Madhya Pradesh High Court
Rajendra Prasad Chourey vs Union Of India on 27 January, 2023
Author: Sheel Nagu
Bench: Sheel Nagu, Virender Singh
1 WP-1605-2018
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE VIRENDER SINGH
WRIT PETITION No. 1605 of 2018
BETWEEN:-
RAJENDRA PRASAD
CHOUREY S/O GULAB DAS
CHOUREY, AGED ABOUT 60
YEARS, BEHIND S.B.I
BRANCH NEW HANUMAN
NAGAR, RASULIYA (M.P)
.....PETITIONER
(BY SMT JUNE CHOUDHARY - SENIOR ADVOCATE
WITH MS JAYALAKSHMI AIYER - ADVOCATE)
AND
1. UNION OF INDIA THROUGH
GENERAL MANAGER SECURITY
PAPER MILL (M.P.)
2. DEPUTY GENERAL MANAGER
AND HEAD OF THE DEPARTMENT
SECURITY PAPER MILLS
HOSHANGABAD (M.P.)
3. ASSISTANT MANAGER E AND I
SECURITY PAPER MILL
HOSHANGABAD
2 WP-1605-2018
.....RESPONDENTS
(RESPONDENTS NO.2 & 3 BY SHRI ANAND NAYAK -
ADVOCATE)
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Reserved on : 17.01.2023
Pronounced on : 27.01.2023
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This petition having been heard and reserved for
orders, coming on for pronouncement this day, Hon'ble Shri
Justice Sheel Nagu pronounced the following:
ORDER
The petitioner invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India assails the order dated 10.7.2000 (Annexure P-7) by which the employer invoking Section 19 (1) of the Central Civil Services (Classification, Control and Appeal) Rules 1965 (for brevity, 'CCS Rules') dismissed the petitioner from service for being involved in grave misconduct arising from judgment dated 7.6.2000 vide Crime No.58/1999 by which petitioner was convicted for offence punishable under Section 307 of the IPC and sentenced to undergo RI for 3 years in ST No. 60/1995 passed by First Additional Sessions Judge, Hoshangabad.
2. Learned counsel for rival parties are heard on the question of admission as well as final disposal.
3 WP-1605-2018 3 The sole contention of learned counsel for petitioner is that reasonable opportunity of being heard was not afforded prior to passing of impugned order of dismissal from service. It is submitted that against the aforesaid judgment of conviction of learned Trial Judge under Section 307 of IPC, the petitioner unsuccessfully approached the High Court in Cr.A. No.1509/2000 which suffered dismissal. However, on approaching the Apex Court in Cr.A.No.2126/2011, the same was disposed of on 16.11.2011 though upholding the conviction under Section 307 IPC but reducing the sentence to the sentence already undergone by the petitioner. The Apex Court was persuaded to do so due to long lapse of time since the incident (1994) and the parties having decided to amicably settle the dispute.
3.1 While assailing the order of dismissal, learned counsel for petitioner submits that in the given facts and circumstances, when the incident had taken place due to past rivalry and there was no element of mens rea, the employer before passing the order of dismissal ought to have conducted enquiry into the question of quantum of penalty.
3.2 To support the said contention, the decision of the Apex Court in the case of Pawan Kumar Vs. State of Haryana And Another reported in (1996) 4 SCC 17 and the judgment of the Single Bench rendered in the case of Kamal Kumar Vaidya 4 WP-1605-2018 Vs. M.P. Poorv Kshetra Vidyut Vitaran Co. Ltd., and others in W.P.No.13947/2019 are pressed into service.
4. Learned counsel for respondents No.2 and 3 on the other hand prays for dismissal of this petition on the ground that provisions of Rule 19 of CCS Rules do not contemplate affording of opportunity of being heard before passing the order of penalty. It is thus submitted that the ground of non affording of opportunity is of no avail to the petitioner.
5. After having heard learned counsel for rival parties, this court is of the considered opinion that the matter can be decided in the following terms on the short point of non affording of opportunity of hearing to the petitioner. 5.1. For ready reference and convenience, Rule 19 of the CCS Rules is reproduced below:
19. SPECIAL PROCEDURE IN CERTAIN CASES:
Notwithstanding anything contained in rule 14 to rule 18-
(i) where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or
(ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or
(iii) where the President is satisfied that in the interest of the security of the State, it is 5 WP-1605-2018 not expedient to hold any inquiry in the manner provided in these rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit:
Provided that the Government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case under clause (i):
Provided further that the Commission shall be consulted, where such consultation is necessary *[and the Government servant has been given an opportunity of representing against the advice of the Commission,] before any orders are made in any case under this rule.
(emphasis supplied)
6. A bare perusal of Rule 19 reveals that if a civil post holder is convicted on criminal charge, the disciplinary authority is vested with the power to consider the circumstances of the case and make such order as it deems fit, without following long drawn procedure under Rule 14 of the CCS Rules.
6.1 The said Rule 19 was amended on 28.3.1987 to incorporate the first proviso which confers discretion upon the disciplinary authority to afford opportunity of making representation on the penalty proposed to be imposed in all cases where penalty is proposed based on conviction of criminal charge, as is the case herein.
6 WP-1605-2018 6.2 Though the expression used in the first proviso to Rule 19 is 'may be given opportunity' but the same has to be read as mandatory provision since substantive part of Rule 19 obliges the disciplinary authority to consider the circumstances of the case and make such orders thereon as it deems fit. The expression 'consider' inheres the concept of enquiry which in turn includes the principle of reasonable opportunity of being heard as enunciated by the Apex Court in Khem Chand Vs. Union of India and others, AIR 1958 SC 300 , the relevant extract of which is reproduced below:
"(19) To summarise : the reasonable opportunity envisaged by the provision under consideration includes-
(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based; (b) an opportunity to defend himself by cross-
examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally (c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant."
7 WP-1605-2018
7. It is now well settled that even if the terminology used in Rule 19 did not expressly provide for grant of reasonable opportunity of being heard prior to passing of the penalty order, the principle of natural justice - audi alterem partem, has to be read into the said provision to prevent it from being sacrificed at the alter of Article 14 and 16 of the Constitution of India.
8. The cut short of the above said discussion is that since the concept of enquiry is involved in Rule 19, it is obvious that the petitioner before being imposed penalty was required to be afforded opportunity of being heard on the question of quantum of penalty.
8.1 Cases may arise where conviction may be for less grave or more grave offence, but in both such cases, the orders of penalty under Rule 19 cannot be the same. In conviction for graver offence involving moral turpitude, any of the major penalties under Rule 11 of the CCS Rules would suffice. However for less grave offences which are outcome of heated discussion or where the element of mense rea is not palpable, lesser penalty may suffice. Thus, the disciplinary authority has to take into account these attending facts and circumstances while deciding the question of quantum of penalty after hearing delinquent employee.
9. For example, a government servant is sentenced to RI of 3 year/7 years and convicted for offence punishable under Sections 324/325 which are not one of the grave offences and 8 WP-1605-2018 the case is attended with extenuating circumstances of single blow or the assault being outcome of heated discussion or allegation alleged with the aid of Section 149/34 of the IPC or the rival parties being related to each other and having settled their scores during pendency of the criminal prosecution etc., the disciplinary authority has to apply its mind to all these and other extenuating circumstances so as to arrive at the appropriate penalty which can be inflicted upon the government servant under Rule 19 so as to remain within the bounds of proportionality.
9.1 The punishment under Rule 19 need not be always removal or dismissal but can be any of the lesser major penalties.
10. In view of the above discussion, it is vivid that the concept of enquiry is inherently contained in Rule 19. An enquiry inheres the concept of affording of reasonable opportunity. Thus, the petitioner ought to have been afforded reasonable opportunity of responding to the question of quantum of penalty before the disciplinary authority passed the penalty.
11. The impugned order dated 10.7.2000 having been passed on violation of principle of natural justice (audi alterem partem) is vitiated. The petition stands allowed to the following extent:
9 WP-1605-2018
(i) The impugned order dated 10.7.2000 (Annexure P/7) is quashed.
(ii) The disciplinary authority is directed to afford reasonable opportunity of being heard to the petitioner on the question of quantum of penalty and thereafter pass a reasoned order in accordance with law after keeping in mind the aforesaid discussion.
(iii) The aforesaid exercise be completed within a period of 60 days from the date of receipt of the copy of this order.
(iv) The petitioner shall be entitled for the cost of this petition quantified at Rs.5000/- (Rupees Five Thousand) which shall be paid by respondents by depositing the same in the bank account of petitioner through digital transfer with compliance report to be filed in Registry within a period of 60 (sixty) days from today, failing which the matter be listed under the caption of "Direction" as PUD for execution qua cost.
(SHEEL NAGU) (VIRENDER SINGH)
JUDGE JUDGE
P/
Digitally signed by MRS
PREETI TIWARI
Date: 2023.01.27 16:22:39
+05'30'