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Madhya Pradesh High Court · body

2019 DIGILAW 533 (MP)

Shobharam Rajak v. State of M. P.

2019-07-23

VISHAL MISHRA

body2019
ORDER 1. Challenge in the petition is made to the Order dated 4th of December, 2017 passed by the respondent No. 2 whereby exercising powers under rule 24 (1) (2 ) of M. P. Civil Services (Classification, Control and Appeal) Rules, 1966 (for short 'Rules of 1966'), the Order of penalty which is passed by respondent No. 3 on 8th of April, 2017 has been reviewed. 2. It is argued by the counsel for the petitioner that the aforesaid Order of review has been issued beyond the limitation as prescribed under rule 29 (1) (ii) of the Rules of 1966 and has been issued in view of the provisions conferred under Order 43 rule 21 of the CPC. The petitioner is further aggrieved by the consequential Order for holding fresh inquiry vide Order dated 20th of December, 2017. It is argued that the letter has been issued by Superintendent, Central Jail, Sagar dated 27th of December, 2017 for preparation of fresh charges against the petitioner, therefore serious prejudice has been caused to the petitioner. It is further argued by the counsel for the petitioner that it is settled principle of law that power of review can only be exercised by the appellate authorities within a period of six months from the date of the proposed Order which is to be reviewed. It is pointed out that the petitioner has retired on attaining the age of superannuation on 31.12. 2017, therefore, after retirement disciplinary proceedings directed to be issued under rule 14 of the Rules of 1966 is per se illegal and unsustainable. It is pointed out that the Order Annexure P/1 is illegal and is passed in colourable exercise of power and in excess of jurisdiction and the subsequent action amounts to de novo enquiry and issuance of charge sheet after superannuation of the petitioner is highly illegal. 3. The petitioner has placed reliance upon the Orders passed by Division Bench of this Court in the case of State of M. P. v. Om Prakash reported in 2001 (2) MPLJ 690 and in the case of Bindeshwari Chaudhry v. State of Bihar and Ors. reported in (2017) 13 SCC 277 and has argued that the subsequent action taken by the authorities is in violation of the Rules therefore the same is unsustainable and deserve to be set aside. 4. reported in (2017) 13 SCC 277 and has argued that the subsequent action taken by the authorities is in violation of the Rules therefore the same is unsustainable and deserve to be set aside. 4. Per contra, learned Government Advocate has denied all the arguments of the petitioner's counsel and has submitted that the respondent authorities have exercised powers under rule 29 (1) (ii) of the Rules of 1966 by which the matter has been taken into review and is remanded for detailed departmental enquiry against the petitioner which is just and proper. He has argued that there is no limitation prescribed under the Rules of 1966. He has relied upon judgment passed by the Hon'ble Supreme Court in the case of Union of India v. Kunisetty Satyanarayan reported in (2006) 12 SCC 28 to substantiate the augments that writ petition is not maintainable against issuance of charge sheet. He has further argued that from the perusal of annexure P/1 dated 14th of December, 2017, it is seen that the whole departmental enquiry which was conducted against the petitioner was found to be faulty and considering the irregularities in the departmental enquiry, respondent authority remitted the matter, setting aside the Order dated 8th of April, 2017 and directed for initiation of fresh enquiry after issuing fresh charge-sheet. Thus, he has argued that there were several irregularities found by the Director General of Police, therefore the remand Order is just and proper; the petitioner will be having full liberty to place his defence and file reply to the charge-sheet issued to him and has accordingly prayed for dismissal of the writ petition. 5. Heard learned counsel for the parties and perusd the record. 6. The petitioner was initially appointed on 2nd of July, 1975 on the post of Prahari and was promoted as Mukhya Parhari in 2009. He retired on attaining the age of superannuation on 31st of October, 2017 from the post of Mukhya Parhari. When he was posted at Central Jail, Sagar he was subjected to disciplinary proceedings and charge-sheet was issued under rule 14 of the Rules of 1966 and the main allegation in the charge-sheet is with respect to violation of rule 263 of the Jail Manual r/w section 3 ¼x½ ¼d½ of M. P. Civil Services (Conduct) Rules, 1965. Reply to the above charge-sheet was filed by the petitioner. Reply to the above charge-sheet was filed by the petitioner. Respondent authorities, after considering the reply filed by the petitioner, has found the charges proved against the petitioner and enquiry report dated 25.3.2017 was forwarded to the petitioner, and he was directed to file representation/application to the aforesaid within the period of 5 working days and thereafter Order Annexure P/2 dated 8th of April, 2017 has been passed whereby punishment of censure has been issued upon the petitioner. The matter was taken into consideration by the respondent Director General, Jail and Reformatory Services and he has found several irregularities in the enquiry which is reflected in remand Order dated 14th of December, 2017, therefore he has directed for initiation of fresh enquiry against the petitioner after issuing fresh charge-sheet. It is settled position of law that in cases wherein the reviewing authority is dissatisfied with the findings recorded in the enquiry or finding that the punishment imposed is on lower side or disproportionate then matter has to be dealt with in a manner as provided under the Rules of 1966. It is required to issue notice to the concerning person and there is limitation prescribed for review. There is no dispute that the petitioner stood retired on 31st October, 2017 on attaining the age of superannua-tion. The Division Bench of this Court in the case of State of Madhya Pradesh and Another v. Om Prakash Gupta reported in 2001 (2) MPLJ 690 has held as under: “The employer/appointing authority acting under a statutory provision is always vested with enough jurisdiction so as to make it possible for it to rectify any mistake committed by it. There may be a case where some statutory provision is overlooked or defect of such a nature comes to light which requires to be removed at the earliest. Such a jurisdiction is quite different from jurisdiction to review. Review is a creature of statute. In the absence of a statutory provision vesting the authority with the power to review its own Order, it is neither possible nor permissible for such an authority to embark upon a course for reviewing the Order passed by it earlier. The rectification of a mistake cannot be confused with the power to review. Review is a creature of statute. In the absence of a statutory provision vesting the authority with the power to review its own Order, it is neither possible nor permissible for such an authority to embark upon a course for reviewing the Order passed by it earlier. The rectification of a mistake cannot be confused with the power to review. In the present case, the relevant statutory provision stipulates that when a challan for a criminal offence involving corruption or other moral turpitude is filed against a Government servant, he shall invariably be placed under suspension. There may be case wherein in ignorance of this provision and noticing the rigor of the same, an Order is issued in flagrant disregard of the same. The concerned authority may, in such a case, rectify its own mistake. This, however, will not amount to review as envisaged under rule 29 of the Rules which power can be exercised within the limitations attached to the same.” 7. Provisions of rule 29 (1) of the Rules of M. P. Civil Services Rules of 1966 is reproduced below: “29. The concerned authority may, in such a case, rectify its own mistake. This, however, will not amount to review as envisaged under rule 29 of the Rules which power can be exercised within the limitations attached to the same.” 7. Provisions of rule 29 (1) of the Rules of M. P. Civil Services Rules of 1966 is reproduced below: “29. (1) Notwithstanding anything contained in these rules except rule 11-- (i) the Governor; or (ii) the head of a department directly under the State Government, in the case of a Government servant serving in a department or office (not being the Secretariat), under the control of such head of a department; or (iii) the appellate authority, within six months of the date of the Order proposed to be reviewed; or (iv) any other authority specified in this behalf by the Governor by a general or special Order, and within such time as may be prescribed in such general or special Order, may at any time, either on his or its own motion or otherwise call for the records of any inquiry and review any Order made under these rules or under the rules repealed by rule 34 from which an appeal is allowed but from which no appeal has been preferred, or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may -- (a) confirm, modify or set aside the Order; or (b) confirm, reduce, enhance or set aside the penalty imposed by the Order, or impose any penalty where no penalty has been imposed; or (c) remit the case to the authority which made the Order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or (d) pass such other Orders as it may deem fit: Provided that no Order imposing or enhancing any penalty shall be made by any reviewing authority unless the Government servant concerned has been given a reasonable opportunity of making a representa-tion against the penalty proposed and where it is proposed to impose; any of the penalties specified in clauses (v) to (ix) of rule 10 or to enhance the penalty imposed by the Order sought to be reviewed to any of the penalties specified in those clauses, no such penalty shall be imposed except after an inquiry in the manner laid down in rule 14 [xxx] and except after consultation with the Commission where such consultation is necessary: Provided further that no power to review shall be exercised by the head of department unless -- (i) the authority which made the Order in appeal; or (ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him.” 8. In the present case, the final Order of punishment was passed on 8th April, 2017 whereby the petitioner was punished with censor. Operative part of the punishment is reproduced as under: ^^vr% vipkjh&deZpkjh dh lsok&vfHkys[k dk voyksdu djus ij ik;k x;k fd vipkjh&deZpkjh dks iw.kZ lsokdky esa fdlh Hkh izdkj ds naM ls nafMr ugh fd;k x;k ,oa fnukad 31-10-2017 dks lsokfuo`Rr gks jgs gSaA vr% ekuoh; vk/kkj dks n`f"Vxr j[krs gq;s eSa jkds'k dqekj Hkkaxjs] fu;ksDrk] vuq'kklfud vf/kdkjh ,oa tsy v/kh{kd] dsUnzh; tsy] lkxj e-iz- flfoy lsok ¼oxhZdj.k] fu;a=.k rFkk vihy½ fu;e] 1966 ds fu;e 12 esa iznRr 'kfDr;ksa dk iz;ksx dj] e-iz- flfoy lsok ¼oxhZdj.k] fu;a=.k rFkk vihy½ fu;e 10 ¼,d½ ds vUrxZr ^^ifjfuank** vf/kjksfir djrk gw¡A vipkjh&deZpkjh dh fuyacu vofËk fnukad 1-10-2016 ls 13-12-2016 rd isa'ku vkfn lsok ykHkkas ds fy;s lsok vof/k ekU; djus rFkk fuyacu vof/k esa Hkqxrku fuokZg HkRrs ds vfrfjDr vU; dksbZ jkf'k Hkqxrku u djus dk vkns'k izlkfjr djrk gw¡A** 9. Thereafter the matter was taken up by respondent No. 2 where by being disatisfied with the punishment inflicted on the petitioner and finding several iregularities in the inquiry, has directed for remand of the matter with a further direction to issue fresh charge sheet and thereafter complete the proceedings as per the procedure. Thus, it is settled law that if the senior authority is dissatisfied with the enquiry report, then prior to passing any Order whereby reviewing the Order of punishment, show-cause-notice was required to be issued to the delinquent employee asking him why not the punishment should be enhanced and only after seeking explanation and granting him opportunity of hearing, the Order can be reviewed. It is also to be looked into that limitation prescribed for reviewing the Order under rule 29 of Rules of 1966 is only 6 months. The specific reason is to be assigned for reviewing the Order after period of 6 months. In the present case no such situation is seen, rather from the perusal of the impugned Order, it appears that the same is issued to fill up the lacuna. There was no justification for reviewing the Order, in the event when the employee stood retired on 8.4.2017, beyond the period of six months. In the present case no such situation is seen, rather from the perusal of the impugned Order, it appears that the same is issued to fill up the lacuna. There was no justification for reviewing the Order, in the event when the employee stood retired on 8.4.2017, beyond the period of six months. From the record it is found that after passing of the punishment Order the matter was taken by the Director General respondent No. 2 and he has passed the remand Order dated 14th December, 2017. From the perusal of the remand Order, nowhere it is reflected that another notice was issued to the delinquent or any opportunity of hearing was provided to him; even otherwise, the petitioner stood retired on 31st of December, 2017. Thus, after retirement of petitioner the reviewing Order has been passed whereby it is directed that for issuance of fresh charge to the petitioner, it is is improper in law. Thus, from the aforesaid facts and cirumstances, it is clear that action of the authorities reviewing of the earlier Order of punishment passed on 8th of April, 2017 when the petitioner was not in service and subsequent remand Order has been passed on 4th of December, 2018, ie, after the retirement of the petitioner. Thus, the Order of remand and also subsequent Orders dated 28th of December, 2017 and 23rd of December, 2017 are hereby quashed. However, liberty is granted to the respondent authorities that in case they want to reconsider the disciplinary proceedings against the petitioner, the same may be taken in accordance with law, if permissible. 10. Accordingly petition is allowed. No Order as to cost.