Madhya Pradesh High Court
K L Vyas (Kanhaiya Lal Vyas) vs The State Of Madhya Pradesh on 19 July, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1 WP-19756-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 19th OF JULY, 2024
WRIT PETITION No. 19756 of 2024
K L VYAS (KANHAIYA LAL VYAS)
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri D.P. Singh - Advocate for the petitioner.
Shri Pawan Singh Raghuvanshi - Government Advocate for the respondent/State.
ORDER
1. The present petition under Article 226 of the Constitution of India has been preferred by the petitioner challenging the order dated 27.6.2024 passed by the respondent no.1, whereby the appeal as preferred by the petitioner against the order dated 2.08.2023 passed by the respondent no. 2 whereby the respondents have inflicted the penalty for withholding one increment without |cumulative effect, has been dismissed.
2. Facts in brief are that, the petitioner was initially appointed as Senior Horticulture Officer in the year of 1986. The respondents authorities have given the charge of Asstt. Director to the petitioner. On 10.05.2023 the petitioner was subjected to a show cause notice issued by the respondent no. 2 making allegations that under the Pradhan-Mantri Karshi SinchaiYojana (PMKSY), over the portal "Drop more Crop" (Micro |Irrigation) scheme an amount sanctioned for the work carried-out during 2022-23 for payment through PEMS Portal which was to be paid/utilized, after physical verification till 09.05.2023, was found not yet been utilized, hence, explanation was sought holding that the same is a |serious irregularity. Receiving the aforesaid notice the petitioner has disputed the charge and filed detailed objection/explanation vide letter dated 24.05.2023 and explaining Signature Not Verified Signed by: ASHISH PAWAR Signing time: 05-08-2024 06:53:03 PM 2 WP-19756-2024 the fact that the said bill which were generated under PMKSY scheme was not uploaded over the portal due to technical glitch which as the reason for fail to make the payment and filed supporting documents alongwith the objections. Thereafter vide order dated 2.8.2023 the petitioner was subjected to penalty of withholding one increment without cumulative effect by giving the finding that the petitioner has failed to produce his defence and the petitioner was held guilty under the Rule 16 of the Rules, 1966.
3. The Petitioner than preferred an appeal, but the appeal was also dismissed by the impugned order dated 27.6.2024 without dealing with the grounds raised in the memo of appeal and by way of a non-speaking order. Hence this Petition.
4. Learned counsel vehemently argued that the initial order of punishment of stoppage of one increment with cumulative effect passed by the respondent no.2, itself was bad in law since the petitioner was not put to notice as to why he should not be punished, rather the notice was to the effect that as to why disciplinary proceedings should not be 'initiated' against the petitioner. In the case o f (1991) 4 SCC 109 (Union of India Vs. K.V. Jankiraman and others) , the Hon'ble Apex Court made it clear that disciplinary proceedings begins with issuance of charge memorandum. In the instant case, since no charge memorandum was issued and only on the basis of aforesaid show cause notice dated 10.5.2023 which was the notice for the purpose of 'initiating' the disciplinary proceedings, the petitioner was punished and when since the initial order itself was not in consonance with the settled principles of law, the appeal should not have been thrown away in a mechanical manner.
5. He further contended that the punishment imposed for stoppage of one increment with cumulative effect will have adverse consequential effect even after retirement of the petitioner, as it could be said to have a continuous adverse Signature Not Verified Signed by: ASHISH PAWAR Signing time: 05-08-2024 06:53:03 PM 3 WP-19756-2024 effect. To bolster his submissions Counsel for the Petitioner placed reliance in the matter of Hari Saran Shrivastava Vs. State of M.P. passed in W.P. No. 8632/2015 on 16/11/2017.
6. Per Contra Learned Government Advocate while supporting the impugned order dated 27.6.2024 passed in Appeal, contended that the conclusion arrived at by the Appellate authority cannot be faulted with and no interference is required in the matter. He further contended since the allegations were based on documentary evidence, there was no need to conduct a departmental enquiry and even on merits the petitioner has no case, thus prayed for dismissal of the Writ Petition. Learned Govt. Advocate had placed reliance in the matter of State of Orissa and another Vs. Mamata Mohanty, (2011) 3 SCC 436 with the contention that a litigant cannot wake up from deep slumber and claim impetus from judgment in cases where some diligent persons had approached court within a reasonable time and the courts should not consider the petitions ignoring the delay and latches.
DISCUSSION
7. The core issue is whether in the aforesaid factual backdrop, it was necessary to conduct the enquiry. The reply of petitioner dated 24.5.2023 shows that petitioner has put forth his defence on merits. In other words, factual charges were rebutted by filing a factual reply. In O.K. Bhardwaj Vs. Union of India reported in (2001) 9 SCC 180 , the Apex Court opined as under:-
"3. ..........Even in the case of a minor penalty an opportunity has to be given to the delinquent employee to have his say or to file his explanation with respect to the charges against him. Moreover, if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for. This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with."
(Emphasis Supplied) Signature Not Verified Signed by: ASHISH PAWAR Signing time: 05-08-2024 06:53:03 PM 4 WP-19756-2024
12) This view was followed by Division Bench of this Court in Bholeram Vs. Union of India reported in (2015) 2 MPLJ 526 . The relevant portion reads as under:-
"8. In view of judgment of O.K. Bhardwaj (Supra), it is clear that when allegations are factual in nature and are denied by the delinquent employee, enquiry needs to be conducted in order to fulfil the requirement of principle of natural justice. As noticed, in the present case, the petitioner specifically denied the allegation of the charge sheet and put forth his defence on the basis of factual assertions. In our view, the petitioner had a valuable right as per principle of natural justice to put forth his defence by leading evidence in the enquiry. If enquiry would have been conducted, the petitioner would have been in a position to lead the evidence to establish that the delay was neither deliberate nor amount to misconduct. In such case, department also would have been in a position to lead the evidence to establish the charges. Tribunal has merely opined that looking to the type of charges imputed against the applicant, the decision of not conducting enquiry is justifiable. However, Tribunal has not assigned any reasons as to why the judgment of O.K. Bhardwaj is not applicable in the matter. Needless to mention that Tribunal was bound by the decision of Apex Court in O.K. Bhardwaj (Supra)."
(Emphasis Supplied)
13) In view of judgments of Supreme Court reported in (1999) 1 SCC 759 (Apparel Export Promotion Council Vs. A.K. Chopra), (2007) 7 SCC 236 (Bank of India Vs. T. Jogram), (2009) 8 SCC 310 (State of U.P. Vs. Man Mohan Nath Sinha), (2020) 3 SCC 423 (State of Karnataka Vs. N.Gangaraj) and (2020) 9 SCC 471 (Pravin kumar vs. Union of India), the judicial review on a disciplinary proceeding is mainly confined on the decision making process or in other words, on the aspect of procedural impropriety. If impugned disciplinary proceedings are tested on the anvil of principles of natural justice, it will be clear like cloudless sky that the show cause notice nowhere indicates that it 'initiates' the disciplinary proceeding. At the cost of repetition, the show cause notice directs the petitioner to file reply as to why disciplinary proceedings should not be 'initiated' against him.
8. Thus, on the touchstone of the above enunciation, if the present matter is put to test, it could be said respondent no.2 was not justified in imposing punishment, without holding an inquiry and therefore, on this Count the order of punishment is not justified.
9. As analyzed above, in view of this Court, appellate authority and the disciplinary authority had missed the real controversy. Since factual allegations were denied and petitioner had given explanation on facts and merits, thus, in the Signature Not Verified Signed by: ASHISH PAWAR Signing time: 05-08-2024 06:53:03 PM 5 WP-19756-2024 fitness of things, the disciplinary authority should have conducted an enquiry as per Rule 16(1)(b) of CCA Rules. This would have been in consonance with the principles of natural justice. Apart from this, the discretion vested with the disciplinary authority to conduct an enquiry must be exercised in objective and judicious manner. The disciplinary authority in the present case has committed an error in not instituting the enquiry as per rules. Thus, this Court finds flaw in the decision making process adopted by the department.
10. When this Court had come to a conclusion that the initial order of punishment passed by the respondent no.2 dated 2.8.2023 was bad, therefore, the appellate authority order dated 27.6.2024 is also held not to be proper. The judgment cited by the counsel for the State since based on some different facts and even the analogy which has been laid down do not cocurr with the facts of the present case cannot be said to be applicable.
11. In the matter of S. Ganesharaju (Dead) through L.RS and another -vs- Narasamma (Dead) through L.RS and others reported in (2013) 11 SCC 341 , the following paragraphs are relevant for our purpose:-
"12. The expression "sufficient cause" as appearing in Section 5 of the Limitation Act, 1963, has to be given a liable construction so as to advance substantial justice. Unless the respondents are able to show mala fides in not approaching the court within the period of limitation, generally as a normal rule, delay should be condoned. The trend of the courts while dealing with the matter with regard to condonation of delay has tilted more towards condoning delay and directing the parties to contest the matter on merits, meaning thereby that such technicalities have been given a go-by."
"14. We are aware of the fact that refusal to condone delay would result in foreclosing the suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. In fact, it is always just, fair and appropriate that matters should be heard on merits rather than shutting the doors of justice at the threshold. Since sufficient cause has not been defined, thus, the courts are left to exercise a discretion to come to the conclusion whether circumstances exist establishing sufficient cause. The only guiding principle to be seen is whether a party has acted with reasonable diligence and had not been negligent and callous in the Signature Not Verified Signed by: ASHISH PAWAR Signing time: 05-08-2024 06:53:03 PM 6 WP-19756-2024 prosecution of the matter."
12. Resultantly, the punishment order dated 2.8.2023 and the appellate order dated 27.6.2024 are set aside. The matter is remitted back to the disciplinary authority to conduct the enquiry as per Rule 16(1)(b) of CCA Rules. It is open to the respondents to proceed against the petitioner from the said stage in accordance with law.
13. It is made clear that this Court has not expressed any opinion on the merits.
14. With the aforesaid observation the Petition is allowed. E-copy/Certified copy as per rules/directions.
(MILIND RAMESH PHADKE) JUDGE (aspr) Signature Not Verified Signed by: ASHISH PAWAR Signing time: 05-08-2024 06:53:03 PM