Madhya Pradesh High Court
Mukesh Rathore vs The State Of M.P. on 2 May, 2017
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
WRIT PETITION NO. 25792 OF 2003
Mukesh Rathore
- V/s -
State of M. P. & others
Present : Hon'ble Shri V. K. Shukla; J
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Shri P. R. Bhave with Shri B. P. Yadav for the petitioner.
Smt. D. K. Bohrey for the respondents /State.
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ORDER
(27/04/17) The present petition was filed under Section 19 of the Administrative Tribunal Act 1985 before the erstwhile State Administrative Tribunal at Bhopal. On abolition of the Tribunal, the present case was transferred and has been registered as Writ Petition.
2. In the instant petition, the petitioner has challenged the legality and validity of the order of punishment dated 31/01/97 Annexure P-10 whereby petitioner has been punished with stoppage of one increment without cumulative effect for remaining unauthorizedly absent from 30/07/96 to 22/08/96. He has also challenged the order dated 22/11/99 passed by the appellate authority Annexure A-1 whereby the appeal has also been dismissed.
3. Brief factual expose succinctly adumbrated in nutshell are that petitioner was posted as Ranger in the office of Divisional Forest Officer Production Division (West) at Balaghat. He was transferred to Bhopal Circle by order dated 29/06/96 from the said place of posting. He was relieved by order dated 17/07/96 by the 2 Divisional Forest Officer Production Division Balaghat to join Bhopal Circle. Copy of the said order is annexed as Annexure A-2. It is further submitted that petitioner had joined in the office of respondent no. 3 Conservator of Forest, Bhopal Circle, Bhopal on 22nd July, 1996. Copy of the joining report is annexed as Annexure A-3. It is stated that he came to know about his posting order as Depot Officer, Dewatia, Distt. Raisen through Orderly Chhotelal on 16/08/96. Thereafter, he joined and resumed the duties on 23 rd August, 1996 in the office of Divisional Forest Officer, Production Division, Raisen. It is pleaded that the Divisional Forest Officer (Production Raisen) asked him to submit an application for attendance certificate for the period 22/07/96 to 16/08/96 and accordingly, petitioner submitted an application Annexure A-4 to treat the said period on duty. Petitioner also filed an application on 10/09/96 for sanction of the leave for the period 30/07/96 to 22/08/96. Petitioner was also directed to take charge of the production range Goharganj and Sultanpur in addition to the charge as Depot Officer, Dwatia.
4. That after about two months of his joining, respondent no. 3 issued a show-cause notice dated 25 th October, 1996 treating the period 30/07/1996 to 22/08/1996 as unauthorized willful absence and proposed the punishment for stoppage of one increment without cumulative effect. Copy of the show-cause notice is annexed as Annexure A-8.
5. Petitioner filed reply to the said show-cause notice and submitted that the petitioner had joined at Bhopal on 22 nd July, 1996 without availing joining time of 14 days. The posting order was not served on him and he came to know about the posting order only on 16/08/96 that too orally through Orderly "Shri Chhotelal". He already submitted an application for leave to regularize the said period and the leave has also been sanctioned for the said period by order dated 9/10/96.
6. The Disciplinary authority as well as the Appellate authority without considering the facts and record of the present case passed 3 the impugned orders of stoppage of one increment without cumulative effect and also dismissed the appeal.
7. Learned Sr. Counsel submitted that the impugned orders of imposing of punishment and dismissal of appeal are illegal, arbitrary and contrary to the provisions of Rule 16 of M. P. Civil Services (Classification, Control and Appeal) Rules 1966 (hereinafter the same shall be referred as "Rules").
8. It is contended that the Disciplinary authority has failed to apply its mind and bestow upon his consideration to the posting order dated 27/07/96 filed as Annexure R-1 and the reply filed by the petitioner. There is no consideration that the place of posting was not mentioned in the transfer order dated 29/06/96 referred in Annexure A-2 in pursuant to which he was relieved from the office of Divisional Forest Officer, West Production Balaghat to join in Circle Bhopal and in the subsequent posting order Annexure R-1 also, the place of posting of the petitioner is not mention while sending copy to him vide endorsement no. 1. It is simply marked to Shri Mukesh Rathore "Van-Kshetrapal".
9. There is no material or record to indicate that petitioner was avoiding the order of posting or he was having the knowledge of the same and, thereafter, he intentionally did not join in pursuant to the posting order in Raisen. The joining of the petitioner at Bhopal on 22/07/96 after relieving from Balaghat on 17/07/96 is itself sufficient to prove that he was not reluctant to leave Balaghat and to join at the transferred place. It is further contended that the Disciplinary authority as well as the appellate authority are under obligation and bound to hold a summary enquiry as envisaged under Rule 16 of Rules 1966 and pass an order of punishment only after recording a finding that the charge is proved. It is contended that once, the period from 30/07/96 to 22/08/96 was regularized by sanctioning leave, the authorities could not have treated the same as a misconduct and to pass an order of punishment.
10. Combating the aforesaid submissions, learned counsel for the State supported the order of punishment and submitted that the 4 order of punishment and the appellate order are in accordance with law and there is no illegality or perversity warranting interference under Article 226 of the Constitution of India.
11. Counsel for the State referred para 6.04 of the return and relied on Annexure R-1. Para 6.04 of the reply is reproduced as under :-
6.04. Respondent no. 3 did not given him a posting till 16/8/1996 is not correct and therefore denied. As a matter of fact the Respondent No. 3 issued the posting order of the applicant on 27/7/1996 vide Annexure R-1. A copy of this order was also endorsed to the applicant.
12. Having heard learned counsel for the parties, it is apposite to refer the provisions of Rule 16 of the Rules 1966.
(1). Subject to the provisions of sub-rule (3) of rule 15, no order imposing on a Government servant any of the penalties specified in clauses (i) to (iv) of rule 10 and rule 11 shall be made except after -
(a) informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal;
(b) holding an inquiry in the manner laid down in sub-rules (3) to (23) of rule 14, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary;
(c) taking the representation, if any, submitted by the Government servant under clause (a) and the record of inquiry, if any, held under clause (b) into consideration;5
(d). recording a finding on each imputation of misconduct or misbehaviour; and
(e). consulting the commission where such consultation is necessary.
13. From a bare perusal of the aforesaid rule, it is manifest that the enquiry contemplated under Rule 1 is of summary nature but the Disciplinary Authority has to record proceedings of each imputation of misconduct or misbehaviour and, thereafter, to pass orders recording the reasons for imposing the punishment.
14. At this stage, it is condign to survey the legal authorities in respect of scope of enquiry for imposition of minor punishment under the Rules 1966.
The Division Bench of this Court in the case of Lal Audhraj Singh Lal Rampratap Singh Vs. State of M. P. 1967 M.P.L.J. 528 held that the order of punishment of withholding the increment could be imposed on any Government servant only after giving him an adequate opportunity of making a representation and after taking into consideration such representation. It was held that the summary procedure as envisaged in the pari materia to Rules of 1965 held that the punishment of withholding of increment can be imposed only after the Government Servant is informed in writing of the proposition to take the action against him and of the allegations on which it is proposed to be taken and he is given an opportunity to make a representation and after taking into consideration such representation. No doubt it is not necessary to hold a departmental enquiry for imposing the punishment of withholding of increment.
15. In the case of Brijesh Kumar Kulshreshta Vs. State of M. P. & others 2006 (3) M.P.H.T. 1 (NOC), a co-ordinate Bench of this Court held that the authorities are bound to assign the cogent reasons for passing the order of punishment under Rule 16 of Rules 1966 which is an essential facit of principles of Natural Justice.
6The Apex Court in the case of S. B. C. Company Ltd. Vs. Patel Engineering Ltd. reported in (2005) 8 SCC 618 (seven Judges) has held that when a power is conferred on the particular authority to adjudicate and makes a decision finally on the matters, the aforesaid function is a quasi-judicial and, therefore, authority has to act fairly and it is obligatory on the part of the authority to assign the reasons in support of the orders.
16. In the case of Ajay Kumar Singh Vs. State of M. P. & others (2008) 2 M.P.L.J. 541, a co-ordinate Bench of this Court held that even for imposition of minor punishment, Rules of Natural Justice cannot be by-passed. At this stage, it is apt to refer the judgment passed by the Apex Court in the case of O. K. Bharadwaj Vs. Union of India & others (2001) 9 SCC 180 wherein it has been held as under :-
While, we agree with the first proposition of the High Court having regard to the rule position which expressly says that "withholding increments of pay with or without cumulative effect" is a minor penalty, we find it not possible to agree with the second proposition. 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.
17. In the light of the above discussed authoritative pronunciation of judgment, the facts of the present case are to be considered. Petitioner was transferred from Balaghat to Circle Bhopal without mentioning specific place of posting. He was relieved on 17/07/96. He joined at Bhopal on 2/07/96. The order of posting brought on record is Annexure R- 1 dated 27/07/96 in which it is mentioned the name of "Shri Mukesh Rathore Van- Kshetrapal (Forest Ranger) in endorsement no. 1. No place of 7 posting is mentioned in the said order. He had already joined at Bhopal. Neither in the return in para 6.04 nor in the material produced to establish that the order of posting dated 27/07/96 was ever communicated to the petitioner or he was having knowledge about the said order. In addition to this, petitioner has pleaded in para 6.6 that the posting order was not served on him because of negligence of the concerned Clerk of the respondent no. 3 and, therefore, he was posted by the respondent no. 3 to submit to submit an application for attendance certificate and to apply for leave. In the absence of any specific rebuttal to the aforesaid pleading and, further, taking into consideration that for the said period, leave has also been sanctioned by order dated 9/10/96 as pleaded in para 6.9.
In such circumstances, an adverse inference has to be drawn against the respondents and it can be held that the order of posting was not communicated to the petitioner and it has to be believed that he came to know about the said order only on 16/08/96 through one 'Chhotelal' (Orderly).
18. Taking into consideration the totality of the facts of the present case, no charge is made out against the petitioner for imposition of minor punishment in view of the fact that the alleged period of unauthorized absence has already been condoned by the competent authority by sanctioning the leave. This view of this Court is fortified by the judgment of the Division Bench in the case of Lal Audhraj Singh Lal Rampratap Singh (supra) and Ramesh Singh Jatav Vs. State of M. P. (2013) 3 M. P. L. J. 674, in the said case, a co-ordinate Bench interfered with the quantum of punishment, in the case of unauthorized absence on the ground that once, the delinquent employee has applied for leave and the same was granted as an extra-ordinary leave to him, then the same could not have been treated as a misconduct.
19. In the present case, the Disciplinary Authority as well as the Appellate Authority have failed to consider the reply filed by the respondents and record of the present case. In a cavalier manner, the orders impugned have been passed.
820. In view of the aforesaid discussion of facts and law, the petition is allowed. The impugned orders Annexure A-10 dated 31/01/1997 and Annexure A-1 dated 22/11/1999 are quashed.
21. The petition is accordingly allowed. No order as to cost.
(V. K. Shukla) Judge Vy/-