Madhya Pradesh High Court
Smt. Pratibha Mishra vs The State Of Madhya Pradesh on 15 July, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia, Rajeev Kumar Shrivastava
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
&
HON'BLE SHRI JUSTICE RAJEEV KUMAR SHRIVASTAVA
ON THE 15TH OF JULY, 2022
WRIT APPEAL No.383 OF 2022
Between:-
SMT. PRATIBHA MISHRA D/O
SHRI RAMAKANT, AGED : 57
YEARS, OCCUPATION : POSTED
AS SUPERVISOR, CHILD
INTEGRATED DEVELOPMENT
PROJECT, MORENA, DISTRICT:
MORENA (MADHYA PRADESH).
........APPELLANT
(BY SHRI D.P. SINGH - ADVOCATE)
AND
1. THE STATE OF MADHYA
PRADESH, THROUGH ITS
PRINCIPAL SECRETARY, WOMEN
AND CHILD DEVELOPMENT
DEPARTMENT, GOVERNMENT OF
M.P., MANTRALAYA, VALLABH
BHAWAN, BHOPAL (M.P.)
2. COMMISSIONER CHAMBAL
DIVISION, MORENA, DISTRICT :
MORENA (M.P.)
2
3. THE COLLECTOR, MORENA,
DISTRICT : MORENA (M.P.)
.....RESPONDENTS
(BY SHRI ANKUR MODY - ADDITIONAL ADVOCATE
GENERAL)
---------------------------------------------------------------------------------------
This writ appeal coming on for hearing this day, Hon'ble Shri
Justice G.S. Ahluwalia, passed the following:
JUDGMENT
This Writ Appeal under Section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 has been filed against the order dated 15/03/2022 passed in Writ Petition No.3775/2008, by which the writ petition filed by the petitioner/appellant herein has been dismissed on the ground that in the light of judgment passed by the Division Bench in the case of Ratan Singh Silawat Vs. State of M.P. & Ors, decided on 08/09/2020 (W.A. No.761/2020), it was not necessary for the disciplinary Authority to hold a full fledged enquiry in the light of judgment passed by the Supreme Court in the case of O.K. Bharadwaj Vs. Union of India and others reported in (2001) 9 SCC 180.
It is submitted by the counsel for the appellant that the impugned order of punishment was issued on 05/06/2007, whereas the Medical Board was constituted on 06/06/2007. Thus, it is submitted that the order of punishment is bad because not only it is based on misconceived factual allegations but it also bad because no full fledged departmental 3 enquiry was conducted.
Per contra, the writ appeal is vehemently opposed by the counsel for the State.
Heard the learned counsel for the parties. The appellant has been saddled with the punishment of stoppage of two increments without cumulative effect by order dated 05/06/2007. The said order reads as under:-
"dk;kZy;] dysDVj ¼efgyk ,oa cky fodkl foHkkx½ ftyk eqjSuk ¼e-iz-½ Øekad@eckfo@LFkk-@07@ eqjSuk fnukad @6@07 @@vkns'k@@ ifj;kstuk vf/kdkjh ,dhd`r cky fodkl ifj;kstuk eqjSuk ¼'kgjh½ dk i= dza-71&72 fnukad 3-5-07 ls vkidks cky lathouh vfHk;ku vUrxZr ,dhd`r cky fodkl ifj;kstuk dSykjl dks HkkjeqDr fd;k x;k Fkk mDr vkns'k ds Øe esa vki M~;Vw h ij mifLFkr u gksrs gq;s fpfdRlk vodk'k vkosnu nsdj vodk'k ij pyh xbZA dk;kZy;hu i= Øa- 1047 eqjSuk fnukad 21-5-07 ls vkidks esMhdy cksMZ ds le{k mifLFkr gksdj LokLF; ijh{k.k djkus ds funsZ'k fn;s x;s Fks fdUrq cksMZ dk LokLF; ijh{k.k uk djkrs gq;s fQVus'k izek.k i= izLrqr dj mifLFkr ns nh xbZ gSA ifj;kstuk vf/kdkjh dSykjl dk i= Øa- 905 fnukad 12-5-07 ls voxr djk;k x;k gS fd vHkh rd dSykjl ifj;kstuk esa i;Zos{kd mifLFkr ugh gqbZ gS tcfd vkidks dSykjl ifj;kstuk esa mifLFkfr ntZ djkuh Fkh blls Li"V gksrk gS fd ofj"B vf/kdkfj;ksa ds vkns'kksa dh vogsyuk dh xbZ gSA ,oa vius inh; drZO; ds fuoZgu esa mnklhurk ,oa ykijokgh dk iksrd tks e-iz- flfoy lsok vkpj.k fu;e 1995 ds fu;e 3¼1½¼2½¼3½ ds foijhr gksdj dnkpj.k dh Js.kh esa vkrk gSA mijksDr d`R; ds fy;s e-iz- 'kklu lkekU; iz'kklu foHkkx ds vkns'k Øa-@lh@6&7@3@,y@96 fnukad 23-5-96 ls iznRr y?kq'kfLr ds vf/kdkjks dk iz;ksx djuk vko';d le>rk gwWA e-iz- flfoy lsok ¼oxhZdj.k] fu;a=.k rFkk vihy½ fu;e 4 1966 ds rgr Jherh izfrHkk feJk i;Zos{kd eqjSjk ¼'kgjh½ dh nks osru o`f);ka vlap;h izHkko ls jksdus dh 'kfL= ls nf.Mr fd;k tkrk gSA lkFk gh fnukad 3-5-07 ls 17-5-07 rd vkidks vuqifLFkr ekudj voSrfud fd;k tkrk gSA dysDVj ftyk eqjSuk ¼e-iz-½ i`-Øa-@eckfo@LFkk-@07@1253 eqjSuk fnukad 5@6@07 izfrfyfi%& 1- ifj;kstuk vf/kdkjh] ,dhd`r cky fodkl ifj;kstuk eqjSuk ¼'kgjh½ dh vksj vko';d dk;Zokgh gsrqA 2- lacaf/kr Jherh izfrHkk feJk i;Zos{kd vkbZ-lh-Mh-,l- eqjSuk ¼'kgjh½ dh vksj lwpukFkZA dysDVj ftyk eqjSuk ¼e-iz-½"
From the impugned punishment order, it is clear that the Medical Board was constituted and the appellant was directed to appear before the Medical Board and instead of getting herself medically examined, she produced the fitness certificate. So far as the submission made by the counsel for the appellant that in fact Medical Board was constituted on 06/06/2007 is concerned, the same is factually incorrect. From the report of the District Medical Board, Morena, it is clear that the appellant had appeared before the Medical Board on 05/06/2007 and the report is dated 06/06/2007.
Thus, faced with such a situation, the counsel for the appellant admitted that he was under misconception of the fact that the medical board was constituted on 06/06/2007 and corrected himself.
The allegations against the appellant are that the appellant was transferred and accordingly on 03/05/2007 she was relieved, however she did not join at the transferred place and went on medical leave. Accordingly, by order dated 21/05/2007 she was directed to appear 5 before the Medical Board but instead of getting herself medically examined, she presented the fitness certificate. The Project Officer Kailaras by his letter dated 12/05/2007 had also informed that the appellant has not joined at her transferred place and thus, it was found that the appellant had disobeyed the order of senior officers which is indicative of negligence and disobedience under Rule 3(1)(2)(3) of Madhya Pradesh Civil Services Conduct Rules, 1965 and accordingly, minor penalty of stoppage of two increments without cumulative effect was imposed.
Thus, it is clear that the appellant had never justified that she was ill but she merely produced her fitness certificate, therefore, it cannot be said that the punishment order is based on no evidence at all. The punishment order was passed after appreciating the material which was placed on record.
So far as the non-holding of full-fledged departmental enquiry is concerned, the Division Bench of this Court in the case Ratan Singh Silawat (supra) has already held that the proposition of law laid down in O.K. Bharadwaj (supra) does not apply in a case where withholding of increments is non-cumulative and has held has under:-
"3. The employee who is appellant herein on being dissatisfied by the order of learned single judge has approached this court in the present appeal primarily raising the following grounds:-
(a) The impugned order of penalty of withholding of one increment non-cumulatively is non-speaking.
(b) Looking to the nature of charges and denial of the same by petitioner/appellant render it incumbent upon disciplinary authority to hold full-fledged enquiry in terms of the decision of 6 Apex court in O.K.Bharadwaj (supra).
3.1 Taking up the first ground (supra) of the impugned order of penalty being non-speaking, it is obvious that the order is a shining example of non-speaking order, where the mind of disciplinary authority in shape of reasons/findings behind the penalty is conspicuously missing. Rule 16 of the of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (in short 1966 Rules) which indisputably governs the disciplinary proceedings against respondent-employer inter alia provides thus:-
"16. Procedure for imposing minor penalties.-
(1) Subject to the provision of subrule (3) of rule 15, no order imposing on a Government servant any of the penalties specified in clauses
(i) to (iv) of rule 10 and rule 11 shall be made except after,-
(a) informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour and which it is proposed to be taken, and given him a reasonable opportunity of making such representation as he may wish to make against the proposal;
(b) holding an inquiry in the manner 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;
(e) consulting the Commission where such 7 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 such withholding or increments of pay or Stagnation Allowance is likely to effect adversely the amount of pension payable to the Government Servant or to withhold increments of pay or Stagnation allowance for a period exceeding three years or to withhold 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 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 therefore."
3.2 Rule 16(1)(d) of the 1966 Rules in particular makes it incumbent upon disciplinary authority while imposing penalty to record finding in regard to each imputation of misconduct or misbehaviour and when recording of finding/reasons has been made obligatory upon the disciplinary authority then it goes without saying that 8 such findings/reasons ought to be expressly reflected in the order of penalty. Not doing so, renders the delinquent employee ignorant about the charges for which he has been penalized. Since remedy of appeal is statutorily provided to delinquent employee under Rule 23 r/w 27 of the 1966 Rules, the delinquent employee needs to be informed about the mind of the disciplinary in shape of reasons/findings so as to enable him to effectively challenge the order before the appellate authority. 3.3 In the instant case, the impugned order Annexure P/1, dated 20/3/2020 of the Commissioner Public Instructions, Bhopal is non-speaking and thus is vitiated in law on the said first ground.
3.4 This court after having reached the above conclusion in regard to the first ground need not have proceeded further but looking to the vehemence with which the second ground is raised and the misconception it invokes in the minds of many asundry, this court deems it appropriate to dwell upon the same in the following terms:-
3.4 (a) The decision of O.K.Bharadwaj Vs. Union of India and others reported in (2001) 9 SCC 180. is cited very often by the members of the Bar as the last sword in support of the contention that even if charge-sheet is for minor punishment, if the delinquent employee denies the charges which are factual in nature, then it is incumbent upon disciplinary authority to conduct full-fledged enquiry u/R.14 of the 1966 Rules failing which the order of punishment is vitiated in law.
3.4 (b) The aforesaid assumption in the considered opinion of this court is fallacious. The decision of O.K.Bharadwaj (S) was a case arising out of a judgment of Delhi High Court where the High court while dismissing the petition of the employee held that since withholding of increments of pay with cumulative effect was a minor penalty under the relevant rules the need for full-fledged enquiry gets obviated. The Apex court in O.K.Bharadwaj (S) while upturning the decision of Delhi High court held otherwise. The crucial aspect which often 9 misses the attention of members of the Bar, while relying upon O.K.Bharadwaj (S) is that the said case related to penalty of withholding of increment with cumulative effect. It is further settled law in service jurisprudence as per the decision of Apex Court in Kulwant Singh Gill Vs. State of Punjab 1991 Supp (1) SCC 504 that though the penalty of withholding of increment whether cumulative or non-cumulative is categorized is minor punishment in the service rules but whenever stoppage of increment is imposed cumulatively, it causes permanent dent/depreciation in the salary of the delinquent employee which further adversely affects pensionary benefits for all times to come. While on the other hand, if withholding of increments is non-cumulatively then same is restored to delinquent employee after expiry of the period of withholding causing no adverse affect upon salary/pensionary benefits. Keeping this clear distinction between the two kinds of said penalties, the Apex court in O.K.Bharadwaj (S) held so, since withholding of increments with cumulative effect amounts to reduction to a lower stage in time scale which is one of the major penalties provided in Rule 10 (v) of the 1966 Rules. 3.4 (c) In view of the above, the preposition of law laid down in O.K.Bharadwaj (S) does not apply in a case where withholding of increments is non-cumulatively. 3.4 (d) Since the factual matrix attending the instant case reveals the penalty order of withholding of one increment non-cumulatively, the decision of O.K.Bharadwaj (supra) is inapplicable.
3.5 In support of the case, learned counsel for appellant has further relied upon the decision of coordinate bench of this court in Union of India and Anr. Vs. C.P. Singh 2004 (2) MPJR 252] while on the other hand, learned Additional Advocate General Shri Mody has relied upon the decision of Apex court in Food Corporation of India Vs. A. Prahalada Rao [(2001) 1 SCC 165] and single bench decision of this court rendered on 27/2/2018 in W.P. 2200/17 (Ashok Kumar Sharma Vs.Madhya Pradesh Madhya Kshetra Vidyut Vitaran Co. Ltd & Ors) in which 10 the decisions of Apex court in Food Corporation of India Vs. A. Prahalada Rao, Union of India and Anr. Vs. C.P. Singh and O.K.Bharadwaj Vs. Union of India (supra) are all referred to.
3.5 (a) After considering all the earlier decisions of Apex court the single bench of this court in Ashok Kumar Sharma (S), was of the view that once the statute (Rule
16) confers discretion upon disciplinary authority to dispense with full-fledged enquiry while imposing minor penalty then the said discretion which is statutorily provided cannot be taken away by judicial order merely by saying that the charges are serious and involve complicated facts. The court held that this discretion is rightly vested with the disciplinary authority with the rider that discretion is to be judicially exercised for reasons to be recorded in writing, either in the note-sheet to be produced as and when required by the court or communicated to the delinquent employee by mentioning the same in the penalty order. The court further held that the said discretion if challenged can be tested by invoking power of judicial review to ascertain whether the same is exercised judicially or not. In the said case of Ashok Kumar Sharma (supra) the coordinate bench was dealing with a case where petitioner was imposed with penalty of stoppage of one increment non-cumulatively as inflicted in the present case. After considering all the earlier verdicts on the subject-matter the learned single judge in the case of Ashok Kumar Sharma (s) disposed of the petition by quashing the penalty order on the ground that no full-fledged departmental enquiry is conduced and remanded the matter to the disciplinary authority to consider the other ground not dealt with by the court.
3.5 (b) Pertinently, other Division Bench case of this court in Union of India and Anr. Vs. C.P. Singh (s) also set aside the minor penalty of recovery of Rs. 75,000/- from the salary of delinquent employee on the ground of non-holding of full-fledged enquiry despite the penalty fastening heavy financial burden upon the delinquent employee.
113.6 In the instant case, the punishment imposed is based on the charge that petitioner while discharging his duty as principal of a particular school failed to maintain the minimum average passing percentage of 62.05 in his school. Thus, the misconduct did not relate to any heavy financial loss to the govt. which may have led to imposing heavy financial burden of recovery from the petitioner or the nature of charges were not such which could be termed as complicated or involving complex factual matrix which could be proved only by holding of full-fledged enquiry.
4. This court is thus of the considered view that looking to the nature of the charges and the punishment imposed, there was no requirement of holding full-fledged enquiry in the matter as contemplated by Rule 14 of 1966 Rules. It can thus be said that the impugned penalty order does not cause any undue prejudice to justify a full-fledged enquiry. Therefore there is no need to assess by way of judicial review as to whether discretion exercised by the disciplinary authority is judicial or not.
5. Consequently, what comes out loud and clear is that as regards Ground No.2 that the full-fledged enquiry u/R. 14 of the 1966 Rules was mandatory for imposing impugned penalty, no case as explained above is made out. 5.1 As regards first ground of the impugned order P/1 passed by the authority being non-speaking, the appellant is prejudiced as he is ignorant about the reasons/findings for inflicting punishment and therefore appellant was unable to effectively prepare, file and prosecute his statutory appeal as provided u/R. 23/27 of the 1966 Rules.
5.2 Moreover, the first ground raised by appellant of the impugned order being non-speaking fell within the domain of violation of the principle of natural justice and therefore the writ jurisdiction u/Art. 226 of the Constitution ought to have been exercised by the writ court. The self imposed restriction of non-availing of alternative statutory remedy of appeal cannot thus come in way of petitioner to successfully challenge the 12 impugned order P/1 on the anvil of Art. 226 of the Constitution, on grounds of penalty order being palpably non-speaking."
Though the appellant had tried to advance his arguments on the ground that the judgment passed in the case of Ratan Singh Silawat (supra) requires reference to the Full Bench, but we are not satisfied with the submissions advanced by counsel for the appellant.
Consequently, no discrepancy is found in the order passed by the learned Single Judge.
Accordingly, the Writ Appeal fails and is hereby dismissed.
(G.S. AHLUWALIA) (RAJEEV KUMAR SHRIVASTAVA)
JUDGE JUDGE
Shubhankar*
Digitally signed by
SHUBHANKAR MISHRA
Date: 2022.07.15
18:08:24 +05'30'