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Madhya Pradesh High Court · body

2006 DIGILAW 1176 (MP)

M. K. RAI v. STATE OF M. P.

2006-10-06

S.L.KOCHAR

body2006
ORDER S.L. Kochar, J. By this common order, both the petitions are being decided. Petitioner has questioned in these petitions the impugned order (Annexure P.1) dated 16th March, 2005 issued by respondents whereby minor penalty of Censure was imposed upon him as per Rule 31(1) of the Madhya Pradesh Municipal Service (Executive) Rules, 1973 (for short "the Rules") by virtue of power prescribed under Rule 32(1) and for quashment of impugned order of respondents dated 26-3-2004 (Annexure P.1) in WP(s) No. 1561/2005. The necessary facts for disposal of both the petitions are as follows: That the petitioner was Chief Municipal Officer posted at Nagar Palika, Datia in the year 1991. Because of irregularities committed by him he was served with charge-sheet on 25-1-1991. Petitioner submitted his reply and on this reply respondents sought opinion from Dy. Director, Urban Administration and Development, Gwalior Region. According to the opinion furnished by Dy. Director, it is said that petitioner without calling Tender, started work and also got its completion as per announcement made by concerned Minister and Collector. If petitioner would have called Tender, the work would have not been completed as announced by the concerned Minister. The petitioner performed work as per direction issued by the Administrator but the charge levelled against the petitioner is that he should have apprised about Rules and direction to the President but work was done after obtaining order from the President. It is also said in the opinion that petitioner suspended the employees because of their misconduct and continuous non-obedience to have Administrative control over them, the petitioner followed the direction for suspension as given by the Administrator. In the impugned order (Annexure P.1) it is also said that on the aforesaid grounds, the Dy. Director, Urban Administration and Development, Gwalior Region held the petitioner responsible for committing partial misconduct and on the basis of the opinion, the show cause notice dated 31-5-2004 was issued to the petitioner for filing reply. Petitioner submitted the reply dated 5-6-2004. On consideration of the reply of the petitioner, it was found that two works/projects valuing Rs. 90,000/- were completed after due administrative approval but petitioner did not follow the required procedure, therefore, the allegation/charge levelled were found partly true against him. Petitioner submitted the reply dated 5-6-2004. On consideration of the reply of the petitioner, it was found that two works/projects valuing Rs. 90,000/- were completed after due administrative approval but petitioner did not follow the required procedure, therefore, the allegation/charge levelled were found partly true against him. In the impugned order (Annexure P.1) dated 26th March, 2004, the reply of the petitioner was rejected on the ground that same was not acceptable satisfactorily and finally the respondent held the petitioner responsible for misconduct as per Rule 32(1) of the Rules and minor punishment of Censure has been awarded to him as per Rule 31(1) of the Rules. Learned Counsel for parties agree on the point that against the impugned order (Annexure P.1), imposing minor penalty, petitioner has no other effective alternative remedy and only course open for him is to file this petition. Respondents submitted its reply dated 1-7-2005 and according to him, after receipt of reply from the petitioner dated 27-4-1991, respondents received number of complaints against the petitioner from various sources. Along with previous charge-sheet issued on 25-1-1991, 14 others charges were also under consideration against the petitioner before the answering respondent, therefore, respondent considered it necessary to re-examine the record and obtained opinion of the Director, in the matter. Since the matter was referred for opinion to the Director, the same took time to take decision. After obtaining the opinion from the Director and on due discussion and deliberation, respondents thought it fit to propose withholding of one increment of the petitioner without cumulative effect and for this show cause dated 31-5-2004 was served upon the petitioner. Petitioner submitted the reply of this show cause notice, thereafter on due consideration and effective application of mind, minor penalty of Censure was imposed against the petitioner. The Learned Counsel for respondents emphatically supported the impugned order (Annexure P.l), imposing minor penalty of Censure. He has also submitted that respondent has not committed any illegality or irregularity and order was passed after giving full opportunity of hearing to the petitioner, therefore, according to him, the order stand justified. The petitioner has challenged the impugned order mainly on two grounds, first is that after issuance of charge-sheet dated 25-1-1991, no further action was taken by the respondent, though reply was filed on 27-4-1991. The petitioner has challenged the impugned order mainly on two grounds, first is that after issuance of charge-sheet dated 25-1-1991, no further action was taken by the respondent, though reply was filed on 27-4-1991. The petitioner was never apprised or served with any other charges, if framed by the respondents on the basis of repeated and continuous complaints against the petitioner received by the respondents from different sources. The further say of the Learned Counsel for petitioner is that, though in the reply, it is mentioned that though 14 other charges were made out against the petitioner, but none were disclosed to him. Even in the reply, para five, nature of charges are not mentioned and respondents levelled vague allegations without substantiating the same by filing relevant documents. The Learned Counsel has placed reliance on a Supreme Court judgment passed in case of P. V. Mahadevan vs. MD. T. N. Housing Board, (2005)6 SCC 636 on the point that if the employer is committing inordinate delay in initiating departmental enquiry and not able to assign cogent and reliable reason or explanation for the delay, the disciplinary proceedings are liable to be quashed and employee is entitled to get all the benefits as per service conditions. Having heard the Learned Counsel for parties and after perusing the entire record, this Court is of the opinion that order (Annexure P.1) imposing minor penalty as per Rule 31(i) of the Rules is not sustainable. It is the admitted position between the parties that charge-sheet was issued on 25-1-1991 and reply was filed by the petitioner on 27-4-1991, thereafter no action was taken by the respondents for completion of the departmental enquiry against the delinquent employee. In the reply also, this delay of more than 13 years has not been explained. The reason assigned by the respondents that after issuing charge-sheet and receiving reply, respondents continuously receiving complaints against the petitioner from various sources and 14 other charges were also made out against the petitioner because of which the matter was sent for opinion to Dy. Director, does not appear the sound reason for keeping departmental enquiry pending as long as for 13 years. Director, does not appear the sound reason for keeping departmental enquiry pending as long as for 13 years. As a matter of fact, if this was the situation with the petitioner and the respondents were getting complaints against him, the pending departmental enquiry should have been expedited and also completed as early as possible but instead of doing so, the show cause notice dated 31-5-2004 was issued to the petitioner finding him guilty of commission of partial misconduct and this opinion was formed without completion of departmental enquiry on the basis of charge-sheet issued on 25-1-1991 and without disclosing those 14 other charges to the petitioner. Under this situation, this Court is of the considered view that the very basis of issuing of show cause notice dated 31-5-2004 was illegal and the same was issued without affording an opportunity of hearing and showing cause to the petitioner. Petitioner submitted reply dated 5-6-2004 and thereafter respondents found that petitioner committed misconduct regarding completion of two Work valuing Rs. 90,000/- . Though administrative approval was taken for those works but required procedure was not followed, therefore, the charges levelled against the petitioner in the show cause notice dated 31-5-2004 were found partially true. The respondents, in the impugned order, has nowhere shown as to how and what kind of procedure was not followed by the petitioner for performing sanctioned work. In para two of the impugned order, the respondents has considered the reply submitted by the petitioner in the following words: With the above words, the reply submitted by the petitioner was discarded. No reasons have been assigned by the respondents and no speaking order has been passed for not accepting the reply submitted by the petitioner to the show cause notice dated 31-5-2004 and imposed minor penalty as prescribed in Rule 31(1) of the rules. The Supreme Court in the case of State of West Bengal and Another Vs. Alpana Roy and Others, has observed in paras seven and eight as under: Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court's judgment not sustainable. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court's judgment not sustainable. Even in respect of administrative orders Lord Denning, M.R. in Breen vs. Amalgamated Engg. Union (All ER p. 1154) observed : "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinerry (Dudley) Ltd. vs. Crabtree it was observed : "Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at." Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance. Also See S.L. Kapoor Vs. Jagmohan and Others, In the case in hand, respondents have not assigned any reasons for not accepting the reply submitted by the petitioner and rejected the same saying only that "it is not fully satisfactory". For imposing the minor penalty also, the respondent has to show any good and sufficient reasons which is the condition precedent for imposing penalty under Rule 31. The relevant Rule is extracted hereinbelow: CHAPTER IX-DISCIPLINE AND APPEALS Penalties.-- The following penalties may, for good and sufficient reasons and as hereinafter provided be imposed on a member of the service, viz.: (i) censure; Words good and sufficient are not defined in the Rules. According to Oxford Advanced Dictionary, Good means "of high quality or an acceptable standard" and meaning of sufficient is "enough for a particular purpose". According to Oxford Advanced Dictionary, Good means "of high quality or an acceptable standard" and meaning of sufficient is "enough for a particular purpose". In the light of this meaning of good and sufficient, the authority is under obligation to assign reasons of high quality or an acceptable standard and that must be enough for imposing minor penalty. In case of P. V. Mahadevan (ibid), there was delay of 10 years in initiating of departmental enquiry and department has not given any convincing explanation in respect of delay. The Supreme Court, while considering the earlier judgments passed in case of State of M.P. vs. Bani Singh, 1990 (Supp.) SCC 738 and State of Andhra Pradesh Vs. N. Radhakishan, has held in para 11 as under: Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of inspiring confidence in the minds of the Government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer. In the instant case, the factual and legal position stand on better footing than the cases cited hereinabove. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer. In the instant case, the factual and legal position stand on better footing than the cases cited hereinabove. In the instant case, charge-sheet was filed long back on 25-1-1991 and petitioner filed the reply, thereafter the matter remained standstill and all of a sudden after 13 years, show cause notice dated 31-5-2004 was served to the petitioner saying that he was found guilty for committing partial misconduct on the basis of charges levelled in the charge-sheet and other complaints received in time to time by the respondents against the petitioner on the basis of which 14 charges were made out against the petitioner (as mentioned in the reply of the respondents in para five). The petitioner was not apprised with those 14 charges which were the basis for issuance of show cause notice for imposing minor penalty coupled with the charges mentioned in the charge-sheet dated 25-1-1991. The respondents consumed for passing the impugned order dated 16th March, 2005, in total more than 14 years. During this period, two meetings of DPC (Departmental Promotion Committee) were held and in both the DPCs', decision regarding promotion of petitioner were kept in sealed envelope and same have not yet been opened and conveyed to the petitioner. The Learned Counsel for petitioner submitted that result was not disclosed to the petitioner and not conveyed because of pendency of both the petitions. In view of the aforesaid conspectus of the matter, both the petitions are liable to be allowed. Thus, the same are allowed. In W. P(s) No. 1562/2005 the impugned order (Annexure P.1) imposing minor penalty of Censure is hereby quashed and in WP(s) No. 1561/2005, the relief sought by the petitioner that the result of the both the DPC may be declared and also communicated to him are granted. The respondent is directed to open both the envelopes regarding recommendation of the DPC regarding petitioner, and same be communicated to him forthwith. Original order is kept in WP(s) No. 1561/2005 and a copy whereof be placed in the record of connected WP(s) No. 1562/2005. Final Result : Allowed