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Madhya Pradesh High Court · body

2008 DIGILAW 1040 (MP)

RAMESHWAR PRASAD TIWARI v. STATE OF M P

2008-08-19

R.S.JHA

body2008
Judgment ( 1. ) THE petitioner has filed this petition being aggrieved by order dated 20-9-2006 by which the concerned authority, in exercise of its power of review under Rule 29 of the M. P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as the Rules of 1966) has reviewed the order dated 7-5-1987 by which the petitioner had been compulsorily retired from service and converted it into an order of termination. ( 2. ) BRIEF facts, leading to the filing of the present petition, are that the petitioner, who was appointed on 16-5-1955 as an Assistant Teacher, was proceeded with departmentally in the year 1985 which ultimately culminated in passing of an order of punishment on 7-5-1987 by imposing a punishment of compulsory retirement. The aforesaid punishment was imposed upon the petitioner as the allegations of producing a false certificate regarding his qualification were found to be established against him. The authority while imposing the aforesaid punishment, has clearly stated that though the misconduct of the petitioner was of a serious nature, but as he had already rendered about 37 years of service, a punishment of compulsory retirement was being imposed upon him. ( 3. ) SUBSEQUENT to the aforesaid punishment order, the petitioners pensionary and other retiral benefits were not computed and settled by the respondents and, therefore, the petitioner on realizing that his representations were not yielding any result, filed a petition before the State Administrative tribunal in the year 2001 which was ultimately transferred to this Court and was registered as W. P. No. 17467/2003 and was disposed of by order dated 6-1-2004 in the following terms :- "6-1-2004 the petitioner approached the Madhya Pradesh Administrative tribunal (in short the Tribunal) for grant of pensionary benefits. It is not disputed that the petitioner was visited with the order of compulsory retirement on 7-5-2007 and he had entered in the services on 16-5-55. Submission of Mr. Kotecha, learned Counsel for the petitioner, is that though the petitioner has to get the pension keeping in view the entire service period but the same has been denied to him. No counter-affidavit has been filed by the respondents. Having heard Mr. Kotecha, learned Counsel for the petitioner, and mr. Submission of Mr. Kotecha, learned Counsel for the petitioner, is that though the petitioner has to get the pension keeping in view the entire service period but the same has been denied to him. No counter-affidavit has been filed by the respondents. Having heard Mr. Kotecha, learned Counsel for the petitioner, and mr. S. M. Lai, learned Panel Lawyer for the State, I am inclined to direct the respondents to fix the pension and the retiral benefits of the petitioner keeping in view the total period of service rendered by him. I may hasten to state here that the aforesaid order shall be subject to any proceeding pending against him. The writ petition is accordingly disposed of. There shall be no order as to costs. " ( 4. ) AS the respondent authorities did not release the petitioners pensionary and other retiral benefits, as ordered by this Court, the petitioner was constrained to file a Contempt Petition which was registered as Contempt petition No. 133/2005 and was disposed of by order dated 30-3-2005, extending the time granted to the respondents for compliance of the order passed by this court up to the end of July, 2005. ( 5. ) IN spite of the order passed by this Court in the aforesaid writ petition as well as the period extended by this Court in the contempt petition, the respondents did not comply with the order, on the contrary a show-cause notice was issued to the petitioner on 30-8-2006 purportedly in exercise of the power of review under Rule 29 of the Rules of 1966, proposing to review the punishment imposed upon the petitioner and after receiving the reply for the petitioner, the impugned order dated 20-9-2006 has been issued converting the punishment of compulsory retirement into one of dismissal thereby depriving the petitioner of all his pensionary and other benefits. ( 6. ) THE contention of the learned Counsel for the petitioner before this Court is that the impugned order is perse mala fide inasmuch as it has been issued only to avoid paying pensionary and other retiral benefits to the petitioner in compliance of the order passed by this Court and has also been issued to extract vengeance from the petitioner for filing a contempt petition against the authorities. It is further contended that the initial order of punishment of the petitioner was passed on 7-5-1987. It is further contended that the initial order of punishment of the petitioner was passed on 7-5-1987. The aforesaid order was not challenged by the petitioner and, therefore, it attained finality and under such circumstances the power of review, vested in the authority, under Rule 29 of the Rules of 1966 cannot be invoked after a long lapse of 19 years with the sole object of denying the petitioner his legitimate dues as the power of review has to be exercised within a reasonable period of time even in cases where no specific period of limitation is prescribed. In support of his contention, learned Counsel for the petitioner has relied upon the judgments of the Supreme Court in the cases of State of Gujarat Vs. P. Raghav, AIR 1969 SC1297 and Commissioner of income Tax, Bombay Presidency and Aden Vs. Messrs. Khemchand Ramdas, air 1938 Privy Council 175, and a Division Bench judgment of this Court in the case of Mahadeo Prasad Gautam Vs. Regional Manager, Food Corporation of india and others, 1986 JLJ 1 . ( 7. ) THE learned Counsel appearing for the respondents, per contra, submits that the misconduct, found to have been proved against the petitioner, was extremely grave inasmuch as it was found that the petitioner had obtained appointment in the services of the Government by producing a false certificate regarding his qualification and though this misconduct was found to have been proved against the petitioner, the Disciplinary Authority had taken a lenient view and had imposed a punishment of compulsory retirement only which was found to be totally unjustified as a more severe and harsh punishment was warranted in the present case and, therefore, the authority on re-examining the petitioners case has rightly exercised its power of review under Rule 29 of the rules of 1966 and passed the impugned order dated 20-9-2006 which does not call for any interference. ( 8. ) I have heard the learned Counsel appearing for the parties at length. In the present case, the petitioner after having rendered 37 years of service, was found guilty of the misconduct of producing false documents regarding his educational qualification and was, therefore, punished vide order dated 7-5-1987. ( 8. ) I have heard the learned Counsel appearing for the parties at length. In the present case, the petitioner after having rendered 37 years of service, was found guilty of the misconduct of producing false documents regarding his educational qualification and was, therefore, punished vide order dated 7-5-1987. A perusal of the aforesaid order of punishment clearly indicates that the Disciplinary Authority was fully conscious of the magnitude of the misconduct committed by the petitioner, but while determining the punishment has specifically observed that a lenient view is needed to be taken in the petitioners case as he had rendered more than 30 years of service and it was on this count that a punishment of compulsory retirement was imposed upon the petitioner. It is also apparent from the record that this order of punishment was accepted by the petitioner as well as all the other authorities of the State as no proceedings, either of appeal or of review, were taken up against it. It is also clear on appreciating the facts available on record in the proper perspective that the authorities invoked the power of review under Rule 29 of the Rules of 1966 only after the orders were passed by this Court in W. P. No. 17467/2003 dated 6-1-2004 directing the respondent authorities to fix the pension and retiral benefits of the petitioner keeping in view the total period of service rendered by him and the subsequent order dated 30-3-2005 passed in the contempt petition directing the respondent authorities to comply with the order passed by this court till the end of July, 2005 and, therefore, prima facie it appears that the exercise of power of review under Rule 29 of the Rules of 1966, by the authorities was not bonafide and was exercised only to circumvent and avoid compliance of the orders passed by this Court. ( 9. ) QUITE apart, from the above, admittedly the power of review under rule 29 of the Rules of 1966, has been invoked by the authority after a long lapse of 19 years and though no period of limitation is prescribed under Rule 29 of the rules of 1966, for the exercise of the powers of review, it is settled law that the power of review has to be exercised within a reasonable period of time unless and until extra-ordinary circumstances like fraud, collusion, etc. are discovered, which are totally absent in the present case as there is no allegation that a punishment of compulsory retirement was imposed upon the petitioner in the year 1987 fraudulently or there was some collusion between the Disciplinary authority and the petitioner. On the contrary, the only ground on which the power has been exercised by the Reviewing Authority is that the punishment imposed upon the petitioner was grossly disproportionate to the misconduct and, therefore, deserves to be enhanced. ( 10. ) IN the case of State of Gujarat (supra), the Supreme Court while interpreting the provisions of Section 211 of the Bombay Land Revenue Code, wherein no period of limitation was prescribed for exercising powers of revision, laid down the general principles for exercise of such powers in the following terms:- "11. The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211,but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined on the facts of the case and the nature of the order which is being revised. " In the case of Mahadeo Prasad Gautam (supra), the Division Bench of this Court, while dealing with a case where the Reviewing Authority had enhanced the punishment imposed upon the petitioner therein after a lapse of almost 4 years in exercise of its suo motu powers of revision, held as follows while quashing the order:- "10. The principle discernible from these decisions is that even where there is no period of limitation prescribed for exercise of the power, the same must be exercised within a reasonable time, which is a question of fact in each case, depending on the facts of the case and nature of order. This principle by now is even more deeply entrenched in our legal system. A contrary view would confer arbitrary power which can be exercised at the whim and caprice of the authority, unbridled and untrammeled by any consideration of reasonableness of its exercise even long after the transaction and its incidents are concluded events. Arbitrariness is the negation of rule of law and offends Article 14 of the Constitution. The contrary view would also, therefore, violative Article 14. Arbitrariness is the negation of rule of law and offends Article 14 of the Constitution. The contrary view would also, therefore, violative Article 14. This is an additional reason for us to extend the above principle and to apply it for the purpose of taking the view that the power of review conferred by regulation 74, though untrammeled, can be exercised within a reasonable time and not after the expiry thereof. What is reasonable time is a question of fact in each case. " 10. In the present case, the order of compulsory retirement was issued in the year 1987 keeping in mind the fact that the petitioner had already rendered more than 30 years of service. The aforesaid order was not reopened or reviewed by the authority for a long lapse of 19 years. The authority, while reviewing the aforesaid impugned order dated 20-9-2006, has not given any reason as to why the power of review was not invoked to review the order dated 7-5-87 for the last 19 years. The authority has also not given any finding to the effect that the order dated 7-5-87 needed to be reviewed as it had been obtained by exercising fraud or by collusion. Even otherwise, the order dated 7-5-87 imposing a punishment of compulsory retirement, was reasonable, in accordance with law, and not in violation of any of the provisions of the Rules of 1966 warranting its review. No justifiable reason whatsoever has been stated by the authority in the impugned order dated 20-9-2006 to indicate as to why the power of review was being exercised after a long period of 19 years. The only reason discerned from the record is that the authorities propose to avoid compliance of the order passed by this Court directing payment of pension and retiral benefits to the petitioner by counting his entire period of service. ( 11. ) IN the aforesaid circumstances, I am of the considered opinion that the impugned exercise of power of suo motu review by the concerned authority was beyond reasonable period of time and was in mala fide exercise of powers vested in the authority and, therefore, deserves to be quashed. ( 11. ) IN the aforesaid circumstances, I am of the considered opinion that the impugned exercise of power of suo motu review by the concerned authority was beyond reasonable period of time and was in mala fide exercise of powers vested in the authority and, therefore, deserves to be quashed. Surprisingly, though the petitioner had brought to the notice of the authorities the order passed by this Court in W. P. No. 17467/2003, dated 6-1-2004, the authorities did not care to peruse the same or give due importance to the aforesaid order passed by this Court and passed the impugned order by brushing aside the orders passed by this Court quite oblivious of the fact that the order had become final and binding and had to be complied with. ( 12. ) IN view of the aforesaid facts and circumstances of the case, the impugned order dated 20-9-2006 is hereby quashed. As a consequence, the petitioner would be entitled to pensionary and all other benefits by counting his entire period of service as directed by this Court in W. P. No. 17467/2003, dated 6-1-2004. In addition to the aforesaid and keeping in mind the fact that this court vide order dated 6-1-2004 had directed the respondent authorities to release the petitioners pensionary and other retiral benefits by counting his past services and had thereafter extended time upto July, 2005 to comply with the aforesaid order, the petitioner would also be paid interest on the arrears of pension and other retiral benefits @ 8% per annum from 6-1-2004 till the date of actual payment. It is further directed that the respondent authorities shall release the pension and other retiral benefits of the petitioner alongwith the aforesaid interest within a period of three months from the date of furnishing a certified copy of the order passed today, failing which the respondent authorities would be required to pay interest @ 12% per annum from 7-5-1987 onwards till the date of actual payment. ( 13. ) WITH the aforesaid directions the petition, filed by the petitioner, is allowed. In the peculiar facts and circumstances of the case, there shall be no order as to the costs.