Madhya Pradesh High Court
B.P.Soni vs The State Of M.P on 17 January, 2012
1
HIGH COURT OF MADHYA PRADESH AT JABALPUR
SINGLE BENCH : JUSTICE J.K. MAHESHWARI
WRIT PETITION No. 14492 OF 2003
B.P. Soni
-Versus-
State of M.P. and 2 others
_____________________________________________________
Shri S.K. Dwivedi, Advocate for the petitioner.
Shri Sanjeev Singh, Panel Lawyer for respondents.
___________________________________________________
ORDER
(17/01/2012) Being aggrieved by the order Annexure-A-19 dated 13.8.1997 (Annexure-R-1 produced along with the return) which is affirmed by the Development Commissioner as per order dated Annexure-A-18 dated 3.8.1999 the petitioner had filed the original application before the Tribunal. On abolition of the Tribunal it was transferred to this Court and registered as writ petition.
2. It is the grievance of the petitioner that he was transferred as per order dated 25th August, 1989. The said order was challenged before the Tribunal by filing an Original Application bearing No.2298/1989, As per order dated 16.4.1990 petition filed by the petitioner was allowed and the order of transfer was quashed. He was relieved on 2.9.1989, however, from the date of relieving till submitting joining as per order of the Tribunal dated 16.4.1990 a show cause notice was issued for non-compliance of the transfer 2 order and for the absence without applying for leave. On filing reply, without holding a departmental enquiry order dated 4.3.1991 was passed by the Commissioner, Jabalpur Division, Jabalpur withholding two increments with cumulative effect treating the period from 2.9.1989 to 16.4.1990 i.e. of 226 days as leave without pay. On filing an appeal against the said order it was affirmed as per order dated 23.3.1995 (Annexure-A-13) and the representation submitted against the same was also rejected as per order dated 2.7.1997 (Annexure-A-15). Being aggrieved by the orders Annexure-A-11 dated 4.3.1991, Annexure-A-13 dated 23.3.1995 and Annexure-A-15 dated 2.7.1996 petitioner has filed another original application No.2133/1996, which was allowed with the following observations :-
"Thereafter the question is as to whether the matter should be remanded to the Disciplinary authority for holding a regular departmental enquiry against the petitioner, in this regard and context it is being observed that if the disciplinary authority intends to impose a major penalty then the said authority shall hold a regular departmental enquiry as is prescribed in Rule 14 of M.P. Civil Services (CCA) Rules, 1966. If, however, the said authority intends to impose only a minor penalty then it may follow the procedure as prescribed in Rule 16 of the said Rules. These observations are of course subject to the condition that it shall be entirely within the discretion of the disciplinary authority to take any disciplinary action against the petitioner and no observation made in this order would amount to hold and mean that the disciplinary authority is bound to take any such action. As has already been observed it shall be entirely within the discretion of the disciplinary authority to take or not to take any disciplinary action against the petitioner. By this order, only this is meant to convey that if the disciplinary 3 authority intends to impose a major penalty then the procedure as laid down in the Rule 14 of the M.P. Civil Services (CCA) Rules, 1966 should be followed. But if the the said authority intends to impose only a minor penalty then the procedure prescribed in Rule 16 has to be followed.
The said authority shall also consider as to whether the petitioner is entitled to get increments and also the salary from 2.9.89 to 16.4.1990. In case the disciplinary authority comes to a conclusion that the petitioner is not entitled to get salary of the said period and also not entitled to get the increment then the disciplinary authority shall pass a speaking order regarding the said aspect within six months of receipt of a certified copy of this order.
Certified copy of this order be supplied to the petitioner for being produced before the respondent No.3.
Certified copy of this order be also sent by the Tribunal to the respondent No.3 and compliance of this order be reported within 15 days to the Registrar. "
After passing the said order on reviewing earlier order Commissioner, Jabalpur Division, Jabalpur again passed an order Annexure-A-19 dated 13th August, 1997 (Annexure-R-1) and without issuing any show cause notice and following the procedure as prescribed under Rule 16 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (in short, 'the Rules of 1966') the penalty was reduced by withholding one increment with non- cumulative effect and the period from 2.9.1989 to 16.4.1990 was treated as unauthorized absence and directed for no work no pay. The said order was affirmed in appeal as per order Annexure-A-18 dated 3.8.1999. Challenging both these orders petitioner has preferred this petition.
3. It is contended by Shri S.K. Dwivedi, learned counsel 4 appearing on behalf of the petitioner that after quashing earlier penalty orders as per order Annexure-A-17 dated 30.4.1997 passed by the Tribunal in O.A. No.2133/1996 if the authority competent wanted to inflict major penalty, they were required to observe the procedure as prescribed under Rule 14 of the Rules of 1966 and if a minor penalty is required to impose then procedure as required under Rule 16 of the Rules of 1966 ought to be followed. On consideration of the document Annexure-A-19 (Annexure-R-1) and the order of the appellate authority Annexure-A-18 it appears to be an order of minor penalty but the procedure prescribed under Rule 16 of the Rules of 1966 has not been followed, therefore, both these orders are liable to be quashed.
4. Per contra, Shri Sanjeev Singh, learned Panel Lawyer contends that the order of minor penalty has rightly been passed against the petitioner because an opportunity of hearing was already allowed to him by issuing show cause notice when the earlier order of penalty was passed in the year 1990. In such circumstances, authority competent has rightly reduced the penalty by passing the order Annexure-A-19, however, opportunity of hearing by issuing fresh show cause notice is not required to be issued. In view of the foregoing it is prayed that the petition filed by the petitioner may be dismissed.
5. After having heard learned counsel appearing on behalf of the parties and on perusal of the record it is clear that when the order inflicting penalty Annexure-A-11 was passed on 4.3.1991 a show 5 cause notice why the major penalty may not be directed and a major penalty was imposed which was affirmed in appeal as well as on consideration of representation by the State Government. On making challenge of the orders learned Tribunal found that the procedure as prescribed has not been followed prior to passing the order of major penalty, however, it was observed that if the authority competent intends to impose a major penalty, then the procedure prescribed in Rule 14, or if the authority intends to impose only a minor penalty, then the procedure as prescribed under Rule 16 of the Rules of 1966 is required to be followed. Thus, the earlier orders passed by the competent authority loses its sanctity in view of the order of the Tribunal dated 30.4.1997 (Annex.A-17). Thereafter order Annex.A-19 dated 13.8.1997 was passed whereby a minor penalty of withholding one increment with non-cumulative effect was imposed and the period between 2.9.1989 and 16.4.1990 was treated as unauthorized absence without pay. After the order of the Tribunal dated 30.4.1997 if the authority was of the opinion that a minor penalty is to be inflicted, then the procedure as prescribed under Rule 16 of the Rules of 1966 was required to be followed. In the said context provision so specified under Rule 16 of the Rules of 1966 is required to be quoted which is reproduced as thus :-
"16. Procedure for imposing minor penalties.-
(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 clause (i) to (iv) of Rule 10 and Rule 11 shall be made except after -
(a) Informing the Government servant in 6 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 matter laid down in sub-rule (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;
(d) recording a finding on each imputation of misconduct or misbehaviour; and
(e) consulting the Commission where such consultation is necessary.
(1-A) Notwithstanding anything contained in clause (b) of sub-rule (1), if in a case it is proposed after considering the representation, if any, made by the Government servant under clause (a) of that sub-rule, to with-hold increments of pay or stagnation allowance and such with-holding of increments or stagnation allowance is likely to affect adversely the amount of pension payable to the Government servant or to with-hold increments of pay or stagnation allowance for a period exceeding three years or to with-hold increments of pay or stagnation allowance with cumulative effect for any period, an inquiry shall be held in the manner laid down in sub-rule (3) to (23) of Rule 14, before making any order imposing on the Government servant any such penalty.
(2) The record of the proceedings in such cases shall include -
(i) a copy of the intimation to the Government servant of the proposal to take action against him;
(ii) a copy of the statement of imputations of 7 misconduct or misbehaviour delivered to him;
(iii) his representation, if any;
(iv) the evidence produced during the inquiry;
(v) the advice of the Commission, if any;
(vi) the findings on each imputation of
misconduct or misbehaviour; and
(vii) the orders on the case together with the reasons therefor."
6. In view of the foregoing it is clear that if the authority was intended to impose a minor penalty, then the procedure so prescribed under Rule 16 of the Rules of 1966 was required to be followed, but prior to passing the order Annexure-A-19 dated 13.8.1997 neither a show cause notice has been given and nor an opportunity of hearing has been afforded to the petitioner, however, order impugned Annexure-A-19 dated 13.8.1997 affirmed in appeal vide order Annexure-A-18 dated 3.8.1999 is passed in gross violation of Rule 16 of the Rules of 1966 which cannot be sustained in law, therefore, it is quashed. In view of quashing the aforesaid order the argument advanced by Mr. Dwivedi that leave for a period between 2.9.1989 and 16.4.1990 was already sanctioned which was subsequently stayed thereafter order impugned inflicting penalty is passed is of no relevance at this stage because orders Annexure- A-19 dated 13.8.1997 and Annexure-A-18 dated 3.8.1999 have been found to be illegal because of not following the procedure so prescribed, however, the said argument is not required to be 8 elaborately dealt with.
7. In view of the foregoing the petition filed by the petitioner is hereby allowed. The order inflicting a minor penalty of withholding one increment with non-cumulative effect and treating the period from 2.9.1989 to 16.4.1990 as leave without pay and the order of the appellate authority Annexure-A-18 dated 3.8.1999 are hereby quashed. Petitioner is held entitled to all consequential reliefs in view of quashing both these orders. In the facts and circumstances, petitioner is also entitled for the cost which is quantified Rs.2,000/-.
(J.K. Maheshwari) JUDGE ap 9