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Madhya Pradesh High Court · body

2009 DIGILAW 315 (MP)

NILU v. M P STATE ELECTRICITY BOARD

2009-03-09

SHANTANU KEMKAR

body2009
Judgment ( 1. ) ORIGINAL petitioner Manohar Sukhija was working on the post of Superintending Engineer (Civil) in the respondent No. 1, M. P. State electricity Board {for short the Board}. He was retired voluntarily w. e. f. 30. 9. 2002 vide order dated 30. 9. 2002 (Annexure P-l ). In the said order it was made clear that he is being voluntarily retired from service without any prejudice to the outcome of the Departmental Enquiry pending / contemplated against him. ( 2. ) PRIOR to the aforesaid order of voluntary retirement of the original petitioner a charge-sheet was issued to him on 17. 9. 1992 (Annexure P-2) levelling 2 charges against him. The first charge was that when he was posted at Sarni he called in is office Lady Peon namely Smt. Sumitra Patil who was working in the office of executive Engineer of the respondent Board and misbehaved with her in as much as he caught hold of her hand. The other charge was that he sent a false affidavit in the name of said Smt. Sumitra Patil Peon so as to close the departmental proceedings initiated against him. The said affidavit on enquiry was found to be not sworn by the said Smt. Sumitra Patil. ( 3. ) THE original petitioner submitted his reply (Annexure P-3) to the said charge-sheet and denied the charges levelled against him. He stated that the said Smt sumitra Patil constructed unauthorized Hutment which was removed on the bass of the decision of the Board and the material used in the said unauthorized construction viz. G. I: Sheets were seized. She was insisting for the return of at said G. I. Sheets from him and on not getting any favourable order, she with the connivance of the others falsely implicated him by levelling baseless allegations ( 4. ) THE aforesaid reply was not found to be satisfactory and as such the enquiry officer held a Departmental Enquiry against the original petitioner. The Enquiry officer after recording the evidence led in the enquiry vide his enquiry report dated 8. 1. 2004 (Annexure P-9) exonerated the petitioner holding the on petitioner to be not guilty of any of the charge. ( 5. The Enquiry officer after recording the evidence led in the enquiry vide his enquiry report dated 8. 1. 2004 (Annexure P-9) exonerated the petitioner holding the on petitioner to be not guilty of any of the charge. ( 5. ) AFTER receipt of the enquiry report the Disciplinary Authority disagres with the finding of Enquiry Officer recorded the finding of guilt against the original petitioner in respect of charge No. 1 and issued a notice to the original petitioner on 15. 5. 2004 (Annexure-P-10) to show cause that on the basis of the finding of guilt recorded against him in respect of charge No. 1 why a penalty of withholding of his pension to the extent of 10% for 2 years be not finally imposed upon him. ( 6. ) THE aforesaid show cause notice was replied by the original petitioner vide his reply dated 7. 6. 2004 (Annexure P-11 ). After the receipt of the said reply the disciplinary Authority vide order dated 14. 9. 2004 (Annexure P-13) imposed upon the original petitioner penalty of withholding of 10% of his pension for 2 years. Aggrieved the original petitioner has filed this petition. During the pendency of the petition the original petitioner has died and his legal representatives were substituted in his place as petitioners. ( 7. ) THE contention of the Shri A. K. Sethi, learned Senior counsel for the petitioners is that the enquiry officer having held the original petitioner to be not guilty, the Disciplinary Authority if was not in the agreement with the finding of the enquiry officer in respect of charge No. 1 was required to have communicated the original petitioner the tentative reason for disagreeing with the finding of the enquiry officer in regard to Charge No. 1. However, instead the disciplinary authority recorded a final finding holding the petitioner guilty of the charge No. 1 and issued notice to show cause against the proposed penalty of withholding of 10% pension for 2 years. He placing reliance on the judgment of the Supreme Court in the case of [punjab National Bank Vs. Kunj Behari Mishra] AIR 1998 SC 2713 argued that the original petitioner was required to have given an opportunity of hearing by issuing a show cause notice so as to persuade the Disciplinary Authority to accept a favourable conclusion of the Enquiry Officer. Kunj Behari Mishra] AIR 1998 SC 2713 argued that the original petitioner was required to have given an opportunity of hearing by issuing a show cause notice so as to persuade the Disciplinary Authority to accept a favourable conclusion of the Enquiry Officer. He referring to the show cause notice and the impugned order of Disciplinary Authority argued that the issuance of the show cause notice was not in respect of tentative finding of guilt recorded by the Disciplinary Authority and the note of disagreement to the findings recorded by the Enquiry Officer in respect of charge No. 1 but it was in truth and in reality was a show cause notice in respect of the proposed penalty after recording a final findings of guilt against the original petitioner. Attacking the impugned order annexure-13) the learned Senior counsel argued that though the original petitioner sad replied to the said show cause notice (Annexure-10) by raising various pleas out the pleas raised in the reply (Annexure-11) to the show cause notice were not considered by the Disciplinary Authority and the Disciplinary Authority reiterated she finding already recorded by it in the said show cause notice and mechanically passed the impugned order of penalty. ( 8. ) IN reply Shri P. B. S. Nair, learned counsel for the respondents has argued that the Disciplinary Authority was having right to disagree with the findings of the Enquiry Officer and give his own conclusion. The disciplinary authority on fining the charge No. 1 to be proved in the Departmental Enquiry held against the petitioner, issued a show cause notice to him and after consideration of his reply and giving him a personal hearing passed the impugned order which cannot be interfered into in this petition under Article 226 of the Constitution of India. He argued that the nature of the charges which were levelled against the original petitioner were serious in nature and relating to sexual harassment of female employee at work place, in the circumstances, he argued that this Court should not interfere into with the impugned order of penalty awarded to the original petitioner. He also argued that having regard to the great sensitivity of the charges the original petitioner is not entitled for any mercy or sympathy. In support he placed reliance on the judgment of the Supreme Court in the case of Apparel export Promotion Council Vs. He also argued that having regard to the great sensitivity of the charges the original petitioner is not entitled for any mercy or sympathy. In support he placed reliance on the judgment of the Supreme Court in the case of Apparel export Promotion Council Vs. A. K Chopra (1999) 1 SCC 759 . ( 9. ) HAVING heard the learned counsel for the parties and going through the annexures, I find that both the charges levelled against the original petitioner were found to be not proved by the Enquiry Officer. On close scrutiny of the show cause notice (Annexure P-10), it is revealed that the disciplinary authority issued the said notice on the basis of final findings recorded by the Board holding the original petitioner to be guilty of Charge No. 1 by observing thus : ( 10. ) THUS, it is clear that after recording the aforesaid findings of guilt by the Board the disciplinary authority vide notice (Annexure P-10) called upon the petitioner to show cause as to why the provisional decision of imposing the penalty to withhold his pension for 2 years to the extent of 10% be not made final. Thereafter, without going into the grounds raised by the original petitioner in his reply (Annexure P-11) to the said show cause notice the disciplinary Authority rejected the petitioners representation vide impugned order Annexure P-13 and imposed upon him the penalty of withholding of 10% pension for 2 years. A close scrutiny of this order Annexure P-13 further establishes that the Disciplinary Authority on the basis of final finding of guilt already recorded by the Board in its show cause notice, imposed the aforesaid penalty on the original petitioner. ( 11. ) IN the case of Yoginath D. Bagde Vs. A close scrutiny of this order Annexure P-13 further establishes that the Disciplinary Authority on the basis of final finding of guilt already recorded by the Board in its show cause notice, imposed the aforesaid penalty on the original petitioner. ( 11. ) IN the case of Yoginath D. Bagde Vs. State of Maharashtra ( AIR 1999 SC 3734 ) in some what identical situation where the Disciplinary Authority considered the report of the Enquiry Officer holding the charges against him were not proved and disagreed with the findings of enquiry officer after holding the charges against the appellant to be proved tentatively decided to withhold the penalty of dismissal of service, the Supreme Court disapproved the action by observing thus in paragraph No. 36, 37 and39:- "along with the show-cause notice, a copy of the findings recorded by the Enquiry Officer as also the reasons recorded by the Disciplinary Committee for disagreeing with those findings were communicated to the appellant but it was immaterial as he was required to show-cause only against the punishment proposed by the Disciplinary Committee which had already taken a final decision that thecharges again the appellantwere proved. lt was not indicated to him that the Disciplinary Committee had come only to a "tentative" decision and that he could show cause against that too. It was for this reason that the- reply submitted by the appellant failed to find favour with the Disciplinary Committee. Since the Disciplinary Committee did not give any opportunity of hearing to the appellant before taking a final decision in the matter relating to findings on the two charges framed against him, the principles of natural justice, as laid down by a Three-Judge Bench of this Court in Punjab National Bank V. Kunj Behari mishra (1998) 7 SCC 84 : AIR 1998 SC 2713 : (1998 AIR SCW 2762 : 1998 Lab ic 3012: 1998 Alllj 2009), referred to above, were violated. The contention apparently appears to be sound but a little attention would reveal that it sounds like the reverberations from an empty vessel. What is ignored by the learned counsel is that a final decision with regard to the charges levelled against the appellant had already been taken by the Disciplinary Committee without providing any opportunity of hearing to him. The contention apparently appears to be sound but a little attention would reveal that it sounds like the reverberations from an empty vessel. What is ignored by the learned counsel is that a final decision with regard to the charges levelled against the appellant had already been taken by the Disciplinary Committee without providing any opportunity of hearing to him. After having taken that decision, the members of the Disciplinary Committee merely issued a notice to the appellant to show-cause against the major punishment of dismissal mentioned in Rule 5 of the maharashtra Civil Services (Discipline and Appeal)Rules, 1979. This procedure was contrary to the law laid down by this Court in the case of Punjab National Bank (1998 AIR SCW 2762 : AIR 1998 SC 2713 :1998 Lab IC 302 : 1998 All LJ 2009 ) (supra) in which it had been categorically provided, following earlier decisions, that if the Disciplinary Authority does not agree with the findings of the Enquiry Officer that the charges are not proved, it has to provide, at that stage, an opportunity of hearing to the delinquent so that there may still be some room left for convincing the disciplinary Authority that the findings already recorded by the enquiry Officer were just and proper. Post- decisional opportunity of hearing, though available in certain cases, will be of no avail, at least; in the circumstances of the present case. ( 12. ) ON examination of the facts of the present case in the light of law laid down by the Supreme Court in the case of Punjab National Bank Vs. Kunj Behan mishra (supra) and in the case of Yoginath D. Bagde Vs. State of Maharashtra (supra), I find that the show cause notice issued to the original petitioner was containing a final decision already taken by the respondent Board holding the petitioner guilty of Charge No. 1. After taking such decision and recording define finding of guilt by the Board the Disciplinary Authority merely issued a notice to the original petitioner to show cause against the proposed punishment. In the circumstances, there was no room left for the original petitioner to convince the board or to the Disciplinary Authority that the findings which have already been recorded by the Enquiry Officer in his favour were just and proper. In the circumstances, there was no room left for the original petitioner to convince the board or to the Disciplinary Authority that the findings which have already been recorded by the Enquiry Officer in his favour were just and proper. Moreover the reasons on the basis of which the Board had disagreed with the findings of the exoneration of the original petitioner recorded by the Enquiry Officer are cryptic. The findings on the charges levelled against the petitioner were thorough inquired into by the Enquiry Officer and after close scrutiny of the evade recorded by it, the original petitioner was exonerated from both the chirp however, the Board without adverting the evidence on record only by picking stray sentence from the statement of Smt. Sumitra Patil disagreed with the exhaustive finding recorded by the Enquiry Officer holding the original petitioner not guilty. The approach of the Board in recording the finding of guilt by picking only a stray sentence from the statement of the complainant without further adverting to the evidence recorded by the enquiry officer cannot be sustained. Thereafter when the original petitioner submitted a detailed reply to the said show cause notice the disciplinary authority rejected the pleas taken by the original petitioner by only reiterating the findings "recorded by the Board. Thus the finding of guilty recorded by the Board and the Disciplinary Authority are based on no evidence and are perverse. ( 13. ) HAVING regard to the aforesaid, I am of the view that the actions of the respondent Board and the Disciplinary Authority are contrary to the law laid down by the Supreme Court in the case of Punjab National Bank Vs. Kunj Behari mishra (supra) and Yoginath D. Bagde Vs. State of Maharashtra (supra ). ( 14. ) THE contention of the learned counsel for the respondents that this Court cannot reappraise the evidence which has already been scrutinized by the disciplinary authority, in this petition under Article 226 of the Constitution of India is of no consequence for the simple reason that it is well settled that if the findings are perverse and are not supported by evidence on record to the extent that no reasonable person would have reached, it would be open for the High Court to interfere into the same [see Kuldip Singh Vs. Commissioner of Police AIR 1999 SC 677 ]. Commissioner of Police AIR 1999 SC 677 ]. The judgment of the Supreme Court in the case of Apparel Export promotion Council Vs. A. K. Chopra (supra) relied by the respondents has no application to the facts of the case, even otherwise, the discrepancies and illegalities noticed in the present case are neither insignificant nor technical but are violative of the principles of natural justice as held in the case of Yoginath D. Bagde Vs. State of Maharashtra (supra ). ( 15. ) IN view of the aforesaid, the impugned order of penalty deserves to be and hereby quashed. Accordingly, the respondents are directed to release the consequential benefits flowing from the quashment of the impugned order to the petitioners. Petition allowed.