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Madhya Pradesh High Court · body

2015 DIGILAW 155 (MP)

Ashique Mohammad Quareshi v. State of M. P.

2015-02-04

PRAKASH SHRIVASTAVA

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ORDER : PRAKASH SHRIVASTAVA, J. 1. This writ petition has been filed by the petitioner challenging the order dated 16-11-2005 by which petitioner has been imposed the penalty of removal from service. In brief the case of petitioner is that he was working as Forest Ranger when the charge-sheet dated 16th July, 1985 was issued to the petitioner for the alleged misconduct. The enquiry officer was appointed and after enquiry, the report Annexure P4 was submitted recording the finding that the charge against the petitioner was proved. Thereafter order dated 28-9-91 was passed by the Chief Conservator of Forest imposing the penalty of dismissal from service. Against this order, appeal was dismissed and the petitioner had approached MP State Administrative Tribunal by filing Original Application which was transferred to this Court and registered as W.P. No. 3789/2003. This Court by order dated 14-12-2004 had allowed the writ petition and remanded the matter back to the Disciplinary Authority for passing the fresh order. The review petition being MCC No. 281/2005 was dismissed by order dated 4-3-2005. Thereafter the impugned order dated 16-11-2005 has been passed by the State Government imposing the penalty of removal from service. 2. Learned counsel for petitioner submits that the order of punishment has not been passed by the appointing/disciplinary authority, but it has been passed by the appellate authority, therefore, it cannot be sustained. He has also submitted that the dismissal order cannot be passed with retrospective effect and that there is no loss of revenue to the government and the punishment is disproportionate. 3. Learned counsel for State has supported the impugned order. 4. I have heard the learned counsel for parties and perused the record. 5. The first issue is if the order of punishment has been passed by the competent authority or it is vitiated because petitioner's right to appeal has been taken away? 6. The petitioner during the relevant time was working as Forest Ranger. The earlier order of punishment dated 28-9-1991 was passed by the Chief Conservator of Forest who at that time was the appointing authority to the post on which the petitioner was working. This Court by order dated 14-12-2004 had set aside that order and directed the competent authority to pass fresh order. In the meanwhile vide Notification dated 7th July, 1997, the post of Forest Ranger was notified as Class II Gazetted service. This Court by order dated 14-12-2004 had set aside that order and directed the competent authority to pass fresh order. In the meanwhile vide Notification dated 7th July, 1997, the post of Forest Ranger was notified as Class II Gazetted service. In terms of Rule 7 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, appointing authority to the Class II post is the State Government. 7. Learned counsel for petitioner has submitted that the Schedule appended to the Rules has not been amended and the Chief Conservator of Forest is still shown to be the appointing authority for the post of Forest Ranger. Such a submission cannot be accepted because it is the settled position in law that in case of conflict between the body of the Act or Rule and the Schedule, the former will prevail. [See Aphali Pharmaceuticals Ltd. Vs. State of Maharashtra and Others, (1989) 4 SCC 378 . 8. Learned counsel for petitioner has placed reliance upon the judgment of the Supreme Court in the matter of Surjit Ghosh Vs. Chairman and Managing Director, United Commercial Bank, and others, (1995) 2 SCC 474 in support of his submission that though the order can be passed by the authority higher than the disciplinary authority, but if by such an order the right to appeal against order of disciplinary authority conferred on employee gets lost, then, the proceedings become arbitrary. This submission of counsel for the petitioner has no merit for two reasons. Firstly, in the present matter due to the subsequent Notification dated 7-7-1997, the State Government has become the appointing authority of the petitioner, therefore, the State was competent to pass the order of punishment and secondly, even otherwise right of appeal is not an inherent or fundamental right and remedy of review is available against the impugned punishment order. This issue has already been considered by the supreme Court in somewhat similar circumstances in the matter of Government of A.P. and Another Vs. N. Ramanaiah, (2009) 7 SCC 165 whereby the supreme Court after considering the judgment in the matter of Surjit Ghosh (supra) has held as under:-- "15. One more aspect that may have to be borne in mind is that Article 311(1) does not command that the dismissal must be by the very same authority who made the appointment or by its direct superior. One more aspect that may have to be borne in mind is that Article 311(1) does not command that the dismissal must be by the very same authority who made the appointment or by its direct superior. The dismissal can be either by the appointing authority or by any other authority to which the appointing authority is subordinate. The dismissal of a civil servant must comply with the procedure laid down in Article 311. 33. Rule 32 of the Rules says that notwithstanding anything contained therein no appeal shall lie against any order made by the Governor. In the present case the impugned order of dismissal was made by the Government in the name of Governor, therefore, there is no right of appeal as such against the impugned order of dismissal made by the Government. It is well said and needs no restatement at our hands that a right of appeal no doubt is a substantive one but not inherent or fundamental right No appeal lies to the higher authority as a matter of right unless provided for by the law. 34. It is not as if there is no remedy available against the order passed by the Government dismissing a government servant from its service. 34. It is not as if there is no remedy available against the order passed by the Government dismissing a government servant from its service. Rule 38 of the said Rules confers on every member of State service, or a member of subordinate service in whose case the Government has passed original orders, shall not be entitled to appeal but shall be entitled to make separately and in his own name, within a period of three months from the date on which the order was communicated to him, a petition to the Government for review of the order passed by the Government on any of the following grounds, namely: "(i) that the order against which the petition of review is made was not passed by the competent authority; (ii) that a reasonable opportunity was not given to the petitioner for defending himself; (iii) that the punishment is excessive or unjust; (iv) that the petitioner has made a discovery of new matter or evidence which he proves to the satisfaction of the Government, was not within his knowledge or could not be adduced by him before the order imposing the penalty was passed; and (v) that there is an evident error or omission in the order such as failure to apply the law of limitation or an error of procedure apparent on the fact of record." The power conferred upon the Government to review its own order is very wide and that a substantive right of review has been conferred on every member of a State service or a member of subordinate service against the orders passed by the Government. In the present case the respondent failed to avail the remedy provided for under Rule 38". 9. The law laid down in above judgment applies with full force in this case. In the present matter also against the order of punishment passed by the State Government, the petitioner has the remedy of filing review under Rule 29 of the Rules, hence the impugned order of dismissal dated 16-11-2005 cannot be faulted on the ground that it has not been passed by the competent authority. 10. So far as the issue relating to retrospective order of dismissal is concerned, the earlier order of dismissal was passed on 28-9-1991. 10. So far as the issue relating to retrospective order of dismissal is concerned, the earlier order of dismissal was passed on 28-9-1991. This Court by the order dated 14-12-2004 while setting aside the earlier order of dismissal had directed the competent authority to pass fresh order and had specifically directed that the petitioner will not be taken back in service. The petitioner had filed the review petition being MCC No. 281/2005 against that order and the said review petition was dismissed by order dated 14th March, 2005 holding as under:-- "3. However, in the present case the impugned order passed by the disciplinary authority has been quashed on the ground that it was not a speaking order and for that limited purpose the case was remanded back. In that circumstances, it has been held that the petitioner shall not be taken back in service, however, the disciplinary authority is free to pass any particular order. Looking to the facts and circumstances of the case, it would not be necessary for the authority to pass termination order". 11. Since the competent authority thereafter has re-examined the matter and has again found it to be a fit case for dismissal keeping in view the nature of misconduct, therefore, the dismissal order has been passed with effect from 28-9-1991 which is the date of the earlier order of dismissal. Keeping in view the order of this Court dated 14-12-2004 passed in W.P. No. 3789/2003 and order dated 4-3-2005 passed in MCC No. 281/2005 the competent authority has not committed any error in passing the dismissal order with effect from 28-9-1991. 12. Counsel for petitioner is not entitled to the benefit of the single bench judgment of this Court in the matter of Chandrika Prasad Dubey Vs. Steel Authority of India Ltd. and Another, (2002) 2 MPLJ 185 since in that case though the employee concerned had rendered service till 19-6-2000, but the order of termination was passed with effect from 30-9-1991 whereas in the present case order of termination has been made effective from the date the petitioner had stopped working. 13. Steel Authority of India Ltd. and Another, (2002) 2 MPLJ 185 since in that case though the employee concerned had rendered service till 19-6-2000, but the order of termination was passed with effect from 30-9-1991 whereas in the present case order of termination has been made effective from the date the petitioner had stopped working. 13. Counsel for petitioner has also raised the submission that no loss is caused to the government and the order of punishment is disproportionately harsh, but such a submission also has no merit because the finding against the petitioner is that he had colluded with a contractor to cause unlawful gain to him and loss to the State and the coal illegally prepared by the contractor was seized by the forest authorities which was liable to be confiscated, but the petitioner had issued back dated transit pass in respect of the seized coal. Such a conduct of the petitioner is a serious misconduct, therefore, he has rightly been inflicted with the punishment of dismissal from service. I am of the opinion that the punishment which has been imposed upon the petitioner is neither harsh nor disproportionate looking to the nature of misconduct. In view of the aforesaid, no case for interference in the impugned order of termination is made out. The petition is accordingly dismissed.