Rajendra Kumar Solanki v. M. P. Rural Road Development Authority
2016-05-04
P.K.JAISWAL, VIVEK RUSIA
body2016
DigiLaw.ai
ORDER Rusia, J. -- 1. Present review petition under Order 47 rule 1 r/w section 114 of the CPC has been filed against the order dated 3.8.2015 passed in Writ Appeal No.209/2015 by which the writ appeal was dismissed by this Hon’ble High Court. 2. That, present petitioner was initially appointed under the M.P. State Electricity Board and thereafter, his services were absorbed in Narmada Hydro Electric Development Corporation Ltd. (in short NHDC) in the year 2005 and at the relevant time he was working as a Senior Manager (Civil). Petitioner was sent on deputation to the M.P. Rural Road Development Authority (in short MPRRDA) vide order dated 22.7.2008. The petitioner was posted at Barwani Unit II vide order dated 12.12.2008 and the period of deputation was continued time to time and various correspondence took place between NHDC and MPRRDA extending the period of deputation and finally the petitioner was relieved by the MPRRDA vide order dated 5.3.2013 to join NHDC. The order has been filed by the petitioner himself as Annexure P-13 in the writ petition. 3. While the petitioner was on deputation, vide order dated 26.4.2010, he was placed under suspension by the MPRRDA (Annexure P-7) in the writ petition and copy of the suspension order was sent to the General Manager (HR), NHDC, Shyamla Hills, Bhopal. Thereafter, vide order dated 7.2.2011, departmental enquiry was proposed by issuing a charge-sheet along with list of witnesses and documents and thereafter, vide order dated 15.1.2013, an inquiry officer was appointed by the MPRRDA. 4. Being aggrieved by the order dated 15.1.2013 and subsequent order dated 25.11.2014, the petitioner filed a writ petition challenging the authority of MPRRDA in initiating the departmental proceeding. He placed reliance upon rule 20 of the M.P. Civil Service Services (Classification, Control and Appeal) Rules, 1966 stating that borrowing department has no authority to place him under suspension and to initiate departmental proceedings. 5. After notice, return was filed by MPRRDA denying the allegation levelled by the petitioner and submitted that he had committed misconduct while on deputation and, therefore, the borrowing department has rightly suspended him and issued a charge-sheet. 6. Vide order dated 29.4.2015, learned Single Judge dismissed the writ petition after considering the rule 20 of M.P. Civil Service Services (Classification, Control and Appeal) Rules, 1966.
6. Vide order dated 29.4.2015, learned Single Judge dismissed the writ petition after considering the rule 20 of M.P. Civil Service Services (Classification, Control and Appeal) Rules, 1966. Being aggrieved by the order dated 29.4.2015, the petitioner preferred Review Petition No.119/2015 and vide order dated 14.5.2015, the review petition was also dismissed as the scope of review the petition is very limited and no error on the face of record was found. 7. Being aggrieved by the dismissal of Writ Petition No.437/2015, the petitioner preferred Writ Appeal No.209/2015 and vide order dated 3.8.2015, the writ appeal was also dismissed and the order of Single Judge was upheld. Being dissatisfied with the order of dismissal of writ appeal, petitioner again approached this Court by filing present Review Petition No.378/2015 seeking review of the order dated 3.8.2015 passed in Writ Appeal No.209/2015 placing reliance upon a judgment of Division Bench of this Hon’ble High Court passed in the case of B.L. Satyarthi v. State of M.P. and another [ 2014(3) JLJ 379 =2015(2) MPHT, 29 (DB)]. 8. We heard Shri Ajay Bagadia, learned counsel for the petitioner and Shri V.P. Khare, learned counsel for the respondent. 9. Shri Ajay Bagadia, learned counsel argued that petitioner has already joined NHDC vide office order No.628/2012/ NHDC/1/HR/1599 dated 12.10.2012 issued by Assistant Manager, NHDC and therefore, after 12.10.2012, MPRRDA has no authority to appoint an inquiry officer and proceed with the disciplinary proceeding in view of the law laid down in the case of B.L. Satyarthi (supra). 10. Shr V.P. Khare, learned counsel for the respondent argued that the petitioner was under MPRRDA upto 5.3.2013 and he had drawn salary upto the said period, therefore, MPRRDA has rightly initiated departmental enquiry proceeding. He has also submitted that scope of review is very very limited and placed reliance upon a judgment delivered in the case of Parsion Devi and others v. Sumitri Devi and others, reported in (1997)8 SCC,715, and prays for dismissal of the review petition. 11. We have considered the rival submissions of the learned counsel for the parties. 12. So far as the document dated 12.10.2012 filed as Annexure P-4 in the present review petition is concerned, the same was not filed along with the writ petition as well appeal filed by the petitioner.
11. We have considered the rival submissions of the learned counsel for the parties. 12. So far as the document dated 12.10.2012 filed as Annexure P-4 in the present review petition is concerned, the same was not filed along with the writ petition as well appeal filed by the petitioner. On the contrary, he himself has filed order dated 5.3.2013 by which he was relieved and repatriated to the parent department i.e. NHDC by the MPRRDA. Therefore, effect of document dated 12.10.2012 cannot be considered in this review petition. 13. In view of this factual position of present case that the petitioner was on deputation upto 5.3.2013, the effect of judgment passed by this Court in the case of B.L. Satyarthi (supra) would be considered. The B.L. Satyarthi, while working as a Range Officer in the Forest Department was sent on deputation in the year 1988 to Madhya Pradesh Rajya Van Vikas Nigam and while working on deputation, a notice of proposing recovery was issued against him by the Nigam on 12.8.1989 and thereafter, he continued on deputation upto 6.11.1989 and he was repatriated to join the parent department on 6.11.1989. While working in the parent department, a charge-sheet was served upon him on 16.5.1990 by the Managing Director, Nigam. The petitioner challenged the charge-sheet in a writ petition and the same was dismissed and thereafter, a writ appeal was filed. In the order dated 29.9.2014 passed in the case of B.L. Satyarthi v. State of M.P. and another, in paragraph No.8, Hon’ble Division Bench has framed issues that “we find that the only question which warrants our determination is as to whether after the appellant was repatriated from the Madhya Pradesh Rajya Van Vikas Nigam, the disciplinary authority in the said Nigam namely the Managing Director could initiate the departmental enquiry and whether rule 20 of the Madhay Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 permit so?” 14. In paragraph No.10, the moot question was as to whether procedure contemplated under rule 20 as reproduced hereinabove is applicable only when the employee continues on deputation or can be invoked even after the period of deputation is over or the employee is repatriated back to his parent department. For ready reference, rule 20 reads as under : “20. Provisions regarding officers lent to the Union or any other State Government or any subordinate or local authority etc.
For ready reference, rule 20 reads as under : “20. Provisions regarding officers lent to the Union or any other State Government or any subordinate or local authority etc. -- (1) Where the services of a Government servant are lent by one department to another department or to the Union Government or to any other State Government or any authority subordinate thereto or to a local or other authority (herein after in this rule referred to as ‘the borrowing authority’), the borrowing authority shall have the powers of the appointing authority for the purpose of placing such Government servant under suspension and of the disciplinary authority for the purpose of conducting a disciplinary proceeding against him. (2) In the light of the findings in the disciplinary proceedings conducted against the Government servant : (i) If the borrowing authority is of a opinion that any of the penalties specified in clauses (i) to (iv) of Rule 10 should be imposed on the Government servant, it may, after consultation with the lending authority, make such orders on the case as it deems necessary : Provided that in the event of difference of opinion between the borrowing authority and the lending authority, the services of the Government servant shall be replaced at the disposal of the lending authority. (ii) If the borrowing authority is of the opinion that a penalty specified in rule 11 should be imposed on any member of class IV Government servant, it may impose such penalty without consulting the lending authority.
(ii) If the borrowing authority is of the opinion that a penalty specified in rule 11 should be imposed on any member of class IV Government servant, it may impose such penalty without consulting the lending authority. (iii) If the borrowing authority is of the opinion that any of the penalties specified in clauses (v) to (ix) of rule 10 should be imposed on the Government servant, it shall replace his services at the disposal of the Lending Authority and transmit to it the proceedings of the inquiry and thereupon the lending authority, may, if it is the disciplinary authority pass such orders thereon as it may deem necessary, or, if it is not the disciplinary authority submit the case to the disciplinary authority, which shall pass such orders on the case as it may deem necessary : Provided that before passing any such order the disciplinary authority shall comply with the provisions of sub-rules (3) and (4) of Rule 15.” Explanation.- The disciplinary authority may make an order under this clause on the record of the inquiry transmitted to it by the borrowing authority, or after holding such further inquiry as it may deem necessary, as far as may be, in accordance with rule 14." 15. Findings recorded in the case of B.L. Satyarthi (supra), in paragraph No.12 are as under : “12. Rule 20 of Madhya Pradesh Civil Services (CCA) Rules, 1966 as applicable to the State of Madhya Pradesh and reproduced herein above gives power to the borrowing department to take disciplinary action against a Government servant who is on deputation and the powers to the appointing authority and the disciplinary authority are conferred on the borrowing department. The Rule contemplates that the borrowing department shall have the powers of the appointing authority for the purpose of placing the government servant under suspension and for taking disciplinary action against him but the proviso contemplates that the action taken has to be forthwith communicated to the parent Department. When power is given to any authority to suspend a Government servant or initiate disciplinary action against him an assumption has to be drawn that the power can be exercised so long as the relationship of master and servant, employer and employee subsists or the contract of employment is in existence.
When power is given to any authority to suspend a Government servant or initiate disciplinary action against him an assumption has to be drawn that the power can be exercised so long as the relationship of master and servant, employer and employee subsists or the contract of employment is in existence. Once the relationship of master and servant or employer and employee or the contract of service itself comes to an end, the question would be as to how disciplinary action or power to suspend can be exercised by an authority with whom the contract of employment of the employee concerned is no more in existence. Rule 20 therefore, has to be interpreted by holding that the power conferred under rule 20 to the borrowing department or authority to suspend a Government servant or to take a disciplinary action against him can be exercised only if the relationship of master and servant or the contract of employment between the borrowing department and the deputationist employee subsists. When an employee who is a government servant and holds a lien in a Government department is sent on deputation to foreign department or a corporation, then during the period of deputation a temporary contract of service is brought into force between the borrowing department and the employee concerned and so long as its contract of employment subsists the borrowing department can invoke the provision of rule 20 but once the employee is repatriated back to the foreign department then the contract of employment temporarily created during the period of depuation ceases and if that be the position, then the borrowing department does not have any authority to take action against the employee concerned. Apart from the above a perusal of rule 20(2) and the proviso to rule 20(2)(i) and (iii) also clarifies the position. After the departmental proceeding initiated by the borrowing department is completed and the finding of enquiry is recorded, in the light of the finding if the borrowing department wants to impose any of the penalties specified in clause (i) to (iv) of rule 10, then after consultation with the lending department the punishment can be imposed. However, the proviso to rule 20(2)(i) indicates that if there is any difference of opinion between the borrowing department and lending department that the service of the employee has to be replaced at the disposal of the lending department.
However, the proviso to rule 20(2)(i) indicates that if there is any difference of opinion between the borrowing department and lending department that the service of the employee has to be replaced at the disposal of the lending department. This clearly shows that action under these Rules can be taken only when the employee is on deputation not otherwise as the stipulation in proviso to rule 20(2)(i) speaks about replacement of the employee to the lending department. Similarly in rule 20(2)(i) and proviso thereto thereto also it is clearly provided that if the punishment to be imposed is a major punishment as provided in rule 10 (v) to (ix), then the employee has to be replaced to the lending department and it is only the lending department which can take action. The stipulation in this part of the rule for replacement of the employee to the parent department clearly indicates the intention of the rule maker. In case rule 20 was applicable to a employee who is already repatriated to the parent (lending) department then the provision for replacement of the employee to the lending department as contained in both the provisos to rule 20(2)(i)(iii) would not provide for replace the service of the Government employee to the lending department. This in our considered view would be the interpretation which can be given to the powers that may be exercised by the borrowing department under rule 20.” In the above case, the Division Bench has held that under rule 20, power can be exercised by borrowing authority, if relationship of master and servant subsists. It means during the period of deputation, authorities of borrowing department shall have the power of appointing authority for initiation of any disciplinary action. The Division Bench was of the further opinion that since, the petitioner was repatriated to the parent department i.e. forest department on 6.11.1989 and thereafter, charge-sheet was issued on 8.5.1990 by borrowing department i.e. Nigam, which is not permissible under rule 20 of M.P. Civil Service Services (Classification, Control and Appeal) Rules, 1966. 16. In the present case, the facts are different from the facts of the case of B.L. Satyarthi (supra).
16. In the present case, the facts are different from the facts of the case of B.L. Satyarthi (supra). The petitioner, who was on deputation upto 5.3.2013 in borrowing department i.e. MPRRDA and he was placed under suspension by the said department on 26.4.2010 and charge-sheet was issued on 7.2.2011 and inquiry officer was appointed on 15.1.2013, hence, the authorities of MPRRDA i.e. borrowing department, who has already initiated action under rule 20 the relationship of master and servant between the petitioner and MPRRDA was existing at the relevant time. The only difference is that during pendency of the said inquiry, the petitioner has been repatriated back to the parent department, therefore, in our considered opinion, since, inquiry had already been initiated, same would continue and after finalization of departmental enquiry and before taking any action, the borrowing authority under sub-rule (2) of rule 20 shall proceed to transmit the proceeding and the record of the departmental inquiry to the lending authorities as the case may. The power and disciplinary authority to take disciplinary action made available to the borrowing department/authority up till delinquent employee was serving in the said department but not after when he had gone back to the parent department. 17. In view of the above discussion, in our considered opinion, no case for review is made out specially when there is no error apparent on the face of the record in view of the laws laid down by the apex Court in the case of Inderchand Jain (dead) through LRs v. Motilal (dead) through LRs, reported in (2009)14 SCC 663 , and in the case of S. Bagirathi Ammal v. Palani Roman Catholic Mission, reported in (2009)10 SCC 464 . The review petition is, accordingly, dismissed.