Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 930 (MP)

G. P. Dewangon v. State of M. P.

2010-09-14

ALOK ARADHE

body2010
JUDGMENT : In this petition under Article 226 of the Constitution of India the petitioner has challenged the order dated 30-3-1990 (Annexure-P-1) by which punishment of compulsory retirement has been imposed on the petitioner. The petitioner has also assailed the validity of the order dated 25-7-1994 by which appeal preferred by him against the order of punishment has been dismissed by the Appellate Authority. 2. Facts leading to filing of the writ petition are that petitioner was appointed as Forest Ranger on 15-4-1958. In 1968-69 the petitioner was posted in Range Office, Katni. By order dated 22-6-1969 the petitioner was transferred to working plan Sheopur and was relieved on the same date. The petitioner submitted representation against the aforesaid order of transfer. The order of transfer dated 22-6-1969 was stayed and the petitioner worked in Katni till 8-8-1969. However, vide order dated 30-7-1969 the petitioner was transferred from Katni to Kalpi District Mandla. In compliance of the aforesaid order the petitioner joined at Kalpi on 9-8-1969. However, charge was not given to him by the Range Officer, therefore, the petitioner was posted as Officer on Special Duty at Kalpi vide order dated 25-8-1969. 3. Thereafter, by an order dated 4-7-1970 the petitioner was transferred from Kalpi to Bastar circle. Against the aforesaid order the petitioner submitted a representation and stated that no salary and allowance has been paid to him. The order of transfer dated 4-7-1970 was stayed by order dated 19-7-1971 (Annexure-P-11) with a direction that the salary of the petitioner may be paid to him. However, without making payment of salary to the petitioner, he was again transferred vide order dated 16-5-1973 to Bilaspur. However, the Last Pay Certificate (L.P.C.) was also not issued. The petitioner submitted representations (Annexures-P-13 to P-16) and pointed out that neither the petitioner has been neither relieved nor salary has been paid to him. The representations submitted by the petitioner failed to evoke any response. 4. Thereafter, vide communication dated 15-6-1982 the petitioner was informed that by order dated 4-7-1970 he was transferred to Bastar, however, the petitioner was absent from his duties and did not join his duties at the transferred place. Therefore, till the decision with regard to absence of the petitioner is taken, payment of salary cannot be made to him. 4. Thereafter, vide communication dated 15-6-1982 the petitioner was informed that by order dated 4-7-1970 he was transferred to Bastar, however, the petitioner was absent from his duties and did not join his duties at the transferred place. Therefore, till the decision with regard to absence of the petitioner is taken, payment of salary cannot be made to him. The petitioner brought to the notice of respondents that his order of transfer to Bastar was stayed by order dated 19-7-1971 and, therefore, he did not execute the order of transfer. 5. A charge-sheet dated 23-10-1982 was served on the petitioner. The petitioner filed reply to the aforesaid charge-sheet on 7-12-1982. Since the petitioner was neither permitted to join his duties nor payment of salary was paid to him, the petitioner filed writ petition which was registered as M. P. No. 3724/1986 in which direction was sought with regard to payment of wages as well as for quashing of the charge-sheet. On constitution of the M. P. Administrative Tribunal, the writ petition was transferred to Tribunal. Thereafter, again on abolition of the Tribunal the writ petition was transferred to this Court. Eventually, vide order dated 18-4-2006 the writ petition was disposed of with a direction to the Appellate Authority to consider the decide the appeal preferred by the petitioner. In the aforesaid factual backdrop the petitioner has prayed for the reliefs, which have already been narrated supra. 6. Respondents No. 1 and 2 have filed the return, in which, inter alia, it is stated that vide orders dated 7-11-1973, 28-1-1989 and 21-12-1989 three charge-sheets along with the article of charges were issued to the petitioner containing different charges. The petitioner did not submit reply to the charge-sheets. Thereafter disciplinary proceedings were initiated against the petitioner under Rule 14 of M. P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to the 1966 Rules') and the Inquiry Officer was appointed. The Inquiry Officer issued notice to the petitioner. However, the petitioner did not participate in the departmental enquiry. Eventually, the petitioner was proceeded ex parte in the departmental enquiry proceedings. The Inquiry Officer after conclusion of the enquiry submitted the inquiry report in which charges leveled against the petitioner were duly found to be proved. The Disciplinary Authority agreed with the findings of the Inquiry Officer and eventually by order dated 30-3-1990 imposed punishment of compulsory retirement on the petitioner. The Inquiry Officer after conclusion of the enquiry submitted the inquiry report in which charges leveled against the petitioner were duly found to be proved. The Disciplinary Authority agreed with the findings of the Inquiry Officer and eventually by order dated 30-3-1990 imposed punishment of compulsory retirement on the petitioner. The aforesaid order was affirmed in appeal by the Appellate Authority. It has been averred in the return that full fledged opportunity of hearing was afforded to the petitioner, however, the petitioner failed to avail the same. The departmental enquiry proceedings have been held in accordance with 1966 Rules and principles of natural justice have been duly complied with. 7. Shri D. N. Shukla, learned counsel for the petitioner submitted that without any justification after the delay of 15 years, charge-sheet was issued to the petitioner and the enquiry proceedings have been completed ex parte without affording proper opportunity of hearing to the petitioner. It has further been submitted that Appellate Authority in mechanical manner has dismissed the appeal preferred by the petitioner, though the appeal preferred by the petitioner was decided on 25-7-1994, yet the order was communicated to the petitioner only on 13-12-2006. In support of his submissions, learned counsel for the petitioner has placed reliance on decisions rendered in the cases of State of M. P. vs. Bani Singh and another, AIR 1990 SC 1308 and M. V. Bijlani vs. Union of India and others, AIR 2006 SC 3475 . 8. On the other hand, Shri Ashish Shroti, learned counsel for respondents No. 1 and 2 while opposing the submissions made on behalf of the petitioner has submitted that three charge-sheets were issued to the petitioner. The petitioner despite receiving of notice of the departmental enquiry proceedings did not appear in the proceedings. The opportunity of hearing was afforded to the petitioner. However, he did not avail of the same and, therefore, the petitioner cannot be permitted to complain about the violation of principles of natural justice. It was further submitted that the instant case is not a case of delay in initiation of departmental enquiry, but of delay in its completion. The petitioner has not pleaded any prejudice which has been caused to him on account of delay in completion of the departmental proceedings. It was further submitted that the instant case is not a case of delay in initiation of departmental enquiry, but of delay in its completion. The petitioner has not pleaded any prejudice which has been caused to him on account of delay in completion of the departmental proceedings. In support of his submissions learned Government Advocate has placed reliance on the decisions rendered in the cases of Union of India and others vs. Alok Kumar, (2010) 5 SCC 349, R. K. Geete vs. Deputy Managing Director and Corporate Development Officer and others, 2008(2) MPLJ 428 = 2009(2) MPHT 409 (DB) and Uma Shanker vs. State of U. P. and others, 1999 SCC (L and S) 645. 9. Learned counsel for respondent No. 3 has submitted that the respondent No. 3 has unnecessarily been impleaded and no relief has been sought against respondent No. 3. 10. I have considered the submissions made by learned counsel for the parties. From the averments made in the writ petition it is apparent that it is not a case of the petitioner that he did not have the notice of departmental enquiries. The respondents No. 1 and 2 have categorically stated in the return that the petitioner was served with the notice of departmental enquiries. However, he did not participate in the departmental enquiries proceedings. Accordingly, he was proceeded ex pane. The aforesaid fact has not been disputed by the petitioner by filing the rejoinder. It is settled in law that if the averments of fact is not denied, the same is taken to be admitted. Reference in this connection may be made to the decision of a Supreme Court in Naseem Banu (Smt.) vs. State of U. P. and others, 1993 Suppl. (4) SCC 46. Since the petitioner himself had chosen not to participate in the disciplinary proceedings, therefore, he cannot be permitted to complain about the violation of principles of natural justice. In Alok Kumar (supra) it has been held that it is incumbent on the delinquent employee to show that he has suffered prejudice on account of violation of principles of natural justice. In the instant case the petitioner failed to show that prejudice has been caused to him on account of violation of principles of natural justice. Therefore, no fault can be found with the order passed by the Disciplinary Authority. 11. In the instant case the petitioner failed to show that prejudice has been caused to him on account of violation of principles of natural justice. Therefore, no fault can be found with the order passed by the Disciplinary Authority. 11. In Chairman, Disciplinary Authority Rani Lakshmi Bai Kshetriya Gramin Bank vs. Jagdish Sharan Varshney and others, (2009) 4 SCC 240 the Supreme Court has held that an order of affirmation need not contain as elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. The order passed by the Appellate Authority must contain some reasons, at least in brief, so that one can know whether the Appellate Authority has applied its mind while affirming the order of the disciplinary authority. Similarly, in State Bank of Bikaner and Jaipur vs. Prahhu Daya Grnver, (1995) 6 SCC 279 the Supreme Court has held that an order passed by the Appellate Authority should disclose application of mind. Whether there was an application of mind or not can only be disclosed by assigning reasons. In S. N. Mukherjee vs. Union of India, (1990) 4 SCC 594 the Supreme Court has held that people must have confidence in the judicial or quasi-judicial authorities. While emphasizing the need for assigning reasons it was held that giving of reasons minimizes the chances of arbitrariness and hence, it is an essential requirement of the rule of law. In Secretary and Curator, Victoria Memorial Hall vs. Howrah Ganatantrik Nagrik Samity and others, (2010) 3 SCC 732 it has been held by the Supreme Court that reason is the heartbeat of every conclusion. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. It has further been held that recording of reasons is a principle of natural justice. It ensures transparency and fairness in decision making. 12. In the backdrop of well settled legal position the facts of the case may be examined. In the instant case the order passed by the Appellate Authority (Annexure-P-2) dated 25-7-1994 is bereft of any reason. The order only states that the appeal preferred by the appellant, after due consideration, is rejected. No reason worth name has been assigned for rejecting the appeal preferred by the petitioner. In the instant case the order passed by the Appellate Authority (Annexure-P-2) dated 25-7-1994 is bereft of any reason. The order only states that the appeal preferred by the appellant, after due consideration, is rejected. No reason worth name has been assigned for rejecting the appeal preferred by the petitioner. For the aforementioned reasons the order passed by the Appellate Authority dated 25-7-1994 cannot be sustained in the eye of law. 13. So far as the claim of the petitioner with regard to payment of salary is concerned, from perusal of representations (Annexure-P-10 and P-13 to P-16), the petitioner has repeatedly has made a grievance that the salary has not been paid to him from August, 1969. Respondents No. 1 and 2 in paragraph 6 of the return have only stated that as per the entitlement, entire claim of the petitioner has been settled. The petitioner was not placed under suspension. From perusal of the charge-sheet of third departmental enquiry it is apparent that last pay certificate of the petitioner was sent on 15-10-1987 to Bastar where the petitioner was transferred vide order dated 4-7-1970. It is relevant to mention that order dated 4-7-1970 was stayed vide order dated 19-7-1971. Thus, it appears that the amount due on account of salary has not been paid to the petitioner. 14. For the aforementioned reasons the order passed by the Appellate Authority is quashed. The Appellate Authority is directed to reconsider the appeal preferred by the petitioner after affording an opportunity of hearing to the appellant and shall pass a reasoned order within a period of three months from the date of production of the certified copy of this order. So far as the claim of the petitioner with regard to payment of salary is concerned, it is directed that the competent authority shall examine the claim of the petitioner with regard to payment of salary within a period of two months from the date of production of certified copy. If any amount is found due and payable to the petitioner the same shall be paid to the petitioner within a period of three months together with interest at the rate of 6% per annum. If the amount found due and payable is not paid within a period of three months, the same shall carry interest at the rate of 9% per annum. 15. If the amount found due and payable is not paid within a period of three months, the same shall carry interest at the rate of 9% per annum. 15. With the aforesaid directions the writ petition is disposed of. Order accordingly.