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2011 DIGILAW 675 (MP)

Dharmendra v. State of M. P

2011-06-24

ABHAY M.NAIK, SHANTANU KEMKAR

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JUDGMENT As per Shantanu Kemkar, J.: - This intra Court Appeal under Section 2(1) of the M.P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, is filed against the order dated 5-4-2011 passed by the learned Single Judge of this Court in Writ Petition No. 7054/09 (S). 2. Brief facts necessary for disposal of this writ appeal are that the appellant/petitioner was appointed as Deputy Collector on 30-1-1987. He was promoted from the said post to the post of Joint Collector w.e.f. 1-1-1994. Thereafter he was further promoted as Additional Collector vide order dated 30-12-2000 and was granted selection grade vide order dated 15-12-2008 w.e.f. 8-9-2008. 3. On 21-7-2009 a charge-sheet was issued to the appellant/petitioner for the alleged misconduct committed by him during the period 1992-1993 and 1999. Aggrieved by belated issuance of the charge-sheet, the appellant had filed the aforesaid Writ Petition No. 7054/09 (S) praying for quashment of the charge-sheet on the ground of delay and latches. 4. The respondent filed reply to the writ petition and stated that the charge-sheet has been issued on the basis of the recommendation of the Lokayukt Organization which found the petitioner to be guilty in the enquiry conducted in respect of the complaint received against him. The respondent explained the delay by stating that in the detailed enquiry conducted by the Lokayukt about the complaint received against him much time was consumed. 5. A rejoinder was filed by the appellant/petitioner before the Writ Court challenging the action of the State Government in issuance of charge-sheet, on the ground that merely on the basis of recommendation of the Lokayukt Organization the State Government could not have issued the charge-sheet mechanically without examining the recommendation. The respondent filed reply to the rejoinder and justified their action of issuance of the charge-sheet on the basis of recommendation of Lokayukt. 6. The learned Single Judge after hearing the parties and after going through the record relating to the issuance of charge-sheet dismissed the writ petition. Aggrieved, the appellant/petitioner has filed this writ appeal. 7. Shri A.K. Sethi, learned Senior Counsel for the appellant argued that after receipt of the enquiry report from the Lokayukt, the Competent Authority of the State Government ordered for issuance of charge-sheet to the appellant without examining the said report. Aggrieved, the appellant/petitioner has filed this writ appeal. 7. Shri A.K. Sethi, learned Senior Counsel for the appellant argued that after receipt of the enquiry report from the Lokayukt, the Competent Authority of the State Government ordered for issuance of charge-sheet to the appellant without examining the said report. He argued that the Lokayukt Organization can only recommend about the action to be taken on it but is not empowered to direct the Competent Authority of the State Government to issue charge-sheet as has been done in this matter. He also argued that in the impugned order the learned Single Judge though recorded a finding that after receiving the report from Lokayukt Organization the State Government with due application of mind has framed the charge-sheet and has issued the same to the petitioner but in the entire record of the State Government, there is no material available on the basis of which such a finding could have been recorded by the learned Single Judge. 8. Shri Vivek Patwa, learned Deputy Govt. Advocate appearing for the respondent supported the order passed by learned Single Judge and has argued that after receiving the enquiry report from the Lokayukt Organization, the Competent Authority of the State Government had examined the same and after due application of mind a decision was taken to issue charge-sheet to the appellant. 9. To verify the correctness of the submission made by the learned Senior Counsel for the appellant to the effect that in the original record of the State Government there is no material available from which it can be said that the Competent Authority of the State Government had applied its mind on the said enquiry report and then took a decision to issue charge-sheet to the appellant, the Deputy Govt. Advocate was directed to make available the original record. The same was produced and we have perused it in the presence of the learned Counsel for both the sides. 10. On going through the said record, we find that the Lokayukt Organization vide letter dated 23-4-2008 addressed to the Principal Secretary of the General Administration Department of the State Government directed the State Government to conduct the Departmental Enquiry against the appellant. First of all in our considered view such direction could not have been issued by the Lokayukt Organization. On going through the said record, we find that the Lokayukt Organization vide letter dated 23-4-2008 addressed to the Principal Secretary of the General Administration Department of the State Government directed the State Government to conduct the Departmental Enquiry against the appellant. First of all in our considered view such direction could not have been issued by the Lokayukt Organization. The M.P. Lokayukt and Up-Lokayukt Adhiniyam, 1981 (for short "Adhiniyam") no where empowers the Lokayukt or Up-Lokayukt to give such direction. Section 12 (1) of the Adhiniyam provides that if after enquiry into the allegation, the Lokayukt or and Up-Lokayukt is satisfied that such allegation is established, he shall by report in writing communicate his findings and recommendations along with the relevant documents, material and other evidence to the Competent Authority. Section 12 (2) of the Adhiniyam casts a duty upon the Competent Authority of the State Government to examine the recommendation received from the Lokayukt or Up-Lokayukt. Thus, a conjoint reading of Sections 12 (1) and (2), makes it clear that the Lokayukt or Up-Lokayukt can only recommend about the action to be taken. The recommendation received from the Lokayukt or Up-Lokayukt, has to be examined by the Competent Authority and then it has to take decision on it instead of treating the recommendation so received to be directory in nature for issuance of charge-sheet and holding Departmental Enquiry. 11. In order to ascertain as to whether the Competent Authority has examined the report and has taken an independent decision to issue charge-sheet to the appellant, we have gone through the original record produced before us. On deep scrutiny of the record of the State Government, we find that after receipt of the recommendation under Section 12 (1) of the Adhiniyam from the Lokayukt Organisation with letter dated 23-4-2008, following note-sheet was recorded in the file of the Competent Authority of the State Government: - XXX XXX XXX 12. Thereafter on various dates proceedings were recorded which are in the nature of reminders and for taking necessary steps on the said recommendation and letter dated 23-4-2008. Thereafter following proceeding was recorded on 13-5-2009 and then on 16-6-2009: - XXX XXX XXX 13. Thereafter on various dates proceedings were recorded which are in the nature of reminders and for taking necessary steps on the said recommendation and letter dated 23-4-2008. Thereafter following proceeding was recorded on 13-5-2009 and then on 16-6-2009: - XXX XXX XXX 13. Having regard to the aforesaid proceedings and the entire record, it is very clear that at no point of time the Competent Authority of the State Government had examined the recommendation as required under Section 12 (2) of the Adhiniyam. The Competent Authority also at no point of time taken an independent decision on the said recommendation of the Lokayukt Organisation as to whether the charge-sheet is required to be issued to the appellant for initiating disciplinary proceeding proceedings against him. On the other hand, it is clear that after recording various proceedings, without due application of mind on the recommendations merely on the basis of the said letter dated 23-4-2008 received from the office of the Lokayukt the State Government has mechanically issued the charge-sheet treating the said letter dated 23-4-2008 received from the Lokayukt organisation to be directory, which in our considered view is contrary to the spirit of Section 12 (2) of the Adhiniyam. 14. In view of the aforesaid and on the basis of close scrutiny of the record, we find that the learned Single Judge has committed an error in holding that after receiving the report from the Lokayukt Organization the State Government has issued the charge-sheet after due application of mind. We find that in none of the proceeding of the entire record there is any material to hold that the Competent Authority of the State Government had ever examined the report and applied its mind to it as to whether on that basis a charge-sheet needs to be issued to the appellant. On the other hand, we find that merely on the basis of the said letter dated 23-4-2008 issued by the Lokayukt Organization, the charge-sheet was prepared by the State Government and was issued to the appellant/petitioner. 15. In the aforesaid circumstances the order passed by the learned Single Judge being contrary to the material on record cannot be sustained. As a result, we allow this writ appeal and set aside the order passed by the learned Single Judge. 15. In the aforesaid circumstances the order passed by the learned Single Judge being contrary to the material on record cannot be sustained. As a result, we allow this writ appeal and set aside the order passed by the learned Single Judge. However, we grant liberty to the Competent Authority of the State Government to take a fresh decision after examining the said report received from Lokayukt keeping in view the provision contained in Section 12 (2) of the Adhiniyam. The Competent Authority of the State Government while examining and taking decision on the said report, shall be free to take decision in accordance with law, and any observations made and findings recorded by the learned Single Judge while dismissing the writ petition, shall not come in the way of the Competent Authority of the State Government while taking the appropriate decision in the matter. 16. With the aforesaid observations/directions, the writ appeal stands allowed to the extent indicated above. No orders as to the costs.