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2010 DIGILAW 428 (MP)

Sanjay Thorat v. M. P. Urja Vikas Nigam

2010-04-13

S.C.SHARMA

body2010
ORDER 1. The petitioner before this Court working as Assistant Engineer, Madhya Pradesh, Urja Vikas Nigam, Gwalior has filed this present writ petition being aggrieved by the punishment order dated 14.7.2009 by which a punishment of stoppage of two increments with cumulative effect has been inflicted upon him and by the same order a recovery of Rs. 1,37,395.00 has also been ordered against him. The contention of the petitioner is that a ch3fge-sheet was issued on 30.8.1997 levelling 5 charges against the petitioner and the petitioner did submit a reply of the charges levelled against him and thereafter the Disciplinary Authority not being satisfied with the reply of the petitioner appointed an Inquiry Officer to inquire into the alleged misconduct. The petitioner has further stated that the Inquiry Officer has conducted a detailed enquiry as provided under the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 and the Inquiry Officer has exonerated the petitioner in respect of all charges, the copy of enquiry report is on record as Annexure P-7. The petitioner has further stated that the Disciplinary Authority after receiving the enquiry report has forwarded the dissenting note on 7.10.2006 and the petitioner has thereafter submitted his reply to the dissenting note on 26.10.2006 and the Disciplinary Authority has passed the impugned order on 14.7.2009 inflicting a punishment of stoppage of two increments with cumulative effect as well as has directed recovery of Rs. 1,37,395.00 against the petitioner. The contention of the learned counsel appearing for the petitioner is that the charge-sheet was issued as per the provisions of Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 and the Inquiry Officer after minutely scrutinizing the entire material on record has exonerated the petitioner. The petitioner has further stated that the Disciplinary Authority without assigning cogent reasons and without referred to any statement of even a single witness has held the petitioner guilty of four charges out of five charges. Learned Counsel for the petitioner has drawn attention of this Court towards the dissenting note wherein the Disciplinary Authority has differed with the view expressed by the Inquiry Officer. His contention is that the Disciplinary Authority with total non-application of mind has issued a dissenting note and the punishment order based upon the dissenting note which is also not based on any evidence and also deserves to be quashed. 2. His contention is that the Disciplinary Authority with total non-application of mind has issued a dissenting note and the punishment order based upon the dissenting note which is also not based on any evidence and also deserves to be quashed. 2. A reply has been filed on behalf of the Corporation and the contention of the respondent Corporation is that the Corporation is a company registered under the Companies Act and therefore, the present writ petition is not maintainable as service dispute is involved in the present writ petition which involves private law elements. Learned Senior Counsel appearing for the respondent -- Corporation has relied upon a judgment delivered by a Division Bench in the case of Sunil Kumar Saxena v. Holy Cross Ashram Higher Secondary School, Datia (M.P.) and others, 2010 (1) JLJ 221 = 2009 (4) MPLJ 641 , wherein the Division Bench of this Court has held a writ petition not maintainable in such circumstances. Learned counsel for the respondent has argued before this Court that the petitioner has not availed the alternative remedy and therefore, the present writ petition deserves to be dismissed on merits. It has also been argued before this Court by the learned counsel for the respondent that the Disciplinary Authority was well within its domain to assign cogent reasons for disagreeing with the findings of the Inquiry Officer. It has also stated that the dissenting note was served to the petitioner and the petitioner was also given an opportunity to file a reply to the dissenting note and thereafter, the Disciplinary Authority as provided under the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 has inflicted upon a punishment of stoppage of two increments with cumulative effect. 3. Heard learned counsel for the parties at length and perused the record. 4. In the present case, the petitioner before this Court is an employee of Madhya Pradesh Urja Vikas Nigam, Gwalior a company registered under the M.P. Companies Act owned and controlled by the State of Madhya Pradesh and the disciplinary action against the employee of Madhya Pradesh, Urja Vikas Nigam, Gwalior are dealt with under the provisions of Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 as the respondent is a company owned and controlled by the State Government. The judgment relied upon by the learned counsel for the respondent is distinguishable on facts. The judgment relied upon by the learned counsel for the respondent is distinguishable on facts. The Division Bench of this Court while deciding the case of Sunil Kumar (supra) was dealing with the controversy of an employee employed in unaided educational institution and in those circumstances it was held that a writ petition is not maintainable in respect of grievance of an employee relating to service dispute. In the present case, the respondent-Corporation is owned and controlled by the State Government and, therefore, this Court is of the considered opinion that the respondent-Corporation is amenable to writ jurisdiction of this Court. In the present case, the remedy of appeal is certainly in existence, however, an alternative remedy is certainly not a bar to entertain a writ petition. In the present case the order of punishment has been passed by the Board of Directors and the same was communicated to the petitioner by the Managing Director (Shri Sanjay Bandopadhyay) who is also Secretary of the State of Madhya Pradesh. 5. In the present case, the petitioner before this Court was charge-sheeted on 28.7.1997 under the provisions of Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 and a detailed and exhaustive reply was filed by the petitioner. The Inquiry Officer after holding a detailed and exhaustive Department Enquiry has exonerated the petitioner fully in respect of all charges. The Disciplinary Authority has issued a dissenting note as contained in Annexure P-9 and the Disciplinary Authority had disagreed with the findings arrived at by the Inquiry Officer in respect of charges Nos. 1,3,4 and 5. The Inquiry Officer after holding a detailed and exhaustive Department Enquiry has exonerated the petitioner fully in respect of all charges. The Disciplinary Authority has issued a dissenting note as contained in Annexure P-9 and the Disciplinary Authority had disagreed with the findings arrived at by the Inquiry Officer in respect of charges Nos. 1,3,4 and 5. In respect of charges No.1 the Disciplinary Authority has held as under: ^^izFke vkjksi ij tkap vf/kdkjh ds fu"d"kZ fd vkjksi fl) ugha gksrk gS] ls lapkyd eaMy iw.kZr% lger ugha gqvkA lapkyd eaMy dk er ;g jgk fd {ks=h; dk;kZy; lkxj ds varxZr vkbZ-vkj-bZ-ih- jkgrx<+ esa jk"Vªh; mUur pwYgk dk;ZØe ls lacaf/kr fgrxzkfg;ksa dh izekf.kd lwfp;ksa ,oa vko';d nLrkostksa dk la/kkj.k ugha fd;k x;k ;g rF; foHkkxh; tkap ds lk{;ksa ¼c;ku vkfn½ ls LFkkfir gksrk gS] vr% tkap vf/kdkjh dk ;g dFku fd miyC/k veys ,oa O;oLFkk vuqlkj nLrkostksa@lwfp;ksa dk la/kkj.k Jh FkksjkV }kjk fd;k x;k] iwjh rjg ls ekU; djus ;ksX; ugha gSA lapkyd eaMy us Jh lat; FkksjkV dks vkbZ-vkj-bZ-ih- jkgrx<+ ds izHkkjh gksus ds vkus vius nkf;Roksa dk iw.kZ fuoZgu u djus ds fy, vkjksi Ø- ,d gsrq vkaf'kd :i ls nks"kh ik;kA** Similarly in respect of charge No.3 the Disciplinary Authority has held as under : ^^lapkyd eaMy dk vkjksi Øekad rhu ds laca/k esa ;g er jgk fd ;g lgh gS fd HkaMkj d{k ds izHkkjh Jh pkS/kjh] eSdsfud ds iz'kklfud fu;a=.kdrkZ {ks=h; dk;kZy; izHkkjh dk;Zikyu ;a=h Fks] ijarq mDr HkaMkj d{k esa vkbz-vkj-bZ-ih- jkgrx<+ ds Lda/k ls lacaf/kr dk;ksZa gsrq fu;a=.kdrkZ dk nkf;Ro Jh lat; FkksjkV] lgk;d ;a=h dk gh FkkA mDr nkf;Ro ds ukrs Jh lat; FkksjkV dks Lda/k dk le;≤ ij fujh{k.k@i;Zos{k.k djrs jguk pkfg, Fkk rFkk Lda/k esa fdlh Hkh deh ds fy, mudk izkFkfed mÙkjnkf;Ro gSA mijksDr ifjizs{; esa o foHkkxh; tkap ds lk{;ksa ds voyksdu ds i'pkr~ lapkyd eaMy dk ;g er jgk fd lat; FkksjkV HkkSfrd lR;kiu esa :i;s 3]29]418-50 ewY; dh lkexzh ds HkaMkj esa vuqiyC/k gksus ds fy, Hkys gh lh/ks&lh/ks ftEesnkj u gks ijarq vkbZ-vkj-bZ-ih- jkgrx<+ ds izHkkjh gksus ds ukrs vius drZO;ksa ds izfr mnklhu jgus ds dkj.k vkaf'kd :i ls nks"kh gSA** In respect of charge No.4 the Disciplinary Authority has merely stated that for the reasons assigned in respect of charges Nos. 1 and 3, the charge No.4 also stands proved. 1 and 3, the charge No.4 also stands proved. In respect of charge No.5 the Disciplinary Authority has held has under: ^^foHkkxh; tkap izfrosnu esa tkap vf/kdkjh dk er gS fd Jh lat; FkksjkV dk {ks=h; dk;kZy; ds HkaMkj d{k esa fu;a=.k ugha Fkk] bl dkj.k HkaMkj d{k ls fcuk tkudkjh izkIr dh xbZ lkexzh ds fo:) foØ; jkf'k izkIr u gksus ds dkj.k lkexzh forj.k@foØ; dh izxfr dh tkudkjh Jh FkksjkV }kjk ugha yh xbZ FkhA bl er dks lapkyd eaMy }kjk ekU; ugha fd;k x;k D;ksafd Jh FkkjksV dks mDr lkexzh ds forj.k dh tkudkjh tc Hkh Kkr gqbZ rHkh muds }kjk mDr laca/k ea mfpr dk;Zokgh dh tkuk pkfg, FkhA lapkyd eaMy dk vkjksi Øekad ikap ds laca/k esa tkap izfrosnu o lk{;ksa ds voyksdu ds i'pkr~ ;g er jgk fd Jh FkksjkV bl vkjksi ds fy, lh/ks nks"kh izrhr ugha gksrs gSa ijiarq vkbZ-vkj-bZ-ih- jkgrx<+ ds izHkkjh gksus ds ukrs mijksDr gn rd vkaf'kd :i ls nks"kh gSA** 6. Considering the aforesaid dissenting note, it is evident that the Disciplinary Authority while holding the petitioner guilty of the charge levelled against him has not relied upon the statement of even a single witness, no cogent reason has been assigned for disagreeing with the finding arrived at by the Inquiry Officer and merely because the Board of Directors was not in agreement with the findings arrived at by the Inquiry Officer it does not mean that the charges can be held to be established against the petitioner. For holding the petitioner guilty of alleged misconduct, proper reasons should have been assigned by the Disciplinary Authority. Rule 15 (2) of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966, reads as under : "The Disciplinary Authority shall, if it disagrees with the findings of the Inquiry Authority on any article of charge, record its reasons for such disagreement and record its own finding on such charge, if the evidence on record is sufficient for the purpose." 7. From bare perusal of the aforesaid statutory provisions, it is obligatory on the part of the Disciplinary Authority to record reasons for disagreement on record on being satisfied for the purpose. In the present case, there is no appreciation of evidence of any kind in the dissenting note of the Disciplinary Authority and based upon this dissenting note the impugned order of punishment has been passed on 14.7.2009. 8. In the present case, there is no appreciation of evidence of any kind in the dissenting note of the Disciplinary Authority and based upon this dissenting note the impugned order of punishment has been passed on 14.7.2009. 8. Resultantly, this Court is of the considered opinion that the dissenting note merely because the Board of Directors wanted to punish the petitioner is contrary to the provisions of Rule 15 (2) of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 and the same deserves to be quashed and is accordingly quashed, the impugned order dated 14.7.2009 based upon the dissenting note also deserves to be quashed. Resultantly the impugned order dated 14.7.2009 is also quashed and the writ petition stands allowed. The petitioner shall be entitled for all consequential benefit flowing out from the order. 9. With the aforesaid observation, the present writ petition is allowed and disposed of. No order as to costs.