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Madhya Pradesh High Court · body

2005 DIGILAW 572 (MP)

M. P Sharma v. M. P State Electricity Board

2005-05-03

A.K.MISHRA

body2005
ORDER 1. Petitioner has assailed order (P-1) dated 17.1.2004 imposing punishment of reduction of 10% of the pension for a period of 2 years on the ground of petitioner being found guilty of major misconduct. An order (1)-2) dated 31.3.2004 treating the period 9.9.1996 to 22.4.1997 as dies-non has also been assailed. 2. Petitioner was appointed as Overseer in the year 1962. His superannuation was directed as per order (P-3) dated 26.12.2000. Charge-sheet (P-4) was issued in the year 1998 before his retirement. Petitioner had submitted reply (P-5). Enquiry Officer recorded finding in the report (P-6). Charge No.1 was not found to be proved. With respect to Charge No.2, the Enquiry Officer concluded that the salary which was withdrawn was deposited back by the petitioner, therefore, it would be treated only as- ancial irregularity. Minor misconduct was found, petitioner filed representation (P-7) against the finding recorded, thereafter order (P-1) has been passed by the Disciplinary Authority imposing punishment of reduction of pension by 10% for a period of 2 years. Another order (P-2) has been passed on 31.3.2004 treating the aforesaid period as dies-non. Petitioner has not been paid various retiral dues. Petitioner has also claimed increments. Petitioner has filed representation (P-9), which has not been decided. It is submitted that in view of the findings recorded by the Enquiry Officer, order (P-1) is bad in law. Disciplinary Authority has not disagreed with the Enquiry Officer, as such, reduction of pension by 10% is bad in law. Order declaring the aforesaid period as dies-non has been passed without giving an opportunity of hearing. Absence was beyond control of the petitioner. As the petitioner has retired, he was entitled for full salary for the period of such absence. Salary was wrongly deposited in the account of the petitioner in the course of usual transmission through computer. No motive can be imputed and application for leave for the period salary was paid was filed. 3. In the return filed by the respondents it is contended that the Enquiry Officer had not exonerated the petitioner for the period 9.11.1996 to 22.4.1997 during which he was absent without sanction of leave. Charge No.11 was also found proved. Petitioner obtained the salary for which he was not entitled. Petitioner held higher rank and was the disbursing authority. Punishment has been rightly imposed. The Disciplinary Authority can make its own assessment. Charge No.11 was also found proved. Petitioner obtained the salary for which he was not entitled. Petitioner held higher rank and was the disbursing authority. Punishment has been rightly imposed. The Disciplinary Authority can make its own assessment. Petitioner was placed under suspension owing to the case registered by Lokayukta and challan was filed in the Court. Representation has been rejected as per order (R-1) dated 20.4.2004. There is no bar to conclude the enquiry initiated, before retirement. The Disciplinary Authority has power to differ from Enquiry Officer. Leave cannot be claimed as a matter of right. Period from 9.9.1996 to 22.4.1997 has been rightly ordered to be treated as dies-non. . 4. A rejoinder has been filed by the petitioner. It is submitted that no reasons to differ from the finding recorded by the Enquiry Officer were recorded by the Disciplinary Authority. Two punishments have been imposed, reduction from pension and dies-non. Thus, the orders are bad in law. 5. Shri Rajneesh Gupta, learned counsel appearing for the petitioner has submitted that order of imposition of reduction of 10% pension is a punishment awarded for a major misconduct. Finding has not been recorded in the order (P-1) that major misconduct has been committed. He has further submitted that the Disciplinary Authority has not differed with the findings recorded by the Enquiry Officer, hence imposition of the punishment of reduction of pension is impermissible. Order of treating the period from September, 1996 to April, 1997 is bad in law for the reason that show cause notice has not been given, thus orders (P-1) and (P-2) deserves to be set aside. 6. Shri Vivek Rusia, learned counsel appearing for the respondent Board has submitted that though the Disciplinary Authority has not recorded any reason to disagree with the finding of the Enquiry Officer, nature of the order (P-1) goes to show that punishment of reduction of pension by 10% for a period of 2 years is proper as major misconduct was committed by the petitioner. Order of dies-non is proper as leave was not sanctioned. No interference is called for in this writ petition. 7. First coming to the question of 10% reduction of pension for a period of 2 years. The Enquiry Officer had recorded the finding that Charge No.1 could not be proved. Order of dies-non is proper as leave was not sanctioned. No interference is called for in this writ petition. 7. First coming to the question of 10% reduction of pension for a period of 2 years. The Enquiry Officer had recorded the finding that Charge No.1 could not be proved. With respect to charge No.II following finding was recorded by the Enquiry Officer: "This is related to drawal of salary during the period of September 1998 to December 1998 though the leave is not sanctioned and he remained absent during this period. Sufficient leave was to the credit of the Delinquent though it is not correct as per Rules and Regulations in MPEB but in practice pending sanction of leave officers usually draw their salary for this period. In this case the leave of absence is quite elongated and Delinquent should have got his leave sanctioned by the competent authority before drawal his pay for the month of Oct., Nov. and Dec. 96 and in which he did not attend his duty even for a single day. But for Sept. as he has applied for leave and was present during first few working days, the mistake committed could not be given any severe weightage. But his drawal pay for the month of Oct. & Dec. 96 is not correct in accordance with the Rules and Regulation of the Board. But at the same time the malafied intention of the Delinquent on instruction has deposited back the amount drawn by him or in other words the malafied intention of the Delinquent is not established and it, could not be treated as financial irregularities except that it is a minor misconduct as the act of drawing pay for which service rule does not permit is not in order. To this extent charge is partially proved. It is clear from the findings recorded by the Enquiry Officer as to Charge No.II that case of minor misconduct was found to be proved. Finding has also been recorded that practice prevailed in MPEB that officers usually draw their salary pending sanction of their leave. As the salary for the month of October, November, December was withdrawn, mistake was committed. There was no malafide intention. It is not a case of major misconduct. Finding has also been recorded that practice prevailed in MPEB that officers usually draw their salary pending sanction of their leave. As the salary for the month of October, November, December was withdrawn, mistake was committed. There was no malafide intention. It is not a case of major misconduct. The Disciplinary Authority had passed the following order (P-l) : "ORDER WHEREAS, a departmental enquiry has been conducted against Shri M.P. Sharma, the then E.E. Civil) now retired by• Shri P.K. Shrivastava, the then C.E.(C) now Addl. Secy., MPSEB, under the Board's Order No. 01-12/III/F-1427/3432-33 dated 22.6.2000 for the following charges levelled against him through the charge sheet issued vide No. 01-12/III/F-1427/3009-10 dated 31.07.1998 : CHARGE NO. I : He proceeded on leave and left Head Quarter by submitting application for grant of E.L. from 9.9.96 to 28.9.96. He, however, did not join his duty after 28.9.96 and remained absent willfully and unauthorisedly since 9.9.96 to 22.4.97. CHARGE NO. II : He remained willfully and unauthorisedly absent from duty, however, he has drawn salary for the period from 9.9.96 to 31.12.96 amounting to Rs.49.41l/- and thus committed grave financial irregularity. AND WHEREAS. after completion of the enquiry proceedings. Enquiry Officer Shri PK. Shrivastava submitted his findings and report of the departmental enquiry vide his letter dated 8.3.2002. AND WHEREAS, a copy of the report and findings as submitted by the Enquiry Officer was sent to Shri M.P. Sharma, Retd. Executive Engineer (Civil) for his representation if he desires to submit the same. In response, Shri M.P. Sharma, Retd. Executive Engineer (Civil) has submitted his representation vide his letter dated 2.4.2002 which has been considered by the Board carefully. AND WHEREAS, the Board has considered the findings of the Enquiry Officer and representation over the same submitted by Shri Sharma and exercising the powers conferred under Rule 9 of MPCS (Pension) Rule 1976 and decided to impose a punishment of withdrawing 10% pension for a period of two years on Shri M.P. Sharma, Retd. EE (Civil). NOW THEREFORE, the 10% (Ten Percent) of pension of Shri M.P. Sharma, Retd. Executive Engineer (Civil) is hereby, withdrawn for a period of two years." 8. EE (Civil). NOW THEREFORE, the 10% (Ten Percent) of pension of Shri M.P. Sharma, Retd. Executive Engineer (Civil) is hereby, withdrawn for a period of two years." 8. A bare reading of the order passed by the Disciplinary Authority makes it clear that it had not disagreed at all with the findings recorded by the Enquiry Officer, though it was open to the Disciplinary Authority to differ but in this case Disciplinary Authority had not differed with the conclusions of the Enquiry Officer. 9. Reduction of pension is provided in rule 9(1) of M.P. Civil Services (Pension) Rules, 1976 (hereinafter referred to as Rules of 1976). It is provided that part of the pension can be withdrawn permanently or for specified period in case in any departmental or judicial proceedings, pensioner is found guilty of grave misconduct and negligence. Rule 9(1) of the Rules of 1976 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 pension of the whole or part of any pecuniary loss caused to the Government if, in any departmental or judicial proceeding, the pensioner or is found guilty of grave misconduct or negligence during the period of his service, including service rend upon re-employment after retirement: Provided that the State Public 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 minimum pension as determined by the Government from time to time." A bare reading of rule 9(1) of Rules of 1976 makes it crystal clear that it is only on the ground of grave misconduct or negligence, withholding of pension permanently or for specified period is permissible, not otherwise. In the instant case, conclusions of Enquiry Officer were accepted by the Disciplinary Authority to the effect that it was a case of minor misconduct. No finding was recorded by the Disciplinary Authority that major misconduct was committed. In the absence of finding being recorded as to major misconduct, order of withholding of pension cannot withstand test of judicial scrutiny within the parameter of rule 9(1) of Rules of 1976. Thus, it is liable to be set aside. No finding was recorded by the Disciplinary Authority that major misconduct was committed. In the absence of finding being recorded as to major misconduct, order of withholding of pension cannot withstand test of judicial scrutiny within the parameter of rule 9(1) of Rules of 1976. Thus, it is liable to be set aside. The submission raised at Bar as to requirement to record reasons is not germane as Disciplinary Authority did not disagree with the findings of the Enquiry Officer. 10. Shri Rajneesh Gupta, learned counsel appearing for the petitioner has relied upon the decision of the apex Court in Punjab National Bank and others v. Kunj Behari Misra [ AIR 1998 SC 2713 ] that Disciplinary Authority in case it is proposed to differ, must give opportunity before recording its conclusion different from the Enquiry Officer. He has also pressed into service the decision of the apex Court in State Bank of India and others v. K.P. Narayanan Kutty [ AIR 2003 SC 1100 ] to submit that though Disciplinary Authority can disagree but opportunity of hearing is necessary for, such disagreement. 11. Shri Vivek Rusia, learned counsel appearing for the respondent Board has relied upon the decision rendered in LPA No. 477/04 A.K. Mukherjee v. SECL, in which Division Bench held that even if Enquiry Officer has recorded finding in favour of the appellant, that does not prevent the disciplinary authority from taking a different view provided an opportunity to show cause is given to the appellant. I fully agree with the law laid down but same is of no help to the respondent as Disciplinary Authority did not differ in the instant case from Enquiry Officer. Hence, question of recording reasons and communication thereof does not arise. 12. He has also relied upon in Divisional Controller, KSRTC (NWKRTC v. A. T. Mana [ (2005) 3 SCC 254 ], in which the apex Court held that in case of misappropriation of funds by delinquent employee, is al case of loss of confidence, the order of dismissal was proper. In the instant case misappropriation has not been found. It is a case of withdrawal of salary without sanction of leave, which was deposited back. In the instant case misappropriation has not been found. It is a case of withdrawal of salary without sanction of leave, which was deposited back. The Enquiry Officer has not found it a case of major misconduct only finding of regularity was recorded, it was found that practice prevailed in MPEB of withdrawal of salary pending sanction of leave, hence the decision is of no help to the cause of the respondent. 13. Shri Rusia has submitted that negligence has wide amplitude, it should not he narrowly construed, he relied upon the decision in Municipal Corporation of Greater Bombay v. Shri Laxman lyer and another [ AIR 2003 SC 4182 ]. In the instant case Charge No.1 was not found to be proved. Charge No.II was found to be proved to the extent indicated above. There was no charge of negligence in duty, hence submission raised has no leg to stand in the factual matrix of the instant case. 14. Coming to the second submission treating1he period from 9.9.96 to 22.4.97 as dies-non, as it carries adverse civil consequences, it results into forfeiture of period of service for all purposes, as such, before passing of order of dies-non, petitioner should have been heard. Admittedly, opportunity of hearing had not been granted to the petitioner, as such, order (P-2) treating the aforesaid period as dies-non cannot be allowed to sustain. It is open to the respondent to pass fresh order after hearing the petitioner in accordance with law. 15. Resultantly, writ petitions is allowed. Order (P-l) and (P-2) are hereby quashed. Parties to bear their own costs in incurred of this petition. ...........................