Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 268 (MP)

State of M. P. v. Pramod Gopal Rao Khandekar

2012-03-05

BRIJ KISHORE DUBE, S.K.GANGELE

body2012
ORDER Heard on I.A. No. 16824/10, an application seeking condonation of delay in filing the appeal. Looking to the facts of the case, even though there is delay of 398 days in filing the appeal, the application is allowed. Delay in filing the appeal is hereby condoned. Heard on merits. 1. This appeal has been filed against the order dated 15.07.2009 passed by learned Single Judge of this Court in Writ Petition No. 6627/03(S). 2. The respondent had been working as Area Organizer in Tribal Welfare Department of the State of Madhya Pradesh. After attaining the age of superannuation, the respondent retired from service w.e.f. 31.7.1997. A departmental enquiry was initiated against the respondent vide memo of charge sheet dated 2.1.1996 on three charges that he had installed hand-pumps without inviting tenders and made an excess payment of Rs. 1,30,427/- and thus caused a loss to the Government. The respondent denied the charges. Thereafter, vide order dated 10.7.2001 a penalty of recovery of an amount of Rs. 1,30,427/- was imposed against the respondent under Rule 9 of the M.P. Civil Services (Pension) Rules, 1976. 3. The respondent challenged the aforesaid order in the writ petition before the Writ Court. Learned Single Judge of this Court relying on the Division Bench decision in the case of State of Madhya Pradesh vs. R.S. Ogale, reported in 2006 (3) JLJ 218 = 2006 (2) MPHT 202 (DB) = 2006 (1) MPLJ 412 , quashed the order of recovery from the respondent on the ground that departmental enquiry was not completed within a period of two years after retirement of the respondent, hence, the order is illegal. 4. Learned Government Advocate, appearing on behalf of appellants / State has submitted that the Division Bench decision of this Court in the case of R.S. Ogale (supra) has been over-ruled by the Full Bench of this Court in the case of State of M.P. and another vs. Puranlal Nahir, reported in 2012(1) JLJ 179 = 2012 (1) MPHT 375 (FB), as such the order passed by the learned Single Judge is bad in law. 5. The decision of the Division Bench State of Madhya Pradesh vs. R.S. Ogale, reported in 2006 (3) JLJ 218 = 2006 (2) MPHT 202 (DB) = 2006 (1) MPLJ 412 , has been over-ruled by the Full Bench in the case of State of M.P. and another vs. Puranlal Nahir, (Supra). 5. The decision of the Division Bench State of Madhya Pradesh vs. R.S. Ogale, reported in 2006 (3) JLJ 218 = 2006 (2) MPHT 202 (DB) = 2006 (1) MPLJ 412 , has been over-ruled by the Full Bench in the case of State of M.P. and another vs. Puranlal Nahir, (Supra). The Full Bench has answered the reference as under :- “10. In view of preceding analysis, our answer to the questions referred for our opinion are as follows :- (a) In view of submissions made by learned Advocate General as well as learned Counsel for the respondent that Question No.1 formulated by the Division Bench does not arise for consideration in the facts of the case, it is not necessary for us to answer the same. (b) The disciplinary proceeding initiated by the State Government against a Government employee after his retirement, does not automatically come to an end in case of enquiry is not concluded within two years of its inception and can continue beyond the period of two years. (c) The Governor is not precluded from passing final order in relation to payment of pension to a Government employee against whom disciplinary proceeding is initiated after his retirement and is not concluded within two years from its institution. (d) The proposition of law laid down in State of M.P. vs. R.L. Ogale, 2006 (3) JLJ 218 = 2006 (2) MPHT 202 (DB) = 2006 (1) MPLJ 412 , that in view of clause (b) of third proviso to Rule 9 (4) of the rules, if the departmental proceedings is not concluded against a retired Government servant within a period of two years, the Governor does not have the right to impose the penalty, does not lay down the correct proposition of law. (e) The second question of law referred by the learned Single Judge in W.P.No. 3494/2011 (s) has already been answered by us while answering the third question of law.” 6. In this view of the law, the impugned order passed by the learned Single Judge of this Court on the basis of State of Madhya Pradesh vs. R.S. Ogale, reported in 2006 (3) JLJ 218 = 2006 (2) MPHT 202 (DB) = 2006 (1) MPLJ 412 , is not proper. 7. However, on merits, the order of imposition of penalty in regard to recovery of the amount of Rs. 7. However, on merits, the order of imposition of penalty in regard to recovery of the amount of Rs. 1,30,427/- is not sustainable, because, in reply to show cause notice the respondent - employee has categorically denied that he has caused any loss to the Government. He pleaded in the representation that there was sanction from the Collector in regard to installation of hand-pumps and he also filed a photocopy of the note sheet dated 23.7.1997. He further stated that the then Sub Engineer had made hurdles in regard to installation of hand-pumps, hence, the work was performed under the supervision of another Sub Engineer. The Disciplinary Authority in the order of punishment dated 10.7.2001 has observed that the Inquiry Officer found all the charges proved against respondent and thereafter representation of the respondent was considered and it was not found satisfactory by the Authority and imposed punishment of recovery of an amount of Rs. 1,30,427/-. 8. Rule 9 of the M.P. Civil Services (Pension) Rules, 1976 vests right with the Governor to order recovery of any pecuniary loss caused to the Government by an employee. The departmental enquiry was conducted against the respondent in accordance with the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. Rule 10 of the aforesaid Rules prescribes ‘Penalties’ and Rule 16 prescribes ‘Procedure for imposing minor penalties. The relevant Rule is as under :- “16. The departmental enquiry was conducted against the respondent in accordance with the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. Rule 10 of the aforesaid Rules prescribes ‘Penalties’ and Rule 16 prescribes ‘Procedure for imposing minor penalties. The relevant Rule is as under :- “16. Procedure for imposing minor penalties - (1) Subject to the provisions of sub-rule (3) of rule 15, no order imposing on a Government servant any of the penalties specified in clauses (I) to (iv) of rule 10 and rule 11 shall be made except after - (a) informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal; (b) holding an inquiry in the manner laid down in sub rules (3) to (23) of rule 14, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary; (c) taking the representation, if any, submitted by the Government servant under clause (a) and the record of inquiry, if any, held under clause (b) into consideration; (d) recording a finding on each imputation of misconduct or misbehavior; and (e) consulting the commission where such consultation is necessary.” 9. For imposing a punishment under Rule 9 of the M.P. Civil Services (Pension) Rules. 1976, it is necessary, to follow the procedure of Rule 16 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. As per the aforesaid rule, it is mandatory to record a finding on each imputation of misconduct or misbehaviour after taking into consideration the representation of the Government servant. ‘Consideration’ means that it is obligatory on the part of the Disciplinary Authority to consider the defence raised by the Government employee in his representation. 10. In the present case, the representation of the respondent has not been considered at all. Only it is mentioned in the order that the representation of the respondent was not satisfactory. In our opinion, it is not a compliance of Rule 16 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. Hence, the punishment order of recovery is contrary to law. Only it is mentioned in the order that the representation of the respondent was not satisfactory. In our opinion, it is not a compliance of Rule 16 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. Hence, the punishment order of recovery is contrary to law. Because, long time has been elapsed in the enquiry proceedings, in such circumstance, the matter cannot be remanded back, because, the respondent has already been retired from service. Hence, we do not find any merit in this appeal. It is hereby dismissed.