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Madhya Pradesh High Court · body

2001 DIGILAW 518 (MP)

Shriram Chaudhary v. State of M. P.

2001-07-19

N.K.JAIN

body2001
ORDER 1. Petitioner -- Shriram Choudhary -- an employee of the Marketing Committee, Mhow, has moved this Court by Petition under Article 226 of the Constitution for a writ of certiorari or other appropriate writ or direction for quashment of the Order dated 20.5.1994 (Annexure P-8) passed by respondent No. 3 -- The Officer In-charge of the said Marketing Committee reverting the petitioner from the post of Secretary (Grade - C) to the Committee to the post of Clerk in that Committee. 2. The petitioner was appointed on the post of Secretary of the Committee on 1.1.1973. The appointment was made by the Committee which at the relevant time was the appointing authority under the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972 (for short, the M.P. Act) and the Rules framed thereunder. It may be noted here that by a subsequent amendment in the M.P. Act (vide S. 27), the power of the appointment of the Secretary was vested in the State Government. However, by yet another amendment (No. 24/86) S. 27 was substituted by new S. 27 providing for creation of State Marketing service and appointment of the Secretary of the Marketing Committee by the Director Mandis. It is no more in dispute that the petitioner on constitution of the State Marketing Service stood absorbed in that service and is now a Member thereof. 3. The petitioner soon after his appointment started facing rough weather and was discharged from the post of Secretary by order dated 1.2.1977 of the Committee purportedly passed in pursuance of the direction contained in the letter dated 27.9.1977 of the Director, terming his very appointment as illegal for want of prior approval of the Director as required under the Rules then in force. However, after a protracted litigation for nearly 13 years right from the Court of Civil Judge Class II to this Court, he was reinstated on 20th April, 1990 under direction made by this Court during the pendency of Second Appeal (S.N. No. 139/88) filed by the Committee against the concurrent orders of reinstatement passed by the two Courts below (C.J. IInd and ADJ, Mhow). The petitioner had to fight tooth and nail to secure his back wages. The petitioner had to fight tooth and nail to secure his back wages. While the said Appeal (S.A. No. 139/88) was still pending, before this Court (the same was subsequently dismissed on 4.12.1997), the respondent -- Committee vide order dated 27.3.1991 again acting under the directions given by the Director, placed the petitioner under suspension. A departmental enquiry on serveral charges of misconduct was then instituted against the petitioner vide Memo dated 6.5.1991 (Annexure P-4). The enquiry was held by the Officer In-charge of the Committee who vide his report dated 21.4.1994 held the petitioner guilty of all the charges. The petitioner was then served with show-cause notice together with the enquiry report (Annexure P-6) of the proposed penalty and after obtaining reply the order dated 28.5.1994 (Annexure P-8) impugned in this petition, was passed reverting him to the post of Clerk in the Committee. The appeal preferred by the petitioner against his reversion has also been dismissed by the appellate authority. The petitioner has, therefore, come up before this Court under Article 226 of the Constitution. 4. The petitioner has assailed his reversion mainly on three grounds -- One: that the order (Annexure P-8) is without any authority or jurisdiction inasmuch as the authority to impose such a m;1jor penalty vested in the State Government or the Director under the Act and the Rules framed thereunder; two: that the enquiry itself was vitiated as no proper opportunity of hearing was accorded to the petitioner employee; and, three: that the entire exercise was malafide undertaken as a retaliatory measure to undo the effect of the decree of his reinstatement passed against his earlier termination. Shri Bhatia, learned counsel for the petitioner has laid stress on these grounds and advanced arguments in support thereof. The respondents State Government and the Committee -- have filed replies in oppugnation of the petition. At the time of arguments their counsel Shri Girish Desai, Dy. Advocate General and Shri Vinay Zelawat, Advocate have vehemently contested the petitioner's claim. It is submitted that the impugned order of reversion has been pa'8sed after due enquiry by the Committee being the Appointing Authority of the petitioner and competent to impose any kind of penalty on him. It was further contended that the enquiry held in accordance with the Rules and the Petitioner was afforded full opportunity to defend himself. It is submitted that the impugned order of reversion has been pa'8sed after due enquiry by the Committee being the Appointing Authority of the petitioner and competent to impose any kind of penalty on him. It was further contended that the enquiry held in accordance with the Rules and the Petitioner was afforded full opportunity to defend himself. The finding of guilt returned by the Enquiry Officer against the petitioner is based on adequate evidence. The allegation regarding mala-fide is also denied. 5. Having given my serious consideration to the rival contentions and gone through the record of the enquiry, I am clearly of the view that the impugned action was vitiated being without jurisdiction and violative of principles of natural justice as en visaged under the constitutional protection provided under Article 311. 6. Taking the first point first, it is true that the petitioner was initially appointed by the Marketing Committee (in 1973), but in constitution of Marketing Service in the year 1980 u/S. 26 of the Act, the petitioner became member of that service and the major penalty of dismissal, removal or reversion could thereafter be passed against him only by the State Government or the Director. Section 27 of the Act which deals with the appointment of Secretary and other Officers of the Committee, prior to its amendment in 1986, declared the State Government as the Appointing Authority but after the Amendment, the Director Mandis is now the Appointing Authority. The M.P. Krishi Upaj Mandi (M.N.V.) Rules, 1980 (for short, 'the Rules') framed under the Act still provide that the State Government will be the Appointing Authority competent to pass major penalties on the Officers of the Committee (see: Rules 87 and 111). However, reading the rule in context of section 27 of the Act as now it stands substituted by the M.P. Amendment Act 24 of 1986, the Appointing Authority empowered to take disciplinary action is now the Director. It appears that no consequential amendment is made' in the Rules, 1980. Needless to say that the Rules being subordinate legislation must conform to the provisions of the Act and the latter shall over-ride the former. ' 7. It was, however, contended by the learned counsel for respondents that the original appointing Authority being the Committee, the order for reversion could be passed by it notwithstanding the subsequent changes made in the Act and the Rules. ' 7. It was, however, contended by the learned counsel for respondents that the original appointing Authority being the Committee, the order for reversion could be passed by it notwithstanding the subsequent changes made in the Act and the Rules. It was further pointed out that the constitutional protection available under Clause (1) or Article 311 is not against reversion but only against dismissal or removal. Reliance is placed on a Supreme Court decision in Krishna Kumar [ (1979) 4 SCC 289 ]. 8. I am not persuaded by the argument and the ratio in Krishna Kumar (supra), I am afraid, is not available to the respondents in the present case. In that decision the penalty was imposed, by the Authority inferior in rank to the Authority who made the initial appointment. The case in hand is just reverse inasmuch as the penalty in question is imposed by the Authority who is inferior in rank rather subordinate to the Authority who is now declared to be the Appointing Authority in view of section 27 of the Act. 9. It is true that Clause (1) of Article 311 applies only when the penalty of dismissal or removal is imposed. Where the penalty awarded is other than dismissal or removal e.g., reduction in rank or suspension, it may be awarded by an authority who is empowered in that behalf by the Rules even though he is not the" Appointing Authority". Under the Rules 1980, Rule 111, the penalty of reduction in rank like that of dismissal or removal can also be made only by the State Government or such other officer as may be authorised by the State Government not below the rank of Joint Director. All these Authorities are superior in rank than the Marketing Committee exercising control and supervision on the latter (see: Ss. 54 to 56 of the Act). The controversy as to who should be the Appointing Authority for the purposes of imposition of major penalty as projected herein, is settled by a Full Bench decision of this Court in Dinkar Rao (1979 JLJ 891) wherein it is held: "Where a Sub-Inspector was' absorbed in the services of the integrated State on the integration of the Princely States from one of the integrating States, the appointing authority for purposes of his dismissal shall be the authority who could make appointment at the date of the dismissal." 10. It must be and is, therefore, held that the respondent Marketing Committee was not competent to impose the penalty of reversion on the petitioner. The impugned order (Annexure P-8) is, therefore, illegal being without jurisdiction. 11. Coming to the next question as to the conduction of enquiry, it may be stated at the outset that Article 311 (2) requires a proper departmental equiry, (a) after supplying the delinquent officer a charge sheet; and, (b) then allowing him a reasonable opportunity to meet the allegations contained in the charge sheet. (See: Amarsinglz AIR 1963 SC 1313 ). M.P. Civil Services (CCA) Rules, 1966 and Rules of 1980 (Nos. 110 to 123) are in fact framed to give effect to the constitutional mandate contained in Article 311(2). The expression "reasonable opportunity" in Article 311 (2) has been interpreted to mean natural justice. In the words of the Supreme Court in Satyavir Singh ( AIR 1986 SC 555 ) : Clause (2) of Article 311 gives a constitutional mandate to the principles of natural justice and the audi alteram partem rule by providing that a civil servant shall not be dismissed or removed from service or reduced in rank until after an inquiry in which he has been informed of the charges against him and has been given a reasonable opportunity of being heard in respect of those charges: If an inquiry held against a civil servant under Art. 311 (2) is unfair or biased or has been conducted in such a manner as not to give him a fair or reasonable opportunity to defend himself, the principles of natural justice would be violated; but in such a case the order of dismissal, removal or reduction in rank would be bad as contravening the ex press privisons of Art. 311(2)... 12. I have perused the proceedings and the evidence recorded in the instant case by the Enquiry Officer. Firstly it is seen that along with the charge sheet no list of witnesses or documents proposed to be produced in evidence was supplied to the petitioner-employee. The entire proceeding was completed on 20.4.1994 and a very strange procedure was adopted by the Enquiry Officer. He instead of examining the witness of the Department, recorded statement of the delinquent officer the petitioner on every charge. The entire proceeding was completed on 20.4.1994 and a very strange procedure was adopted by the Enquiry Officer. He instead of examining the witness of the Department, recorded statement of the delinquent officer the petitioner on every charge. After recording of his statement on a particular charge he questioned one or more witnesses on the point and recorded a memorandum thereof with his own comments thereon. This was done with respect to every charge one by one. Statements of the witnesses were not recorded in their own language and in first form. No opportunity of cross - examination of these witnesses was given to the delinquent officer. This strange procedure adopted by the enquiry officer was contrary to the Rules and did not conform the requirement of Article 311(2) of the Constitution. It cannot be said that the delinquent petitioner was allowed a reasonable opportunity to meet the allegations, contained in the charge sheet against him. There was violation not only of the Rules but also of the mandate contained in Article 311 (2). On this count also the enquiry was vitiated and the order of reversion founded on that enquiry is, therefore, unsustainable in law. 13. As regards the allegation of motive, no material is placed on record except that the earlier order of discharge passed against the petitioner was set-aside by the Civil Court, But, this by itself is not sufficient to infer that the order of institution of enquiry was mala-fide. 14. For the foregoing reasons I allow this petition and quash the impugned order of reversion (Annexure P-8). Even while doing so it is made clear that the respondent - Department shall be free to initiate fresh action against the petitioner if so warranted on facts and in law. Needless to add that any such action should conform the requirement of law. 15. No order is made as to the costs of this petition.