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Madhya Pradesh High Court · body

2008 DIGILAW 42 (MP)

Ajay Kumar Singh v. State of M. P.

2008-01-09

A.M.NAIK

body2008
ORDER 1. Petitioner was Asstt. Director, Fisheries at the relevant time at Ratlam. He was asked to attend training on Govt. expenses at Central Fisheries Education Institution, Mumbai for the training session 1997-99. Pursuant thereto, petitioner was relieved on 16.7.1997 from the office of the Asstt. Director Fisheries Ratlam for joining at Mumbai for the purposes of training. He reported at the training institution Mumbai on 17.7.1997. At the training institution, petitioner was required to deposit Rs. 3,065/- in addition to Rs. 1,450/- as hostel fees. These expenses were liable to be deposited by the Govt. which were not duly deposited. Since the petitioner was not possessed of sufficient money, he could not deposit the amount. Consequently, he was not allowed to attend the training. He came back to Ratlam and reported the matter to respondent No.2 immediately on 18.7.1997. Petitioner was, thereafter, suspended and was served with a show-cause notice marked as Annexure A-10. He submitted his reply as revealed in Annexure A-11, refuting the allegations and further explained the reasons for not attending the training. After receipt of the reply of the petitioner, the Director of Fisheries appointed an Enquiry Officer as well as Presenting Officer for the purposes of enquiry against the petitioner in the matter of Annexures A-10 and A.11. However, no enquiry was conducted pursuant to Annexures A-10 to A-12 and instead, an order contained in Annexure-N2 dated 22.7.1998 was issued cancelling thereby Annexure A-12 for the reason that there would be no propriety in holding departmental enquiry against the petitioner because neglect and dereliction in duties are made out from the reply. Thereafter, the impugned order dated 22.7.1998 was issued imposing thereby the penalty of censure. Further, the travelling expenses and allowance for journey from Ratlam to Mumbai and back have also been denied. By way of modification vide Annexure A-3 dated 16.2.2000, the period of suspension has been treated as on duty for all the purposes. Aggrievd by Annexure A-2, petitioner submitted a representation before the State Govt. which, too, has been rejected on 21.3.2000 vide Annexure A-1. Aggrieved by Annexures A-1 and A-2, petitioner submitted an original application before the M.P. State Administrative Tribunal, Gwalior. 2. In the return, it has been contended that the petitioner was given advance of travelling allowance. He was validly relieved to report at the training centre at Mumbai on 16.7.1997. which, too, has been rejected on 21.3.2000 vide Annexure A-1. Aggrieved by Annexures A-1 and A-2, petitioner submitted an original application before the M.P. State Administrative Tribunal, Gwalior. 2. In the return, it has been contended that the petitioner was given advance of travelling allowance. He was validly relieved to report at the training centre at Mumbai on 16.7.1997. Petitioner has produced his joining at the training centre on 17.7.1997. He returned back to Ratlam on 18.7.1997 on the ground that the requisite amount was not sent to the training centre. It is further stated in the return that the petitioner assumed charge of office of Asstt. Director Fisheries at Ratlam in a forcible manner on 21.7.1997. Thus, case of the respondents is that enquiry in pursuance of Annexure A-10 to A-12 was withdrawn and a minor penalty of censure was imposed which did not require further notice of show cause and enquiry at all. 3. Shri Gaurav Samadhiya, learned Advocate for the petitioner and Shri V.S. Chaturvedi, learned Govt. Advocate for the State have made their respective submissions which have been considered in the light of the material on record. 4. Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 empowers the Competent Authority to impose penalty. Rule 10 provides for imposing minor as well as major penalties. Procedure for imposing penalty specified in clauses (v) to (ix) of Rule 10 is provided in Rule 14 which makes it obligatory for holding of enquiry. It is thus clear that before imposing minor penalty specified in clauses (v) to (ix) no enquiry in the prescribed manner is to be held necessarily. As a corollary, it may well be said that enquiry in the same manner is not required while imposing minor penalty. However, that will not empower the authority to impose minor penalty without following the principles of natural justice. Hon'ble Supreme Court of India in the case of O.K. Bharadwa) v. Union of India and others [ (2001) 9 SCC 180 ] has held: "While we agree with the first proposition of the High Court having regard to the rule position which expressly says that "withholding increments of pay with or without cumulative effect" is a minor penalty, we find it not possible to agree with the second proposition. Even in the case of a minor penalty an opportunity has to be given to the delinquent employee to have his say or to file his explanation with respect to the charges against him. Moreover, if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for. This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with. Learned counsel for the respondent, however, says that though the second proposition of the High Court may not be correct, yet so far as this case is concerned, it does not make any difference for the reason that in this case, as a fact an opportunity was given to the appellant and that there has been adequate compliance with the principles of natural justice. But, since the High Court has not considered the matter from the above angle that is on merits the proper course in our opinion is to remit the matter to the High Court to consider whether an opportunity was given to the appellant to put forward his case and whether in the light of the facts and circumstances of the case, an enquiry was called for and if called for, was it held according to law and the principles of natural justice, and to dispose of the matter according to law. The appeal is allowed with the above directions. No costs." 5. Shri V.S. Chaturvedi, learned Govt. Advocate relying upon the Supreme Court's decision in the case of L. Chandra Kumar v. Union of India [ AIR 1997 SC 1125 ] has contended that no interference is warranted in the present writ-petition where the petitioner was given merely minor penalty requiring no enquiry under the Statutory Rules. It is no doubt correct that the enquiry as per prescribed procedure under the rules is not required to be held before imposing minor penalty. However, rules of natural justice cannot be by passed even while imposing minor penalty. In the case in hand, a show-cause notice was served upon the petitioner vide Annexure A-10 and a detailed reply was submitted by the petitioner refuting the factual as well as legal allegations. Earlier, the Director of Fisheries deemed it proper to hold an enquiry and an Enquiry Officer as well as Presenting Officer were appointed vide Annexure A-12 dated 26.6.1998. Earlier, the Director of Fisheries deemed it proper to hold an enquiry and an Enquiry Officer as well as Presenting Officer were appointed vide Annexure A-12 dated 26.6.1998. Petitioner in the light of Annexures A-10 to A-12 must have been anticipating a due enquiry as per procedure prescribed under Rule 14. If the authorities were of the opinion that there was no propriety for holding an enquiry in the light of the reply of the petitioner, the enquiry could have been well dropped. However, a fresh opportunity of hearing ought to have been given to the petitioner before inflicting minor penalty in the nature of censure. Thus, the rules of natural justice have been violated by the respondents. Even minor penalty of censure could not have been imposed without giving an opportunity to the petitioner to show cause against the same in the light of Supreme Court decision (supra). 6. In the result, the impugned orders contained in Annexure A-1 and A-2 are not sustainable in law and they are hereby quashed. However, it is observed that the respondents would be at liberty to take appropriate action against the petitioner and to pass necessary orders after giving him an opportunity of hearing in respect of the alleged occurrences. 7. Petition accordingly, stands disposed of in the manner indicated above. No order as to costs.