Madhya Pradesh High Court
Abrar Mohammad vs The State Of Madhya Pradesh on 2 July, 2018
1 WP-7374-2016
The High Court Of Madhya Pradesh
WP-7374-2016
(ABRAR MOHAMMAD Vs THE STATE OF MADHYA PRADESH)
Gwalior, Dated : 02-07-2018
Shri Jitendra Sharma, learned counsel for the petitioner.
Shri Abhishek Mishra, learned Govt. Advocate for the
respondents/State.
Petitioner has filed this petition being aggrieved by the order dt.10.10.2016, whereby after conducting the departmental enquiry, punishment under Rule 10 (8) of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter shall be referred to as the Rules of 1966) has been inflicted on the petitioner and he has been removed from the post of Peon in the office of District Education and Training Institution.
It is petitioner's contention that a charge sheet was issued to him vide Annexure P/9, wherein two charges were made namely; that he had filed an incorrect affidavit so to obtain compassionate appointment on the post of Peon and secondly, he furnished incorrect information and tried to mislead the superior officers so to suppress correct information.
Petitioner's contention is that the punishment order is not based on material, which has come in the enquiry and further no proper enquiry is conducted as is mandated under Rule 14 of the Rules of 1966.
Petitioner has also placed reliance on the decision of the Coordinate Bench of this court in the case of Pawan Kumar Rathore Vs. State of M.P. & Another (W.P.No.7590/2016) decided on 17.5.2017, wherein in the similar facts and circumstances, court was pleased to quash the order passed by the District Education Officer, Sheopur and remand the matter back to the District Education Officer, Sheopur for fresh issuance of charge sheet and conduction of enquiry in accordance with law.
Petitioner has also placed reliance on the judgment of the Coordinate Bench of this court at Indore Bench in the case of Ajay Nangwade Vs. State of M.P. and others (W.P.No.10227)/2011 (S)] decided on 15.7.2014, wherein considering the policy of the State Government for grant of compassionate appointment and 2 WP-7374-2016 placing reliance on the Division Bench decision of this court in the case of State of M.P. and another Vs. Mehmood Hussain in W.A. No.729/2013, wherein it is held that whether the brother of the petitioner is living separately and not with the family and other dependents of the deceased employee and they have no financial support from any other source is a relevant consideration while deciding the application for compassionate appointment, the Coordinate Bench issued direction to the concerned respondents to reconsider the petitioner's case in the light of the law settled in the judgment mentioned above.
It is petitioner's contention that he had filed affidavit of his brother to show that though they are employed but are not supporting the family of petitioner and his mother and have no relationship with them. In view of such submissions, it is prayed that the impugned order be quashed and at least matter be remanded back for de novo enquiry.
As far as the violation of provisions contained in Rule 14 of the Rules of 1966 is concerned, learned Govt. Advocate has produced record of the case. It is apparent from the proceedings that not only departmental enquiry was conducted against the petitioner after issuance of charge sheet as contained in Annexure P/9 but also petitioner had furnished reply to said show cause notice.
It has also come on record that the Presenting Officer was appointed and Enquiry Officer was also appointed as is the requirement of Rule 14 of the Rules of 1966. Shri G.S.Ashawat, Principal of Govt. Higher Secondary School Soikalan was appointed as Enquiry Officer and Shri Narendra Jat, Lecturer, Govt. High School Javdeshwar was appointed as Presenting Officer. It has also come on record that the petitioner had moved an application on 5.9.2016 as is contained in Annexure P/11 seeking a change of the Enquiry Officer alleging that Enquiry Officer has old enmity with him but the fact is that Enquiry Officer had submitted his Enquiry Report on 26.09.2016 and same was forwarded by the District Education Officer to the petitioner seeking his response. Petitioner had furnished his response as is contained in Annexure P/13 to the District Education Officer and after considering the response furnished by the petitioner, impugned order (Annexure P/1) has been passed.
3 WP-7374-2016 Learned Govt. Advocate submits that no objection was taken by the petitioner during the enquiry and even he had taken similar objections at the time of filing of his reply to the show cause notice on 10.11.2015. He had objected to the preliminary enquiry which was conducted by the Principal, Govt. Higher Secondary School Badoda namely Shri K.C.Goyal and Principal Govt. High School, Makdavada Shri Vijay Chunekar as is available in the record produced by the department.
Charge against the petitioner is that he had suppressed information and had obtained compassionate appointment. He has been charged that he had expressed that his wife who was already working as Shiksha Karmi Grade III was living separately for last 14- 15 months and was not having any kind of relationship with him. He had not informed that his brother Ashfaq Mohammad and Fareed Mohammad were already employed prior to the death of his father and this information was suppressed in the affidavit of the petitioner and his mother Smt. Bano Begum, which was in violation of GAD circular dt.1.5.2000in regard to compassionate appointment. Petitioner has admitted in his petition so also the learned counsel for the petitioner that petitioner's wife is living with the petitioner since 2-3 months of his gaining appointment and they have children, when learned counsel submits that if the impugned order is not quashed, then his family shall suffer irreparably.
As far as law laid down in the case of Ajay Nangwade (supra) and Mehmood Hussain Mansuri (supra) is concerned, Division Bench of this court in the case of Prajesh Shrivastava Vs. State of M.P. and others as reported in 2016 (3) MPLJ 88, has held that where in a family of deceased Government servant, any of the member eligible for compassionate appointment is in the employment in government service or corporation, board, council, commission etc., any other member of the family, though eligible, will not be entitled for appointment on compassionate ground because the object of compassionate appointment is to protect family in question from penury on death of sole bread earner. It has also been held that plea of appellant that since his brother is living separately and therefore he should not be considered as family member, is not tenable.
In view of such facts and judgment rendered in the case of 4 WP-7374-2016 Prakash Parmar Vs. Govt. of M.P. as reported in 2012 (4) MPLJ 539 has been distinguished by refering to the definition of family contained in Fundamental Rules. Therefore, the ratio in the case of Ajay Nangwade (supra) and Mehmood Hussain Mansuri (supra) is not relevant in the light of the decision rendered in the case of Prajesh Shrivastava (supra).
As far as order dt.17.5.2017 in the case of Pawan Kumar Rathore (supra) is concerned, the basis for remanding the matter was that charges were framed in respect of false affidavit given by father of the petitioner for helping him in getting compassionate appointment and in respect of time period after which petitioner had taken compassionate appointment but the coordinate Bench observed that Enquiry Report reflects that Enquiry Officer has proceeded on different assumptions and did not deal with the charges framed against the petitioner and therefore recording the fining that Enquiry Officer proceeded on incorrect presumptions, which were not part of the charge sheet, rejected the report.
In the present case a perusal of the enquiry report reveals that the enquiry report is in consonance with the charges and the enquiry officer has found that the petitioner had given incorrect affidavit and had given incorrect information to the superior officers.
A perusal of the affidavit of the petitioner shows that the petitioner had mentioned that his father was working as Accountant in the Education Department and died on 6.8.2003. His wife, who is working, is living separately for last 14-15 months and has no relationship with him. It is further mentioned that he is fully dependent on his parents. He suppressed the fact about employment of his brothers. His mother though in her affidavit accepted that her two sons are working but mentioned that they have no relationship or even talking terms with them for last several years, whereas this is contrary to the material on record, inasmuch petitioner himself has filed joint affidavit of his two brothers Ashfaq Mohammad and Fareed Mohammad. If they were not in talking terms, there was no occasion for these two brothers to swear in affidavit in favour of the petitioner. Thus, the charge that false affidavit is given is correct so also the fact that petitioner had suppressed correct information from superior officers is also correct as have been found by the Enquiry Officer.
5 WP-7374-2016 In view of such facts and in the light of the judgment rendered by the Division Bench of this court in the case of Prajesh Shrivastava (supra), this court is of the opinion that the petitioner had suppressed the correct facts and had sworn in incorrect affidavit to procure compassionate appointment though he was not entitled to such compassionate appointment. In fact, after marriage of the petitioner, he could not have been considered to be dependent on his father and his mother. He had admitted that his marriage was performed prior to death of his father, therefore, in terms of the definition of family and also in terms of the GAD circular, the petitioner was not entitled for compassionate appointment and therefore the appointment procured on the basis of incorrect and false information has been rightly set aside after conducting enquiry.
Petitioner has failed to point out any legal and procedural lapse in the departmental enquiry. In view of such facts, petition fails and is dismissed.
(VIVEK AGARWAL) JUDGE SP Digitally signed by SANJEEV KUMAR PHANSE Date: 2018.07.04 16:19:08 +05'30'