Research › Search › Judgment

Madhya Pradesh High Court · body

2004 DIGILAW 442 (MP)

Ramesh Kumar Nigam v. State of M. P.

2004-05-07

DIPAK MISRA

body2004
Judgment ( 1. ) BY this petition, preferred under Article 226 of the Constitution of India, the petitioner has prayed for issue of a writ of certiorari for quashment of the order of punishment of censure dated 20th July, 2000 contained in Annexure A-1. ( 2. ) THE petitioner was posted as Joint Director of Agriculture (Soil Conservation) (Senior Class-I) in the Directorate of Agriculture, Bhopal during 26-8-1992 to 18-4-2995. He was sent on deputation to the M. P. State Co-operative Apex Bank, Bhopal on 6-4-1995 without his consent and was relieved by the respondent No. 2 Director of Agriculture on 18-4-1995. It is put forth, there was no formal order posting the petitioner in foreign service. The petitioner stood superannuated on 31-12-1995. It is contended that there was no demand from the Apex Bank to the Government for deputation of its officer from Agriculture Department, but as the petitioner was not appreciated by many higher ups, he was lent on deputation. It is set forth that an unfortunate situation cropped up as a consequence of which he could neither remain in the Department of Agriculture nor could he join in the Apex Bank. ( 3. ) ACCORDING to the writ petitioner, in this obtaining factual matrix, he approached the M. P. State Administrative Tribunal (for short the Tribunal) in O. A. No. 204 of 1995 assailing the validity of the order of deputation. The order of deputation based on 6-10-1994 was cancelled by order dated 24-6-1995 while the matter was subjudice before the Tribunal. It is put forth that the respondent No. 1, the then Secretary, Department of Agriculture could not tolerate the brunt of this kind of situation and he put the petitioner under suspension immediately on 24-6-1995 without any valid reason. The petitioner being aggrieved, assailed the order of suspension in the Tribunal in O. A. No. 317 of 1995 and the Tribunal passed an order of stay of suspension and eventually decided in favour of the petitioner. After losing before the Tribunal, the authorities did not immediately reinstate the petitioner but ultimately reinstated on 30th December, 1995, a day before his date of superannuation. The order of reinstatement was not served on the petitioner and that was done after his retirement. It is contended that the period of suspension was not regularised and to avenge themselves, the respondents issued a charge-sheet against the petitioner on 22-12-1995. The order of reinstatement was not served on the petitioner and that was done after his retirement. It is contended that the period of suspension was not regularised and to avenge themselves, the respondents issued a charge-sheet against the petitioner on 22-12-1995. The petitioner submitted his reply and categorically denied all the charges. The reply was not considered and an Enquiry Officer was appointed on 12-2-1998 ignoring the provisions contained in M. P. Civil Service (Pension) Rules, 1976 (for short the Pension Rules ). A reference has been made to the Government circulars how the departmental enquiry ought to be completed within a specified period. It is also contended that there was delay in serving of the charge-sheet; that relevant documents were not supplied; that the enquiry officer was appointed in an absolutely belated manner and the Enquiry Officer submitted his finding after two years on 24-5-2000. It is averred that eventually the petitioner was punished by order contained in Annexure A-1, dated 20-7-2000 with Censure. It is averred that the Enquiry Report was not given to the petitioner and, therefore, the order of punishment is bad in law. It is also put forth that the order of punishment of censure after superannuation is unjustified and illegal. ( 4. ) A counter affidavit has been filed by the respondents contending inter alia that the petitioner while functioning as Joint Director of Agriculture (Soil Conservation) in the Directorate at Bhopal had committed several irregularities and after proper preliminary enquiry, a formal charge-sheet was served on him on 21-12-1995 before his date of superannuation. Thereafter, a disciplinary proceeding was conducted as prescribed under Rule 14 of the M. P. Civil Service (Classification, Control and Appeal) Rules, 1966 (for short the Rules of 1966) and the petitioner was afforded opportunity. The Enquiry Officer recorded a finding holding certain charges partially proved and the Disciplinary Authority agreeing with the report of the Enquiry Officer imposed lenient punishment of censure. It is the stand in the return that Rule 9 of the Pension Rules is not attracted as the disciplinary proceeding was initiated while the petitioner was in service. The Enquiry Officer recorded a finding holding certain charges partially proved and the Disciplinary Authority agreeing with the report of the Enquiry Officer imposed lenient punishment of censure. It is the stand in the return that Rule 9 of the Pension Rules is not attracted as the disciplinary proceeding was initiated while the petitioner was in service. It is admitted in the return that a copy of the enquiry report was not served on the petitioner but the petitioner has not been able to prove that there has been any prejudice caused to him due to non-supply of enquiry report, and in the absence of any prejudice, the question of setting aside the order of punishment does not arise. It is also put forth that the order of punishment is commensurate with the allegations levelled and proved. ( 5. ) A rejoinder affidavit has been filed pressing into service the arbitrary attitude shown by the respondents as well as the non-compliance with the requirement of supplying an enquiry report as a result of which how the petitioner has suffered. ( 6. ) I have heard Mr. Sanjay Singh, learned Counsel for the petitioner and Mr. Rahul Jain, learned Counsel for the respondent State. It is submitted by Shri Singh that the order of punishment is vitiated as it was initiated belatedly and no enquiry report was given to the petitioner. It is also contended that there was malafide in such initiation and it was done to harass him. It is his further contention that under Rule 9, such a step is not permissible. Shri Rahul Jain, learned Counsel for the State, per contra has submitted that the petitioner could have preferred an appeal against the order of punishment but he has not done so. It is also urged that non-supply of the enquiry report does not ipso facto create a dent in the order of punishment and it was required on the part of the petitioner to prove prejudice. The learned Counsel has submitted that the proceeding which was initiated was within the para-meters of Rule 9 and hence, it can not be found fault with. ( 7. The learned Counsel has submitted that the proceeding which was initiated was within the para-meters of Rule 9 and hence, it can not be found fault with. ( 7. ) THOUGH a plea has been taken by the learned Counsel for State that the petitioner has not availed the alternative remedy of appeal and has straightway approached this Court, I am not going to enter into that aspect, inasmuch as the petition was admitted by the Tribunal in 2000 and it would not be appropriate to throw the petition at this juncture on the ground of availability of alternative remedy. ( 8. ) THE next facet that requires consideration is whether under Rule 9 of the Pension Rules, the proceedings could be continued. Rule 9 of the Pension Rules reads thus :-" ( 9. ) RIGHT of Governor to withhold or withdraw pension:- (1) The Governor reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from the whole or part of any pecuniary loss caused to the Government if, in any departmental pension or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement : Provided that the State Service Commission shall be consulted before any final orders are passed : Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the Rs. 60/ -. (2) (a) The departmental proceeding referred to in Sub-rule (1), if instituted while the Government servant was in service whether before his retirement of the Government servant be deemed to be proceeding under his rule and shall be continued and concluded by the authority by which they were commenced, in the same manner as if the Government servant had continued in service : Provided that where the departmental proceedings are instituted by an authority subordinate to the Governor, that authority shall submit a report recording its findings to the Governor. (b) The departmental proceedings. (b) The departmental proceedings. If not instituted while the Government servant was in service whether before his retirement or during his re-employment:- (i) shall not be instituted save with the sanction of the Governor; (ii) shall not be in respect of any event which took place more than four years before such institution; and (iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings- (a) in which an order of dismissal from service could be made in relation to the Government servant during his service in case it is proposed to withhold or withdraw a pension or part thereof whether permanently or for a specified period; or (b) in which an order of recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders could be made in relation to the Government servant during his service if it is proposed to order recovery from his pension of the whole or part of any pecuniary loss caused to the Government. (3) No, judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose, or in respect of an event which took place, more than four years before such institution. (4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under Sub-rule (2), a provisional pension and death-cum-retirement gratuity as provided in Rule 56 or Rule 64, as the case may be, shall be sanctioned : Provided that where pension has already been finally sanctioned to a Government servant prior to institution of departmental proceedings, the Governor may, by order in writing, withholding, with effect from the date of institution of such departmental proceedings, fifty per cent, the pension so sanctioned subject however that the pension payable after such withholding is not reduced to less than Rs. 60/- per month in case of invalid pension and Rs. 60/- per month in case of invalid pension and Rs. 40/- per month in other cases : Provided further that where departmental proceedings have been instituted prior to the 25th October, 1978, the first proviso shall have effect as if for the words "with effect from the date of institution of such proceedings" the words "with effect from a date not later than thirty days from the date aforementioned", had been substituted : Provided also that- (a) If the departmental proceedings are not completed within a period of one year from the date of institution thereof, fifty per cent, of the pension withheld shall restored on the expiration of the aforesaid period of one year; (b) If the departmental proceedings are not completed within a period of two years from the date of institution, the entire amount of pension so withheld shall stand restored on the expiration of the aforesaid period of two years; and (c) If in the departmental proceedings final order is passed to withhold or withdraw the pension or any recovery is ordered the order shall be deemed to take effect from the date of institution or departmental proceedings and the amount of pension since withheld shall be adjusted in terms of the final order subject to the limit specified in Sub-rule (5) of Rule 43. (5) Where the Government decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not be made at a rate exceeding one third of the pension admissible on the date of retirement of a Government servant. (6) For the purpose of this rule- (a) departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or of the Government servant has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to be instituted- (i) in the case of the criminal proceeding, on the date on which the complaint or report of a police officer, or which the Magistrate takes cognizance is made, and (ii) in the case of civil proceedings, on the date of plaint is presented in the Court. " On a perusal of the same, it is seen that it is applicable to the retired employees but in the present case, the petitioner was served with the charge-sheet before retirement. Allegations and counter allegations were made with regard to validity of the charge-sheet but I am not inclined to enter into said aspect as the factual score clearly exposits that the enquiry proceeding was initiated before the date of retirement of the petitioner. 9. The next argument relates to non-supply of enquiry report. It is admitted by the respondents that the Enquiry report was not supplied. The heart of the matter is whether any prejudice has been caused to the petitioner because of non-supply of enquiry report. In the meantime, the enquiry report has been served. The petitioner has not pleaded how prejudice has been caused. In the case of Managing Director, ECIL v. B. Karunakar ( AIR 1994 SC 1074 ), the Apex Court had held as under :-"hence, in all cases where the Inquiry Officers report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/tribunal should not interfere with the order of punishment. The Court/tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished. The Courts should avoid resorting to short cuts. Since it is the Courts/tribunals which apply a judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not internal appellate or revisional authority), there would be neither a breach of principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court, Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. It is only if the Court, Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Thereafter following the above procedure, the Court/tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the enquiry, by placing the employee under suspension and continuing the enquiry from the stage of furnishing him with the report. " In view of the aforesaid proncouncement of law, it can not be said that non-service of Enquiry Report, ipso facto, could be treated to be prejudicial vitiating the order of punishment. In the case at hand, charges 2 and 3 have been partially proved. The charges 2 and 3 when translated in English read as under :- " (2) After Shri Nigam was placed under suspension, he kept the keys of almirahs with himself and did not hand over the files kept in his custody, details of which are given in the statement of charges, to his subordinate officer which created hindrance in the discharge of the Government work and thus Shri Nigam acted in contravention of the M. P. Civil Service Conduct Rules. (3) Shri Nigam, before he was placed under suspension, was directed by the Joint Director, Agriculture, Bhopal, to conduct enquiry with respect to complaints received against officers/employees, details of which are given in the statement of charges, but he did not submit the enquiry report within the stipulated period of time; and as such, he did not discharge his duties and liabilities. " During the course of argument, the learned Counsel for the petitioner was not able to point out how and what kind of prejudice had been caused to him. I am, therefore, of the considered view that the order of punishment can not be thrown over board on that ground. In view of the aforesaid premises, I do not find any merit in the writ petition. ( 10. ) WITH the aforesaid conclusion, I would have dismissed the writ petition but what has troubled this Court is that the petitioner has also made two further grievances, namely, he was not paid the amount for the period of suspension. In view of the aforesaid premises, I do not find any merit in the writ petition. ( 10. ) WITH the aforesaid conclusion, I would have dismissed the writ petition but what has troubled this Court is that the petitioner has also made two further grievances, namely, he was not paid the amount for the period of suspension. If the suspension order has been quashed by the Tribunal, the petitioner should be paid the whole amount. The said picture is not clear. If the subsistence allowance has not been paid as per rules, the same should be paid. Second aspect which is disturbing is that the departmental proceeding was initiated on 21-12-1995, though the same is disputed by the petitioner. I am disposed to accept the stand of the respondents. The Enquiry Officer was appointed on 12-2-1998 and eventually the punishment was imposed on 20th July, 2000. The charges were not such to take such time. There was no reason to appoint the Enquiry Officer after expiry of almost two years. This lackadaisical attitude of the respondents is unsupportable. It is urged by Shri Sanjay Singh, learned Counsel for the petitioner that due to delay, the petitioner was not able to get the full pensionary benefits. True it is, when a departmental enquiry is pending, full pension is not payable but appointment of the Enquiry Officer after two years and continuance of the proceeding thereafter for three years does not stand to reason. If I am allowed to say so, common sense does not give consent to the same. I have been apprised at the Bar that the petitioner is being given full pension because the punishment of censure does not affect pension. Keeping in view the delay caused by the respondents, which is indubitably not exonerable, I am inclined to direct that the petitioner should be paid interest at the rate of 9% per annum for a period of three years on the delayed sum of pension. This relief is granted as Shri Sanjay Singh made a prayer for moulding the relief as he had only stated in the petition, how the petitioner has been affected by the delay in respect of getting pension and how he has suffered financial hardship. ( 11. ) THE merit petition is allowed to the extent indicated herein above. There shall be no order as to costs.