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Madhya Pradesh High Court · body

2005 DIGILAW 458 (MP)

P. N. Mishra v. State of M. P.

2005-03-31

RAJENDRA MENON

body2005
ORDER Menon, J.--1. Challenging the order of punishment dated 27.5.2000 passed by the disciplinary authority on 27.5.2000 imposing penalty of witholding 20% of the pension, so also aggrieved by non-payment of his gratuity, petitioner has filed this petition. 2. In the year 1993, petitioner was holding the post of Dy. Collector, in Distt. Teekamgarh. Commissioner, Sagar, issued a charge-sheet to, the petitioner on 27.8.1993 vide Annexure A-2 along with statement of allegations Annexure A-3 with regard to misconduct committed by the petitioner in the matter of issuing 32 arms licences to various persons in an unauthorised manner without proper procedure being followed in the matter of seeking a report from the police authorities, getting proper character verification done and without sanction of the competent authority and in contravention of Government circulars and niles. Petitioner submitted his reply to the aforesaid, departmental enquiry was conducted and on the basis of the report of the enquiry officer, show cause notice was issued, petitioner submitted his reply to the same and thereafter by the impugned order, as retired during the period of enquiry, after consultation Public Service Commission, penalty has been imposed upon the petitioner. Shri R.D. Jain, inviting my attention to rule 14(2) read with rule 2(d) of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, hereinafter referred to as the 'Disciplinary and Appeal Rules', argued that under the aforesaid rules, charge-sheet can be issued only by the disciplinary authority and disciplinary authority of the petitioner is the State Government as per Schedule to the Disciplinary and Appeal Rules and, therefore, it is argued that action taken for initiating departmental enquiry by the Commissioner is not justified. Thereafter, referring to rule 9 of the M.P. Civil Services Pension Rules, 1976, Shri Jain argued that no notice for proceeding under the aforesaid rules were issued to the petitioner. It was further submitted by Shri Jain that after retirement, penalty under rule 9 can be imposed only if financial loss is caused to the Government. In the present case, no financial loss is said to have been caused and, therefore, the provisions of rule 9 are not applicable. It is further argued that Enquiry Officer was appointed vide Annexure A-4 by the Commissioner. Commissioner not being the disciplinary authority, he is not empowered to appoint enquiry officer. In the present case, no financial loss is said to have been caused and, therefore, the provisions of rule 9 are not applicable. It is further argued that Enquiry Officer was appointed vide Annexure A-4 by the Commissioner. Commissioner not being the disciplinary authority, he is not empowered to appoint enquiry officer. Shri Jain further submitted that when the enquiry report was submitted, Commissioner had given his comments on the report and the action for imposing penalty has been taken on the basis of the comments of the Commissioner. However, the comments of the Commissioner have not been forwarded to the petitioner. Inviting my attention to the averments made in para 6.4 and 6.11 of the petition and also referring to the recommendations made initially for recovery of 5% from the pension of the petitioner, Shri Jain argued that the proposed penalty of 5% has been enhanced to 20% after consultation withe the Public Service Commission, and Public Service Commission has no authority to make such recommendation. Placing reliance on a judgment of this Court in the case of State Bank of India v. Arvind Kumar Shukla [ 1998(2) JLJ 103 ] so also a judgment of the Supreme Court in the case of Anil Podegaonkar v. Bharat Petroleum Corporation and others [ 2004(2) MPLJ 15 ]. Shri Jain argued that the punishment imposed and the action taken ignoring the statutory provisions is unsustainable. 3. Shri Brijesh Sharma, learned counsel for the respondents, inviting my attention to the amendment made to the Schedule to the Disciplinary and Appeal Rules with effect from 1983 vide Annexure R-3, submitted that the Divisional Commissioner having been delegated with the power and disciplinary authority, was competent to impose the penalty as per, the Disciplinary Appeal Rules, contention of the petitioner with regard to issuance of charge-sheet and appointment of enquiry officer by incompetent person is said to be unsustainable. Thereafter, referring to the provisions of rule 9(1) and rule 9(2) (a) of the Pension Rules. Shri Brijesh Sharma argued that once the disciplinary proceedings commenced during the service period of an employee then even after his retirement the enquiry continues under the provisions of rule 9 by virtue of the statutory provisions and, therefore the contention that no notice under rule 9 of the Pension Rules is issued, is unsustainable. Shri Brijesh Sharma argued that once the disciplinary proceedings commenced during the service period of an employee then even after his retirement the enquiry continues under the provisions of rule 9 by virtue of the statutory provisions and, therefore the contention that no notice under rule 9 of the Pension Rules is issued, is unsustainable. Thereafter, referring to the findings of the enquiry officer, the show cause notice issued and the order passed, it was argued by Shri Sharma that action having been taken in accordance with law, no interference is called for. As far as loss of revenue to the Government is concerned, referring to the findings recorded with regard to charge No.3 as per report of the enquiry officer, Shri Sharma pointed out that it has been specifically held by the enquiry officer in its finding that while receiving applications for grant of arms licence, petitioner has not taken care to get the fee deposited as per rules and as fees in 32 cases have not been deposited, it has caused pecuniary loss to the Government. Accordingly, it is argued that no case for interference is made out. 4. I have heard learned counsel for the parties and perused the records. 5. As far as objection with regard to competency of the Commissioner to initiate disciplinary proceedings by issuing charge-sheet and by appointing enquiry officer is concerned, rule 2(d) of the Disciplinary and Appeal Rules defines a disciplinary authority to mean the authority competent under these Rules to impose any of the penalties specified in rule 10. Thereafter, appointing authority for Class I and Class II posts is prescribed in rule 7 and proviso to said rule provides that State Government may by general or special order, subject to such conditions as may be specified, delegate to any other authority the power to make such appointments. Rule 12 of the Disciplinary Appeal Rules contemplates that the Government may impose any penalties specified in rule 10 on any Government servant. Thereafter, sub-rule 3 of rule 14 contemplates that when it is proposed to hold an enquiry against a Government servant, it is the disciplinary authority who shall draw or cause to draw up the imputation of charges. Rule 12 of the Disciplinary Appeal Rules contemplates that the Government may impose any penalties specified in rule 10 on any Government servant. Thereafter, sub-rule 3 of rule 14 contemplates that when it is proposed to hold an enquiry against a Government servant, it is the disciplinary authority who shall draw or cause to draw up the imputation of charges. Even though learned counsel for the petitioner had argued that appointing authority and disciplinary authority of the petitioner is the State Government, but a perusal of the aforesaid rules clearly indicates that disciplinary authority can be the authority who is empowered on this behalf by general or special order of the Governor. Available on record is a Gazette notification Annexure R-3 dated 23rd April, 1983, by which Schedule to the Disciplinary and Appeal Ruieshas been amended. By the aforesaid amendment, for the post of Deputy Collector. appointing authority is notified as the State Government and the authority competent to impose any of the penalties under rule 10 have been notified to be the State Government and the Divisional Commissioner. It is, therefore, clear from the notification that under these rules, Divisional Commissioner has been, delegated with the powers by the Governor to act as the disciplinary authority and the appellate authority has been notified as the State Government. A combined reading of all the rules as referred to hereinabove along with notification Annexure R-3 clearly indicates that Commissioner is empowered to issue charge-sheet as he is notified as the disciplinary authority in the matter. Accordingly, this objection of the petitioner is clearly unsustainable. 6. As far as question of issuing separate notice for proceedings under Rule 9 is concerned, this argument is also unsustainable. Rule 9 sub-rule 2(a) of the Pension Rules clearly provides that if the departmental proceedings is instituted while the Government servant was in service whether before his retirement or during his re-appointment then even after his final retirement, the proceedings shall be deemed to be continued under this rule and shall be continued and concluded by the competent authority by which they were commenced in the same manner as if the Government servant continues in service. That being the position, as the departmental proceedings had commenced at a time when the petitioner was in service same can be continued under this provision after his retirement and for the said purpose, no seperate notice or order for continuing the proceedings under rule 9 of the Pension Rule is required. 7. As far as argument of the learned counsel with regard to report submitted by the Commissioner to the State Government and non-supply of the aforesaid report to the petitioner is concerned, there is no requirement under the rules to issue such notice to the petitioner. The report of the Commissioner was only his comments on the findings of the enquiry officer and after the enquiry report was submitted by the enquiry officer, i.e. the Collector Sagar on 10.12.1998 holding the petitioner guilty of all the charges levelled against him. The enquiry report was forwarded to the petitioner on 28.12.1998, his explanation was called for, petitioner submitted his reply on.5.2.1999 and thereafter the entire matter was placed before the Government and the punishment was imposed. The aforesaid aspect of the matter is clear from the proceedings available on record and, therefore, merely because comments of the Commissioner was not forwarded to the petitioner, it cannot be said that it amounts to violation of any statutory rule or principles of natural justice on the basis of which the proceedings can be said to have been vitiated. 8. As far as the grounds raised with regard to enhancement of the penalty of reduction of 5% of the pension to 20% as per recommendations of Public Service Commission is concerned, proviso to rule 9(1) of the Pension Rules contemplates that prior to ordering recovery from the pension, Public Service Commission shall be consulted before any final order is passed and in this case, the Public Service Commission had given its recommendations to enhance the penalty from 5% to 20%. This was considered by the Government and accepted. It is the Government which has decided to impose penalty of 20% reduction of the pension and merely because some recommendations were made by the Public Service Commission that does not mean that Government is precluded from imposing the penalty. Government having considered the recommendations of the Public Service Commission and having accepted the same, the same cannot be termed as illegal. 9. Government having considered the recommendations of the Public Service Commission and having accepted the same, the same cannot be termed as illegal. 9. As far as grounds raised with regard to no loss being caused to the Government and, therefore, inapplicability of rule 9 of Pension Rules is concerned, this argument is also misconceived. A perusal of the report of the enquiry officer, dated 10.12.1998, indicates that charge No. 3 against the petitioner was that before issuing the licence, the requisite licence fee as per the Rules were not deposited by the applicants and without collecting the licence fee, issuance of licence is said to be a misconduct committed by the petitioner. This allegation has been proved and, therefore, it is clear that petitioner had issued 32 licences without recovery of licence fee and, therefore, there is pecuniary loss to the Government and, therefore, the requirement under rule 9 of Pension Rules was available. Apart from the aforesaid, learned counsel has not made any other submission with regard to irregularity committed in the matter. Accordingly, finding all the contentions raised to be unsustainable, no case is made out for interference. 10. The judgments cited by learned counsel for the petitioner do not apply in the facts and circumstances of the present case. In the case of Anil Podegaonkar (supra), the finding recorded is that the charge-sheet is issued by an incompetent authority and, therefore, this Court had interfered in the matter. In the present case, as indicated hereinabove, Commissioner is competent to issue the charge-sheet and, therefore, this judgment will not apply. As far as the other case State Bank of India (supra) is concerned, that will also not apply in the facts and circumstances of the present case as action has been taken independently by the State Government and it is not necessary to supply to the petitioner the comments on report of the Commissioner with regard to the findings recorded by the enquiry officer. In this case, the enquiry officer has not exonerated the petitioner and the Disciplinary authority has not taken a view different from the views of enquiry officer. Enquiry officer having held that petitioner is guilty of the charges levelled against him, the judgment relied upon by Shri Jain will not apply in this case. 11. Accordingly, in view of the discussions made hereinabove. I find no ground to interfere in the matter. 12. Enquiry officer having held that petitioner is guilty of the charges levelled against him, the judgment relied upon by Shri Jain will not apply in this case. 11. Accordingly, in view of the discussions made hereinabove. I find no ground to interfere in the matter. 12. Writ Petition stands dismissed without any order as to costs. .....................