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Madhya Pradesh High Court · body

2008 DIGILAW 552 (MP)

AJAY ARORA v. STATE OF M P

2008-04-08

SHANTANU KEMKAR

body2008
Judgment ( 1. ) THE petitioner engaged in the business of liquor has filed this petition seeking directions to the State Govt, to initiate departmental proceedings against the third respondent on the basis of enquiry report dated 2-12-2005 conducted by Shri B. K Vyas, Additional Excise Commissioner. ( 2. ) IN short, the petitioners case is that in the reconstituted partnership deed dated 5-3-2002 of firm M/s. Ashok Traders he was inducted as one of the partners of firm. On the strength of the reconstituted partnership deed, the firm could successfully obtain license to sale country and foreign liquor in the Bhopal District for the year 2002-03. Again the firm successfully participated in the bid for the year 2003-04. It is stated that along with the tender document for the year 2003-04 the partnership deed dated 5-3-2002 was submitted. However, on acceptance of the bid of the firm, at the time of award of the contract to the firm some of the partners of the firm with connivance of the third respondent and some other Govt. employees substituted the partnership deed dated 5-3-2002 by another reconstituted partnership deed in which the petitioners name was missing. According to the petitioner, the third respondent was the District Excise Officer of Bhopal District and he in connivance with mischievious partners replaced the initially submitted partnership deed by another one to deprive the petitioner from the profits of business and to extend undue favour to other partners of the firm. Aggrieved by this act on the part of the third respondent the petitioner made various complaints to the State Govt, seeking action against the employees of the Excise department indulged in the said misdeed. As no action was taken on his complaints, the petitioner had approached this Court through a Writ Petition no. 28262/2003. The said writ petition was disposed of vide order dated 5-1-2004 giving opportunity to the petitioner to submit a representation before the Excise commissioner agitating his grievance and with a direction to the Excise commissioner to consider and decide the petitioners representation in accordance with law. ( 3. ) ACCORDING to the petitioner, pursuant to the order passed by this court, the State Govt, got his allegations enquired through B. K. Vyas, the additional Excise Commissioner. ( 3. ) ACCORDING to the petitioner, pursuant to the order passed by this court, the State Govt, got his allegations enquired through B. K. Vyas, the additional Excise Commissioner. In his report dated 2-12-2005 (Annexure p-10) Shri B. K. Vyas found the third respondent and two other Govt, employees guilty of unduly benefiting the other partners of the firm M/s. Ashok Traders and of causing harm to the interest of the petitioner and also found them guilty of meddling with the Govt, record. It is alleged that in spite of this adverse report against the third respondent, the State Govt, is not initiating departmental proceedings against him. ( 4. ) THE State Govt, in its return has denied the averments made in the petition. The case of the State Govt, is that pursuant to the order dated 5-1-2004 passed in W. P. No. 28262/2003 the allegations levelled by the petitioner were got enquired and after considering the reports of B. K. Vyas, D. R. Johri, Deputy excise Commissioner and the letter of the Collector, Bhopal a decision has been taken not to take any disciplinary action against the third respondent. In the opinion of the State Govt, there was no such cogent reasons and evidence available on record requiring the authorities to take disciplinary action against the third respondent, in the circumstances, it was decided to drop the proceedings. It is further the case of the State Govt, that a busy body like the petitioner cannot invoke the jurisdiction of this Court in respect of seeking directions to initiate departmental proceedings against its employee. ( 5. ) THE third respondent filed a separate return and denied the allegations levelled against him. ( 6. ) SHRI Rohit Arya, learned Senior Counsel for the petitioner referring to the record produced by the State Govt, at the time of hearing of the petition has stated that the decision dated 21-8-2007 taken by the Principal secretary of the Commercial Tax Department by which he has decided not to take any disciplinary action against the third respondent, has been taken without properly appreciating the reports of B. K. Vyas and D. R. Johri. He argued that in the report of B. K. Vyas it has been clearly held that the third respondent is guilty of the alleged misdeeds. Similarly in the report of D. R. Johri also the third respondent was held guilty. He argued that in the report of B. K. Vyas it has been clearly held that the third respondent is guilty of the alleged misdeeds. Similarly in the report of D. R. Johri also the third respondent was held guilty. In the circumstances, the decision of the Principal secretary not to take any disciplinary action against the third respondent is not sustainable and the disciplinary action deserves to be ordered to be initiated against the third respondent. ( 7. ) SHRI P. R. Bhave, learned Senior Counsel for the third respondent and Shri Vivekanand Awasthy, learned Govt. Advocate for the first and the second respondents argued that the Principal Secretary after scrutinizing the letter of the Collector (Annexure R/3-1), the reports of B. K. Vyas and D. R. Johri reached to a conclusion that there is no ground exists to initiate the disciplinary proceedings against the third respondent and in the absence of any malafide or arbitrariness, the said decision taken by the Principal Secretary and approved by the Minister of the Department cannot be questioned at the instance of the petitioner who has no locus standi in the matter. ( 8. ) PERUSED the petition, return, rejoinder and the original record produced at the time of hearing and considered the contentions raised by the learned Counsel for the parties. ( 9. ) FROM the perusal of the report of B. K. Vyas, I find that in the report a finding has been recorded holding the third respondent guilty of the allegations levelled by the petitioner. However, the said finding was recorded without any notice and affording opportunity to the third respondent to submit his explanation. Thereafter, in view of the letter dated 4-9-2003 (Annexure r/3-1) addressed by the Collector (Excise), Bhopal to the Chief Secretary of state of M. P. in which the Collector found the allegations to be without any substance, the State Govt, ordered for another enquiry through D. R. Johri, deputy Excise Commissioner. Thereafter, in view of the letter dated 4-9-2003 (Annexure r/3-1) addressed by the Collector (Excise), Bhopal to the Chief Secretary of state of M. P. in which the Collector found the allegations to be without any substance, the State Govt, ordered for another enquiry through D. R. Johri, deputy Excise Commissioner. In his report D. R. Johri observed that there is no direct evidence available on record to hold the third respondent to be guilty and merely on the basis of circumstantial evidence no officer or employee can be held guilty, however it has been further observed by D. R. Johri that since the third respondent was head of the Excise Office at Bhopal, he is indirectly responsible for the substitution of the partnership deed of the firm. From perusal of the original record it is revealed that these two reports were placed before the Principal Secretary of the Department. The Principal Secretary examined both the reports as well as the aforesaid letter (Annexure R/3-1) of the Collector, Bhopal and took a decision on 21-8-2007 not to take any disciplinary action against the third respondent. The said decision was placed before the Minister of the Commercial Tax Department who approved the same on 23-8-2007. After carefully scrutinizing the original record and the aforesaid decision dated 21-8-2007, in my considered view the decision not to initiate any disciplinary action against the third respondent cannot be said to be arbitrary. Neither any malafide in the said decision is alleged nor any malafide or arbitrariness is being found by me, so as to invoke extra-ordinary jurisdiction of this Court. ( 10. ) THERE is another aspect of the matter, the petitioner being a liquor contractor has no locus standi to invoke the jurisdiction of this Court so as to direct departmental proceedings to be initiated by the State Govt, against its employee. A decision has been taken by the State Govt, in the capacity of employer not to take disciplinary action against the third respondent who is its employee. The said decision is essentially a matter between the employer and the employee and a stranger like petitioner cannot be said to have any locus standi in these proceedings which are essentially in the nature of service matter. The said decision is essentially a matter between the employer and the employee and a stranger like petitioner cannot be said to have any locus standi in these proceedings which are essentially in the nature of service matter. Whether the departmental proceedings has to be drawn or not to be drawn against an employee is the sole prerogative of the State Govt, and as such in my opinion, the petition at the instance of the petitioner is not maintainable. ( 11. ) IT has also been brought to the notice of this Court and has not been disputed by the learned Senior Counsel for the petitioner that a criminal complaint has been lodged by the petitioner against some of the partners of the firm M/s. Ashok Traders. In the said complaint the third respondent has not been joined. It is also noticed from the original record produced by the State govt, that on the petitioners complaint against the third respondent to the lokayukta, the Lokayukta organization is investigating the complaint. Be that as it may. As already held the decision of the State Govt, not to initiate the departmental proceedings against the third respondent is well founded. In the circumstances, no mandamus is required to be issued at the instance of the petitioner to initiate departmental proceedings against the third respondent. Even otherwise in my view, the issuance of such directions at the instance of the petitioner who has no locus standi in the matter would be contrary to the service jurisprudence and would be beyond the scope of authority of this Court under article 226 of the Constitution of India. ( 12. ) ACCORDINGLY, the petition deserves to be and is hereby dismissed. Needless to say that dismissal of this petition would not come in the way of any competent Authority while dealing with the petitioners allegations. No orders as to costs.