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Madhya Pradesh High Court · body

2012 DIGILAW 659 (MP)

Duli Chand Kumar v. State of M. P.

2012-07-03

RAJENDRA MENON

body2012
ORDER 1. Seeking quashment of a charge-sheet issued to the petitioner on 12.4.2005, proposing to conduct an inquiry as contemplated under rule 14 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as ‘Rules of 1966’), petitioner has filed this writ petition. 2. Petitioner was working as an Assistant Surgeon and was posted in the Jail Hospital at Jabalpur. According to the petitioner, he was suffering from ‘acute rheumatic arthritis’ and, therefore, was unable to perform his duties properly. According to him in the year 1990-91, he submitted application for leave in the prescribed proforma for the period from 8.8.1990 to 31.11.1990 total 115 days, and thereafter from 1.9.1991 to 24.11.1991 total 85 days. Similarly, he sought leave for 274 days during the period 1.12.1990 to 31.8.1991. Applications in this regard are filed as Annexures P-1, P-2 and P-3. It is the case of the petitioner that the applications were not decided by the competent authority inspite of recommendations made by the Superintendent Central Jail, Jabalpur vide Annexure P-4, but all of a sudden the entire period was treated as ‘dies non’ and an order was passed on 6.9.1997 vide Annexure P-7, treating the entire period of 476 working day as ‘dies non’ on the ground that petitioner was on unauthorized leave. This order dated 6.9.1997 Annexure P-7 was challenged by the petitioner by initiating proceedings under section 19 of the Administrative Tribunal Act, 1985 before the State Administrative Tribunal in O.A. No.2302/1998 and after winding up of the Tribunal matter stood transferred to this Court and was registered as Writ Petition No.12902/2003. In the said proceedings initiated by the petitioner, it was his case that treating the period as ‘dies non’ has adverse consequence on the service of the petitioner, the same amounts to punishment, is stigmatic in nature and, therefore, the action impugned without notice to the petitioner and without conducting a proper departmental inquiry, is unsustainable. It seems that the aforesaid contention of the petitioner found favour before this Court and on 15.7.2004 an order was passed, and a Bench of this Court found that the period of 476 days has been treated as ‘dies non’, the order is stigmatic in nature and, therefore, action taken without conducting a departmental inquiry is not proper and on such ground the order was quashed. After the order was quashed the matter was referred to the competent authority and the proposed departmental inquiry is now initiated with regard to the same allegations of unauthorized absence for the period of 476 days, as indicated hereinabove. 3. It is the case of the petitioner that the charge-sheet issued to him is unsustainable and in support thereof the following contentions are raised : (a) The first contention raised is that the incident for which the charge-sheet is issued in the year 2005 pertains to certain action which was taken in the year 1990-91, there is inordinate delay in issuing the charge-sheet and, therefore, placing reliance on the following judgments it is stated that issuance of the charge-sheet after inordinate delay is unsustainable and the charge-sheet is liable to be quashed on this count alone. The judgments referred to are : State of M.P. v. Bani Singh and another [1990 JLJ 319=1990 (Supp.) SCC 738]; N.K. Solomon v. Food Corporation of India and another [ 1997(2) JLJ 28 = 1997(2) MPLJ 94 ]; and Lavkush Prasad Gautam v. Food Corporation of India and others [ 2001(2) MPLJ 54 ]. (b) Secondly, it was argued by learned counsel that when the matter was agitated before this Court in the earlier writ petition, i.e., Writ Petition No.12902/2003 and once this Court has quashed the order which treated the period as ‘dies non’, in the absence of any liberty being granted to the respondent/department to conduct departmental inquiry, the action which runs contrary to the decision of this Court is unsustainable. Accordingly, the second ground canvassed is that the departmental inquiry cannot be held now in view of the order earlier passed on 15.7.2004, by a Bench of this Court. (c) Further, it was argued that the petitioner was granted higher pay-scale after the aforesaid period of unauthorized absence and as the unauthorized absence is condoned by grant of higher pay-scale, the inquiry is unsustainable. (d) Finally, it was sought to be argued that the charge-sheet has been issued mala fidely, only 20 days prior to retirement of the petitioner and, therefore, after retirement an inquiry into the matter is unsustainable. 4. (d) Finally, it was sought to be argued that the charge-sheet has been issued mala fidely, only 20 days prior to retirement of the petitioner and, therefore, after retirement an inquiry into the matter is unsustainable. 4. Respondents have refuted the aforesaid and contend that as action was taken immediately and it was only because the action was challenged by the petitioner, which was finally decided by this Court only on 15.7.2004, and as the charge-sheet is issued within a reasonable time period, there is no delay in issuing the charge-sheet. Accordingly, learned counsel for the State submits that the contention of the petitioner cannot be accepted, there is no delay in issuing the charge-sheet, and the petition is liable to be dismissed. 5. I have heard learned counsel for the parties at length and perused the record. From the records, it is clear that for the so-called unauthorized absence of the petitioner for 476 days initially action was taken against the petitioner and the entire period was treated as ‘dies non’. In this regard the order was passed on 6.9.1997. This order was challenged by the petitioner by filing an application before the State Administrative Tribunal in the year 1998 and from 1998 upto 15.7.2004 the matter was pending before the State Administrative Tribunal and before this Court. Thereafter, on 15.7.2004 this Court quashed the order of ‘dies non’ dated 6.9.1997 only on the ground that it is not preceded by departmental inquiry and as the principles of natural justice are not followed, the stigmatic order of ‘dies non’ having penal consequence on the service career of an employee, cannot be sustained. It is clear that the order passed by this Court on 15.7.2004 interfering with the order of ‘dies non’ dated 6.9.1997 was not on merits, it was on technical grounds that the action was taken without notice to the petitioner, without hearing him and without conducting an inquiry. Once an order is quashed on the grounds of non-grant of opportunity or breach of procedural irregularities, there is no necessity for the Court to grant any liberty to the employer concerned. The law permits the employer to proceed further in the matter in accordance to law until and unless the impugned decision on merits is interfered with by this Court. The law permits the employer to proceed further in the matter in accordance to law until and unless the impugned decision on merits is interfered with by this Court. In the regard the principles laid down by the Supreme Court in the case of Managing Director, ECIL, Hyderabad and others v. B. Karunakar and others [ (1993)4 SCC 727 ], may be taken note of wherein the Supreme Court has clearly laid that on technical grounds when an inquiry is quashed, the department is not precluded from proceeding further in the inquiry. In that view of the matter, I am unable to accept the contention of learned counsel for the petitioner that once the period of ‘dies non’ was quashed by this Court the respondents are restrained from conducting inquiry. The earlier order passed by this Court was on the technical ground that no inquiry was conducted and in the absence of any decision on merits with regard to the allegation of unauthorized absence, the respondents are not precluded from proceeding in the matter in accordance with law. 6. As far as delay in conducting the proceedings is concerned, even though in the cases relied upon by Shri Akash Choudhary, the principle laid down is that inordinate, unexplained delay is good ground enough to quash the charge-sheet, but all these judgments have again been explained by the Supreme Court in the case of P.D. Agrawal v. State Bank of India and others [ 2006(3) JLJ 176 =(2007)1 SCC (L&S) 43], and it has been held by the Supreme Court that mere delay in issuing the charge-sheet or initiating departmental inquiry by itself will not be a ground to quash the departmental proceedings. It is held that the reasons for the delay and the prejudice, if any, caused because of the delay has to be pleaded and demonstrated before the Court and in the absence of the ground being established, charge-sheet or departmental proceedings cannot be quashed on the ground of delay. 7. If the case in hand is evaluated in the backdrop of the principles laid down in the case of P.D. Agrawal (supra), it would be seen that initially when on 6.9.1997 action was taken by the employer, petitioner challenged the said action in the year 1997 and from 1997 upto 15.7.2004 the matter was pending before this Court. 7. If the case in hand is evaluated in the backdrop of the principles laid down in the case of P.D. Agrawal (supra), it would be seen that initially when on 6.9.1997 action was taken by the employer, petitioner challenged the said action in the year 1997 and from 1997 upto 15.7.2004 the matter was pending before this Court. It was only on 15.7.2004 that the matter was decided and within a period of six months thereof after completing the requisite administrative formalities the impugned charge-sheet is issued on 12.4.2005. That being so, it is a case where there is no inordinate, unexplained delay on the part of the respondents. On the contrary, it is petitioner himself who challenged the earlier action by contending that the departmental inquiry is not conducted and now in view of the order passed by this Court on 15.7.2004, respondents are conducting the inquiry. Accordingly, in the peculiar facts and circumstances of the case, it cannot be said that there is inordinate and unexplained delay in conducting the inquiry. Keeping in view the totality of the facts and circumstances of the case, I am not inclined to interfere with the charge-sheet on the grounds of delay. 8. As far as grant of higher pay-scale is concerned, merely because higher pay-scale or promotion is granted to the petitioner, it would not mean that the misconduct, if any, is condoned and the department is prevented from proceeding in the matter. Department is always free to proceed in the matter in accordance with law irrespective of the fact whether any promotion or higher pay-scale, even for withdrawing promotion or higher pay-scale mere issuance of a charge-sheet is not enough. The same can be done only after the employee is found to be guilty of the misconduct. In the present case, as on date when the petitioner was granted higher pay-scale, there was no bar in granting the same. The respondents have not committed any error in granting the higher pay-scale and thereafter proceeding with the departmental inquiry after decision was rendered by this Court in Writ Petition No.12902/2003. 9. Accordingly, in the facts and circumstances finding no ground to interfere into the matter, the petition is dismissed.