Madhya Pradesh High Court
R.P. Shrivastava vs The State Of Madhya Pradesh on 24 September, 2019
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
HIGH COURT OF MADHYA PRADESH: JABAPLUR
SB: Hon'ble Shri Justice Subodh Abhyankar,J
WRIT PETITION NO.17653 OF 2014
R.P.Shrivastava.
Vs.
State of Madhya Pradesh & others.
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Shri Sanjay K. Agrawal, learned counsel for the petitioner.
Ms. Sonal Pandit, learned Panel Lawyer for the
respondents/ State.
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ORDER
(Passed on the 24th day of September, 2019) This petition has been filed under Article 226 of the Constitution of India by the petitioner, a retired employee of the Water Resources Department against the order dated 5.9.2014 (Annexure P-1) passed by the respondent No.1, Principal Secretary, Water Resources Department, Bhopal whereby a decision has been taken to withhold one-third of the pension admissible to the petitioner on permanent basis under the Provisions of Rule 9 of the Madhya Pradesh Civil Services Pension Rules, 1976.
2. In brief the facts of the case are that the petitioner initially joined the services as Junior Technical Assistant (work charge) on 6.4.1978 in the Lift Irrigation Corporation. His services were regularized as Junior Technical Assistant on 22.2.1980 in the establishment of Lift Irrigation Corporation. Subsequently, he was also promoted and was also granted three Kramonnatis and superannuated 2 from the pay scale of the Executive Engineer from the Water Resources Department. It is further the case of the petitioner that he was sent on deputation to Rajya Shiksha Kendra, Bhopal on 19.7.2004 as Manager, Civil Work and after completion the period of deputation, he was repatriated to his parent department on 3.1.2008. Thereafter, on 19.09.2008 a charge sheet (Annexure P-5) was served on the petitioner by the Engineer-in-Chief of the Department of Water Resources for the alleged irregularities committed by him while he was posted in Rajya Shiksha Kendra, Bhopal. The petitioner submitted his reply to the said charge sheet and was exonerated by the Enquiry Officer vide enquiry report dated 19.7.2011 (Annexure P-6), however, the Disciplinary Authority was not satisfied with the aforesaid exoneration of the petitioner, hence, it was further directed vide order dated 15.11.2012 (Annexure P-15) that de novo enquiry be initiated and thus, again an enquiry took place and this time out of three charges which were leveled against the petitioner, the petitioner was given clean chit in respect of charge No.1 and 3. So far as the charge No.2 was concerned, it was found partly proved.
3. Again, the aforesaid enquiry report was not 3 accepted by the Disciplinary Authority, hence, a show cause notice was issued to the petitioner on 19.12.2013 (Annexure P-25) wherein the Disciplinary Authority had also recorded its proposed reasons for not accepting the enquiry report. A detailed reply of the aforesaid show cause notice was submitted by the petitioner in respect of three charges and after receiving the reply, the Disciplinary Authority has passed the final order on 5.9.2014 whereby finding the petitioner guilty of the irregularities committed in respect of all the three charges, imposed penalty of withholding of one-third pension permanently. Being aggrieved of the same, this petition has been filed by the petitioner.
4. Learned counsel for the petitioner has submitted that the impugned order is contrary to law and facts on record hence liable to be set aside. It is further submitted that Rule 18 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 (for short "Rules, 1966") has not been adhered to, which relates to common proceedings as along with the petitioner, one J.K. Patilkar was also involved in the alleged irregularities, however common enquiry was initiated against both of them and for initiation of such common enquiry no specific order was passed by the competent authority.
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5. It is further submitted by the learned counsel for the petitioner that even otherwise the de novo enquiry as has been initiated against the petitioner vide order dated 15.11.2012 (Annexure P-15) could not have been ordered because as per Rule 15 of the Rules, 1966 only a further enquiry is prescribed and not a de novo enquiry. It is submitted that before initiation of enquiry, no order to this effect was passed and subsequently also when the order dated 15.11.2012 was passed, it was an order of de novo enquiry and not of the common enquiry including the other employee as well.
6. It is further submitted by the learned counsel for the petitioner that as per Rule 20 of the Rules, 1966 also which provides that the officers lent to Union or any other State Government or any subordinate or local authority, etc. where the services of a Government servant are lent by one department to another department or to the Union Government or to any other State Government or any authority subordinate thereto or to a local or other authority (hereinafter in this rule referred to as "the borrowing authority"), the borrowing authority shall have the powers of the appointing authority for the purpose of placing such Government servant under suspension and of the 5 disciplinary authority for the purpose of conducting a disciplinary proceeding against him, thus, it is submitted that no enquiry could have been initiated against the petitioner, as the alleged irregularities are in respect of the period when the petitioner was on deputation in the Rajya Shiksha Kendra, whereas the enquiry has been initiated by the parent department, which is clearly in violation of the mandate of Rule 20 of the Rules, 1966. Learned counsel for the petitioner has also drawn the attention of this Court to the impugned order to submit that no reasons have been assigned to come to an adverse finding against the petitioner and the grounds which have been raised by the petitioner in his reply on merits of the case have not been dealt with at all. Thus it is submitted that the impugned order suffers from violation of principles of natural justice, as the same has been passed without application of mind and without assigning any reasons which is also one of the facets of the principles of natural justice.
7. Shri Sanjay K. Agrawal, learned counsel for the petitioner has also submitted that while passing the impugned order, the Disciplinary Authority has not referred to any loss which has occasioned to the State and in the absence of any quantified loss to the State which can be 6 recoverable from the petitioner, the reduction of one-third pension was uncalled for. In support of his contention learned counsel for the petitioner has relied upon the order passed by the Coordinate Bench of this Court in the case of S.N.Singh Vs. State of MP and otheres, reported in 2005 (2) MPLJ 18 and in the case of Ram Das Patel Vs. State of MP and others, reported in 2005(2) MPLJ 387.
8. On the other hand learned counsel for the State has opposed the prayer of the petitioner and has submitted that no illegality has been committed by the respondents in passing the impugned order. It is further submitted that there is no violation of the rules, as vide order dated 15.11.2012 (Annexure P-15) a joint enquiry has been ordered against the petitioner and one J.K.Patilkar, the then Assistant Engineer. So far as Rule 20 of the Rules, 1966 is concerned, it is submitted that Rule 20 empowers the borrowing department to initiate the enquiry proceedings but that does not prohibit to the parent department to initiate enquiry for the irregularities committed by the employees during the course of deputation. Thus, it is submitted that the Disciplinary Authority was competent enough to initiate enquiry against the petitioner in respect of the alleged irregularities committed by him while on 7 deputation.
9. Heard the learned counsel for the parties and perused the record.
10. Since, the ambit of the submissions advanced by the counsel for the petitioner relates to violation of various rules, it would be apt to refer the relevant Rules 15, 18 and 20 of the Rules, 1966 which read as under:
"15. Action on the inquiry report. - (1) The disciplinary authority if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14 as far as may be. (2) The disciplinary authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own finding on such charge, if the evidence on record is sufficient for the purpose.
(3) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in [x x x] Rule 10 should be imposed on the Government servants, it shall, notwithstanding anything contained in Rule 16, make an order imposing such penalty [but in doing so it shall record reasons in writing] :
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant.8
18. Common proceedings. - (1) Where two or more Government servants are concerned in any case, the Governor or any other authority competent to impose the penalty of dismissal from service on all such Government servants may make an order directing that disciplinary action against all of them may be taken in a common proceeding :
Note. - If the authorities competent to impose the penalty of dismissal on such Government servants are different, an order for taking disciplinary action in a common proceeding may be made by the highest of such authorities with the consent of the others :
[Provided that the powers conferred on the Governor under this rule shall in case of Judicial Officers, be exercised by the Chief Justice.] (2) Subject to the provisions of sub-rule (3) of Rule 12, any such order shall specify :
(i) the authority which may function as the disciplinary authority for the purpose of such common proceeding;
(ii) the penalties specified in Rule 10 which such disciplinary authority shall be competent to impose; and
(iii) whether the procedure laid down in Rule 14 and Rule 15 or Rule 16 shall be followed in the proceeding.
20. Provisions regarding officers lent to the Union or any other State Government or any subordinate or local authority, etc. - (1) Where the services of a Government servant are lent by one department to another department or to the Union Government or to any other State Government or any authority subordinate thereto or to a local or other authority (hereinafter in this rule referred to as "the borrowing authority"), the borrowing authority shall have the powers of the 9 appointing authority for the purpose of placing such Government servant under suspension and of the disciplinary authority for the purpose of conducting a disciplinary proceeding against him :
Provided that the borrowing authority shall forthwith inform the authority which lend the services of the Government servant (hereinafter in this rule referred to as "the lending authority") of the circumstances leading to the order of suspension of such Government servant or the commencement of the disciplinary proceeding as the case may be.
(2) In the light of the findings in the disciplinary proceedings conducted against the Government servant;
(i) if the borrowing authority is of a opinion that any of the penalties specified in clauses (i) to (iv) of Rule 10 should be imposed on the Government servant, it may, after consultation with the lending authority, make such orders on the case as it deems necessary :
Provided that in the event of a difference of opinion between the borrowing authority and the lending authority, the services of the Government servant shall be replaced at the disposal of the lending authority;
(ii) if the borrowing authority is of the opinion that a penalty specified in Rule 11 should be imposed on any member of class TV Government servant, it may impose such penalty without consulting the lending authority;
(iii) if the borrowing authority is of the opinion that any of the penalties specified in clauses (v) to
(ix) of Rule 10 should be imposed on the Government servant, it shall replace his services at the disposal of the lending authority and transmit to it the proceedings of the inquiry and thereupon the lending authority, may, if it is the disciplinary authority pass such orders thereon as it may deem necessary, or, if it is not the 10 disciplinary authority submit the case to the disciplinary authority, which shall pass such orders on the case as it may deem necessary :
Provided that before passing any such order the disciplinary authority shall comply with the provisions of sub-rules (3) and (4) of Rule 15. Explanation. - The disciplinary authority may make an order under this clause on the record of the inquiry transmitted to it by the borrowing authority, or after holding such further inquiry as it may deem necessary, as far as may be, in accordance with Rule 14."
11. A bare perusal of Rule 20 clearly reveals that where the services of an employee have been lent to any other department of the State Government, in that case, the borrowing department/authority shall have the powers of the appointing authority for the purposes of placing such Government servant under suspension and also of the disciplinary authority for the purposes of conducting a disciplinary proceeding against him. The entire Rule 20 also reveals that it is the borrowing authority only which has been vested with the powers to initiate disciplinary enquiry in respect of his acts of commission or omissions committed by the employee concerned while he was posted in the borrowing department. In the case on hand however, it is clear that the charge sheet against the petitioner in respect of the alleged irregularities committed by him while being posted on deputation in the State Education Centre could 11 have been issued by the State Education Department only and not by his parent department, i.e. the Water Resources Department. Thus, on this ground only the petition is liable to be allowed.
12. So far as the objection regarding joint enquiry is concerned, which is envisaged in Rule 18 which refers to the procedure to be adopted in the common proceedings, the respondents have not filed any document on record that the initial enquiry was conducted after complying with Rule 18, however, it is found that vide order Annexure P/15 dated 15.11.2012, de novo enquiry was directed to be initiated against J.K. Patilkar, the then Assistant Engineer as also against the petitioner. But, Rule 15 provides for further enquiry and not the de novo enquiry. A de novo enquiry is an enquiry which is conducted afresh i.e. from the beginning, thus, the order of fresh enquiry was not in conformity with rule 15 which provides for a further enquiry only and not for a fresh one.
13. So far as the contention regarding the order being cryptic in nature is concerned, it is also found that in the impugned order the respondents have not assigned any reason to pass the same and the contentions raised by the petitioner in his appeal have not been dealt with in any 12 manner. In view of the same also the order being passed in violation of the principles of natural justice cannot be sustained.
14. In view of the same, for the reasons narrated herein above, the impugned order dated 05.09.2014 (Annexure P-1) passed by the respondent No.1, Principal Secretary, Water Resources Department, Bhopal cannot be sustained in the eyes of law and accordingly, the same is hereby quashed, the petition stands allowed. No cost.
(Subodh Abhyankar) Judge 24/09/2019.
Digitally signed by MANZOOR AHMEDDate: 2019.09.25 13:50:28 +05'30' Ansari