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Madhya Pradesh High Court · body

2012 DIGILAW 1037 (MP)

H. M. Chaturvedi v. M. P. Electricity Board

2012-10-09

K.K.TRIVEDI

body2012
JUDGMENT : The original petitioner has filed the present petition under Article 226 of the Constitution of India, calling in question the correctness of the order dated 26-12-1997, by which the next higher pay scale has been denied to him by the respondents holding that the petitioner was not found fit for the same as also the subsequent orders by which, it is communicated to the petitioner that on review, again the petitioner has not been found fit for grant of such a benefit. The petitioner has also challenged the correctness of the order said to be passed in a departmental enquiry imposing a minor penalty of censure. It is contended that the petitioner was serving in the establishment of respondent No.2, initially appointed as Supervisor (Distribution) in the year 1962, and was subsequently promoted upto the post of Assistant Engineer in the year 1976.A Scheme was made by the respondents for giving benefit of higher pay scale to the employees, who have completed requisite years of service. Such a Scheme was made in the year 1990 and was circulated vide order dated 19-7-1990.It is contemplated under the said Scheme that the benefit of higher pay scale is to be granted on completion of 9, 18 and 25 years of service, under certain conditions prescribed in the order. The claim of the petitioner is that though he had completed 9 years of service and was granted the benefit of higher pay scale, but subsequently his claim was never considered in appropriate manner giving him the benefit of next higher pay scale on completion of 18 years of service as was contemplated in the Scheme. It is contended that there was no impediment as no adverse entry in his confidential report was ever communicated to the petitioner, nor at any point of time, the departmental enquiry was initiated. He was given a charge-sheet of course, but in the departmental enquiry, the enquiry officer has found him not guilty. The petitioner was completely exonerated by the departmental enquiry officer as on the same set of charges, he was acquitted in the Criminal Case also. He was given a charge-sheet of course, but in the departmental enquiry, the enquiry officer has found him not guilty. The petitioner was completely exonerated by the departmental enquiry officer as on the same set of charges, he was acquitted in the Criminal Case also. However, with a mala fide intention by giving a show cause notice, a penalty of censure was imposed by a subsequent order and because of these mala fide reasons, the petitioner has been denied the benefit of higher pay scale.Since during the pendency of the writ petition, the original petitioner has died, seeking the benefit of monetary claim made in the writ petition, his wife is substituted as his legal representative in the present writ petition. 2.The return has been filed by the respondents vehemently contending that the Annual Confidential Reports of the petitioner were properly maintained. The gradings of the Annual Confidential Reports were looked into and as per the norms prescribed by the respondents in their order, it was found that the petitioner is not fulfilling the criterias laid down for the purposes of grant of higher pay scale. According to them, the petitioner was not granted such benefit only because of consideration of his claim in appropriate manner as he was not found fit. Prior to the year 1990, the Scheme was made in the year 1975 for considering the claim for grant of next higher post and on 10-3-1975, the instructions in this respect were issued. Since the petitioner was duly considered, was not found fit for grant of next higher pay scale, the orders were issued in this respect. As far as the penalty part is concerned, it is contended that a show cause notice was issued under provisions of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as the Rules for brevity) and after obtaining explanation from the petitioner, the authorities came to the conclusion that misconduct of petitioner was proved, inasmuch as, there was dereliction of supervisory duty and, therefore, penalty was imposed, keeping in view the misconduct of the petitioner. This being so, rightful assessment of the merits of the petitioner was done and he was found unfit for the purposes of grant of higher pay scale. This being so, rightful assessment of the merits of the petitioner was done and he was found unfit for the purposes of grant of higher pay scale. It is further contended that the Annual Confidential Reports of the petitioner were not upto the mark in terms of the Scheme, but they were not to be treated as adverse and, therefore, such Annual Confidential Reports were not communicated to the petitioner. Timely, the case of the petitioner was reviewed, but even after reviewing the claim of the petitioner, it was found that he was not fit to be granted the benefit of higher pay scale. The Annual Confidential Report of the year 1993, which was adverse was communicated to the petitioner, against which appropriate representation before the appropriate authority was not made by the petitioner, therefore, if the said representation was not decided because of folly on the part of the petitioner of not making the representation before the competent authority, it cannot be said that any illegality was committed by the respondents. Thus, the contention raised by the respondents is that the petitioner is not entitled to any relief claimed in the writ petition and the same is liable to be dismissed. 3.Though rejoinder and additional returns have been filed, but much or less the submissions made by the petitioner and respondents in the rejoinder and additional return have been referred to hereinabove in brief, it is not necessary to detail the submissions made by the parties in such pleadings. Suffice it to say that the petitioner has contended that there was no proper appreciation of his confidential report and these facts are denied by the respondents. 4.Heard learned counsel for the parties at length and minutely perused the record. 5.Undisputedly, the petitioner was appointed in the year 1962 as Supervisor. He was granted a promotion on the post of Assistant Engineer on provisional basis on 14-9-1976.As per the Scheme, the first higher pay scale was granted to the petitioner with effect from the year 1985 on completion of 9 years of service as is clear from order dated 10-7-1986 (Annx.P/2).The only controversy boils around whether the petitioner was rightly considered for grant of benefit of next higher pay scale on second term or not. It is not in dispute that if an employee has completed 18 years of service, he is entitled to be considered for grant of second higher pay scale. The said period for the petitioner would be in the year 1994.The Scheme itself was made on 19-7-1990, which prescribes the grant of a second option or a second higher pay scale in certain circumstances. For the purposes of entitlement of the claim of petitioner, relevant clause which is applicable is Clause (vi) (a) of the Scheme (Annx.P/4) which reads thus :- "(vi). The second option can be exercised as below :- (a) A EE/Officer on equivalent post, can opt for higher pay scale of SE equivalent/equivalent post, on completion of 18 years of service (excluding period of supersession if any) as AE/equivalent post and EE/prevalent post put together or 5 years of service (excluding period of supersession if any) in the post of EE/equivalent post whichever is earlier." 6.The petitioner was thus become eligible to be considered for grant of second higher pay scale in the year 1994 for the first time In the month of November, 1993, the adverse entry recorded in the confidential report for the year 1993 (ending 31-3-1993) was communicated to the petitioner wherein it was recorded that the petitioner has prepared and sanctioned pump work estimate against the Board's interest and has little control over the staff in his division. The petitioner was holding the post of Executive Engineer at the relevant time. The fact remains that there were complaints and a criminal prosecution for committing offence under section 13(d)(2) of Prevention of Corruption Act, 1988, was launched against the petitioner for the very same act of preparing and sanctioning the pump work estimate. If the matter was under investigation before any investigating agency, that was not required to be reflected in his confidential report unless conclusively it was proved that the offence was committed by the petitioner. The criminal charge against the petitioner was only this much that he has sanctioned the pump work estimate against the Board's interest causing loss to the Board. Thus, the first part of the adverse entry was not justified. The criminal charge against the petitioner was only this much that he has sanctioned the pump work estimate against the Board's interest causing loss to the Board. Thus, the first part of the adverse entry was not justified. As far as the little control over the staff in his division is concerned, the petitioner by making a representation addressed to the Executive Director, who has sent the adverse communication to the petitioner, had contended that there was nothing available on record to show that he had no control over the staff, on the other hand, when the facts were brought to the notice of the petitioner, he immediately took steps and suspended one of the helper. The reports were sent to the Superintending Engineer, who suspended the Junior Engineer also. The matter was pending in the departmental enquiry. He categorically contended that such an adverse entry was, thus, not justified Undisputedly, after making of this representation against the adverse entry, no steps were taken by the respondents and they have not cared to decide the same. In fact, a Committee is constituted by the respondents for the purposes of giving comments on the representations made against the adverse entry in Annual Confidential Reports. The said Committee was required to obtain comments from the initiating, reporting and approving authority of the relevant time, who have written the Annual Confidential Report of the concerned person. Not a single word is said as to how and why the representation of the petitioner was not considered in appropriate manner against the adverse entry and only this much is said that since the representation was not made before the appropriate authority by the petitioner, the same was not decided. If a procedure was prescribed for making of such a representation and the representation was not addressed to the proper authority, at least the Executive Director of respondents could have directed the petitioner to make a representation before the competent authority. This has not been clarified by the respondents. The said authority has not even cared to forward the representation of the petitioner before the appropriate authority.Thus, merely because such a representation was made in such a manner, it was not justified on the part of the respondents to say that the same was not considered on account of folly on the part of the petitioner of not making the representation before the competent authority. 7.Apart from the aforesaid, the respondents have contended in their return that the initiating authority has mentioned that the integrity of the petitioner was doubtful as, such entries were made in the confidential report of the year 1993.The fact remains that with respect to the same incident, the complaint was made in the Lokayukt.The matter was being enquired into by the Police of Lokayukt.A full dressed trial was conducted after filing of challan by the Lokayukt Police and, ultimately, the petitioner was acquitted only because nothing was stated by the witnesses examined in the said case.Most of the persons were the officers of the respondents and they have categorically said that the petitioner has also acted in the same manner as other officers of the Board were discharging the function.However, nothing was placed on record to indicate that it was the conduct of the petitioner on account of which any loss was caused to the Board.Even after acquittal of the petitioner, no steps were taken to challenge the judgment of acquittal in the higher forum.The another aspect is that a charge-sheet was issued to the petitioner in the year 1993, levelling the charges with respect to the very same incident at the very same time and place.All such allegations were denied by the petitioner.The enquiry was conducted in detail and after the examination of witnesses of the department, the enquiry officer came to the conclusion that none of the charges were found proved against the petitioner.He has categorically recorded that the petitioner was not guilty of any such misconduct. 8.Surprisingly, proper action was not taken in respect of the said departmental enquiry report.Undisputedly, the respondents have adopted the CCA Rules referred to hereinabove.Rule 15 of the Rules specifically prescribes an action on enquiry report.Sub-rule (2) of Rule 15 of the Rules further prescribes that the disciplinary authority shall, if, it disagrees with the findings of the enquiry authority on any article of charges would record its reasons for such disagreement and record its own findings on such charges if the evidence on record is sufficient for the purposes.If after recording such finding, the disciplinary authority is of the opinion that any of the penalties specified in Rule 10 of the Rules is to be imposed on the delinquent employee it shall, notwithstanding anything contained in Rule 16, make an order imposing such penalty.It is further provided that the disciplinary authority may after recording disagreement with the finding recorded by the enquiry officer remit back the matter for conducting further enquiry.It appears that the findings recorded by the enquiry officer were not agreed by the disciplinary authority.However, the reasons recorded by the disciplinary authority while issuing the show cause notice to the petitioner, reflects that it has reached to the conclusion that circumstantial conditions have been taken into consideration by the enquiry officer, which were not to be taken into consideration at the time of giving findings as the same are required to be taken into consideration at the time of inflicting punishment.Such a reason cannot be said to be a justified reason of disagreeing with the enquiry officer's report.The detail of the justification given by the enquiry officer in his report are very categorical, with respect to the action taken by the senior officers of the petitioner who have given the instructions to act in the said manner.This was recorded after recording of evidence and examining the witnesses of the respondents.If the witnesses have supported the defence version of the petitioner that under the instructions of the Chief Engineer and Superintending Engineer, work was got done and even the cost estimated, referred to the higher authorities, was not further forwarded by the Superintending Engineer for approval and this evidence has been accepted by the inquiry officer holding that the petitioner was not guilty of misconduct alleged, how could it be said that such findings of inquiry officer were based only on circumstantial evidence.This was corroborative of the fact that in the criminal trial also, the petitioner was completely exonerated.If these facts are taken into consideration, there was no occasion for the respondents to record disagreement with the findings of the enquiry officer and to conclude that in fact the petitioner has committed the misconduct.Therefore, there was no occasion for issuing a show cause notice as was issued to the petitioner on 28-7-2001.This being so, the order of penalty deled 5-6-2002 was also not to be issued.From the records and from the return also, it is not clear whether rightful appreciation of such evidence which was done by the enquiry officer, was done by the disciplinary authority and a finding was specifically recorded that the petitioner was held to be guilty of the misconduct on the basis of material evidence available on record or not.If that was the situation, it could be safely said that the procedure was not rightly followed in conducting the enquiry against the petitioner and, as such, the order impugned dated 5-6-2002 cannot be sustained. 9.Now coming to the consideration of the claim of petitioner for grant of higher pay scale. According to the respondents themselves as have been referred to in their additional submissions, for the first time, the case of the petitioner was considered in the year 1994.Undisputedly, the petitioner was graded in the Annual Confidential Report from the year 1990 to 1994.In the grading of Annual Confidential Reports of the year 1990, 1991, 1992 and 1994, the petitioner was graded as "Good Officer". Only in the Annual Confidential Report of the year 1993, the grading of the petitioner was adverse (D).How such a grading was done, has been stated hereinabove. The grading was done only because of criminal prosecution or the complaint made against the petitioner and the said fact was reflected in the Annual Confidential Report of the year 1993.The representation made against the said entry was not considered in appropriate manner and it has been said that the same was not made before the competent authority, therefore, was not considered. As far as the criteria for consideration is concerned in terms of the Scheme Annx. P/4, it is not necessary that any person who has received only "Very Good" or "Good" remark, alone would be given the benefit of placement in the higher pay scale. As is reflected from the chart produced by the respondents, this was the only Annual Confidential Report of the petitioner which was said to be adverse otherwise he was having good record. The chart produced by the respondents along with the original record indicates that those who have obtained "Good" remarks in the five years Annual Confidential Reports, were found fit to be granted the benefit. Even one of the officer who was graded "Average" in one of the Annual Confidential Reports and was graded Good" in four years Annual Confidential Reports, was found fit for grant of such a benefit, therefore, it can be safely inferred that the claim of the petitioner was not rightly considered and he was superseded in the matter of grant of such a benefit. The other review held were also not done in appropriate manner as this Annual Confidential Report of the year 1993, had again come in his way upto the year 1997.Another aspect is when the petitioner was under suspension, his Annual Confidential Reports were not written, but his claim was considered only on the strength of the Annual Confidential Reports available. It is not in dispute that the petitioner was reinstated in service after revocation of his suspension on account of acquittal. Thus, as a whole, the claim of the petitioner was not considered properly by the respondents. 10.The Apex Court in the case of Brij Mohan Singh Chopra vs. State of Punjab, (1987) 2 SCC 188 , has categorically held that if a representation is made against the adverse entry recorded in the confidential report and if the said representation is not decided expeditiously, the adverse entry cannot be taken into consideration The law as has been explained by the Apex Court in paragraph 10 of the report is squarely applicable in the present case, inasmuch as, though the representation was made, not addressed to the relevant authority, but to the authority which has communicated the adverse entry to the petitioner, no attempt was made by the respondents to get it decided. The said adverse entry was considered against the petitioner time and again and he was denied the benefit of placement in higher pay scale. In such circumstances, the law laid down by the Apex Court prescribes that such an entry is required to be ignored. The view expressed by the Apex Court is further fortified in the law laid down in the case of Dev Dutt vs. Union of India and others, (2008) 8 SCC 725 . 11.Equally, the petitioner could not have been punished in the manner he has been by imposition of penalty of censure which of course has come in his way as is reflected from the records, in the matter of grant of higher pay scale.In the case of G.M.Tank vs. State of Gujarat and others, (2006) 5 SCC 446 , the Apex Court has very categorically held that in same set of charges, one in the criminal trial and other one in the departmental enquiry, after acquittal in criminal charges, punishment cannot be imposed. The specific finding of the Apex Court in this respect as given in para 30 reads thus :- "The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer Mr.V.B.Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal Court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand." 12.In view of the aforesaid, there is no hesitation in holding that the claim of the petitioner was not appropriately considered by the respondents Consequently, this writ petition is allowed The orders dated 5-6-2002 (Annx.P/14) and 6-1-2005 (Annx.P/19) as also the letter dated 26-12-1997 (Annx.P/16) are, hereby quashed. The respondents are directed to consider the case of the petitioner for grant of higher pay scale as on 29-9-1994, ignoring the Annual Confidential Report of the year 1993 and keeping one previous Annual Confidential Report into consideration, and in case the petitioner is found fit, to grant him the benefit of higher pay scale from the date opted for In case, the petitioner is found fit for such benefit, the pay of the petitioner be revised, all the arrears be calculated and be paid to the wife of the petitioner, within a period of three months from the date of receipt of certified copy of the order passed today. The family pension of the present claimant be also revised accordingly, and all the arrears be paid within the aforesaid period. 13.The writ petition stands allowed to the extent indicated herein above.There shall be no order as to costs. Petition allowed.