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Madhya Pradesh High Court · body

2017 DIGILAW 698 (MP)

Ram Krishna Kanade v. State of M. P.

2017-05-23

VIJAY KUMAR SHUKLA

body2017
ORDER : In the instant petition under Articles 226/227 of Constitution of India, the petitioner has challenged the legality and validity of the order of termination after the departmental inquiry and also the dismissal of the departmental appeal. 2. Succinctly, the brief facts of the present case are that the petitioner was appointed as Forest Guard in year 1981. After his training for Forest Guard, he was posted in Amola range. He was given charge of Coup Nos. 26, 27 and 28. It is submitted that the aforesaid groups tribals from Khargon District had encroached upon the land with the intension to cut the forest trees. As many as 152 tribals entered and encroached on the forest land. The said information about cutting of the trees was sent by the petitioner to all the officers including the respondent Nos. 3 and 4 and the Collector as well as Superintendent of Police, Khandwa. A joint action was taken and as many as 2257 trees were illegally cut and from the Coup jn which the petitioner was posted, the cut tree wood were recovered and seized wood was transported to the depot and forest offence was registered against the tribals. But no action could be taken. It is pleaded that the petitioner had fallen ill and had gone on forced leave from 1-11-1997 to 31-12-1996 on medical ground. During the absence of the petitioner no one was given charge of the said Coups. A charge-sheet was issued in respect of two charges — (i) that because of the negligence of the petitioner, there was illegal felling of 2674 trees in Daharia Beet Amulla range and the charge No. (ii) was that he had remained absent willfully without permission for the period from 1-11-1997 to 21-12-1997. The Inquiry Officer did not find the charge No. (i) proved and held that the petitioner is partially responsible in not promptly issuing the primary forest offences report. The charge No. (ii) has been found proved. The respondent No. 4, the disciplinary authority did not agree that the findings of the inquiry officer in respect of the charge No. (i) and without following the provisions of Rule 15(2) of the M.P. Civil Services (Classification Control and Appeal) Rules, 1966 (hereinafter the same shall be referred as “Rules, 1966”) passed the order of punishment of dismissal from service on 5-9-2001. 3. 3. Being aggrieved by the order of punishment, the petitioner preferred an appeal before the respondent No. 3 on 17-10-2001. The appeal was decided after a period of more than four years. After great persuasion of the petitioner, the appeal was dismissed by order dated 11-3-2005 Annexure-P/6. 4. Challenging the aforesaid order of punishment and the appellate order, the main plank of contention of the petitioner is that the disciplinary authority has failed to follow the procedure prescribed under the Rule 15(2) of the Rules, 1966 as if the disciplinary authority did not agree with the findings of the inquiry officer with regard to charge No. (i). The disciplinary authority was under obligation to record reasons in writing and also to issue a show cause notice and to afford an opportunity of hearing to the petitioner. 5. Since mandatory procedure prescribed under the Rules has not been followed, the entire departmental inquiry and the consequent orders of punishment and dismissal of appeal are vitiated in law and are liable to be quashed. 6. Per contra, combating aforesaid submissions, learned G. A for the respondent State submitted that there is no illegality in the procedure adopted by the disciplinary authority. He invited attention of the Court to the order passed by the disciplinary authority and submitted that the disciplinary authority has recorded reasons for disagreeing with the findings of the inquiry officers in the order of dismissal of service itself. He also submitted that from the perusal of the procedure adopted by the Inquiry Officer and the findings arrived by him, the same can not be held to be sustainable and therefore the disciplinary authority has rightly passed order of dismissal of service disagreeing with the findings of Inquiry Officer. He also submitted that even assuming for the sake of arguments that procedure prescribed under. Rule 15(2) was not followed but since the charge No. 2 was found proved by the Inquiry Officer, therefore, the order of dismissal can be held to be valid only on the basis of the charge No. (ii). He also submitted that even assuming for the sake of arguments that procedure prescribed under. Rule 15(2) was not followed but since the charge No. 2 was found proved by the Inquiry Officer, therefore, the order of dismissal can be held to be valid only on the basis of the charge No. (ii). He relies on the judgment passed by the Apex Court in the case of National Fertilizers Ltd. v. P.K. Khanna, (2005) 7 SCC 597 , in support of his submission, that the Rule 15 do not contemplate for issuance of any show cause notice as it requires only recording of reasons in the case of disagreement with the findings of the Inquiry Officer. Since in the present case he has recorded reasons for disagreement, the statutory rule has been substantially complied with. 7. In the present case, it is not in dispute that the disciplinary authority did not issue any show cause notice while disagreeing with the findings arrived at by the inquiry officer. In light of the aforesaid, the relevant provisions governing the procedure on the action of the inquiry report has to be analyzed. Sub-rules (1), (2) and (3) of the Rule 15 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 reads as under: “15. Action on the inquiry report. — (1) the disciplinary authority if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14 as far as may be. (2) The disciplinary authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own finding on such charge, if the evidence on record it sufficient for the purpose. (3) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that nay of the penalties specified in Rule 10 should be imposed on the Government servants, it shall, not withstanding anything contained in Rule 16, make an order imposed such penalty but in doing so it shall record reasons in writing. Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant.” The aforesaid statutory provisions of law provides for a procedure in respect of the action to be taken on the basis of the inquiry report and the same clearly provides that the disciplinary authority while disagreeing with the findings arrived at by the Inquiry Officer has to record reasons for his disagreement. The contention of the learned G.A. for the respondent/State that sub-rule (2) only postulates recording of the reasons and there is no requirement of issuing a show cause notice to the delinquent employee or giving him opportunity of hearing. To appreciate the aforesaid contention, it is condign to survey the legal authorities on the said issue that whether the disciplinary authorities required issue a show cause notice and to afford an opportunity of hearing to the delinquent employee while disagreeing with the findings of the inquiry officer. 8. The Bench of three Judges of the Apex Court in the case of Punjab National Bank v. Kunj Behari Misra, (1998) 7 SCC 84 has taken into consideration the regulation 7 of the Bank which is akin to provisions of Rule 15 of Rules 1966. In para 19 it has been held that the Principles of Natural Justice have to be read in regulation 7(2) which is akin to the Rule 15(2) of Rules 1966. Para 19 reads as under: The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the inquiry officer. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the inquiry officer. The principles of natural justice, as we have a ready observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer. 9. In the case of Yoginath D. Bagde v. State of Maharashtra, (1999) 7 SCC 739 and others the Apex Court relying on the judgment passed in the case of Kunj Behari Misra (supra) held that the requirement of affording opportunity of hearing as laid in Kunj Behari Misra being in consonance with Article 311(2) of the Constitution and being a constitutional right to be heard, has to be read into a rule which does hot make specific provision to the effect. Disciplinary authority before forming its final opinion has to convey to the charged employee its tentative reasons for disagreeing with the findings of the Inquiry Officer the Apex Court further in the case of Mathura Prasad v. Union of India, (2007) 1 SCC 437 again referred to the akin provisions of Rule 10 of Railway Servant (Discipline and Appeal) Rules, 1968 held that an opportunity of hearing to the delinquent officer is required to be given. Para 18 of the said judgment is reproduced as under : Even if the Inquiry Officer had, in his first report, proceeded on surmises and conjectures as was observed by the High Court, the disciplinary authority could disagree with the said finding but it was, therefor, required to record its reasons. No reason was recorded. Sub-rules (2) and (1) of Rule 10 aim at achieving the same purpose. If sufficient materials are not available on record, a direction for holding a further inquiry may be issued in terms of sub-rule (2) of Rule 10 so as to enable the department to lead further evidence before him. For the said purpose also, reasons are required to be recorded by the disciplinary authority. An opportunity of hearing to the delinquent officer is required to be given. For the said purpose also, reasons are required to be recorded by the disciplinary authority. An opportunity of hearing to the delinquent officer is required to be given. However, in the event, the disciplinary authority comes to the conclusion that the conclusion arrived at by the Inquiry Officer on the basis of materials placed by the parties are incorrect, he may disagree with the said findings but even, therefor, he is required to record reasons in support thereof. The requirement of sub-rule (2) or sub-rule (3) having not been complied with, the Inquiry Officer could not have arrived at a different finding. The High Court unfortunately did not consider this aspect of the matter. 10. Relying on the aforesaid judgments, a Co-ordinate Bench of this Court considered the provisions of Rule 15(2) of Rules 1966 in the case of Vikram Singh Rana v. Principal Secretary State of M.P., 2013 (2) M.P.L.J. 232 held that the show cause notice and opportunity of hearing to the delinquent officer in the case of disagreement by the disciplinary authority with the findings of inquiry officer is mandatory and it has to be read in the Rule 15 of “Rules 1966”. 11. Thus, in view of the aforesaid authoritative pronouncement of law in respect of Rule 15 of Rules 1966 it is held that the rule is mandatory and disciplinary authority is under legal obligation to issue a show cause notice and to afford opportunity of hearing while disagreeing with the findings of the Inquiry Officer. Further, there is no force in the contention of the counsel for the State that the order of punishment can be held to be sustainable only on the basis of charge No. (ii) as the order of punishment by the disciplinary authority has been passed taking into consideration also the charge No. (i) reversing the findings of the inquiry officer without complying with the mandatory provisions of Rule 15(2) of Rules 1966. The order of punishment is not based only on the charge No. (ii), therefore, the said contention has no significance in the facts of the present case. 12. In view of the aforesaid, I am of the considered opinion that the impugned order of punishment violates the provisions of Rule 15(2) of Rules, 1966 and also the Principle of Natural Justice. Hence, the order of punishment and the dismissal of appeal are quashed. 12. In view of the aforesaid, I am of the considered opinion that the impugned order of punishment violates the provisions of Rule 15(2) of Rules, 1966 and also the Principle of Natural Justice. Hence, the order of punishment and the dismissal of appeal are quashed. The matter is remitted back to the disciplinary authority with a direction to issue show cause notice to the delinquent employee regarding reasons for disagreement and thereafter to proceed in accordance with law after affording an opportunity of hearing. 13. It is further directed that the authority would complete the aforesaid exercise expeditiously as far as possible preferably within a period of three months from the date of furnishing a copy of the order passed in this petition subject to the fact that the petitioner renders all assistance and co-operation. 14. The petition is accordingly disposed of with the aforesaid directions. In the facts and circumstances of the case, there shall be no order as to costs.