Research › Search › Judgment

Madhya Pradesh High Court · body

2006 DIGILAW 307 (MP)

Mahesh Joshi v. State of M. P.

2006-02-27

J.K.MAHESHWARI

body2006
Judgment ( 1. ) THIS petition has been filed impugning the action of the respondents of non-payment of the subsistence allowance to petitioner with effect from 9-10-1997 till today, alongwith interest. ( 2. ) IT is the case of petitioner that he was appointed on the post of Panchayat and Social Education Organizer in the Panchayat and Social Welfare Department, Class III Executive Services, with effect from 1-2-1980. Later on he was promoted on the post of Block Development Officer on 4-10-1986. In the year of 1994, petitioner was reverted to the post of Panchayat and Social Education Organizer and posted at Block Maheshwar in District Khargone. ( 3. ) A charge-sheet dated 7-1-1994 was served on him by respondent No. 2, under Rule 14 of the M. P. Civil Services Classification Control and Appeal Rules, 1966. In the charge- sheet, two charges were levelled against petitioner. During pendency of the Departmental Enquiry petitioner was placed under suspension as per order dated 13-4-1994. The Departmental Enquiry was concluded ex parte and the report of enquiry has also been submitted. Petitioner has submitted the reply of the show- cause notice and thereafter an order of removal from services was passed by respondent No. 2 as per order dated 9-10-1997, Annexure A-6. ( 4. ) PETITIONER has submitted an appeal before respondent No. 1. The respondent No. 1 as per order dated 5-12-1998 allowed the appeal recording the finding that order of removal is unsustainable and the matter remitted back to hold fresh enquiry on charge No. 1 and to pass an order in accordance with law. Thereafter, as per order dated 20-4-1999 an enquiry officer was appointed with a direction to complete the enquiry within a month but no further action was taken by the respondent. Again as per order dated 8-4-2002 the enquiry officer has been changed and the place of enquiry has also been changed with a direction to conclude the enquiry. ( 5. ) THE contention of petitioner is that despite taking such a recourse neither respondents have concluded the Departmental Enquiry nor paid the subsistence allowance which is permissible under Rule 9 (4) of M. P. Civil Services (Classification Control and Appeal) Rules, 1966. ( 5. ) THE contention of petitioner is that despite taking such a recourse neither respondents have concluded the Departmental Enquiry nor paid the subsistence allowance which is permissible under Rule 9 (4) of M. P. Civil Services (Classification Control and Appeal) Rules, 1966. Further, it is contended that after passing an order by the Appellate Authority on 5-12-1998, petitioner is entitled for subsistence allowance with effect from date of issuance of order of penalty till finalisation of the Departmental Enquiry proceedings. Thus non- payment of subsistence allowance initiates the Departmental Enquiry. ( 6. ) RESPONDENTS have filed the return and in the return it is said that, as per the order of Appellate Authority dated 5-12-1998 the order of penalty passed by the Disciplinary Authority. on 7-10-1997 has not been set aside, in specific words, therefore the question of payment of subsistence allowance does not arise. ( 7. ) REFUTING the aforesaid, Counsel for petitioner submits that Appellate Authority has recorded a finding with order passed by the Disciplinary Authority is not in conformity with law and unsustainable and the matter was remitted back to the Disciplinary Authority for holding a further enquiry. The Disciplinary Authority has taken the recourse to hold further Departmental Enquiry as per orders Annexures A-9 and A-10, however, under provision of Rule 9 (4) of Civil Services (Classification, Control and Appeal) Rules, petitioner is entitled for the subsistence allowance. It is further urged that the Appellate Authority while exercising quasi judicial function has held that the order of Disciplinary Authority is not proper. Such findings, having effect to declare the order of Disciplinary Authority non est in law. More so, the Departmental Enquiry proceedings cannot be continued until and unless master and Servant relation survives. In such circumstances, respondent ought to have taken a recourse as specified under Rule 9 (4) of the Civil Services (Classification, Control and Appeal) Rules, otherwise no recourse is permissible for continuation of the Departmental Enquiry. ( 8. ) I have heard learned Counsel for the parties and perused the records. On perusal of the records, it is apparent that as per order dated 9-10-1997, petitioner was removed from the services in exercise of power under Rule 10 (8 ). This order of penalty was challenged before the Appellate Authority by filing a statutory appeal. ( 8. ) I have heard learned Counsel for the parties and perused the records. On perusal of the records, it is apparent that as per order dated 9-10-1997, petitioner was removed from the services in exercise of power under Rule 10 (8 ). This order of penalty was challenged before the Appellate Authority by filing a statutory appeal. The Appellate Authority while passing an order on 5-12-1998 remitted back the matter to the Disciplinary Authority for further enquiry. Appellate Authority has mentioned that the order passed by the Disciplinary Authority is unsustainable. After passing the order by the Appellate Authority the Disciplinary Authority has issued the orders Annexure A-9, dated 20-4-1999 and A-10, dated 8-4-2002 for further enquiry by appointing the enquiry officers. Thus, it is apparent that the Disciplinary Authority has decided to hold a further enquiry. ( 9. ) RETURN was filed long before, however to know the present position of enquiry by the order of this Court, dated 15-2-2006, time was granted to the Counsel for parties to report existing position. Counsel appearing for both the parties are not in a position to apprise the current situation of the Departmental Enquiry. ( 10. ) ON consideration of the aforesaid facts, it is apparent that the order of removal passed by the Disciplinary Authority has been deemed to be set aside by passing order in appeal in exercise of the quasi judicial powers as per order dated 5-12-1998. The Appellate Authority has held that the order passed by the Disciplinary Authority is unsustainable in the eyes of law and the direction was issued to hold a further enquiry into the matter. The Disciplinary Authority has taken a recourse for continuation of the Departmental Enquiry. However, it is to be held that in view of the provision of Rule 9 (4) M. P. Civil Services (Classification, Control and Appeal) Rules petitioner is entitled for the subsistence allowance with effect from the date of his removal, i. e. , 7-10-1997 till conclusion of the Departmental Enquiry. ( 11. ) I have also taken into consideration one more fact which has impressed me to pass such an order. After passing an order of removal by the Disciplinary Authority, Appellate Authority has remitted back the matter. ( 11. ) I have also taken into consideration one more fact which has impressed me to pass such an order. After passing an order of removal by the Disciplinary Authority, Appellate Authority has remitted back the matter. Consequences would be the order of removal shall go otherwise, until and unless master and Servant relation remains in existence holding the Departmental Enquiry further is not permissible. Taking note of this fact and by reading the provision of Rule 9 (4), M. P. Civil Services (Classification, Control and Appeal) Rules, it is to held that petitioner is entitled for subsistence allowance restoring the position as he was having on the date of passing an order of penalty. ( 12. ) IN such circumstances, petition succeeds and is hereby allowed. Respondent is directed to make payment of the subsistence allowance to the petitioner with effect from 9-10-1997, i. e. , date of passing order of removal of the petitioner, till conclusion of the Departmental Enquiry. The period of suspension be regularised as per the result of the Departmental Enquiry. The arrears of the subsistence allowance be paid to the petitioner within four months from today. It is further directed that petitioner is also entitled of interest of such arrears at the rate of 16% per annum. ( 13. ) IN the facts and circumstances of the case there is no order as to costs.