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Madhya Pradesh High Court · body

2019 DIGILAW 485 (MP)

Kiran Kanoongo v. State of M. P.

2019-07-05

S.C.SHARMA

body2019
ORDER 1. The petitioner before this Court has filed this present petition being aggrieved by the order dated 15.2.2019 passed by the Commissioner Cum Director, Horticulture and Farm Forestry Department. 2. The facts of the case reveal that the petitioner is a Government Servant and he is working as Assistant Grade-III. A charge-sheet was issued on 18.4.2016 under rule 14 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules and the petitioner has categorically denied all the allegations levelled against him. The petitioner has categorically stated that he wants an enquiry in the matter. In spite of the aforesaid, a punishment of recovery was inflicted upon the petitioner and it was directed to recover a sum of Rs. 97,500/- from the petitioner. 3. The petitioner came up before this Court by filing a writ petition i.e. W.P. No. 5642/2018 and this Court by an order dated 3.1.2018 has allowed the writ petition with a liberty to the employer to conduct a Departmental Enquiry. The order passed by this Court in the aforesaid case reads as under: "The petitioner before this Court has filed present petition being aggrieved by order dated 7.6.2016 and 6.8.2016 passed by respondents No. 2 and 3 directing recovery of Rs. 97,500/- from the salary of the petitioner. Learned counsel for the petitioner has argued before this Court that the petitioner is working on the post of Assistant Grade-III and a show cause notice for initiating action under the M. P. Civil Services (Classification, Control and Appeal) Rules, 1966 was issued on 18.4.2016 and the petitioner categorically denied the allegation levelled against her. It has also been stated that the petitioner did submit a reply to the show cause notice which is on record as Annex.-P-5 and requested the competent authority to grant an opportunity of hearing to lead the evidence, however, without holding any inquiry in the matter and in spite of there being categorical denial on the part of the petitioner in respect of allegation, the respondents have inflicted a punishment of recovery of Rs. 97,500/-. On the other hand, learned government advocate has argued before this Court that earlier also show cause notice was issued on .7.7.2012 (Annex.-R-1) and 19.10.2012 and the petitioner has submitted a reply admitting her guilt. This Court after carefully gone through the so called reply of the petitioner dated 17.7.2012. 97,500/-. On the other hand, learned government advocate has argued before this Court that earlier also show cause notice was issued on .7.7.2012 (Annex.-R-1) and 19.10.2012 and the petitioner has submitted a reply admitting her guilt. This Court after carefully gone through the so called reply of the petitioner dated 17.7.2012. In the reply of the year 2012, she has categorically stated that the amount has to be recovered from one Shri Hamad and question of recovery against the petitioner does not arise. In the present case, there is a factual dispute in respect of misconduct and the petitioner demanded an inquiry / opportunity of personal hearing to lead the evidence, but the same has not been done. This Court has decided a similar issue in the case of Omprakash Sharma v. State of M. P. and ors. passed in Writ Petition No. 8662/2010 (S) on 18.9.2012 and the relevant paragraphs of the aforesaid judgment reads as under: "In the present case, it is an admitted fact that a show cause notice was issued on 25.8.2008 alleging misconduct and the petitioner has submitted a detailed and exhaustive reply on 16.9.2008 denying the charges levelled against him. The show cause notice reveals that the charges are factual in nature and there is a categorical denial on the part of the petitioner. Learned counsel for the petitioner has submitted that the apex Court in the case of O.K. Bharadwaj (supra) has held that an enquiry should be held in the matter where the charges are factual in nature before passing an order of punishment. This Court has carefully gone through the allegations of misconduct and the charges are certainly factual in nature. Once the charges are factual in nature and they have been denied by the delinquent employee an enquiry is required to be held in the matter. The Hon'ble apex Court in paragraph 3 in the case of O.K. Bharadwaj (supra) has held as under : "While we agree with the first proposition of the High Court having regard to the rule position which expressly says that "withholding increments of pay with or without cumulative effect" is a minor penalty, we find it not possible to agree with the second proposition. Even in the case of a minor penalty an opportunity has to be given to the delinquent employee to have his say or to file his explanation with respect to the charges against him. Moreover, if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for. This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with." Keeping in view the judgment delivered by the Hon'ble apex Court in the case of O.K. Bharadwaj (supra) and as no enquiry was conducted in the matter, the impugned order dated 6.5.10 is hereby quashed. The petitioner shall be entitled for all the consequential benefits except interest. However, it is made clear that the disciplinary authority shall be free to conduct a departmental enquiry keeping in view the judgment delivered by the Hon'ble apex Court in the case of O.K. Bharadwaj (supra). This Court has not expressed any opinion on the merits in respect of the charges leveled against the petitioner. With the aforesaid directions both the writ petitions are disposed of. No order as to costs." In light of the aforesaid judgment, the order passed by the respondents dated 7.6.2016 and 6.8.2016 are hereby quashed. The petitioner shall be entitled for all consequential benefits except interest, however, it is made clear that the disciplinary authority, if so desire, shall be free to conduct a Departmental Enquiry keeping in view the judgment delivered by the apex Court in the case of O. K. Bharadwaj v. Union of India and ors. This Court has not expressed any opinion on merit of the case in respect of the charges levelled against the petitioner. With the aforesaid, writ petition stands allowed." 4. In spite of there being a categoric direction given by this Court, the respondents again, in a mechanical manner, have passed the order of recovery and punishment of censure has also been inflicted upon the petitioner. 5. With the aforesaid, writ petition stands allowed." 4. In spite of there being a categoric direction given by this Court, the respondents again, in a mechanical manner, have passed the order of recovery and punishment of censure has also been inflicted upon the petitioner. 5. It is really strange that in spite of the fact that this Court has ordered for holding of a Departmental Enquiry and there was a prayer made by the petitioner to conduct a Departmental Enquiry, again the punishment order has been passed without holding the Departmental Enquiry, hence, it is certainly violative of principles of natural justice and fair play and it is also violative of statutory provisions as contained under the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules. 6. This Court has already decided a similar issue in the case of Omprakash Sharma v. The State of Madhya Pradesh and others passed in W.P. No. 8662/2010 (S) by order dated 18.9.2012. 7. Resultantly, the present writ petition stands allowed. The impugned order dated 15.2.2019 is hereby quashed.