Madhya Pradesh High Court
M.M.Mudgal vs The State Of M.P on 24 August, 2012
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
WRIT PETITION No.16132/2003
(O.A. No.5341/2000)
M.M. Mudgal
Vs.
State of Madhya Pradesh & others
____________________________________________________________
Petitioner in person.
Shri Samdarshi Tiwari, learned Govt. Advocate, for the
respondents-State.
____________________________________________________________
Present : Hon'ble Shri Justice K.K. Trivedi
____________________________________________________________
O R D E R
(24th August, 2012) This petition was initially filed as O.A. No.5341/2000 before the M.P. State Administrative Tribunal, Jabalpur by the petitioner, who is a retired Deputy Collector, challenging the validity of the order dated 27.05.2000 by which the appeal of the petitioner against the order of punishment has been dismissed on the various grounds. Many reliefs have been claimed by the petitioner, as enumerated in paragraph 9 of the petition. The petition has been transferred to this Court on abolition of the M.P. State Administrative Tribunal and is registered as writ petition.
2. Brief facts giving rise to filing of this petition are that the petitioner was working on the post of Deputy Collector and has superannuated from service on 31.07.1995. Previously the petitioner was posted at Jabalpur and was transferred on the post of Land Acquisition Officer in Ban Sagar Project, Rewa. The said posting was done on deputation in the Water Resources Department. The order of posting was issued on 02.07.1988, pursuant to which the petitioner gave his joining at Rewa on 01.08.1988. It is 2 contended by the petitioner that since he was suffering from Sciatica and was not in a position to move freely, was not in a position to travel in the rural areas for the purposes of discharge of his duty as Land Acquisition Officer, he moved an application for his shifting in the office and since his application was not considered, he was left with no option but to proceed on medical leave. The petitioner submitted the leave applications with medical certificate and did not join the duties till an order was issued re- transferring him to Jabalpur on 23.11.1989. Pursuant to the said order, the petitioner gave his joining at Jabalpur on 31.01.1989. The period of leave of the petitioner was not being regularized, therefore, certain correspondence was done by him. Thereafter, a show cause notice was issued to him on 15.07.1991 alleging that the petitioner has not discharged any duties after the joining at Rewa and thereby had committed misconduct by not rejoining at the place of posting from where he was re-transferred to Jabalpur and without even handing over the charge at Rewa, he joined at Jabalpur. It was alleged that such act of the petitioner was a misconduct as prescribed in Rule 3 of the M.P. Civil Service (Conduct) Rules, 1965 and the State Government has decided to impose a punishment of withholding of one increment of pay with cumulative effect. The said show cause was issued to the petitioner under Rule 16 of the M.P. Civil Services (Classification, Control & Appeal) Rules, 1966 (herein after referred to as 'Rules').
3. It is the contention of the petitioner that on receipt of the show cause notice, he filed his reply on 2nd August, 1991 but instead of considering the reply of the petitioner in appropriate manner, by order dated 10.09.1993, with the concurrence of the Public Service Commission, penalty of withholding of one increment of pay with cumulative effect was imposed on the petitioner. An appeal was preferred by the petitioner against the said order but since the appeal 3 was not being decided, he was left with no option but to file an original application before the M.P. State Administrative Tribunal, which was registered as O.A. No.249/1996. The said original application came to be decided on 04.05.1999. While not disturbing the order of punishment, the Tribunal remanded back the matter to the Appellate Authority with a direction to decide the appeal of the petitioner by a speaking order within a period of three months. Despite passing of the said order, the appeal of the petitioner was not properly decided and since the same was dismissed by the order impugned, the original application was again filed, which has been transmitted to this Court and is registered as writ petition.
4. In response to the notice of the original application, a return has been filed by the respondents and it is contended that the punishment was rightly imposed on the petitioner. It is contended that various reliefs have been claimed in the original application clubbing the same, though the same are based on different cause of action and as such the original application, as constituted, is not maintainable as multiple reliefs have been claimed in the original application. However, it is further contended that since the petitioner never represented, never rejoined before the competent authority where he was posted nor has ever got himself relieved from Rewa, therefore, a serious misconduct was committed by him. It is contended that only when the order of re-posting was issued in respect of the petitioner on 23.01.1989, he became fit to join the duty and gave his joining on 31.01.1989. This itself is enough, according to the respondents, to show that the petitioner was negligent in discharge of his duties and, therefore, he committed misconduct for which the punishment was rightly imposed after giving due opportunity of hearing to the petitioner. It is further contended that once the punishment was imposed, after 4 following the procedure laid-down under the rules, interference in the order of punishment was not warranted. So far as the other reliefs are concerned, it is contended that claim of the petitioner was considered in appropriate manner by the Departmental Promotion Committee and as he was not found fit for confirmation, the order of confirmation was not issued. The Promotion Committee, which has considered the case of the petitioner, is an expert body and its opinion cannot be found fault with without cogent reasons and valid grounds. Nothing is stated in the petition in this respect, therefore, such claim made by the petitioner cannot be granted. However, since the petitioner was not confirmed, he was not granted the benefit of senior pay scale. Thus, it is contended that the petition is liable to be dismissed.
5. A rejoinder to the return has been filed by the petitioner and much or less the similar facts have been stated. However, certain more facts have been brought to the notice by stating that certain persons were given the benefit of confirmation with retrospective effect and the said benefit was not extended to the petitioner without any justified reasons. It is contended that the bald allegations made by the respondents cannot be accepted. It is contended that since the confirmation of the petitioner was delayed only on account of not regularizing the period of leave, which has been sanctioned only after a long time in the year 2000, therefore, the claim of the petitioner is required to be reviewed. Such facts are not properly stated by the respondents, therefore, the stand taken by the respondents cannot be accepted. Though an additional return has also been filed by the respondents but nothing material has been stated except that the claims of persons were considered for grant of benefit of upgradation in senior scale and the petitioner since was not confirmed, his case was not to be considered as per the rules.
56. Heard the petitioner and learned Govt. Advocate for the respondents at length and perused the record.
7. Undisputedly the punishment order was issued against the petitioner after giving him a show cause. Though as per the law laid-down by the Apex Court, penalty of withholding of increment of pay with cumulative effect is deemed to be a major penalty but in the rules the same is treated as a minor penalty. Since it is not clarified whether withholding of increment or stagnation allowance, as enumerated in Rule 10(iv) of the Rules, with cumulative effect is also a minor penalty, the law laid-down by the Apex Court is required to be kept in mind and if the said law is made applicable, withholding of increment of pay with cumulative effect is deemed to be a major penalty. This has to be held so because the penalty if imposed with cumulative effect will not only cause prejudice, monetary loss to the Government employee while in service but the loss will also be caused after the retirement of the employee concerned and even the family pension will also be affected. Looking to such long effect of the penalty, it cannot be treated to be a minor penalty at all. Law in this respect has been well settled long back by the Apex Court in the case of Kulwant Singh Gill vs. State of Punjab, 1991 Supp(1) SCC 504, wherein the Apex Court has categorically held that if a penalty is imposed in such a manner, affecting the rights during service and even after service, it has to be treated as major penalty, which cannot be imposed without conducting a fulfledged enquiry as enumerated under Rule 14 of the Rules. Admittedly no charge-sheet was issued to the petitioner and only a show cause under Rule 16 of the Rules was given to him, which means that only a summary enquiry was conducted for imposition of a minor penalty. In the garb of minor penalty, a major penalty should not have been imposed on the petitioner.
68. Though such an aspect was materially important, unfortunately when the original application was filed by the petitioner on first occasion assailing the order of penalty, he did not raise these grounds in his original application, as a result the Tribunal while passing the order in O.A. No.249/1996 on 04.05.1999, did not examine this aspect. The entire findings recorded by the Tribunal are based on the submissions made by the petitioner in his first original application. In paragraph 8 of the order passed by the Tribunal, simply it was recorded that a penalty if imposed after a departmental enquiry and after recording certain findings though in summary proceedings, the same cannot be looked into or interfered by the Tribunal unless it is demonstrated that there was no evidence available to hold the charge proved or in case where the conclusion of the disciplinary authority was so perverse that no reasonable man would reach to such conclusion. Apparently the submissions in this respect were not raised by the petitioner in his original application nor any submission was made orally with respect to the conduct of the departmental enquiry and as such the findings could not be given by the Tribunal. Though hard and fast rules of Code of Civil Procedure are not made applicable in the writ petition but the pleas, which were available and which could be raised if not raised, cannot be permitted to be re-raised. The memo of appeal of the petitioner is also available on record and when the appeal was preferred by the petitioner before the appellate authority, such a ground was not raised. The findings of the Tribunal were not assailed in any further proceedings or in appeal before the appropriate appellate Court by the petitioner and once such findings are made, which have attained finality, it will be difficult for this Court to interfere in the matter of the departmental enquiry. However, such a rule would not be applicable in the case of an appellate authority while examining the appeal as under 7
Rule 27 of the Rules, the appellate authority is required to examine whether the procedure laid-down in the rules has been complied with and if not, whether such non- compliance has resulted in violation of any provision of the Constitution of India or in the failure of justice. The appellate authority was required to examine whether the penalty of withholding of one increment of pay with cumulative effect could be imposed on the petitioner or not, by giving him a show cause only and not conducting a detailed enquiry as has been held by the Apex Court in the case of Kulwant Singh Gill (supra). The entire order passed by the appellate authority as contained in Annexure A-1 indicates nothing except that the Tribunal has remitted back the matter to the appellate authority with a direction that the appeal of the petitioner be decided on merits. The appellant authority has not examined whether the penalty of withholding of one increment of pay with cumulative effect was justified or not. The appellate authority is competent authority to confirm, enhance, reduce or set aside the penalty. Since this has not been done, in the considered opinion of this Court, the appellate authority has not rightly decided the appeal of the petitioner.
9. Consequently, this writ petition is allowed to the extent that the order of the appellate authority dated 27.05.2000 (Annexure A-1) is quashed. The matter is remitted back to the appellate authority to re-consider the appeal of the petitioner after extending an opportunity of hearing to him and to decide the appeal of the petitioner afresh. The appellate authority will keep in mind the decision rendered by the Apex Court in the case of Kulwant Singh Gill (supra) as also the fact that the leave of the petitioner was subsequently sanctioned and will pass appropriate order on the appeal of the petitioner in accordance to the law within a period of four months from the date of receipt of certified copy of the order passed 8 today. Since other reliefs claimed by the petitioner cannot be adjudicated in such a composite petition, in case any relief is granted to the petitioner by the appellate authority, he will be free to claim the reliefs with respect to the other claims, if advised or feasible.
10. The petition is disposed of finally on the aforesaid terms. There shall be no order as to cost.
(K.K. Trivedi) Judge Skc