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2013 DIGILAW 1143 (MP)

Manoharlal Nema v. State of M. P.

2013-09-19

K.K.TRIVEDI

body2013
Judgment: K.K. Trivedi, J. 1. The petitioner a retired Joint Director of Public Instructions has approached the M.P. Administrative Tribunal, Jabalpur, ventilating his grievance against the order dated 7-1-2002, by which a penalty of forfeiting 50% of pension of the petitioner permanently under the Provisions of Rule 9 of M.P. Civil Services (Pension) Rules, 1976 (hereinafter referred to as 'Rules') has been imposed after a departmental enquiry. The Original Application pending before Tribunal was transmitted to this Court after closer of the Tribunal and has been registered as a Writ Petition. Brief facts giving rise to filing of this petition are that the petitioner while was working on the post of Joint Director at Jabalpur was approached by a delegation of Sub Teachers with a representation that those Teachers have completed the requisite years of service but were not being paid the salary in the regular pay scale. The petitioner was apprised of certain instructions issued by the State Government and, therefore, the petitioner directed that such Teachers be paid the regular salary. However, thereafter, the petitioner was transferred to different division of the State where the information was received by him that certain illegal payment of arrears of salary to such Teachers have been made which has caused loss to the State Government. This fact came to the notice of the petitioner from news published in the news paper. Certain information was sent by the petitioner to the Commissioner of Public Instructions. The representations were also sent by the petitioner. Since the petitioner was nearing to retirement, on his request he was posted at Jabalpur again. 2. It is contended by the petitioner that, just before few days of retirement the charge-sheet was served on the petitioner making allegations that because of misconduct committed by the petitioner while he was working at Jabalpur on earlier occasion, the Government has suffered a huge loss and for the assessed loss, a departmental enquiry was to be conducted against him. Such a charge sheet was issued to him on 26-3-1992. The enquiry was made over to the Commissioner of Enquiries, the same was not conducted properly and a report was submitted by the Enquiry Officer. The petitioner was found guilty of misconduct and it was again said that there was probable loss of Rs. 65,11,618/- to the State. Such a charge sheet was issued to him on 26-3-1992. The enquiry was made over to the Commissioner of Enquiries, the same was not conducted properly and a report was submitted by the Enquiry Officer. The petitioner was found guilty of misconduct and it was again said that there was probable loss of Rs. 65,11,618/- to the State. The petitioner was given a second show cause notice of which a reply was submitted by him but without appreciating the reply in appropriate manner, the order of penalty was issued. The said order was bad in law and was liable to be quashed. 3. A return has been filed by the respondents contending inter alia that the State Exchequer was put to heavy loss of Rs. 65,11,618/- on account of misconduct of the petitioner. He was afforded full opportunity of hearing in the departmental enquiry. Categorical findings were given against the petitioner by the Enquiry Officer and as such the allegations made by the petitioner are misconceived. It is contended by the respondents that there was ample material available on record of the departmental enquiry to hold the petitioner guilty of the charge and since he has retired, for the purposes of making good the loss caused to the State Exchequer 50% pension of the petitioner is withheld with permanent effect. Thus it is contended that no illegality is committed in passing the order against the petitioner and as such the petition being based on misconceived facts is liable to be dismissed. 4. Refuting such stand, the petitioner has filed a rejoinder but again the same facts have been reiterated as have been mentioned in the petition. Only this much more is added that the Joint Director has no business to verify the salary bills which are prepared by the pay centres and the District Education Officer being drawing and disbursing authority, if any illegal payment was made to the Teachers even on the strength of the orders passed by the petitioner he alone could not be held responsible for the same as sanction was not to be granted mechanically by the District Education Officer to make payment of any amount towards salary to any of the Teachers. Thus, it is contended that since there is no specific findings or the evidence available on record of the departmental enquiry the petitioner cannot be held guilty of such misconduct and, therefore, the order of penalty is not sustainable. 5. Heard learned counsel for the parties at length and perused the record. 6. First of all it is to be seen as to how the charge was levelled against the petitioner. The charge-sheet placed on record as Annexure A/6 indicates that only one charge was levelled against the petitioner, which is reproduced for ready reference:-- (Translated in English by the Court) "(1) When you were posted as a Joint Director Public Instructions, Jabalpur, Division at that time you have directed all the Deputy Directors Education and the District Education Officer by your letter No. Estb. 0/3/Up Shikshak/88/10284, Jabalpur dated 14th September, 1988 that all the Sub Teachers appointed after 1-4-1981 were to be paid fixed salary of Rs. 300/- per month for a period of one year and thereafter they were to be paid salary in the regular pay scale for which action was to be taken by the authorities. Your this order is against the instructions of the State Government and on account of this improper order since the District Education Officer, Jabalpur, has paid the salary in regular pay scale to the Up Shikshak, because of this illegal payment a probable loss of Rs. 65,11,618/- is caused to the State. For this loss to the State you are prima facie found guilty and, therefore, you have made yourself liable for this misconduct. In the name and by the order of Governor of M.P. sd/ Under Secretary (School Education Department) Govt. of M.P. 7. In the amputation of charges, it was described that certain amount was paid in excess to the Assistant Teachers. It was again and again said that such an action was against the instructions of the State Government dated, 14th September, 1988. However, there were no allegations that any definite loss was caused to the State. Thus the entire allegations were that there was violation of the instructions of the State Government issued on 14-9-1988. It was again and again said that such an action was against the instructions of the State Government dated, 14th September, 1988. However, there were no allegations that any definite loss was caused to the State. Thus the entire allegations were that there was violation of the instructions of the State Government issued on 14-9-1988. Precisely, such a manner of appointment of Up Shikshak, by the State Government and denial of regular salary to the Up Shikshak was a subject-matter of the Original Application No. 2745/1989 filed by Madhukant Yadu and others v. State of M.P., which came to be decided on 24-8-1992. The only contention raised by those Up Shikshaks in the said Original Application was that since they were appointed as Teachers, the regular post of Teachers are already sanctioned, a specific pay scale is given to the said post, therefore, the benefit of regular salary cannot be denied to such Up Shikshaks. The Original Application was allowed by the Tribunal by the order aforesaid. The State Government preferred an appeal before the Apex Court which was registered as SLP No. 6892/1993 and the same was dismissed on 3-1-1999. The decision rendered by the Tribunal in the case of Madhukant Yadu (supra) was relied in various other cases by the Benches of Tribunal and one such case was decided in Original Application filed by one Beni Singh Rathod. The State Government preferred a Writ Petition No. 648/2002, State of M. P. and others v. Beni Singh Rathod before the Division Bench of this Court which too was decided on 1-5-2002 and the decision rendered in the case of Madhukant Yadu (supra) was again affirmed. The Writ Petitions were filed before this Court also and one such Writ Petition No. 8928/2003, Rajendra Kumar Pande and others v. State of M. P. and others, was decided on 21-4-2004, again relying on the decision rendered in the case of Madhukant Yadu (supra). In one of the cases while granting the benefit, the Single Bench of this Court has restricts the payment of salary from the date of filing of the petition and such an order was called in question before the Division Bench of this Court in W.A. No. 346/2008, Smt. Usha Ranawat v. State of M. P. and others, which was decided on 18-12-2008. At the same time, the writ appeals filed by the State Government against the order of the learned Single Judge were considered and in the concluding part of the order of Division Bench of this Court it has been held thus:-- "19. In view of the foregoing discussion, the appeal filed by writ petitioners succeeds and is allowed whereas writ appeals filed by the State are dismissed in limine. Impugned order of Single Bench is modified to the extent that appellant (writ petitioner) in addition to all benefits awarded by the Single Judge in the impugned order would also be entitled to claim arrears of his salary from the date of his initial appointment. In other words, the appellant will be entitled to claim the benefit of his pay fixation i.e. regular pay scale from the date of his initial appointment. Let the calculation be made by respondents in the light of appellant's date of initial appointment and accordingly, the arrears payable to appellant towards his salary be paid to him/her in each case, which are subject-matter of these appeals within a period of 6 months from the date of this order." 8. Subsequently, also various writ petitions have been decided in light of decisions rendered by the Tribunal. Thus, it is clear that the charge sheet which was issued to the petitioner was not in fact based on legal points and only because the petitioner has directed payment of regular salary, it was alleged that a misconduct is committed by him. The legal entitlement of those Up Shikshaks for grant of regular salary, though was subsequently decided by the aforesaid decision of the Tribunal, this Court and affirmed by the Apex Court yet the departmental enquiry proceeded against the petitioner and a finding was given by the Commissioner of departmental enquiry that the petitioner has committed a misconduct and has caused a loss of Rs. 65,11,618/- to the State. Again it was said to be a probable loss to the Public Exchequer and not the real loss caused to the State. Surprisingly, the fact relating to the law laid down by the Tribunal, by this Court and Apex Court, was never brought to the notice of the Commissioner of Departmental Enquiry. 65,11,618/- to the State. Again it was said to be a probable loss to the Public Exchequer and not the real loss caused to the State. Surprisingly, the fact relating to the law laid down by the Tribunal, by this Court and Apex Court, was never brought to the notice of the Commissioner of Departmental Enquiry. The State which was a litigant in all such cases was aware of the decisions rendered by the Tribunal and this Court in those matters but has not taken note of such a fact and passed the order of forfeiting the 50% pension of petitioner that too permanently. 9. The only question is, if there was an improper direction issued which ultimately not sustained by the Court of law and non-compliance of such a direction could be said to be a misconduct and only because of that the penalty of forfeiting 50% pension could be imposed on a retired employee? The simple answer is that if the State authorities were not acting properly, if they were doing something wrong and it was ultimately found to be invalid action on the part of the State, non-compliance of such a direction by a subordinate that too when solely he was not responsible for the disbursement of any amount, cannot be said to a serious misconduct on account of which such a major penalty of withholding of 50% pension could be imposed. It has to be seen that if no such direction would have been given by the petitioner, all those Up Shikshaks who have been paid the regular salary would have approached the Courts by filing the petitions and would have been given the same benefit as was extended in the case of Madhukant Yadu or Smt. Usha Ranawat (supra). This Court is disposing of at least 10 to 20 petitions everyday filed by such Teachers in light of the decisions already rendered by this Court and the Tribunal in the cases of Usha Ranawat and Madhukant Yadu (supra). Therefore, it cannot be said that any actual loss was caused to the Public Exchequer on account of any order passed by the petitioner way back in the year 1988. The order of penalty therefore, cannot be sustained. Therefore, it cannot be said that any actual loss was caused to the Public Exchequer on account of any order passed by the petitioner way back in the year 1988. The order of penalty therefore, cannot be sustained. The provisions of Rule 9 of the Pension Rules of 1976 makes it clear that the loss means real loss to the Public Exchequer and not imaginary loss or probable unqualified loss. There is no evidence available on record to show that any actual loss was caused to the State on account of any order passed by the petitioner. For that reason also, the penalty of forfeiting 50% of pension could not be imposed on him. 10. For the discussions made herein above, the petition is allowed. The order dated 7-1-2002 withholding 50% of pension of the petitioner with permanent effect is hereby quashed. The respondents are directed to pay the entire amount of withheld pension to the petitioner within a period of three months from the date of receipt of certified copy of the order passed today. The writ petition is allowed to the extent indicated hereinabove. There shall be no order as to costs.