, junior persons have been recommended for promotion.
10. It is further stated in the reply, although admitted by the respondents that no remarks were made in the enquiry report in respect of the promotions from the post of Peon to the post of Assistant Grade-III, but on account of gross irregularities committed in the 9 W. P. Nos. 4836/2005, 4837/2005, 4838/2005, 4839/2005, 4840/2005, 4841/2005 & 5623/2005 DPC, the authority had no other option but to cancel the whole process of promotion as the same got vitiated in view of the irregularities observed by the Enquiry Committee. Therefore, a decision for cancellation of DPC proceedings held on 18.08.2004, was taken. In the reply, the respondents have also stated that in pursuance to the interim order granted by this Court, the new orders of cancellation of the promotion could not be issued and the petitioner and other persons alike, have been performing the duties on the promotional post.
11. The reply filed by the respondents nowhere contains that the petitioner and other persons have been granted any opportunity of hearing and any notice was issued to them before taking decision for cancellation of DPC proceedings whereunder they have been recommended for promotion to the post of Assistant Grade-III.
12. The petitioner has also filed rejoinder reiterating the stand taken by him in the petition stating therein that in view of the reply submitted by the State, it is clear that no opportunity was provided to him. It is 10 W. P. Nos. 4836/2005, 4837/2005, 4838/2005, 4839/2005, 4840/2005, 4841/2005 & 5623/2005 also stated in the rejoinder that some of these promoted employees, in whose favour, interim order had been granted, upon reaching the age of superannuation, got retired from service holding the promotional post of Assistant Grade-III and therefore, considering the said fact, it is claimed by the petitioner that the orders impugned need to be quashed.
13. During the course of arguments, learned counsel for the petitioner has confined his challenge mainly to the ground that the orders impugned suffer from violation of the principle of natural justice. He has further contended that cancellation of promotion carries civil consequences, therefore, in view of the settled principle of law, the authority was under
obligation to follow the principle of natural justice and as per the minimum requirement, a notice should have been issued to him apprising as to what irregularity has been found by the Enquiry Committee, but nothing has been done.
14. It is further contended by learned counsel for the petitioner that when it is admitted by the 11 W. P. Nos. 4836/2005, 4837/2005, 4838/2005, 4839/2005, 4840/2005, 4841/2005 & 5623/2005 respondents that Enquiry Committee has not commented any irregularity in respect of the promotion to the post of Assistant Grade-III, the promotion of the petitioner could not have been cancelled.
15. Per contra, learned Government Advocate appearing for the respondents/State has submitted that under the facts and circumstances of the case, the authority was not under obligation to comply with the principle of natural justice, as the same cannot be applied in the facts and circumstances of the present case and every case cannot be considered under the straight-jacket formula that in case of any order passed against an employee, opportunity of hearing has to be given.
16. Learned Government Advocate has further contended that so far as the stand taken by the respondents is concerned, that does not provide that there was no irregularity pointed-out by the Enquiry Committee in respect of promotion to the post of Assistant Grade-III and the report does not contain any specific observation regarding irregularities in the 12 W. P. Nos. 4836/2005, 4837/2005, 4838/2005, 4839/2005, 4840/2005, 4841/2005 & 5623/2005 promotion to the post of Assistant Grade-III, it does not mean that there was no irregularity as the report contained gross irregularities in the DPC, and therefore, the petitioner cannot get benefit of the same.
17. In support of his contentions, learned Government Advocate has placed reliance upon a decision reported in (2018) 15 SCC 463 parties being Union of India & Another Vs. Raghuwar Pal Singh, wherein the issue before the Supreme Court was as under:-
"(i) Whether appointment of the respondent made by the Director Incharge, without approval of competent authority was a nullity or mere irregularity which could be cured to avert disruption of his services;
and (ii) whether his services could be terminated without granting him opportunity of hearing."
18. Then, the Supreme Court while deciding the said issue, has observed as under:-
"The office order dated 29-8-2000 was simpliciter termination which had no reflection on conduct of respondent. It merely explicates that appointment was illegal having been made by the then Director Incharge R and without prior approval of the competent authority.
The recruitment procedure in relation to the post of Veterinary Compounder is governed by the Central Cattle Breeding Farms (Class III and Class IV Posts) Recruitment Rules, 1969, as amended from time to time and including the executive instructions issued in that behalf. As per the stated dispensation for such recruitment, the appointment letter could be issued only by an authorised officer and after grant of approval by 13 W. P. Nos. 4836/2005, 4837/2005, 4838/2005, 4839/2005, 4840/2005, 4841/2005 & 5623/2005 the competent authority. Even assuming that R had the authority to issue letter of appointment, nevertheless he could do so only upon obtaining prior written approval of the competent authority. It is undisputed that no prior approval of the competent authority was given for the appointment of the respondent. In such a case, the next logical issue that arises for consideration is:
whether the appointment letter issued to the respondent, would be a case of nullity or a mere irregularity? If it is a case of nullity, affording opportunity to the incumbent would be mere formality and non-grant of opportunity may not vitiate the final decision of termination of his services. The Tribunal has rightly held that in absence of prior approval of the competent authority, the Director Incharge could not have hastened issuance of the appointment letter. The act of commission and omission of the then Director Incharge would, therefore, suffer from the vice of lack of authority and nullity in law.
Further, the subject office order dated 29-8-2000 opens with the statement that the same was issued in compliance with the Ministry's decision vide Letter No.8-6/1999-ADMN.III dated 18-8-2000. It explicitly states that the appointment of the respondent was illegally made by the then Director Incharge R, Agriculture Officer. This reason of illegal appointment takes within its fold the unilateral constitution of the Selection Board (not in accordance with the prescribed constitution of the Selection Board) and also R nominating himself as the Chairman of such Board, although disqualified to be on the Board because the candidate was related to him. As a result, the Ministry took holistic decision on 18-8-2000 at the highest level after reckoning all aspects of the matter including that it was not just a solitary appointment of the respondent, but also other appointment letters issued by R under his signature. All such appointments have been nullified by the Ministry in the same manner in addition to initiating departmental action against R. Tersely put, all appointments made by R came under the scanner as being fraudulent and without authority. Such appointments would obviously be a nullity in law. If appointment letters were nullity there was no question of observance of principles of natural justice. The mere fact that such letter of appointment was issued in favour of the respondent does not bestow any right in his favour much less to insist for an opportunity of being heard."14
W. P. Nos. 4836/2005, 4837/2005, 4838/2005, 4839/2005, 4840/2005, 4841/2005 & 5623/2005
19. In view of the above, it is clear that the case relied upon by the respondents is not applicable to the facts and circumstances of the present case as facts are all together different. The Supreme Court in the case of Raghuwar Pal Singh (supra) has dealt with a situation when the order of appointment was illegally issued by the incompetent authority, then the Court has observed that in such a circumstance, when the order of appointment was without any authority and was in nullity in law, and therefore, following the principle of natural justice, in such a circumstance, was not required.
20. However, considering the law laid-down by the Supreme Court in the case of Gorkha Security Services Vs. Government (NCT of Delhi) & Others reported in (2014) 9 SCC 105, wherein it has been very clearly observed that law of blacklisting clearly provides an opportunity of following the principles of Audi Alteram Partem before taking such action and has held in Paragraph Nos.32 to 34, which read as under:-
"The "Prejudice" Argument 15 W. P. Nos. 4836/2005, 4837/2005, 4838/2005, 4839/2005, 4840/2005, 4841/2005 & 5623/2005
32. It was sought to be argued by Mr. Maninder Singh, learned Additional Solicitor General appearing for the respondent, that even if it is accepted that the show-cause notice should have contained the proposed action of blacklisting, no prejudice was caused to the appellant in as much as all necessary details mentioning defaults/ prejudices committed by the appellant were given in the show-cause notice and the appellant had even given its reply thereto. According to him, even if the action of blacklisting was not proposed in the show cause notice, the reply of the appellant would have remained the same. On this premise, the learned Additional Solicitor General has argued that there is no prejudice caused to the appellant by non-mentioning of the proposed action of blacklisting. He argued that unless the appellant was able to show that non-mentioning of blacklisting as the proposed penalty has caused prejudice and has resulted in miscarriage of justice, the impugned action cannot be nullified. For this proposition he referred to the judgment of this Court in Haryana Financial Corpn. v. Kailash Chandra Ahuja10: (SCC pp. 38, 40-41 & 44, paras 21, 31, 36 & 44)
"21. From the ratio laid down in B.Karunakar 11 it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer's report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside.
* * *
31. At the same time, however, effect of violation of the rule of audi alteram partem has to be considered. Even if hearing is not afforded to the person who is sought to be affected or penalised, can it not be argued that 'notice would have served no purpose' or 'hearing could not have made difference' or 'the person could not have offered any defence whatsoever'. In this connection, it is interesting to note that under the English law, it was held few years before that non-compliance with principles of natural justice would make the order null and void and no further inquiry was necessary.
* * *
36. The recent trend, however, is of 'prejudice'. Even in those cases where procedural requirements have not been complied with, the action has not been held ipso facto illegal, unlawful or void unless it is shown that non- observance had prejudicially affected the applicant.
16W. P. Nos. 4836/2005, 4837/2005, 4838/2005, 4839/2005, 4840/2005, 4841/2005 & 5623/2005 * * *
44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show 'prejudice'. Unless he is able to show that non-supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down."
33. When we apply the ratio of the aforesaid judgment to the facts of the present case, it becomes difficult to accept the argument of the learned Additional Solicitor General. In the first instance, we may point out that no such case was set up by the respondents that by omitting to state the proposed action of blacklisting, the appellant in the show- cause notice has not caused any prejudice to the appellant. Moreover, had the action of black listing being specifically proposed in the show cause notice, the appellant could have mentioned as to why such extreme penalty is not justified. It could have come out with extenuating circumstances defending such an action even if the defaults were there and the Department was not satisfied with the explanation qua the defaults. It could have even pleaded with the Department not to blacklist the appellant or do it for a lesser period in case the Department still wanted to black list the appellant. Therefore, it is not at all acceptable that non-mentioning of proposed blacklisting in the show-cause notice has not caused any prejudice to the appellant. This apart, the extreme nature of such a harsh penalty like blacklisting with severe consequences, would itself amount to causing prejudice to the appellant.
34. For the aforesaid reasons, we are of the view that the impugned judgment3 of the High Court does not decide the issue in correct prospective. The impugned Order dated 11.9.2013 passed by the respondents blacklisting the appellant without giving the appellant notice thereto, is contrary to the principles of natural justice as it was not specifically proposed and, therefore, there was no show-cause notice given to this effect before taking action of blacklisting against the appellant. We, therefore, set aside and quash the impugned action of blacklisting the appellant. The appeals are allowed to this extent. However, we make it clear that it would be open to 17 W. P. Nos. 4836/2005, 4837/2005, 4838/2005, 4839/2005, 4840/2005, 4841/2005 & 5623/2005 the respondents to take any action in this behalf after complying with the necessary procedural formalities delineated above. No costs."
21. In the aforesaid case, the Supreme Court has further held that:-
"No doubt, rules of natural justice are not embodied rules nor can they be lifted to the position of fundamental rights. However, their aim is to secure justice and to prevent miscarriage of justice. It is now well-established proposition of law that unless a statutory provision either specifically or by necessary implication excludes the application of any rules of natural justice, any exercise of power prejudicially affecting another must be in conformity with the rules of natural justice. When it comes to the action of blacklisting which is termed as "civil death" it would be difficult to accept the proposition that without even putting the noticee to such a contemplated action and giving him a chance to show cause as to why such an action be not taken, final order can be passed blacklisting such a person only on the premise that this is one of the actions so stated in provisions of NIT."
22. The similar view has been taken by Supreme Court in the case of Dharmpal Satyapal Limited Vs. Deputy Commissioner reported in (2015) 8 SCC 519.
23. In view of the above, I am of the opinion that the respondent was under obligation to provide an opportunity of hearing to the petitioner and to follow the principle of natural justice because the orders impugned carry civil consequences and the petitioner suffered not only the status in his service career but also 18 W. P. Nos. 4836/2005, 4837/2005, 4838/2005, 4839/2005, 4840/2005, 4841/2005 & 5623/2005 the monetary loss.
24. The respondents have also not filed the complaint before this Court, but have filed the enquiry report and as per the observation made by the Enquiry Committee, it is clear that the said Committee has not given any opportunity of hearing to the persons concerned, who were being affected by the observations made. From perusal of the said report, it is also clear that no such irregularity has been committed due to suppression of any material fact by the petitioner and other employees, but all those irregularities shown to have been committed, were at the instance of the Government Officers and for that, the petitioner should have been given an opportunity to be heard.
25. In view of the above, the orders impugned dated 02.04.2005 (Annexure-P/1) and 02.06.2005 (Annexure-P/2) undoubtedly are not sustainable as they have been passed in violation of the principle of natural justice, the same are hereby quashed.
26. However, the respondents are at liberty to proceed further, if they so require, by giving proper 19 W. P. Nos. 4836/2005, 4837/2005, 4838/2005, 4839/2005, 4840/2005, 4841/2005 & 5623/2005 opportunity of hearing to the petitioner apprising him about the report of the Enquiry Committee and the irregularities pointed-out.
27. So far as the petitioner in W.P. No.4841/2005 namely, Ashok Kumar Garhwal, is concerned, he was promoted to the post of Assistant Grade-II. Since the order impugned cancelling the DPC proceedings held on 18.08.2004, is set-aside, therefore, he would be continued on the post of Assistant Grade-II unless the foundation of his promotion i.e. DPC proceedings held on 18.08.2004 is disturbed or set-aside.
28. Accordingly, these petitions stand allowed with the aforesaid observations and directions.
Certified Copy as per rules.
No orders as to cost.
(SANJAY DWIVEDI) JUDGE Prachi Digitally signed by PRACHI PANDEY Date: 2020.02.26 16:36:07 +05'30'