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Madhya Pradesh High Court · body

2012 DIGILAW 819 (MP)

N. S. Chouhan v. State of M. P.

2012-08-27

K.K.TRIVEDI

body2012
ORDER 1. This petition was originally filed as Original Application No.224/2001, before the M.P. Administrative Tribunal and has come on transfer to this Court after abolition of the Tribunal and is registered as writ petition. 2. The petitioner has called in question the order dated 8.8.2001, by which a penalty of withholding of one increment of pay without cumulative effect is imposed on the petitioner after giving him a show cause notice and conducting a summary enquiry under the provisions of rule 16 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as the Rules for brevity). It is contended that the petitioner was due to retire in the month of March 2002 and juniors to the petitioner were being promoted as Chief Engineer. To forestall the claim of the petitioner, such a device was hatched up and a frivolous show cause notice was issued to him. The fact remains that the allegations which were made, were not relating to any action taken by the petitioner nor was he responsible for any such act, yet to debar him from the promotion such a device was hatched up. It is contended that in fact tenders were floated for purchase of cement for construction work in four sub-division of Sagar Circle of Public Works Department. On receipt of the tenders, the Purchase Committee evaluated the same. With the approval of the Purchase Committee, the order was placed for purchase of the cement. The purchase order was given to an authorised dealer of Tata Iron and Steel Company Limited. The petitioner was at the relevant time posted as officiating Superintending Engineer in Nowgong Circle of the Public Works Department and had nothing to do with the purchase of material at Sagar Circle, which is a totally separate establishment. Only an endorsement of the minimum rate was done and, therefore, it could not have been said that the petitioner was responsible for any misconduct. This being so, it is contended that only with a view to restrain the petitioner from getting the promotion on the post of Chief Engineer, the show cause notice was issued on 4.9.1997 along with another person, who was working as Superintending Engineer at the relevant place. This being so, it is contended that only with a view to restrain the petitioner from getting the promotion on the post of Chief Engineer, the show cause notice was issued on 4.9.1997 along with another person, who was working as Superintending Engineer at the relevant place. The reply to the show cause notice was submitted by the petitioner, but the same was not properly considered and the order impugned was issued, therefore, the petitioner was left with no option but to file the original application. 3. On receipt of the notice of the writ petition, the respondents have filed their return and have contended that a penalty was imposed on the petitioner and, therefore, he was not found fit for promotion. Against the order of supersession, the petitioner has filed a writ petition before this Court which was registered as Writ Petition No.13936/2007(S), in which a detailed return has been filed and the same is adopted for the purposes of hearing of the present petition. It is contended that the cause of action for filing of the present petition is lost and, therefore, the petition deserves to be dismissed. It is seen that the return of the original application was not filed by the respondents, therefore, the return filed in Writ Petition No.13936/2007(S) is considered in which the submissions have been made by the respondents that the enquiry was rightly conducted after giving a show cause notice to the petitioner and a penalty was imposed. According to them, the order of penalty was rightly issued and, therefore, no interference in the present petition was called for. 4. Heard learned counsel for the parties at length and examined the record. 5. Admittedly, the penalty was challenged in Original Application No.224/2002, which was transmitted to this Court and is registered as Writ Petition No.18818/2003. In fact, proper return should have been filed in this petition instead of adopting the return filed in a subsequent writ petition which is based on a different cause of action. In fact, the writ petition subsequently filed is against the order by which the petitioner is communicated that after conducting review Departmental Promotion Committee, again the petitioner is not found fit for promotion as Chief Engineer and that being so the order dated 19.7.2007 is called in question in the said writ petition. In fact, the writ petition subsequently filed is against the order by which the petitioner is communicated that after conducting review Departmental Promotion Committee, again the petitioner is not found fit for promotion as Chief Engineer and that being so the order dated 19.7.2007 is called in question in the said writ petition. The main allegations made in the present petition are with respect to imposition of penalty and, therefore, it would have been appropriate for the respondents to file a detail and proper return in the present petition. 6. However, a perusal of the show cause notice issued to the petitioner as contained in Annexure P-12 dated 4.9.1997, makes it clear that it cannot be construed to be a show cause required to be issued under rule 16 of the Rules. This Court in the case of Ku. Shailja R. Jeswani v. State of M.P. and others [2000(II) MPWN 141=2000(II) MPLSR 187], has categorically held that a show cause for imposition of a minor penalty required to be issued under rule 16 must contain the imputation of charges and the specific allegation of misconduct so that the employee or officer concerned may reply to such allegations in appropriate manner. Unless a show cause is issued in aforesaid manner, it cannot be said tht the summary enquiry is initiated. This Court while considering the specific provisions of rule 16 of Rules, has held in paragraph 4 thus : “4. From perusal of the rule also, it is clear that even for imposition of the penalty of stoppage of one increment without cumulative effect, which is a minor penalty, requirement is the same as in rule 16 of the C.C.A., Rules. The said rule also prohibits imposition of any penalty without serving a charge-sheet on the delinquent and giving him reasonable opportunity to defend himself. The notice, Annexure VI, cannot be construed as a proposal to take action against the petitioner with regard to the imputation of misconduct, but it only seeks her explanation for non-production of the relevant file in time. The order of penalty, Annexure II, cannot, therefore, be sustained.” 7. The notice, Annexure VI, cannot be construed as a proposal to take action against the petitioner with regard to the imputation of misconduct, but it only seeks her explanation for non-production of the relevant file in time. The order of penalty, Annexure II, cannot, therefore, be sustained.” 7. If show cause is issued in such manner as is issued to the petitioner on 4.9.1997, it cannot be said that the summary enquiry as required under rule 16 of the Rules, has been initiated against the petitioner in appropriate manner nor could it be said that after such an enquiry, the penalty is rightly imposed on the petitioner. Normally, such issues should be raised before the appellate authority which is required to examine the validity and correctness of the enquiry proceedings as prescribed in rule 27 of the Rules, but it appears that such was also not done in appropriate manner. This being so, the order of penalty issued against the petitioner on 8.8.2001 cannot be sustained. 8. Learned Government Advocate appearing for the State has made a submission that liberty may be granted to the State to rectify the mistake and to initiate the proceedings against the petitioner afresh by properly issuing the notice or charge-sheet as per the Rules. The petitioner stood retired in the year 2002 and after such a long period for the fault on the part of the State, the respondent State is not to be authorised or granted liberty to initiate proceedings afresh against the petitioner. Such a submission of learned Government Advocate is liable to be rejected. 9. In view of the findings recorded hereinabove, the petition is allowed. The order of penalty dated 8.8.2001 Annexure P-1 issued against the petitioner is, hereby, quashed. The petitioner would be entitled to all the service benefits treating as if no penalty is imposed on the petitioner. The necessary action in this respect be taken within a period of three months from the date of receipt of certified copy of the order passed today. 10. The petition is allowed to the extent indicated hereinabove. There shall be no order as to cost.