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Madhya Pradesh High Court · body

2009 DIGILAW 1281 (MP)

Surendra Singh Bhadauria v. State of M. P.

2009-11-16

S.C.SHARMA

body2009
ORDER 1. The petitioner before this Court has filed this .present writ petition being aggrieved by an order of dismissal dated 20th March 2006. 2. The contention of the petitioner is that he was appointed as peon vide an order dated 1.8.1977 on probation for a period of2 years and on completion of probationary period successfully he was confirmed by the governing body vide order dated 31.01.1979. The petitioner has further stated that he was appointed as a peon but the then Chainnan who was having bias attitude towards him, directed him to work as Chowkidar instead of a peon. The petitioner has further stated that while he was performing his duties as Chowkidar during the intervening night of 14/15-6-2005 a theft took place in the institute. A FIR was also lodged on 15.6.2005 and a notice was issued to the petitioner on 16.6.2005 by the in-charge Principal and he was placed under suspension on 22.6.2005. The petitioner has further stated that thereafter a charge sheet was issued on 1.7.2005 and the petitioner was directed to file a reply to the charges levelled against him. The petitioner did submit a reply to the charge-sheet and the In-charge Principal not being satisfied with the reply of the petitioner has appointed one retired Naib Tahsildar RR. Singh as an Inquiry Officer and the enquiry was concluded inspite of petitioner's objection and a show cause notice along with enquiry report was furnished to the petitioner on 28.12.2005. The petitioner did submit a reply to the show cause notice and objected the appointment of Inquiry Officer as well as raised other grounds in the matter. An order was passed on 20th March 2006 dismissing the petitioner from service and the petitioner being aggrieved by dismissal has preferred an appeal before the State Government as contained in Annexure P/16. The petitioner has raised various grounds before this Court while assailing the order of termination. The petitioner's contention is that under Rule 7 of the Madhya Pradesh Ashashkiya Shikshan Sanstha (Adhyapkon Tatha Karmchariyon Ko Padchyut Karne/Sewa Se Hatane Sambandhi Prakriya) Niyam, 1983, the head of the institution has to be the Inquiry Officer. Learned counsel for the petitioner has also stated that approval of competent authority is required before passing an order of punishment and in the present case; no such approval was obtained at any point of time. Learned counsel for the petitioner has also stated that approval of competent authority is required before passing an order of punishment and in the present case; no such approval was obtained at any point of time. The petitioner has also stated that the Inquiry Officer has recorded the evidence behind the back of the petitiq,\1er and has held the petitioner guilty of the alleged misconduct. 3. A reply has been filed on behalf of the respondent No. 3 and it has been admitted that the petitioner was appointed on the post of peon, however, he was discharging the duties of Chowkidar which were assigned to him after obtaining his consent. It has been further stated that Dr. A.S Rajput being the senior most Professor was serving as In-Charge Principal and the order of dismissal has been passed, after following the prescribed procedure under the law. 4. Heard learned counsel for the parties at length and perused the record. The matter was heard with the consent of the parties finally. 5. In the present case, the petitioner before this Court though appointed as peon on 1.8.1977 was assigned the duties to work as Chowkidar and on 14/15.6.2005 a theft took place in the College. A FIR was lodged in respect of the incident and petitioner was also charge-sheeted in the matter. The charge sheet was issued by the In-charge Principal and the enquiry was concluded by one retired Naib Tahsildar RR. Singh who was appointed as an Inquiry Officer in the matter vide an order dated 26.8.2005. The respondents have not denied in the return that no approval was obtained as required under the Rule 12 of the Rules, 1983. Rule 7 (1) (e) of the Rules 1976 reads as under: "7 (1) (e).1n the case of an employee, the Head of the Institution shall be appointed as an enquiry officer." 6. It is an admitted fact that the institution in question is an institution receiving grant-in-aid from the State of Madhya Pradesh and therefore; there is no dispute regarding applicability of the aforesaid rules. The statutory provisions as contained in the aforesaid rules was not followed as retired Naib Tahsildar was appointed as an Inquiry Officer. Rule 11 and 12 of the Rules 1983 reads as under:" 11. The statutory provisions as contained in the aforesaid rules was not followed as retired Naib Tahsildar was appointed as an Inquiry Officer. Rule 11 and 12 of the Rules 1983 reads as under:" 11. Consideration by Managment - (1) The Managment shall, consider the record of the enquiry and determine which of the findings of the enquiring authority, are worthy of acceptance. 12. Decision of Management - (1) The Management shall, if it disagrees with the findings of the enquiry officer on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose. (2) If the management having regard to the findings on all or any of the article of charge, is of the opinion that the teacher or other employee should be dismissed or removed from service or his services should be terminated, it shall (a) furnish to the teacher or other employee a copy of the report of the enquiry officer and a statement of the findings in regard to each article of charge together with brief reasons for its disagreement, if any, with the findings of the enquiry officer; (b) give the teacher or other employee a notice stating the action that is proposed to be taken by the management under sub-clause (iii) of clause (a) of Section 6 and calling upon him to submit within fifteen days of receipt of the notice or such further time not exceeding fifteen days, as may be allowed, such representation as he may wish to make on the proposed action on the basis of the evidence adduced during the enquiry held under these rules. (3) (a) The Management shall after considering the representation, if any, made by the teacher or other employee, determine what action, if any, should be taken against the teacher or other employee and make a proposal for the order which it intends to pass. (3) (a) The Management shall after considering the representation, if any, made by the teacher or other employee, determine what action, if any, should be taken against the teacher or other employee and make a proposal for the order which it intends to pass. (b) The Management shall thereupon forward the whole case along with its proposal of the Order intended to be passed to the competent authority for its approval and the competent authority shall not refuse to grant such approval except on one or more of the following grounds : (i) that there has not been, in the course of enquiry, proper or sufficient compliance of the procedure laid down in these rules; (ii) that the provisions of the Act are likely to be defeated by the said Order; and (iii) that the said Order, on the face of it, is perverse. (4) Where the competent authority is of the opinion that the proposal sent to it by the management under clause (b) of sub-rule (3), suffers from any of the defects mentioned therein, it shall return the case to the management with such directions as it thinks fit for proceedings with the case in a manner free from the said defects." 7. Rule 12 makes it very clear that the management after receiving representation, if any, made by the teachers or other employee shall determine what action has to be taken against a teacher or against the employee and the proposal has to be forwarded to the competent authority and a final order is passed only after receiving the opinion of the competent authority. The respondents have not followed the aforesaid procedure prescribed under Rule 12 of the Rules 1983. This Court in the case of Shivram Singh Tomar v. State of M.P. & others in W.P. No. 2230/2005 (S) which is a case of same institution in paragraphs 29 to 37 has held as under:" 29. Looking to the rules of 1983 an approval of competent authority as condition precedent before issuing the dismissal order of the petitioner was necessary. 30. The Division Bench of this Court in Dilip v. Prabandhak Samiti Maheshwari H.S.S. and others reported in 1993 JLJ 529 has held as under: " 18. It is abundantly clear that the respondents have not followed the procedure as prescribed by Rule 12 (3) of the Rules. The impugned order of termination Annex. 30. The Division Bench of this Court in Dilip v. Prabandhak Samiti Maheshwari H.S.S. and others reported in 1993 JLJ 529 has held as under: " 18. It is abundantly clear that the respondents have not followed the procedure as prescribed by Rule 12 (3) of the Rules. The impugned order of termination Annex. 'B' passed by the respondent No.1 on 23.7.1986 is liable to be quashed on this short ground alone, it is accordingly quashed. We deliberately refrain from expressing any view on the justifiability of the impugned order in view of the charges levelled against the petitioner. It is solely on the basis of the glaring procedural lapse on the part of the respondents in not complying with Rule 12 (3) of the Rules that the termination order is struck down as void and inoperative. " 31. The arguments advanced by the learned counsel for the respondents based on the judgment of Hon'ble the Supreme Court in Suga Ram Chhuga Ram v. State of Rajasthan & others reported in 2006 AIR SC 3258 cannot be accepted that the subsequent approval will cure the defect. But in the present case no approval has been granted by the competent authority even after 5 years of order of dismissal of the petitioner from service and the mandatory provision of statutory rules of 1983 have not been followed. 32. In such circumstances, in my opinion, the whole enquiry is vitiated and liable to be quashed. With regard to availability of alternate remedy, it is clear that the petitioner was dismissed from service in the year 2002 since then appeal has not been decided. He filed a petition in the year 2005, existence of alternate remedy is no bar in exercising power for writ of certiorari as held by the Hon'ble Supreme Court in Whirpool Corporation v. Registrar of Trade Marks Mumbai, reported in AIR 1999 Supreme Court 22 has held as under with regard to maintainability of petition of alternative remedy is available. "The jurisdiction of the High Court in entertaining a Writ Petition under Article 226 of the Constitution, inspite of the alternative statutory remedies, is not affected specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purporated to usurp jurisdiction [purported] without any legal foundation. "The jurisdiction of the High Court in entertaining a Writ Petition under Article 226 of the Constitution, inspite of the alternative statutory remedies, is not affected specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purporated to usurp jurisdiction [purported] without any legal foundation. That being so, the High Court was not justified in dismissing the Writ Petition at the initial stage without examining the contention that the show cause notice issued to the appellant was wholly without jurisdiction." 33. Looking to the facts of the case, in my opinion, dismissing the petition of the petitioner on the ground of alternative remedy when there is naked violation of statutory rules will be unjust. 34. Consequently, the petition of the petitioner is allowed. The impugned orders of dismissal of petitioner from service Annexure P/l dated 3.9.2002 and resolution dated 24.8.2002 R (3)/17 are hereby quashed. The petitioner be taken back in service forthwith. 35. With regard to grant of back wages, looking to the facts of the case that there is a naked violation of statutory rules and also the nature of charges and the fact that the respondents did not produce the enquiry officer report neither stated that how many witnesses were examined, in my opinion, the petitioner is entitled for full salary and other benefits when he was out of employment. 36. Hence, it is ordered that the petitioner will be entitled for all the consequential benefits including salary when he was out of employment. The petitioner is also entitled for cost of petition Rs. 2,000/- (Rs. Two thsousand only). 37. In view of the order there is no necessity to pass any other order in W.P. No. 788/2001, it is also allowed." 8. Keeping in view the aforesaid judgment delivered by this Court as well as the judgment delivered by a Division Bench in the case of Dilip v. Prabandhak Samiti Maheshwari H.S.S. and others, 1993 JLJ 529 , this Court is of the considered opinion that the order of termination dated 20th March 2008 deserves to be quashed as the Rules of 1983 have been violated by the respondents. This Court is also of the considered opinion that an alternative remedy in the peculiar facts and circumstances of the case is no bar in exercising powers of writ jurisdiction by this Court keeping in view the judgment delivered by the apex Court in the case of Whir pool Corporation v. Registrar of Trade Marks, Mumbai AIR 1999 Supreme Court 22. Resultantly, the impugned order dated 20th March 2006 is hereby quashed and the petitioner shall be entitled for all consequential benefit, the present writ petition is allowed with the following directions: "(a) The impugned order dated 20th March 2006 is hereby quashed and the respondents are directed to reinstate the petitioner forthwith in service. (b) The petitioner shall be entitled for all consequential benefits including back wages in the matter. The respondents shall pay back wages to the petitioner within a period of six months from the date of receipt of certified copy of this order. 9. With the aforesaid observation; the present writ petition is allowed and . disposed of. No order as to costs.