Research › Search › Judgment

Madhya Pradesh High Court · body

2007 DIGILAW 220 (MP)

STATE OF M. P. v. BRIJESH NIBORIA

2007-02-22

ABHAY GOBIL, RAJENDRA MENON

body2007
ORDER Abhay Gohil, J. In this Writ Petition filed under Article 227 of the Constitution of India. State has challenged the order dated 16-11-2001 passed by the M.P. State Administrative Tribunal. Bench at Gwalior in O.A. No. 582/2000 and has prayed tor issuance of a Writ of Mandamus/Certiorari or any other writ order, or direction in the nature of writ for quashing the aforesaid order. Brief facts of the case are that Respondent Brijesh Niboria was appointed as Sub Engineer in the Water Resources Department and was posted as Sub Engineer in Sub Division No. 1 Water Resources Department Ambah District Morena in the year 1986. Chief Engineer Yamuna Kacchar Resources Department served a charge-sheet by letter dated 23-12-1991 to the Respondent Brijesh Niboria on the allegations that during the period when he was in-charge Sub Engineer of the Lining work of canal construction and pacca outlet of Chain No. 312 to 467 of Ambah Saghan Development Division No. 1 Porsa District Morena for the period 3-4-1986 to 20-2-1989, he committed certain financial irregularities, which has caused loss of Rs. 54,500/- to the State Government and as such departmental enquiry was proposed to be conducted against the Respondent as well as against one Shri N.K. Jain also. Reply of the charge-sheet was filed and thereafter enquiry was conducted by the Superintending Engineer. Lower Chambal Circle. Gwalior as Enquiry Officer. The Enquiry Officer submitted its report on 2-7-1993. On the basis of enquiry report, the disciplinary authority passed an order of punishment on 20-10-1993 and imposed the penalty of censure on the Respondent. A copy of the order of punishment inflicted on the Respondent was endorsed to the State Government as well as to the Engineer-in-Chief. Immediately after receipt of the copy of the order dated 20-10-1993. the State Government in exercise of the powers conferred under Rule 29 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as 'Rules of 1966'). by order dated 7-4-1994 decided to review the order of punishment dated 20-10-1993 passed by the Chief Engineer. Yamuna Kachhar Water Resources Department. After the service of aforesaid order dated 7-4-1994. a fresh show cause notice dated 16-8-1994 along with copy of enquiry report was served on the Respondent and it was proposed that why the penalty of stoppage of two increments with cumulative effect be not imposed on the Respondent. Yamuna Kachhar Water Resources Department. After the service of aforesaid order dated 7-4-1994. a fresh show cause notice dated 16-8-1994 along with copy of enquiry report was served on the Respondent and it was proposed that why the penalty of stoppage of two increments with cumulative effect be not imposed on the Respondent. It is the case of the State Government that after taking into consideration the reply of the Respondent, report of the enquiry officer as well as documents on record, the State Government, who was also the Appellate Authority in the case of the Respondent, decided to impose the punishment of stoppage of two increments with cumulative effect to the Respondent and referred the matter for concurrence to the Public Service Commission as well as to obtain the approval from the Council of Ministers. After receipt of concurrence and approval, the State Government passed an order of punishment dated 4-9-1999. against which the Respondent preferred Original Application before the M.P. State Administrative Tribunal, which was registered as O.A. No. 582/2000. The aforesaid O.A. came up for final hearing on 16-11-2001. On that day learned Counsel for the Respondent Brijesh Niboria took preliminary objection and submitted before the Tribunal that the review order dated 4-9-1999 imposing punishment has not been passed within a period of six months from 22-10-1993. as per the provisions of Rule 29 Sub-rule (1)(iii) of the M.P.C.C.A. Rules, 1966 and the proceedings were not initiated and they were also not completed within six months. Thereafter, considering the preliminary submissions raised by the learned Counsel for the Respondent/applicant Brijesh Niboria, the learned Tribunal upheld the submissions, allowed the petition and quashed the impugned order of punishment dated 4-9-1999. which was Annexure A/9 in the O.A., against which the State has filed this Writ Petition. We have heard the learned Counsel for the parties and considered their submissions. Shri Vivek Khedkar. learned Government Advocate appearing for the Petitioner State submitted that the Tribunal has committed grave error in passing the impugned order dated 16-11-2001. The order of review was passed on 7-4-1994 and that was within a period of six months as the earlier order of punishment was passed on 27-10-1993. As per Rule 29(1)(iii) of the Rules of 1966. the Appellate authority within six months of the order proposed to be reviewed has taken a decision to review the aforesaid order. The order of review was passed on 7-4-1994 and that was within a period of six months as the earlier order of punishment was passed on 27-10-1993. As per Rule 29(1)(iii) of the Rules of 1966. the Appellate authority within six months of the order proposed to be reviewed has taken a decision to review the aforesaid order. The decision was rightly taken on 7-4-1994 that was within a period of six months and the Tribunal has not assigned any reason that why he has considered the date of final order 4-9-1999 instead of date of review order dt. 7-4-1994. His submission was that the intention of the Rule is that the Appellate Authority should take the decision of review within a period of six months and not to conclude the proceedings after review for enhancement of punishment within a period of six months. Therefore, the order passed by the Tribunal is bad in law and liable to be set aside. In reply Shri Manoj Jeurkar, learned Counsel appearing for the Respondent. Brijesh Niboria supported the impugned order passed by the Tribunal on 16-11-2001 and his submission is that though the Tribunal has not passed the order elaborately but the Tribunal was of the view that the whole exercise of reviewing the order and awarding the final punishment should be done within a period of six months and same is the intention of Rule 29(1)(iii) of the M.P. C.C.A. Rules of 1966, therefore order is perfectly legal and justified and there is no scope for interference and the petition filed by the State is liable to be dismissed. Having heard the learned Counsel for the parties, we have perused the provision of Rule 29 of the Rules of 1966, which is quoted below: 29(1) Notwithstanding anything contained in these rules except Rule 11.- (i) the Governor, or (ii) the Head of a Department 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 date of the order proposed to he reviewed; or (iv) any other authority specified in this behalf of 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, alter 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 to or 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 such 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 unless- (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 I. 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 commenced 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. According to aforesaid Rule 29(I) (iii) of the Rules of 1966. the Appellate Authority, within six months of the date of the order proposed to be reviewed, may at any time, either on his or its own motion or otherwise call for the records of any enquiry and revise any order made under these rules. Similar question came before the Full Bench of Central Administrative Tribunal. Ernakulam in the case of K.G. Mohanan v. G.M., Telecommunication Ernakulam and others. (1991) 15 ATC 920 wherein the Tribunal after considering the Central Government C.C.A. Rules, 1965, which are having the same language of M.P. Rules of 1966 and administrative instructions issued by the D.G. P and T in 1972 and 1973 held that ordinarily the Appellate Authority is expected not only to call for the records of any enquiry within six months of the date of the order of the disciplinary authority proposed to be revised but also to pass the order in revision within a reasonable time. It may perhaps even invoke the provisions of Rule 31 in appropriate cases for enlarging the time for disposal of the revision proceedings. The Full Bench has also considered a decision of the seven member Bench of the Hon'ble Apex Court in the case of S.S. Rathore Vs. It may perhaps even invoke the provisions of Rule 31 in appropriate cases for enlarging the time for disposal of the revision proceedings. The Full Bench has also considered a decision of the seven member Bench of the Hon'ble Apex Court in the case of S.S. Rathore Vs. State of Madhya Pradesh, and has held that the correct legal position as regards the power of the Appellate Authority while exercising the power of revision is that it is incumbent on the said authority to call for the records of the enquiry and initiate the proceedings by issue of a notice to the Government servant concerned within six months of the date of the order proposed to be revised, subject to what is stipulated in Rule 29(2). The said authority is also expected to dispose of the revision proceedings within a reasonable time and it was held that to that extent decision of the Hyderabad Bench in Rajaram case does not lay down the correct interpretation of the scope of Rule 29(1)(v) of the CCS (CCA) Rules. 1965. In the case of State of M.P. v. Prahlad, 1988 (1) MPWN 113 , this High Court has also held that plain reading of the rule indicates that it fixes outer limit of six months to be calculated from the date of the order of the disciplinary authority when the power may be exercised by the Appellate Authority. The use of word "may" only indicates that it is not compulsory for him to exercise this power even within the period of six months. The Court has held that the Rule does not vest in him any power after the expiry of period of six months. Therefore, the question before the Single Judge of the High Court of Madhya Pradesh was that whether the order can be reviewed under Rule 29(1) of the Rules of 1966 within a period of six months. Therefore, from the aforesaid judgment it is clear that the Appellate Authority may take decision and order proposed to be reviewed can be done within a period of six months and not beyond that, but that does not mean that after the review the entire exercise about the enhancement or confirmation, modification or setting aside the order should be completed within six months for that S.C. and Full Bench of CAT has held that it should be in reasonable time. We have also considered the Division Bench decision of this Court in the case of State of M.P. v. Om Prakash Gupta, 2001 (2) MPLJ 690 , in which the similar question was involved before the Division Bench of this Court and it was held that a perusal of the aforesaid Rule clearly indicates that the provision relating to limitation of 6 months is in respect of the authorities referred to the Rule 29(1)(i)(ii) and (iii) of the Rules. The use of word "or" in the aforesaid rule is indicative of the fact that the power of review could be exercised by any of the authorities referred to the Rule 29(l)(i)(ii) and (iii) of the Rules within a period of 6 months and not thereafter. This clearly indicates that decision regarding review of the order should be taken within a period of six months and that is the outer limit for that. Though the question before the Division Bench was not whether the final order should be passed within a period of six months, but after considering the provisions of Rule 29 of the Rules of 1966. we are of the view that Rule does not envisage that final decision should be taken within a period of six months as has been held by the Tribunal in the impugned order dated 16-11-2001 and argued by learned Counsel for the Respondent because once the decision is taken to review the order, then a detailed procedure is required to be followed, which has been mentioned in Rule 29(1)(iv)(a), (b), (c), (d). After review, the authority may confirm, modify or set aside the older; or. confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or 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 pass such other order as it may deem fit. If after the review of the order, case is remitted for further enquiry, then certainly the same cannot be completed within a period of six months. Therefore, the aforesaid rider of six months cannot be made applicable for passing the final order after review. If after the review of the order, case is remitted for further enquiry, then certainly the same cannot be completed within a period of six months. Therefore, the aforesaid rider of six months cannot be made applicable for passing the final order after review. It can only be held that the Appellate Authority shall take a decision within a period of six months about reviewing the order, In this ease the decision was taken by the State Government on 7-4-1994. in the order dated 7-4-1994 it has been mentioned that the State Government exercising powers under Rule 29 proposed to review the order dated 27-10-1993 by which the penalty of censure was imposed on the incumbent. This order indicates that clear decision was taken by the authority on 7-4-1994 about reviewing the earlier order dated 27-10-1993. which was within a period of six months. But the learned Tribunal considering the period of six months has neither considered the order dated 7-4-1994 nor assigned any reason whether the whole exercise till imposing the final punishment is to be completed within a period of six months, therefore we find that the order passed by the Tribunal is not a reasoned order and the same has been passed without considering the effect of Rule 29(1)(iii) of Rule of 1966 and also without considering the effect of order dated 7-4-1999 by which the decision was taken by the State Government (Appellate Authority) to review the order. As a result of the aforesaid discussion, we find that the Tribunal has not passed a reasoned order and has not correctly considered the provisions of Rule 29(1)(iii) of Rules of 1965 and has decided the case only on the point of limitation and not on merits. Therefore, the same is liable to be set aside. Accordingly, order dated 16-11-2001 passed by the Tribunal is set aside. As a consequence of setting aside the order of the Tribunal, the O.A. has to be remanded for deciding the same on merits as the Respondent has also challenged the final order dated 4-9-1999. which has not been decided by the tribunal. Therefore OA is remanded back to the Tribunal for deciding the same on merits. As a consequence of setting aside the order of the Tribunal, the O.A. has to be remanded for deciding the same on merits as the Respondent has also challenged the final order dated 4-9-1999. which has not been decided by the tribunal. Therefore OA is remanded back to the Tribunal for deciding the same on merits. Admittedly, in the meantime after abolition of the Tribunal, the cases have been transferred to the High Court, therefore now the O.A. has to be registered as Writ, Petition and has to be placed before Writ Court for its decision on merits. Accordingly, we direct the registrar to register the aforesaid O.A. as Writ Petition and matter be placed before the Writ Court for deciding the same on merits. With the aforesaid directions, this petition is finally disposed of. Order accordingly.