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Madhya Pradesh High Court · body

2013 DIGILAW 686 (MP)

Shyam Manohar Asthana v. State of M. P.

2013-06-20

R.S.JHA

body2013
JUDGMENT : The petitioner has filed this petition being aggrieved by order dated 30-5-2006 by which the respondents have imposed a punishment of compulsory retirement on the petitioner who was a Range Officer in the Forest Department, with retrospective effect from 31-1-1993. 2. The brief facts, leading to the filing of the present petition, are that the petitioner was working in the Forest Department as Range Officer. While in service, departmental proceedings were initiated against the petitioner by issuance of a charge-sheet dated 20-1-1986 and he was placed under suspension. The order of suspension was quashed by this Court in W.P. No. 1444/86 decided on 4-7-1987. A Departmental Enquiry was initiated against the petitioner on the charges relating to non handing over of charge; of not properly recording and transferring a sum of Rs. 18,091/- and Rs. 2,164/- in the relevant record; using inappropriate language against the higher authorities and non-submission of daily diary. After conducting a detailed enquiry a punishment of compulsory retirement was imposed upon the petitioner by order dated 12-1-1993, against which the petitioner preferred an appeal before the State Government which also suffered dismissal on 5-2-1994. The application for review filed by the petitioner was also dismissed on 18-5-1995. Being aggrieved by which the petitioner had filed O.A. No. 2320/95 before the State Administrative Tribunal, Jabalpur which was thereafter transferred to this Court and was registered as W.P. No. 9831/2003 and was ultimately allowed by order dated 15-4-2004 in the following terms :- "6. I have carefully perused the order of punishment (A/12) passed by the Chief Conservator of Forest. A perusal of the same shows that reply has not been considered. On the other hand, it has been mentioned in the order that the reply has not been filed. Reply was sent by registered post envelope, has not been controverted in the return filed by the respondents and a wrong averment has been made in the return that the reply was taken into consideration while passing the order of punishment. Perusal of the order shows that the reply has not been as a matter of fact taken into consideration. It was not on record as it was refused to be accepted. There was no reply on the record to be considered. Perusal of the order shows that the reply has not been as a matter of fact taken into consideration. It was not on record as it was refused to be accepted. There was no reply on the record to be considered. In the circumstances, only on the above ground without going into other submissions raised at bar, the impugned order (A/12), the appellate order (A/15) and the order (A/16) rejecting the review petition are liable to be quashed. 7. Order (A/15) passed in appeal suffers with yet another infirmity. Nothing has been considered. Only one word that after due consideration, the disciplinary authority C.C.F. has issued an order of punishment. When the appeal is provided, the appellate order must indicate that how the appellate authority has applied its mind to facts of the case in the appeal. Thus, the appellate order suffers with above serious infirmity. However, I find that initial order itself was passed on infraction of rule giving an opportunity of hearing against enquiry report, as registered envelope was refused to be accepted. Petitioner was denied an opportunity of representation/hearing. I quash the initial order itself. Respondents are free to pass fresh order in accordance with law after duly applying principle of natural justice. 8. Order A/2, A/15 and A/16 are hereby quashed. As to question of backwages, I am not inclined to grant backwages as fresh order is required to be passed in departmental enquiry. Question of backwages has to be considered in the light of the order which is to be passed in departmental enquiry. Let the fresh orders be passed, as prayed by Shri P. N. Dubey, learned Dy. A.G. appearing for the respondents, within six months after giving due opportunity to the petitioner. Parties to bear their own costs." 3. The petitioner on quashing of the order of punishment by this Court submitted rejoining on his post on 14-7-2004, by Annexure P/20, but he was not taken back in service. The respondents then served a notice dated 25-6-2004 along with a copy of enquiry report upon the petitioner asking him to submit a detailed reply, pursuant to which he filed a detailed reply to the enquiry report on 2-7-2004 and was also given an opportunity of personal hearing on 11-1-2005. 4. The respondents then served a notice dated 25-6-2004 along with a copy of enquiry report upon the petitioner asking him to submit a detailed reply, pursuant to which he filed a detailed reply to the enquiry report on 2-7-2004 and was also given an opportunity of personal hearing on 11-1-2005. 4. The respondents/authorities thereafter sought an opinion from the M. P. Public Service Commission as to whether the petitioner could be punished with retrospective effect from 1993. The P.S.C. in its reply dated 3-5-2006 Annexure P/24 stated that, while legally the petitioner could not be compulsorily retired w.e.f. 1993, however, in view of the opinion to the contrary given by the General Administrative Department, approval of the proposed punishment was granted by the PSC, pursuant to which the respondents have passed the impugned order dated 20-5-2006 reimposing the punishment of compulsory retirement upon the petitioner with retrospective effect from 31-1-1993. Being aggrieved by which the present petition has been filed. 5. It is submitted by the learned counsel for the petitioner that this Court in W.P. No. 9831/2003 had specifically quashed the order of punishment whereby penalty of compulsory retirement was imposed upon the petitioner and had thereafter permitted the respondents/authorities to pass fresh orders in accordance with law after duly applying the principle of natural justice and giving an opportunity to the petitioner to submit a reply to the enquiry report. 6. It is submitted that after undertaking the exercise as directed by this Court, the respondents/authorities passed the order of punishment dated 30-5-2006 but while doing so, have wrongly imposed the punishment of compulsory retirement with retrospective effect from 31-1-1993 which is contrary to law as, after quashing of the order of punishment, the petitioner was deemed to be in service and therefore could only have been punished from the date when a fresh order in that regard was passed. It is submitted that the petitioner had crossed his age of superannuation on 31st of July, 2001 and therefore, at best, he could have been considered to have been compulsorily retired from that date and not before that but the respondents/authorities without taking into consideration of the aforesaid fact or the provisions of law have done so. 7. It is submitted that the petitioner had crossed his age of superannuation on 31st of July, 2001 and therefore, at best, he could have been considered to have been compulsorily retired from that date and not before that but the respondents/authorities without taking into consideration of the aforesaid fact or the provisions of law have done so. 7. The learned counsel for the petitioner relying on the provisions of Rule 9(4) of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 has stated that the statutory provisions confer status of a deemed suspended employee upon the petitioner on quashing of the order of penalty which provision has totally been ignored by the respondents/authorities and, therefore, the impugned order deserves to be quashed. 8. The learned counsel for the petitioner has also submitted that the orders imposing punishment with retrospective effect are contrary to law, relying upon the decisions of this Court rendered in the case of State of M.P. vs. Laxmi Chand Awadhiya and another, 2002(4) MPLJ 343 , Rajaram Singh vs. State of M.P. and others, 2003(3) MPLJ 501 and R. C. Bhargava vs. M.P. Dugdh Mahasangh Sahkari Maryadit, Bhopal and others, 2003(5) MPLJ 541 = 2003(4) MPHT 254 in support of his submissions. 9. The learned Government Advocate for the State per contra submits that the respondents/authorities had imposed a punishment of compulsory retirement w.e.f. 31-1-1993 upon the petitioner by order dated 12-1-1993. This order and the consequential appellate orders were quashed by this Court in W.P. No. 9831/03 and the authorities were granted liberty to pass a fresh order. It is stated that there was no direction to reinstate the petitioner or to treat him in service and in such circumstances in compliance of the order passed by this Court on 15-4-2004, the respondents/authorities after giving due opportunity of hearing to the petitioner, passed fresh orders of punishment after taking the opinion of the PSC on 30-5-2006 reimposing the punishment of compulsory retirement w.e.f. 31-1-1993 and therefore, no fault can be found with the order passed by the respondents/authorities in the peculiar facts and circumstances of the case. 10. I have heard the learned counsel for the parties at length. The facts as stated above are undisputed. 11. 10. I have heard the learned counsel for the parties at length. The facts as stated above are undisputed. 11. The provisions of Rule 9 (4) of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 which provides for procedure for conducting departmental enquiry and imposition of penalty reads as under :- Rule 9(4) "Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant, is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders." 12. A perusal of the aforesaid rule makes it clear that if an order of penalty being quashed or set aside by a decision of a Court of law and the disciplinary authority thereafter proposes to take further proceedings, the Government servant concerned shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of imposition of penalty and shall continue to remain under suspension until further orders. 13. In view of the aforesaid statutory provisions, it is clear that on quashing of the initial order of penalty by this Court, the petitioner would be deemed to be under suspension till passing of the fresh orders. It is also worth noting that this Court while granting permission to the respondents/authorities to pass fresh orders did not observe that the provisions of Rule 9(4) of the Rules would not come into the play or that the fresh orders passed by the respondents/authorities would come into operation from the date of the initial order of punishment. 14. It is also worth noting that this Court while granting permission to the respondents/authorities to pass fresh orders did not observe that the provisions of Rule 9(4) of the Rules would not come into the play or that the fresh orders passed by the respondents/authorities would come into operation from the date of the initial order of punishment. 14. In the present case also after quashing of the order of penalty by this Court the petitioner would be deemed to be under suspension in view of the statutory provisions of Rule 9(4) of the Rules and would continue to remain in service till the impugned order of punishment was passed and in such circumstances, the respondents/authorities had no power or authority to pass an order compulsorily retiring the petitioner with retrospective effect 31-1-1993 thereby nullifying the order passed by this Court as well as rendering the provisions of Rule 9(4) of the Rules redundant and otiose. Moreso, as after quashing of the initial order of penalty by this Court, it was only on the date of passing of the impugned order dated 30-5-2006 that the respondents found the petitioner guilty of the charges and therefore he could not have been punished retrospectively with effect from 31-1-1993. 15. It has been held by a Division Bench of this Court in the case of Laxmi Chand Awadhiya (supra) in para 14 that an order imposing retrospective punishment is contrary to the basic jurisprudence of service law by relying upon the decision of Supreme Court rendered in the case of Jeevaratnam vs. State of Madras, AIR 1966 SC 951 . Similar view has been taken by a Division Bench of this Court in the case of Rajaram Singh (supra) in paragraph 7 of the same. 16. In the circumstances, I am of the considered opinion that the impugned order dated 30-5-2006 imposing punishment of compulsory retirement with retrospective effect from 31-1-1993 upon the petitioner, deserves to be and is hereby quashed and it is held that the penalty can be imposed prospectively only from the date of the order. It is also held that consequently, the petitioner would be entitled to all ensuing and consequential benefits. However, looking to the fact that the petitioner had crossed the age of superannuation on 31-7-2001, the matter is remitted back to the respondents/authorities for passing fresh orders after taking all the aforesaid aspects into consideration. 17. It is also held that consequently, the petitioner would be entitled to all ensuing and consequential benefits. However, looking to the fact that the petitioner had crossed the age of superannuation on 31-7-2001, the matter is remitted back to the respondents/authorities for passing fresh orders after taking all the aforesaid aspects into consideration. 17. Looking to the age of dispute, the aforesaid exercise be undertaken and completed by the respondents/authorities within a month from the date of furnishing a copy of the order passed today along with the petition on the concerned authority. 18. With the aforesaid, the petition filed by the petitioner stands allowed. There shall be no order as to the costs. Petition allowed.