Madhya Pradesh High Court
Bl Satyarthi vs The State Of Madhya Pradesh on 29 September, 2014
Author: Anil Sharma
Bench: Anil Sharma
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
W.A.No. 1058/2009
B. L. Satyarthi
Vs.
The State of Madhya Pradesh & Another
Present: Hon'ble Shri Rajendra Menon, J. &
Hon'ble Shri Anil Sharma, J.
______________________________________________________
Shri D. K. Dixit, learned counsel for the
appellant.
Shri Khatri and Shri Hitendra Singh, for
the respondents.
__________________________________________________
ORDER
(29/09 / 2014 ) Per : Shri Rajendra Menon, J.
This appeal has been filed by the appellant under Section 2(1) of the Madhya
Pradesh Uchcha Nyayalaya (Khand Nyaya Peeth Ko Appeal) Adhiniyam, 2005 calling in question tenability of an order dated 4.12.2008 passed by a learned Single Judge of this Court dismissing the writ petition filed challenging an order of punishment Annexure P/6 dated 28.8.2000, 2 imposing a penalty of down grading in pay for a period of four years.
2. Facts in nut-shell goes to show that the appellant B. L. Satyarthi was working as a Range Offi cer in the Forest Department. At the relevant time when the cause of action for initiating the present proceedings commenced, he was a Forest Ranger working in the Forest Department, a Class 2 Gazetted post in terms of the Rules framed under Article 309 of the Constitution by the State of Madhya Pradesh.
3. The Madhya Pradesh Rajya Van Vikas Nigam is an independent autonomous Corporation. In the year 1988 appellant was sent on deputation to the Madhya Pradesh Rajya Van Vikas Nigam and while so working in the said Nigam on deputation, a notice for proposing recovery against him was issued by the Nigam (Corporation) on 12.8.1989 and it seems that certain recoveries were also ordered thereafter. Be it as it may be, the appellant continued on deputation in the Corporation upto 6.11.1989 when he was repatriated back to the parent Department namely the Forest Department and he joined the parent department immediately after 6.11.1989.
4. While so working in the Parent Department a charge sheet dated 8.5.1990 was served on him on 16.5.90 with regard to certain acts of commission and ommission conducted by 3 him while working in the Corporation as a Ranger. This charge sheet was issued by the Managing Director of the Corporation. Appellant denied the charges leveled, therefore, a departmental enquiry was ordered and finally after conducting an enquiry in accordance to the requirement of Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 on 28.8.2000 vide Annexure P/6 punishment of down grading him in pay for a period of four years was passed by the State Government. Challenging the same the writ petition was filed and the writ petition having been dismissed, this appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaya Peeth Ko Appeal) Adhiniyam, 2005.
5. Shri D. K. Dixit, learned counsel for the appellant employee invited our attention to the requirement of Rule 20 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 and argued that the provisions of Rule 20 only mandates taking of disciplinary action against an employee who is on deputation to a Foreign Department during the period of deputation. It is argued by him that if the employee is repatriated back to the Parent Department after conclusion of the period of deputation then the right to take and initiate departmental enquiry or action is not available to the Foreign Department. It is only available to the Parent Department and as in this 4 case the entire action for initiating the departmental enquiry by issuing the charge sheet on 8.5.1990, considering the reply to the charge sheet and appointing a Enquiry Offi cer on 22.8.1980, receiving the enquiry report and then recommending a punishment is undertaken by the Managing Director of the Madhya Pradesh Rajya Van Vikas Nigam, after repatriation the entire action stands vitiated as the Foreign department had no authority to initiate the departmental enquiry and conduct the disciplinary enquiry once the appellant was repatriated back to the parent department. Inviting our attention to a judgment of Supreme Court in the case of Shivprasad Pandey Vs. Central Bureau of Investigation, New Delhi - AIR 2003 SC 1974, Shri Dixit argued that if the provisions of Rule 20 of the Discipline and Appeal Rules are perused and if the principles of law laid down by the Supreme Court in the case of Shiv Prasad Pandey (supra) is applied, then on repatriation to the Parent Department, the Managing Direction of the Nigam had no authority to initiate departmental enquiry. He therefore, prays for interference into the matter.
6. Shri Khatri and Shri Hitendra Singh, learned counsel appearing for the respondents refuted the aforesaid and placed reliance on a judgment of the Supreme Court in the case of P. V. Shrinivasa Sastry Vs. Comptroller and Auditor 5 General and others - AIR 1993 SC 1321 to say the disciplinary proceedings need not be initiated by the appointing authority but it can be done by any other authority also. As in this case as Managing Director is the Presenting Authority to initiate departmental enquiry when the employee was on deputation to the Nigam, action taken is proper.
7. Accordingly, it is argued by Shri Khatri and Shri Hitendra Singh that the learned Writ Court has not committed any error in the matter. They also invited our attention to the unreported judgment by a learned Writ Court in W.P. No.1604/2008 - Pramod Kumar Agrawal Vs. State of Madhya Pradesh decided on 7 th October, 2009, wherein certain action by an employee while on deputation in a Foreign Department in somewhat similar circumstances has been upheld by a learned Single Bench of this Court.
8. We have considered the rival contentions and we find that only question which warrants our determination is as to whether after the appellant was repatriated from the Madhya Pradesh Rajya Van Vikas Nigam, the Disciplinary Authority in the said Nigam namely the Managing Direction could initiate the Departmental enquiry and whether Rule 20 of the Madhya Pradesh Civil Services 6 (Classification, Control and Appeal) Rules, 1966 permit so?
9. Rule 20 of the M.P. Civil Services (CCA) Rules, 1966 contemplates a provision in the matter of taking disciplinary action against the offi cers of the State Government whose services are lent to the Union Government or any other subordinate or local authority. For the sake of convenience the provisions of sub rule 1 of Rule 20 is reproduced herein under :-
"20 Provisions regarding offi cers 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 (herein after 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 disciplinary authority for thepurpose of conducting a disciplinary proceeding against him :7
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;
...
(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 8 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 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"
(Emphasis Supplied)
10. The moot question is as to whether the procedure contemplated under Rule 20 as reproduced herein above is applicable only when the employee continues on deputation or can be invoked even after the period of deputation is over or the employee is repatriated back to his parent department.
11. In the case of Shiv Prasad Pandey (supra) the employee was working in the Police Department and while so serving he was deployed to work on deputation with the Border Security Force. While working in the Border Security Force because of certain offence committed by him, he 9 was put to trial in accordance to the Border Security Force's Act much after he was repatriated back to the Police Department. It was held by the Supreme Court that on his repatriation to the Polices services, he ceases to be an offi cer of the Border Security Force from the date of his repatriation and therefore, he cannot be subjected to taking any action under the Border Security Force's Act. However, in the present case the Rules are different, and the action was taken after the repatriation from the Corporation.
12. Rule 20 of Madhya Pradesh Civil Services (CCA ) Rules, 1966 as applicable to the State of Madhya Pradesh and reproduced herein above gives power to the borrowing department to take disciplinary action against a Government servant who is on deputation and the powers to the appointing authority and the disciplinary authority are conferred on the borrowing department. The Rule contemplates that the borrowing department shall have the powers of the Appointing Authority for the purpose of placing the government servant under suspenation and for taking disciplinary action against him but the proviso contemplates that the action taken has to be forthwith communicated to the parent Department. When power is given to any authority to suspend a Government servant or initiate disciplinary action against him an assumption has to be drawn that 10 the power can be exercised so long as the relationship of master and servant, employer and employee subsists or the contract of employment is in existence. Once the relationship of master and servant or employer and employee or the contract of service itself comes to an end, the question would be as to how disciplinary action or power to suspend can be exercised by an authority with whom the contract of employment of the employee concerned is no more in existence. Rule 20 therefore, has to be interpreted by holding that the power conferred under Rule 20 to the borrowing department or authority to suspend a Government servant or to take a disciplinary action against him can be exercised only if the relationship of master and servant or the contract of employment between the borrowing department and the deputationist employee subsists. When an employee who is a government servant and holds a lien in a Government department is sent on deputation to Foreign Department or a Corporation, then during the period of deputation a temporary contract of service is brought into force between the borrowing department and the employee concerned and so long as its contract of employment subsists the borrowing department can invoke the provision of Rule 20 but once the employee is repatriated back to the foreign department then the contract of employment 11 temporarily created during the period of depuation ceases and if that be the position, then the borrowing department does not have any authority to take action against the employee concerned. Apart from the above a perusal of Rule 20(2) and the proviso to Rule 20(2)(i) and (iii) also clarifies the position. After the departmental proceeding initiated by the Borrowing Department is completed and the finding of enquiry is recorded, in the light of the finding if the Borrowing Department wants to impose any of the penalties specified in clause
(i) to (iv) of Rule 10, then after consultation with the lending department the punishment can be imposed. However, the proviso to Rule 20(2)(i) indicates that if there is any difference of opinion between the Borrowing Department and lending department that the service of the employee has to be replaced at the disposal of the lending department. This clearly shows that action under these Rules can be taken only when the employee is on deputation not otherwise as the stipulation in proviso to Rule 20(2)(i) speaks about replacement of the employee to the lending department. Similarly in Rule 20(2)(i) and proviso thereto thereto also it is clearly provided that if the punishment to be imposed is a major punishment as provided in Rule 10 (v) to (ix), then the employee has to be replaced to the lending department and it is only the lending department 12 which can take action. The stipulation in this part of the rule for replacement of the employee to the parent department clearly indicates the intention of the rule maker. In case Rule 20 was applicable to a employee who is already repatriated to the parent (lending) department then the provision for replacement of the employee to the lending department as contained in both the provisos to Rule 20 (2) (i) (iii) would not provide for replace the service of the government employee to the lending department. This in our considered view would be the interpretation which can be given to the powers that may be exercised by the borrowing department under Rule 20.
13. We are fortified in our aforesaid reasoning and the aforesaid finding if we take note of a decision and Circular of the Government of India in the Ministry of Human Affairs in the matter of taking disciplinary action under the provisions of Rule 20 of the Central Services (Classification, Control and Appeal) Rules, 1965. Rule 20 of the Central Services (Classification, Control and Appeal) Rules, 1965 is para materia and identical to the provisions of Rule 20 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 and while clarifying the powers available to the borrowing department for taking action against an employee lent to the service of Central Government by any other State Government or 13 local authority, the Central Government has clarified the position in the Circular being File No.:
7/9/62: Ests.(A) and it is stipulated in the said Circular that Rule 20 is not applicable for the purpose of instituting departmental proceedings on a State Government servant whose services were borrowed by the Central Government has since been replaced or been repatriated back to the State Government. The Circular contemplates that in such cases, the concerned Ministry or department of the Central Government, where the employee was on deputation may complete the preliminary enquiry as may be considered necessary and thereafter forward the relevant records to the State Government for instituting departmental proceedings and for taking further action. That is the procedure contemplated by the Central Government for taking action under Rule 20 of the Central Services (Classification, Control and Appeal) Rules, 1965 and if the aforesaid procedure contemplated by the Central Government is evaluated in the light of principles discussed by us herein above, we find that this is the only interpretation that can be given to the provisions of Rule 20 of M.P. Civil Services (CCA ) Rules, 1966.
14. Somewhat similar situation was considered by the Madras High Court also in the case of K. Kanagasabapathy Vs. City Supply 14 Offi cer, Civil - (1978)1 MLJ 184. In that case also the disciplinary proceedings were initiated by the borrowing department after the employee was repatriated to the parent department and it was held by the Madras High Court in the aforesaid case that after the employee had left the borrowing department and had gone back to the parent department, offi cers of the borrowing department had no jurisdiction to take any disciplinary proceeding against him. It is held that the power is made available to the borrowing department only so long as the concerned offi cer is serving in the said department but not after he gone back to the parent department.
15. Keeping in view the aforesaid principle also, we find that the action taken by the Madhya Pradesh Rajya Van Vikas Nigam for initiating departmental enquiry in the matter is unsustainable once the employee namely the appellant herein was repatriated back to the parent department.
16. Reliance placed on judgment of the learned Single Bench in the case of Promod Kumar Agrawal (supra) with due respect cannot be accepted by us for the reasons indicated herein above, the learned Single Judge has simply relied upon the law laid down in the case of P. V. Shrinivasa Sastry (supra) to say so. But in the case of P. V. Shrinivasa Sastry (supra) the 15 question was with regard to who could be authority to initiate disciplinary proceeding and whether the departmental proceeding can be initiated by an authority other than the appointing authority. In the said case, the question of sending an employee on deputation or action to be taken during the or after the period of deputation and implication when the contract of service or employment after deputation is concluded was not considered. That being so, we hold that the said judgment does not put forth the law correctly and cannot be applied in a case where the employee has been repatriated back after deputation.
17. Even though we have held so, we may clarify that the principle laid down by us herein above pertains to sending an employee on deputation from the service of the State Government to the Central Government or to any other autonomous or statutory authority. The question as to what should be the procedure for taking action when an employee is sent on deputation from one department to another department by the State Government is not considered by us and is not decided by us in this case because provisions of Rule 20 does not speak about depuation of an employee from one department to another of the State Government and therefore, principles laid down by us may not be applicable in case an employee of the State 16 Government is sent on deputation to any other department of the State Government. The question has to be decided with reference to the specific rule as may be applicable in such cases as Rule 20 may not apply in such cases.
18. Accordingly, we allow this appeal and quash the order of the learned Single Judge so also the punishment order dated 28.8.2000. However, we grant liberty to the respondent M.P. Van Vikas Nigam to transmit the papers with regard to the allegation against the appellant to the State Government in the Forest Department, and recommend for taking action in the matter and it would be for the competent authority of the State Government in the Department concerned to take a decision in the matter of proceeding departmentally against the appellant in case they so desire.
19. With the aforesaid, the writ appeal stands allowed and disposed of.
(Rajendra Menon) (Anil Sharma)
Judge Judge
mrs.mishra