Madhya Pradesh High Court
Rajendra Kumar Jaiswal vs The State Of Madhya Pradesh on 13 November, 2018
1
The High Court of Madhya Pradesh
WP 25279/2018(S)
Rajendra Kumar Jaiswal vs. State of MP
Gwalior, dated 13/11/2018
Shri Neeraj Shrivastava, counsel for the petitioner.
Shri Devendra Chaubey, Government Advocate for the
respondents/ State.
This petition under Article 226 of the Constitution of India has been filed, calling in question the orders dated 06/07/2017 and 19/02/2018.
The necessary facts for the disposal of the present petition in short are that a show-cause notice was issued to the petitioner on 10/03/2017 (Annexure P-4), on the allegation that from 13/02/2017 to 18/02/2017 he was found absent unauthorizedly at the time of inspection of school, which is indicating his negligence and misconduct. Therefore, the petitioner was called upon to submit his reply as to why no departmental action be initiated against him. The petitioner filed his reply on 17/03/2017 (Annexure P-5) and submitted that he was on leave from 13/02/2017 to 16/02/2017, which was duly approved and on 17th and 18th February, 2017, he could not appear in the school because he was not well and he is in possession of medical certificate issued by Government Hospital. It appears that the reply submitted by the petitioner was not found to be satisfactory and accordingly, by order dated 06/07/2017 (Annexure P-1), the respondent No.3 held him guilty and imposed a minor penalty of stoppage of one increment without cumulative effect. Being aggrieved by the order of the respondent No.3, the petitioner filed an appeal, which too has been dismissed by order dated 19/02/2018 (this order has also been marked as Annexure P-1).
Challenging the orders passed by the respondents No. 2 and 3, it is submitted by the counsel for the petitioner that 2 where the charges levelled against the delinquent officer are denied, then even for imposing a minor penalty the authority should have conducted a departmental enquiry. To buttress his contention, the counsel for the petitioner has relied upon the order dated 20/11/2013 passed by this Court in the case of Umeshchandra Kaurav vs. State of MP and Others, in Writ Petition No.2613/2011 (Annexure P-8) and the judgment passed by this Court in the case of Bholeram Soni vs. Union of India & Others, reported in 2015 (11) MPJR 67.
It is next contended by the counsel for the petitioner that the respondent No.3 was not competent to impose the minor penalty, because the pay scale of the petitioner is equivalent to that of Headmaster/ Principal of Secondary School/Lecturer. It is next contended by the counsel for the petitioner that the allegations against the petitioner are that he had remained absent unauthorizedly for two days and, therefore, the minor penalty of stoppage of one increment without cumulative effect, is disproportionate.
Heard the learned counsel for the petitioner. So far as the contention raised by the counsel for the petitioner that the punishment imposed by the respondent no.3 is disproportionate, is concerned, the petitioner has not challenged the order under challenge on the said ground. There is no whisper in the entire petition or in the ground that the punishment imposed by the respondent is disproportionate to the charges which were levelled against the petitioner.
So far as the next contention raised by the counsel for the petitioner that since the pay scale of the petitioner is equivalent to that of Headmaster/Principal of Secondary School/Lecturer, therefore, the respondent no.3 is not the competent authority is concerned, it is clearly conceded by the counsel for the petitioner that the respondent no.3 is his 3 appointing authority. Even there is no whisper in the writ petition with regard to competence/incompetence of the respondent no.3 in awarding the minor penalty. Therefore, in absence of any pleadings and the fact that the respondent No.3 is the disciplinary authority, this Court is of the considered opinion that the petitioner cannot be allowed to verbally raise the grounds. Furthermore, the pay-scale of an employee would not determine the competence/incompetence of the appointing authority.
It is next contended by the counsel for the petitioner that the petitioner's case is duly covered by the judgments passed by this Court in the cases of Umeshchandra Kaurav & Bholeram Soni (supra) and admittedly, in the present case, no enquiry was conducted before imposing the minor penalty. The contention raised by the counsel for the petitioner cannot be accepted as the judgments passed in the cases of Umeshchandra Kaurav & Bholeram Soni (supra) are distinguishable.
The reply which was submitted by the petitioner to the show-cause notice has been placed on record as Annexure P-5. In the said reply, it was admitted by the petitioner that he had remained absent on 17th and 18th February, 2017 because he was not keeping well and it was also mentioned that the petitioner is in possession of medical certificate issued by Government Hospital. The relevant portion of the reply dated 17/03/2017 (Annexure P-5) submitted by the petitioner reads as under:-
^^izkFkhZ dk LokLF; iwoZ ls [kjkc py jgk FkkA blfy;s fn0 17 ,oa 18-2-17 dks fo|k- esa mi0- ugh gks ldk izkFkhZ ds ikl ljdkjh vLirky dk fpfdRlk izek.k i= Hkh cuk gqvk gSA^^ In the said reply, the petitioner had also enclosed certain documents and list of enclosure is also mentioned. But 4 one thing is clear that neither the medical certificate was ever produced by the petitioner before the authorities nor the petitioner had ever applied for sanction of leave on medical ground at any point of time. There is nothing on record to show that before the appellate authority the petitioner had ever submitted the medical certificate issued by the Government Hospital. Even in this petition, no such medical document has been placed on record. Thus, the petitioner had himself admitted that he had remained absent on 17th and 18th February, 2017. Since the charge was admitted by the petitioner himself and the reason given by the petitioner was not supported by any medical document, as well as the fact that the petitioner after rejoining his duties, did not apply for grant of medical leave, this Court is of the considered opinion that no disputed question of fact was raised by the petitioner in his reply so far as his absence on 17 th and 18th February, 2017 is concerned. Under these circumstances, this Court is of the considered opinion that no enquiry was required before imposing the minor penalty and thus, the facts of the present case are distinguishable from the facts of Umeshchandra Kaurav & Bholeram Soni (supra).No other argument was raised by the counsel for the petitioner.
The petition fails and is hereby dismissed in limine.
(G. S. Ahluwalia) JUDGE MKB Digitally signed by MAHENDRA KUMAR BARIK Date: 2018.11.14 18:32:14 +05'30'