Madhya Pradesh High Court
M.P. Housing Board vs Satish Kumar Sane on 22 January, 2013
Author: Sanjay Yadav
Bench: Sanjay Yadav
HIGH COURT OF MADHYA PRADEESH JABALPUR
(Writ Appeal No. 1407/2010)
Uday Kumar Nigam
Vs.
Satish Kumar Sane and others
(Writ Appeal No. 1346/2010)
M.P. Housing Board and another
Vs.
Satish Kumar Sane and others
PRESENT :
HON'BLE THE CHIEF JUSTICE SHRI S.A. BOBDE
HON'BLE SHRI JUSTICE SANJAY YADAV
Counsel for Appellant Shri Hemant Shrivastava, Advocate in WA
No. 1407/2010 and Shri Ashish Shroti,
Advocate in W.A. No. 1346/2010
Counsel for respondent No. 1 Shri Praveen Dubey, Advocate in
both cases
Counsel for respondent No. 2 Shri Ashish Shroti, Advocate in W.A.
No. 1407/2010
O R D E R
(22/2/2013)
PER SANJAY YADAV, J.
These two Intra Court Appeals under Section 2 (1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko 2 W.A. No.1407/10 & 1346/10 Appeal) Adhiniyam, 2005, since arises of an order dated 12.10.2010 passed in W.P. 7804/2008 (S) are analogously heard and decided by this common order.
2. Question which arises for consideration is as to whether a warning, on the basis of a finding in a departmental enquiry would tantamount to a punishment under Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966, wherein the 'Censure' is the punishment enumerated under Rule 10 (i). And as to whether in absence of a definition of expression censure, the form or the substance of the order can be gone into to draw an inference of punishment.
3. Relevant facts giving rise to issue which arises for consideration briefly are that, the appellant and respondent No. 1 were considered for promotion to the post of Assistant Engineer (Electrical) by the Departmental Promotion Committee, convened on 23.12.2004. Since the petitioner was facing the departmental enquiry, his recommendations were kept in sealed cover; whereas, respondent No. 1 was promoted by order dated 31.12.2005 with a stipulation that as per the provision contained in clauses 2 and 3 (1) of General Administration Department Memo No. F/C62/94/03/ ,d /dt. 30.6.1994, an employee whose recommendations are kept in sealed cover is exonerated he will be placed on select list in accordance with his seniority.
4. The departmental enquiry which was initiated against the petitioner culminated in an order dated 18.2.2008; whereby, the Disciplinary Authority taking into consideration that out of 8 charges, charge No. 6 was partially proved closed the matter by 3 W.A. No.1407/10 & 1346/10 giving warning that in future he should be careful. The order states: "tkap vf/kdkjh ds tkap izfrosnu dk ijh{k.k fd;s tkus ds mijkar tkapdrkZ vf/ kdkjh ds izfrosnu ls lger gksrs gq, ,oa Jh fuxe ds }kjk foyac ls izLrqr fd;s x;s ,e-,-,l ys[kksa dk vkjksi tks fd muds }kjk Lo;a Hkh Lohdkj fd;k x;k gS] vkaf'kd :i ls fl) ik;s tkus ds QyLo:i Jh ;w ds fuxe dks Hkfo"; ds fy;s lpsr jgus dh psrkouh ds lkFk izdj.k lekIr fd;k tkrk gS A" (English Translation : After examining the inquiry report of the inquiry officer and agreeing to the same and the charge of the M.A.S documents being submitted by Shri Nigam with delay, which has been admitted by him also, being found proved partially, consequently the case is closed with warning for Shri Nigam to remain alert for the future).
5. Construing the order dated 18.2.2008 as an exoneration from the charge, the competent authority, by order dated 25.6.2008 cancelled the order of promotion of respondent No. 1 repatriating him to the post of SubEnmgineer (Electrical) and promoted the appellant as Assistant Engineer (Electrical) as per recommendations retrieved from the sealed cover.
6. Aggrieved, respondent No. 1 preferred a writ petition No. 7804/2008 (S) challenging his reversion. Learned Single Judge getting in the substance of the order dated 18.2.2008 held that, the same is an order of punishment and that, "such an order of penalty would be though a minor penalty and will be an order of "censure". It has further held that the punishment would not come in way in future promotion. Accordingly, the order of reversion of respondent No. 1 and the promotion order of the appellant was set aside.
4 W.A. No.1407/10 & 1346/10
7. Assailing the order it is urged on behalf of the appellant that the 'warning to be more careful in future' being not a penalty enumerated under Rule 10 of the 1966 Rules, the learned Single Judge fell in error in construing the same as 'censure' and holding the same as punishment. It is contended that it was beyond the scope of a writ court in a petition under Article 226 of the Constitution of India to have substituted its own opinion with that of the disciplinary authority who despite of availability of penalty of 'censure' and other penalties had chosen to give 'warning to be more careful in future', which has rightly been construed by the same authority, i.e., Commissioner, Madhya Pradesh Housing Board, as not a punishment, promoting the petitioner in furtherance to the recommendation by the Departmental Promotion Committee kept in sealed cover. Appellant accordingly seeks setting aside of order in writ petition W.P. No. 7804/2008 (S) and for restoration of order dated 25.6.2008.
8. Respondent on his turn supports the order.
9. It is in backdrop of these facts the questions posed in the beginning which arises for consideration; which can be examined in the context of relevant Rule.
10. Indisputably, the petitioner was chargesheeted for a conduct unbecoming a government servant. As many as eight charges were levelled against the petitioner and his denial of charges led the holding of a departmental enquiry culminating in upholding, though partially, the charge No. 6, reflecting petitioner's misconduct. It is this proved misconduct, which is 5 W.A. No.1407/10 & 1346/10 the foundation for a issuance of warning. The petitioner is thus not exonerated of the charge No. 6 which is partially proved. It is for this reason that the General Administration Department has issued memo No. C64/2000/3/,d/ Bhopal dated 22.6.2000, advising the Head of Department to refrain from closing the departmental enquiry matter by simply giving 'warning' or 'character roll warning'. The circular brought on record of writ petition as Annexure P/6, when translated from vernacular stipulates:
"Government of Madhya Pradesh.
General Aministration Department.
Minstry.
No. C-6-4/2000/3/one. Bhopal, dated 22.06.2000. To, All Government Departments, Chairman, Revenue Board, M.P. Gwalior, All Heads of the Departments, All Commissioners, All Collectors, All Chief Executive Officers, Zila Panchayat, Madhya Pradesh.
Subject- In regard to the cases of disciplinary actions not to be closed by giving "warning/ character roll warning"
Reference- The circular No F-C-6-2/94/3/one, dated 30 June 1994 of this department.
These directions were given in para 3(3) of the reference memo dated 30.06.94 of this department that under Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 "warning" does not come under the definition of punishment. That is, warning is not included in the punishment which is defined under these 6 W.A. No.1407/10 & 1346/10 rules. Hence, as a result of the disciplinary action taken under the said rules if any blame is being found on the delinquent Government Servant then in such circumstance it is necessary to impose at least the penalty of censure on him and such cases should not be closed by giving mere warning.
2. Some such cases have come to the notice of the State Government where, in contrary to the aforesaid directions in cases of disciplinary action the delinquent Government Servant was not punished or exonerated and the case was closed by awarding warning/character roll warning.
3. It is again made clear by the Government that in consequence of the disciplinary action instituted under Madhya Pradesh Civil Service (Classification, Control and Appeal) Rules, 1966 on the charges being proved out of the penalties described in Rule 10 of the aforesaid rules the suitable penalty should be imposed on the delinquent Government Servant. In any condition on the charges found proved the case should not be closed by giving "warning" or "character roll warning" to the delinquent Government Servant.
4. The aforesaid directions should be strictly complied with. In future if in any case any proceedings contrary to these directions are found to be conducted then, for this, action shall be taken against the guilty officer.
Sd/-
(M.K. Verma) Deputy Secretary Government of Madhya Pradesh.
General Adminstration Department 7 W.A. No.1407/10 & 1346/10
11. The intention is absolutely clear that, when charge sheeted and the charges are proved (even partially) then the delinquent is liable for punishment. Such a delinquent, in our considered opinion, cannot wriggle out of a penal net merely because the order expressing the imposition of penalty is not in form. Though in substance the order intends to punish the mischief monger.
12. Expression 'censure' in not defined in the Rules of 1966, nor the word 'warning'. Wharton's Concise Law Dictionary, Fifteenth Edition (Concise) 2009 defines Censure to mean "an official reprimand or condemnation, harsh criticism". Whereas, Collins Cobuild English Language Dictionary, Second impression 1992 defines warning "something which is said or written to tell people of possible danger or problems."
13. Where an element of penalty qua past conduct is embedded in Warning, it is a punishment, in substance. The appellant may be right if only form of an order is confined to. But it is not to be so in case as in hand where the warning precede a departmental enquiry and proving of a charge.
14. Now turning on the decisions relied upon by the Appellant.
15. In Gopal Bhagat v. Municipal Corporation of Delhi: 1995 (34) DRJ 622 one of the question which arose for consideration was "whether a 'recordable warning' could have been issued to the petitioner without affording him an opportunity of showing cause against". After taking into consideration the meaning of the words censure and warning in respective context it was held "20. In the present case, in the opinion of the Additional Director 8 W.A. No.1407/10 & 1346/10 (Vigilance) the petitioner had done something which ought not to have been done. The Additional Director armed with material and having formed an opinion that the petitioner deserved to be warned, issued the warning though what the petitioner had done was not considered serious enough to initiate disciplinary action and a penalty being imposed on him. The recordable warning has been communicated to the petitioner. He is at liberty to make a representation against it which if done, the authority issuing the warning or any authority superior to it, as the case may be, shall consider the same on its own merit. Needless to say anything said in this order shall not come in the way of such representation being disposed of objectively and consistently with the principles of natural justice and fair play."
16. In the case at hand in a full fledged departmental enquiry one of the charges has been partially proved and is not a case where without holding an enquiry a warning is given for future.
17. Decision in ChairmancumManaging Director, Coal India Ltd. and another v. Mukul Kumar Choudhury and others (2009_ 15 SCC 620 has been relied upon by the petitioner to substantiate the submissions that it was beyond the powers of writ court in judicial review to have substituted the punishment. There cannot be any cavil regarding the proposition that "it is not open to the High Court to examine the findings recorded by the enquiry officer as a Court of appeal and reach its own conclusions and that power of judicial review is not directed against the decision but is confined to the decision making process." In the case at hand there is no recording of fresh 9 W.A. No.1407/10 & 1346/10 findings by learned Single Judge. Instead the findings recorded and accepted by the Disciplinary Authority has been examined in substance which in the context of present case in our considered opinion, was within the power of writ court. As, while ignoring the substance of order, form of the order was taken into consideration by the departmental authorities which led to wiping of the proved misconduct. Promotion is not a right but is earned on merit. The appellant who was held guilty of the misconduct and he having allowed the findings to attain finality, had no right to promotion at the cost of respondent No. 1. Therefore, the decision in Coal India Ltd (supra) is also of no assistance to the appellant.
18. In Vijay Singh v. State of Uttar Pradesh and others : (2012) 5 SCC 242, the issue as borne out from paragraph of the report was whether the disciplinary authority can impose punishment not prescribed under the statutory rules after holding disciplinary proceedings. Their Lordships were pleased to hold:
11. ..... ..... .... It is a settled proposition of law that punishment not prescribed under the rules, as a result of disciplinary proceedings cannot be awarded.
12.This Court in State of U.P. & Ors. v. Madhav Prasad Sharma, (2011) 2 SCC 212, dealt with the aforesaid 1991 Rules and after quoting Rule 4 thereof held as under: (SCC p. 216 para 16) "16. We are not concerned about other rule. The perusal of major and minor penalties prescribed in the above Rule makes it clear that sanctioning leave without pay is not one of the punishments prescribed, though, and under what circumstances leave has been sanctioned without pay is a different aspect with which we are not concerned for the present. However, Rule 4 makes it 10 W.A. No.1407/10 & 1346/10 clear that sanction of leave without pay is not one of the punishments prescribed. Disciplinary authority is competent to impose appropriate penalty from those provided in Rule 4 of the Rules which deals with the major penalties and minor penalties. Denial of salary on the ground of "no work no pay" cannot be treated as a penalty in view of statutory provisions contained in Rule 4 defining the penalties in clear terms."
13. The Authority has to act or purport to act in pursuance or execution or intended execution of the Statute or Statutory Rules. (See: The Poona City Municipal Corporation v. Dattatraya Nagesh Deodhar, AIR 1965 SC 555; The Municipal Corporation, Indore v. Niyamatulla (dead) by his Legal representatives, AIR 1971 SC 97; J.N. Ganatra v. Morvi Municipality, Morvi, AIR 1996 SC 2520; and Borosil Glass Works Ltd. Employees Union v. D.D. Bambode & Ors., AIR 2001 SC
378).
14. The issue involved herein is required to be examined from another angle also. Holding departmental proceedings and recording a finding of guilt against any delinquent and imposing the punishment for the same is a quasijudicial function and not administrative one. (Vide: Bachhittar Singh v. State of Punjab & Anr., AIR 1963 SC 395; Union of India v. H.C. Goel, AIR 1964 SC 364; Mohd. Yunus Khan v. State of U.P. & Ors., (2010) 10 SCC 539; and ChairmancumManaging Director, Coal India Ltd. & Ors. v. Ananta Saha & Ors., (2011) 5 SCC 142).
15. Imposing the punishment for a proved delinquency is regulated and controlled by the statutory rules. Therefore, while performing the quasijudicial functions, the authority is not permitted to ignore the statutory rules under which punishment is to be imposed. The disciplinary authority is bound to give strict adherence to the said rules. Thus, the order of punishment being outside the purview of the statutory rules is a nullity and cannot be enforced against the appellant." 11 W.A. No.1407/10 & 1346/10
19. In the case at hand despite of the partial proving of charge No. 6 the appellant did not question the same. However, when the warning, given on the basis of the partially proved charge is treated as exoneration leading to appellant's promotion and the reversion of respondent No. 1, the need has arisen to examine the nature of order on the basis of its substance. The petitioner conceited with the order cannot on respondent No. 1 questioning his own reversion turn around and say that the order has to be adjudged on the face of it rather than substance. For these reasons the decision in Vijay Singh (supra) does not cme to petitioner's rescue.
20. Another decision which the petitioner relies on is that of Registrar (General) High Court of M.P. v. Shri Ram Babu Dixit and others 1997 (2) JLJ 9, by Division Bench of this Court. It was held therein:
"10. At the outset we may say that the learned counsel for the appellant could not state any reason that after conclusion of the enquiry and show cause notice what was the cause for postponing consideration of the case of the respondent NO.1 for promotion in the meeting of full Court held on 26th, 27th and 28th April, 1984 when the decision was taken to issue only a warning in the same meeting. Before us also no material was placed for such postponement. Therefore, postponement of case of the respondent No.1 for promotion was not proper in the full Court meeting held from 26th to 28th April, 1984.
12. We have stated this narration only for the purpose that the argument relating to ACR 1981, 82, 83 and 84 was advanced before us and those ACRs of the respondent NO.1 were given to us for perusal. From the 12 W.A. No.1407/10 & 1346/10 ACRs we do not find any justification for postponing the case of the respondent No.1 for consideration and/or for declaring him unfit for promotion in the year 1983 as none of the reports is adverse, but, at the most is advisory. Therefore, in the opinion of this Court, learned single Judge rightly observed that the case of the respondent No.1 was postponed only because of the long pendency of the enquiry. In the year 1983, he was not found fit because of the show cause notice issued to the respondent No.1 on the basis of the said enquiry.
13. True, Article 235 vests in the High Court administrative, judicial and disciplinary control over members of the Judicial Service. The Chief Justice of the High Court and other brother Judges of the High Court in appreciating merits and demerits of the subordinate Judges for taking decision regarding confirmation, promotion, supersession and the like of the subordinate Judges decisions are taken in full Court, hence such decisions taken in full Court meeting after due deleberation cannot be said to be arbitrary or motivated.
14. It is also true, the formation of opinion by subjective process based on the material cannot be subjected to judicial review as an appellate authority, unless action is malafide and arbitrary in the matter of consideration of a case for promotion. But Article 16 of the Constitution of India requires that a case of employee similarly situated and eligible for promotion must be considered before others are promoted. If it is established that the case of employee was not considered at all, then certainly, it will be a case for interference. The present case is of that nature. The case of the respondent No.1 was not considered for promotion because of the pending enquiry as the sealed cover procedure was not applicable.
15. It is only in full Court meeting held on 28th to 30th April, 1983, when the enquiry report came, full Court 13 W.A. No.1407/10 & 1346/10 took a decision to issue a show cause notice and it appears for this reason the respondent No.1 was not found fit for promotion. Ultimately, the full Court after considering over all circumstances, did not punish but administered a warning, a note of eaution which is not a punishment, either major or minior, under rule 10 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 as is the view taken by this Court in case of G.D. Bhattacharya v. The State of M.P. and others (M.P. No.4045/1981), followed by the learned single Judge. The respondent No.1 was not visited even the penalty of 'censure' indicating that he was not blame worthy. It is well established since the decision in case of Parshottam Lal Dhingra v. Union of India (AIR 1988 SC 36), that if as a consequence of departmental enquiry penal consequences follow, it would amount to punishement. A warning may only amount to "harsh words". Therefore, in our opinion, the learned single Judge rightly took the view that mere issuance of notice proposing punishment at the time of full Court meeting in the year 1983 was not a valid consideration for declaring the respondent No.1 not fit for promotion and, therefore, the process of taking the decision was challengeable on the ground of non availability of material. It was also challengeable because the respondent No.1 suffered hard blows of unjust supersession by postponement of consideration of the case for promotion when it was due."
21. The above decision has been extensively quoted because it is emphatically submitted by learned counsel for appellant that the issue that warning is only a note of caution and not punishment, whereas, the finding that in Rambabu Dixit (supra) that the warning cannot be construed as punishment is because of conscious decision taken by the Full Court to not to punish but 14 W.A. No.1407/10 & 1346/10 administer a warning. In the case at hand it is apparent from the decision by the disciplinary authority that the warning preceded the holding of petitioner partial guilty of charge No. 6. There is no conscious decision not to punish. In view whereof the decision Shri Rambabu Dixit (supra) is also of no assistance.
22. Having thus considered we are of the view that learned Single Judge was well within his right to get into the substance of the order dated 18.2.2008 to hold that the petitioner was punished thereby, construing it to be censure; therefore, we are not inclined to interfere with the order passed by learned Single Judge.
23. In the result appeal fails and is hereby dismissed. No costs.
(S.A. BOBDE) (SANJAY YADAV)
CHIEF JUSTICE JUDGE
VT