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2013 DIGILAW 598 (MP)

Rajendra Prasad Sharma v. State of M. P.

2013-05-06

D.K.Paliwal, S.K.Gangele

body2013
ORDER 1. With the consent of the counsel for the parties, this writ appeal is heard finally. 2. The appellant has filed this appeal assailing the order dated 20.11.2012 passed by the learned Single Judge of this Court in Writ Petition No.8402/2012 (s). 3. The appellant challenged the order dated 5.11.2012 before the learned Writ Court whereby the authority ordered recovery of Rs.3,64,620/- from the pay of the appellant. 4. A show cause notice was issued to the appellant on 13.9.2012 under Rule 16 of the MP Civil Services ( Classification, Control and Appeal ) Rules, 1966 [for brevity, the “Rules”]. It is mentioned in the said show cause notice that the Lokayukt Organization received a complaint in regard to construction of field channel and an enquiry was conducted by the Lokayukt. The authority observed that the appellant who was working at that time as Sub-Engineer had made payments of the work. The appellant submitted reply to the show cause notice, copy of which had been filed before the Writ Court as Annexure P/7. However, no reasons have been assigned by the authority as to why the appellant is liable to deposit the amount. Reply of the appellant has also not been considered by the authority nor it is mentioned in the impugned order that the reply of the appellant was not satisfactory. 5. Rule 16 of the Rules prescribes a procedure for imposition of minor penalties. It reads thus : “16.Procedure for imposing minor penalties. Reply of the appellant has also not been considered by the authority nor it is mentioned in the impugned order that the reply of the appellant was not satisfactory. 5. Rule 16 of the Rules prescribes a procedure for imposition of minor penalties. It reads thus : “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 misbehaviour; (e) consulting the Commission where such consultation is necessary.” 6. From perusal of the aforesaid rule, it is clear that in accordance with the provisions of the rules, it is mandatory on the part of the authority to take into consideration the representation submitted by the Government servant and record a finding on each imputation of misconduct. 7. In the instant case, the mandatory provisions of the aforesaid rules have not been followed, hence, the order of recovery impugned as Annexure P/1 before the learned Writ Court is per se illegal. 8. The learned Single Judge dismissed the writ petition filed by the appellant herein only on the ground of availability of alternative remedy of appeal. 7. In the instant case, the mandatory provisions of the aforesaid rules have not been followed, hence, the order of recovery impugned as Annexure P/1 before the learned Writ Court is per se illegal. 8. The learned Single Judge dismissed the writ petition filed by the appellant herein only on the ground of availability of alternative remedy of appeal. However, when there is violation of rules and the authority has not discussed the liability of the appellant in regard to the recovery of the amount, then, in our opinion, availability of alternative remedy could not be a bar for issuance of a writ of certiorari as held by Hon’ble the Supreme Court in M/s Baburam Prakash Chandra Maheshwari v. Anteriam Zila Parishad, AIR 1969 SC 556 and Union of India v. Mangal Textile Mills India Pvt.Ltd, (2010) 14 SCC 553 . 9. Consequently, the appeal is disposed of with the following directions : 10. The order dated 5/11/2012 passed by the Engineer-in-Chief, Water Resources Department, Bhopal, impugned before the learned Writ Court as Annexure P/1 directing recovery from the salary of the appellant is hereby quashed. 11. It is however, clarified that the competent authority is at liberty to take appropriate action in accordance with law. 12. No order as to costs.