Madhya Pradesh High Court
Pranay Kumar Shrivastava vs Madhya Pradesh Poorv Kshetra Vidhyut ... on 12 August, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
1 WP-21426-2013
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 12th OF AUGUST, 2024
WRIT PETITION No. 21426 of 2013
PRANAY KUMAR SHRIVASTAVA
Versus
MADHYA PRADESH POORV KSHETRA VIDHYUT VITRAN
COMPANY LTD. AND OTHERS
Appearance:
Shri Ashish Shroti - Advocate for petitioner.
Shri R.P. Dwivedi - Advocate for respondents.
ORDER
Assailing the order dated 11.10.2013 (Annexure P/4) passed by the Superintending Engineer, M.P. Poorv Kshetra Vidyut Vitran Co. Ltd., Seoni cancelling the order dated 08.05.2013 and directed for issuance of a show cause notice to the petitioner, the present petition has been filed.
2. It is the case of the petitioner that he was initially appointed as an Office Assistant Grade-III in the eartwhile Madhya Pradesh Electricity Board and was posted at Waraseoni, District Balaghat. The entire service career remained unblemished and he has been awarded on several occasions for his good conduct and performance. He was placed under suspension in contemplation of a departmental enquiry vide order dated 22.11.2006 and was attached to the office of Assistant Engineer, Katangi, District Balaghat. A charge-sheet was issued to him on 12.12.2006 levying four charges against him. Reply to the charge-sheet was filed and immediately thereafter the Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 8/14/2024 10:56:37 AM 2 WP-21426-2013 suspension order was revoked vide order dated 31.12.2006 and he was reinstated in service. The departmental enquiry initiated which was remain pending for a period of five years and in the year 2011 the same was concluded and an enquiry report was submitted to the disciplinary authority. The disciplinary authority after considering the record of the enquiry has arrived at a conclusion that none of the charges levelled against the petitioner are found proved in the enquiry and, therefore, vide a detailed order dated 08.05.2013, the petitioner has been exonerated from all the charges and the period of suspension was directed to be treated on duty.
3. Thereafter, the respondent no.2 on its own has passed the impugned order dated 11.10.2013 cancelling the order dated 08.05.2013 and also issued a show cause notice to the petitioner in respect of the report submitted by the enquiry officer. It is argued that the reason for cancellation of order dated 08.05.2013 is shown that a show cause notice was required to be issued to the petitioner after submission of the enquiry report. That has not been done in the present case. The disciplinary authority on its own has declared the petitioner to be exonerated from all the charges. That cannot be done without giving any show cause notice or opportunity of hearing to the petitioner. Learned counsel for the petitioner has argued that there was no requirement of issuance of any show cause notice to the petitioner if the disciplinary authority is of the opinion that none of the charges levelled against the petitioner are proved. It is only in those cases wherein the disciplinary authority is of the opinion that an opportunity of hearing is required to be given to the delinquent employee prior to passing of a punishment order. The Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 8/14/2024 10:56:37 AM 3 WP-21426-2013 said procedure has been followed. Once the disciplinary authority has arrived at a conclusion that none of the charges levelled against the petitioner are proved and he has been exonerated by the authorities, there is no requirement of issuance of a show cause notice to the petitioner.
4. On notice being issued, a detailed reply has been filed by the authorities. It is argued that in the departmental enquiry, the enquiry officer has found the petitioner to be guilty of the charges levied against him and a punishment of dismissal from service is proposed. The enquiry report was sent to the respondent no.2 for issuance of a show cause notice to the petitioner as a major penalty was proposed against the petitioner. The matter was kept pending with the disciplinary authority. It is further pointed out that the petitioner by playing fraud had got obtained signature of Executive Engineer on Annexure P/3, which is an order prepared by the petitioner himself. Therefore, subsequent authority has set aside that order. It is argued that in- house enquiry was carried out by the authorities to the aforesaid effect that it was found that the petitioner was working as a Clerk and was in-charge of legal and general section and in routine course he was required to get the signatures of Executive Engineer on various documents. The petitioner himself prepared Annexure P/3 and put the said document amongst various letters/documents which were required to be signed by the Executive Engineer and by playing fraud, he got obtained signature of Executive Engineer on the document. Therefore, the authorities have rightly issued a show cause notice to the petitioner to response to the same.
5. The petitioner by filing a rejoinder has denied the aforesaid contentions.
Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 8/14/2024 10:56:37 AM4 WP-21426-2013 It is specifically mentioned that the aforesaid contentions raised by the respondents are clearly an afterthought as the same are not part and parcel of the impugned order. The language of the impugned order is clear and cogent and it has been passed only because a show cause notice was not issued to the petitioner. Preparation of the said order by the petitioner and taking signature of the Executive Engineer by playing fraud, are absent in the impugned order. He has relied upon a judgment of the Hon'ble Supreme Court in the case of Mohinder Singh Gill vs. Chief Election Commissioner, New Delhi, reported in (1978) 1 SCC 405 as well as in the case of Dipak Babaria and Another vs. State of Gujarat and others reported in 2014 (3) SCC 502 to the effect that the impugned order should contain all the detailed particulars and cannot be supplemented by filing an affidavit or giving a reason for passing the impugned order.
6. Learned counsel appearing for the respondents could not dispute the aforesaid proposition. He fairly submits that it is based upon a in-house enquiry that has been carried out by the authorities, but no opportunity of hearing was granted to the petitioner. The respondents' counsel could not deny the fact that the impugned order does not contain as to what has been stated in the return filed by the authorities.
7. The Hon'ble Supreme Court in the case of Dipak Babaria (supra) considering the earlier judgment passed by the Constitutional Bench of the Hon'ble Supreme Court in the case of Mohinder Singh Gill (supra) has held as under:
"64. That apart it has to be examined whether the Government had given sufficient reasons for the order it Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 8/14/2024 10:56:37 AM 5 WP-21426-2013 passed, at the time of passing such order. The Government must defend its action on the basis of the order that it has passed, and it cannot improve its stand by filing subsequent affidavits as laid down by this Court long back in Commissioner of Police, Bombay vs. Gordhandas Bhanji reported in AIR 1952 SC 16 in the following words:-
"9.....Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
This proposition has been quoted with approval in paragraph 8 by a Constitution Bench in Mohinder Singh Gill vs. Chief Election Commissioner reported in 1978 (1) SCC 405 wherein Krishna Iyer, J. has stated as follows:-
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 8/14/2024 10:56:37 AM 6 WP-21426-2013 out."
65. In this context it must be noted that the Revenue Minister's direction merely states that it is a private land, and the Governments letter dated 18.12.2009 speaks of the financial incapability of Inidgold. Neither the letter dated 18.12.2009 from the Government to the Collector, nor the order passed by the Deputy Collector on 15.1.2010 mention anything about:
1. the mineral policy of the Government of Gujarat.
2. the time taking nature of the process of acquiring the land and re-allotting it.
3. That the second sale was under the authority of the Collector available to him under the first proviso to Section 89(1) read with condition no. (4) of the permission dated 1.5.2003 granted to Indigold to purchase the concerned lands.
In the absence of any of these factors being mentioned in the previous orders, it is clear that they are being pressed into service as an after-thought. The Government can not be allowed to improve its stand in such a manner with the aid of affidavits."
8. Thus, from the perusal of the aforesaid judgment of the Hon'ble Supreme Court, it is apparently clear that the language of the order passed by the authorities should be clear and cogent and should contain all the recitals which enable them to pass the order. The impugned order in the present case has been passed setting aside the order dated 08.05.2013 by which the petitioner has been exonerated from all the charges on the ground that an in-
house enquiry has been carried out. But the fact remains that what has been mentioned in the return i.e. explanation given by the authorities in the return, Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 8/14/2024 10:56:37 AM 7 WP-21426-2013 is not a part and parcel of the impugned order. The reasons cannot be supplemented in the impugned order nor by filing an affidavit or by giving an explanation to the same. Admittedly, an in-house enquiry was being carried out by the authorities ex-parte without providing any opportunity of hearing to the petitioner. The petitioner has been exonerated from all the charges on 08.05.2013. Under these circumstances, the impugned dated 11.10.2013 (Annexure P/4) is unsustainable and is hereby quashed. However, a liberty is extended to the authorities to take recourse in accordance with law, if they so desire.
9. With the aforesaid, the writ petition stands allowed and disposed off. No order as to costs.
(VISHAL MISHRA) JUDGE sj Signature Not Verified Signed by: SUSHEEL KUMAR JHARIYA Signing time: 8/14/2024 10:56:37 AM