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2005 DIGILAW 118 (MP)

Kuber Sharan Singh Chouhan v. State of M. P.

2005-01-24

DIPAK MISRA

body2005
ORDER Dipak Misra, J. 1. By this writ petition the petitioner has called in question the legal validity and propriety of the order dated 1-4-2002 contained in Annexure-A/ll whereby the earlier order dated 19-10-2001 dropping the departmental proceeding has been recalled and to issue a writ of certiorari for quashment of the same and further to issue a writ of mandamus to command the respondents to issue order of promotion in pursuance of the recommendations of the DPC held on 15-10-2001 and further to open the sealed cover of the DPC held in December, 2001 and post him on the post of Superintending Engineer from the date of promotion extended to the respondent No. 3. 2. The facts as have been narrated in the petition need not be adumbrated in detail. What is necessitous to be stated is that a proceeding was initiated against the petitioner under Rule 16 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 [for brevity 'the Rules'] as per Annexure-A/1 dated 9-2-2000. The said proceeding was dropped on 19-10-2001. In the meantime, certain recommendations were given by the DPC for his promotion. When the matter stood thus, on 1-4-2002 vide Annexure-A/11 the order of dropping the proceeding dated 19-10-2001 was recalled and direction was issued to take appropriate action against the petitioner. Thereafter as is revealed a proceeding under Rule 14 has been initiated on 22-10-2002 as per Annexure-A/14. 3. Mr. V. K. Shukla, Learned Counsel appearing for the petitioner has submitted that once the proceeding was dropped after due consideration the same could not have been recalled. It is urged by him that by order of dropping the proceeding as is perceivable from the Annexure-A/9, dated 19-10-2001 is founded on cogent and germane reasons and hence, there was no justification or warrant to pass an order as per Annexure-A/11. In addition contended Mr. Shukla that initiation of a departmental proceeding for major punishment as per Annexure-A/14 is reeked with mala fide and, therefore, unsustainable. 4. Mr. S. K. Yadav, learned Government Advocate for the State has contended that the order which has been recalled can be revived by exercise of power of review under Rule 29 of the Rules and such revival cannot be found fault with. 4. Mr. S. K. Yadav, learned Government Advocate for the State has contended that the order which has been recalled can be revived by exercise of power of review under Rule 29 of the Rules and such revival cannot be found fault with. It is contended by him that lack of jurisdiction which has been vehemently urged by the Learned Counsel for the petitioner is totally without any substance as such power rests with the reviewing authority. Supporting the issue of a charge-sheet under Rule 14 of the Rules propounded Mr. Yadav, considering the totality of facts and circumstances the charge-sheet has been served and when the enquiry is in progress this Court should not enter into merits of this case, whether the charges are manifestly erroneous or not. 5. To appreciate the rivalised submissions raised at the Bar, I have carefully perused the charge-sheet which was initially served on the petitioner. A free translation of the same in English would read as under : It is hereby informed that during the posting as Executive Engineer, Public Works Department, Deosar Division, in the year 1995-96 against certain irregularities a decision is taken to initiate action under Rules 10 and 16 of the Madhya Pradesh, Civil Services (Classification, Control and Appeal) Rules, 1996. The details of misconduct on which the action is proposed is as under : You as an Executive Engineer Public Works Department, Deosar Division vide order No. 108 dated 17-1-1995 No. 20 dated 3-1-1996 and 4142 dated 30- 12-1995 placed an order for supply NP-3 Hume Pipes of different diameter to Laghu Udyog Nigam accordingly, M.P. Laghu Udyog Nigam by an order No. 134219 dated 30-1-1996, No. 134221 dated 30-1-1996 and order No. 13422 dated 30-1-1996 ordered M/s Satna Cement Pipe Works, Rahiya, Distt. Satna to supply NP-3 type of Hume Pipes within 45 days. M/s Satna Cement Pipe Works by letter dated 12-3-1996 informed about the completion of the work order. That by your letter dated 13-3-1996 it was informed that by mistake instead of Type NP-2 Type NP-3 has been mentioned in the letter addressed to the Laghu Udyog Nigam, therefore, NP-2 of the various diameters may be supplied. By your letter dated 26-4-1996 supplier was asked to supply the coller. The Divisional Office has sought the permission for purchasing NP-3 type of Hume Pipe, accordingly, Superintending Engineer, Rewa, accorded its sanction. By your letter dated 26-4-1996 supplier was asked to supply the coller. The Divisional Office has sought the permission for purchasing NP-3 type of Hume Pipe, accordingly, Superintending Engineer, Rewa, accorded its sanction. That your act of passing an order for supply of Type NP-3 Hume Pipe and then in its place for supply of type NP-2 Hume Pipe is an irresponsible act reflecting your intention to cause loss to the firms is an act contrary to Rule 3(1) of the M.P. Civil Service (Classification, Control and Appeal) 1965 Rules for which your are accountable. Since the irregularities are prima facie found on the basis of record and looking to the seriousness of the matter, it is decided to impose a minor penalty as contemplated under M.P. Civil Service (Classification, Control and Appeal) Rules, 1966. Therefore, within 15 days of receiving of this notice you are called upon to show cause why a penalty of stoppage of one increment with non-cumulative effect be imposed. Be it noted that in case no reply is filed within the time limit it will be presumed that you have no submission to make and the State will be at liberty to take decision ex parte. 6. Submission of the Learned Counsel for the petitioner is that the same could not have been recalled and revived and dropping of the proceedings could not have been recalled. 7. Per contra, proponed the learned Government Advocate for the State that in exercise of Rule 29 of the Rules the same can be reviewed. That being the sole crux of the matter, it is appropriate to reproduce Rule 29 of the Rules. It reads as under: 29. 7. Per contra, proponed the learned Government Advocate for the State that in exercise of Rule 29 of the Rules the same can be reviewed. That being the sole crux of the matter, it is appropriate to reproduce Rule 29 of the Rules. It reads as under: 29. (1) Notwithstanding anything contained in these rules except Rule 11 - (i) the Governor; (ii) the head of a department directly under the State Government, in the case of a Government servant serving in a department or office (not being the secretariat), under the control of such head of a department, or (iii) the appellate authority, within six months of the date of the order proposed to be reviewed, or (iv) any other authority specified in this behalf by the Governor by a general or special order, and within such time as may be prescribed in such general or special order may at any time, either on his or its own motion or otherwise call for the records of any inquiry and review any order made under these rules or under the rules repealed by Rule 34 from which an appeal is allowed but from which no appeal has been preferred or from, which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may - (a) confirm, modify or set aside the order; or (b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed, or (c) remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or (d) pass other orders as it may deem fit: Provided that no order imposing or enhancing any penalty shall be made by any reviewing authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose; any of the penalties specified in clauses (v) to (ix) of Rule 10 or to enhance the penalty imposed by the order sought to be reviewed to any of the penalties specified in those clauses, no such penalty shall be imposed except after an inquiry in the manner laid down in Rule 14 and except after consultation with the commission where such consultation is necessary : Provided further that no power to review shall be exercised by the head of department - (i) the authority which made the order in appeal, or (ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him. Explanation. 1 - The powers conferred on the Governor under this sub-rule shall in the case of a Class III or Class IV Government servant serving in a District Court or a Court Subordinate thereto be exercised by the Chief Justice. Explanation II - The powers conferred on the Governor under this rule shall, in the case of Judicial Officers be exercised by the High Court. (2) No proceeding for review shall be commended until after - (i) the expiry of the period of limitation for an appeal, or (ii) the disposal of the appeal where any such appeal has been preferred. (3) An application for review shall be dealt with in the same manner as if it were an appeal under these rules. If the said Rule is understood in proper perspective and the review clause is appreciated, there can be no trace of doubt that the reviewing authority can set aside the order of recall and pass another punishment. In the case at hand, the departmental proceeding was dropped and thereafter another proceeding has been initiated. Another proceeding is sustainable or not, on the facts, cannot be gone into. As far as recall of the proceeding is concerned, definitely no jurisdictional error can be found in it. Submission of Mr. Shukla is that if the order of recall is quashed he would be entitled to get promotion from the date of recommendation. That apart, contended Mr. Shukla, when appropriate reasons are given and this Court would appreciate the facts in proper perspective, there would be no difficulty to arrive at the conclusion that the order of recall was absolutely sustainable. What Mr. Shukla intends this Court to do at this stage is to enter into the arena of facts to appreciate the factual scenario to record a conclusion on the merits of the case. At this juncture, I am inclined to think, it is unwarrantable. When a reviewing authority has recalled the order and the power is within his jurisdictional domain, I am disposed to think the order contained in Annexure-A/l 1 invulnerable and does withstand scrutiny. 8. In view of the aforesaid premised reasons, I do not perceive any merit in this writ petition and the same stands dismissed accordingly without any order as to costs.