Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 560 (MP)

Premlal Dwivedi v. M. P. S. E. B.

2013-04-26

ALOK ARADHE

body2013
JUDGMENT : With the consent of learned Counsel for the parties, the matter is heard finally. In this petition, the petitioner inter alia, has assailed the validity of the order dated 12-1-2007 by which the retiral benefits of the petitioner have been forfeited. The petitioner also seeks a direction to release the retiral dues of the petitioner. 2. The background facts leading to filing of the petition, briefly stated, are that the petitioner at the relevant time was posted as Line Attendant Grade-I. A departmental enquiry was instituted against the petitioner on the ground that the petitioner at the time of entering into service had produced certain incorrect and fake certificates with regard to his educational qualification. The Disciplinary Authority, namely, Superintending Engineer after conclusion of the enquiry by an order dated 6-5-2006 imposed the penalty of reversion from the post of Line Attendant Grade-I to Line Attendant Grade-II. Thereafter, a show-cause notice dated 20-6-2006 was issued by the Disciplinary Authority by which the petitioner was asked to show cause as to why the penalty of removal from the service be not imposed on him. In the meanwhile, the petitioner was allowed to retire with effect from 30-6-2006 from the post of Line Attendant Grade-II. Thereafter, the petitioner submitted reply to the aforesaid show-cause notice. After considering the reply submitted by the petitioner, the Disciplinary Authority, namely, Superintending Engineer by the impugned order dated 12-1-2007 directed forfeiture of the pensionary benefits of the petitioner. In the aforesaid factual backdrop, the petitioner has approached this Court. 3. Learned Senior Counsel for the petitioner while inviting the attention of this Court to Paragraph 4 of the return filed on behalf of the respondents, submitted that the action taken against the petitioner was taken in accordance with the M.P. Industrial Employment (Standing Orders) Rules, 1963 (in short "the Rules"). It is further submitted that under the aforesaid Rules, there is no provision for review of the penalty, which has been once imposed by the Disciplinary Authority. While inviting the attention of this Court to Rule 12 (2) of the Rules, learned Senior Counsel for the petitioner submitted that since the penalty of forfeiture of the retiral dues has not been provided as punishment in the aforesaid Rules, therefore, the same cannot be imposed on the petitioner. While inviting the attention of this Court to Rule 12 (2) of the Rules, learned Senior Counsel for the petitioner submitted that since the penalty of forfeiture of the retiral dues has not been provided as punishment in the aforesaid Rules, therefore, the same cannot be imposed on the petitioner. It is also submitted that the order of punishment of reversion imposed on the petitioner vide order dated 6-5-2006 was already given effect to therefore, the Disciplinary Authority could not have imposed the enhanced punishment that too the one which is not prescribed under the Rules. In support of his submissions, learned Senior Counsel has placed reliance on the decision in Union of India and others Vs. Sharda Bai and others, 2013 (136) FLR 541. 4. On the other hand, learned Counsel for the respondents submitted that against the impugned order an appeal lies therefore, the petitioner has an alternative remedy. However, the petitioner has approached this Court without availing alternative remedy. It is further submitted that since the petitioner had secured the appointment on the basis of fake documents, therefore, the punishment has rightly been awarded to the petitioner. 5. I have considered the respective submissions made by learned Counsel for the parties. So far as the contention of learned Counsel for the respondents that the petitioner has an alternative remedy, is concerned, it is pertinent to mention here that a Bench of this Court, vide order dated 17-8-2007 admitted the petition. It is well settled in law that once a writ petition is admitted, the normal rule is that the same should not be thrown on the basis of alternative remedy. [See : Collector of Monghyr and others Vs. Keshav Prasad Goenka and others, AIR 1962 SC 1694 ,L. Hirday Narain Vs. Income-Tax Officer, Bareilly, AIR 1971 SC 33 , Smt. Kanak Vs. U.P. Avas Evam Vikash Parishad, AIR 2003 SC 3894 and State of H.P. and others Vs. Gujarat Ambuja Cement Ltd. and another] The writ petition is pending before this Court since 2007 therefore, I am not inclined to dismiss the writ petition on the ground of availability of alternative remedy. For yet another reason, the aforesaid objection cannot be entertained as the order impugned in the instant writ petition is per se without jurisdiction. Gujarat Ambuja Cement Ltd. and another] The writ petition is pending before this Court since 2007 therefore, I am not inclined to dismiss the writ petition on the ground of availability of alternative remedy. For yet another reason, the aforesaid objection cannot be entertained as the order impugned in the instant writ petition is per se without jurisdiction. It is well-settled in law that availability of alternative remedy would not operate as a bar in entertaining the writ petition where the order impugned is per se without jurisdiction. [See : M/s. Baburam Prakash Chandra Maheshwari Vs. Antarim Zila Parishad, AIR 1969 SC 556 , Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others, (1998) 8 SCC 1 , Harbanslal Sahnia and another Vs. Indian Oil Corpn. Ltd. and others, (2003) 2 SCC 107 and Sanjana M. Wig (Ms) Vs. Hindustan Petroleum Corpn. Ltd., (2005) 8 SCC 242 . 6. Admittedly, after conclusion of the departmental enquiry, the Disciplinary Authority vide order dated 6-5-2006 imposed the punishment of reversion on the petitioner from the post of Line Attendant Grade-I to Line Attendant Grade-II. The aforesaid order was given effect to as is evident from the order dated 30-6-2006 by which the petitioner was allowed to retire from the post of Line Attendant Grade-II. After the retirement of the petitioner, the Disciplinary Authority had enhanced the punishment which was already awarded to the petitioner and directed withholding of the pensionary benefits of the petitioner. Learned Counsel for the respondents was unable to point out either any provision under the Rules to show that the Disciplinary Authority has power to review the punishment which has already been imposed or that punishment of forfeiture of retiral dues is prescribed as penalty in the Rules. It is well-settled proposition of law that Disciplinary Authority has to adhere to statutory rules while imposing punishment and cannot impose punishment not prescribed under the Rules. [See : Vijay Singh Vs. State of M.P., (2012) 5 SCC 242 ]. Thus, in the absence of any provision in the Rules with regard to forfeiture of retiral dues, the impugned order dated 12-1-2007 cannot be sustained in the eye of law. Accordingly, the same is hereby quashed. [See : Vijay Singh Vs. State of M.P., (2012) 5 SCC 242 ]. Thus, in the absence of any provision in the Rules with regard to forfeiture of retiral dues, the impugned order dated 12-1-2007 cannot be sustained in the eye of law. Accordingly, the same is hereby quashed. The respondents are directed to release the retiral benefits .of the petitioner along with interest at the rate of 6% per annum from the date when it became due till the amount is actually paid to the petitioner. The amount of retiral dues shall be paid within a period of two months from the date of production of certified copy of this order. In case, the aforesaid amount is not paid within a period of two months, the same shall carry interest at the rate of 10% per annum. 7. In the result, the writ petition is allowed.