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Madhya Pradesh High Court · body

2020 DIGILAW 1010 (MP)

Mohd. Suhel Siddiqui v. State of M. P.

2020-10-05

SANJAY DWIVEDI

body2020
JUDGMENT 1. This matter was listed for final hearing at motion stage and since pleadings are complete and learned counsel for the parties are ready to argue the matter finally, therefore, it is heard finally. 2. By the instant petition filed under Article 226 of the Constitution of India, the petitioner is questioning the validity, propriety and legality of order dated 3.5.2019 (Annexure-P/5) passed by respondent No.2 whereby recovery of an amount of Rs.23,68,212/- has been proposed and directed to be deposited by the petitioner immediately. 3. Necessary facts for proper adjudication of the case lie in a narrow compass are as follows:- The petitioner obtained super specialisation in Cardiology (DM Cardiology) and was appointed as an Assistant Professor (Cardiology) in the Netaji Subhash Chandra Bose Medical College, Jabalpur (hereinafter referred to as the ‘College’) on 3.3.2014 and lateron, he was designated as an Associate Professor w.e.f. 3.3.2018. As per the petitioner, he did not receive any non-practicing allowance while working in the College. On 11.10.2018, a show-cause notice was issued to the petitioner alleging that he is carrying out private practice in the Shalby Multi Speciality Hospital, Vijay Nagar, Jabalpur (hereinafter shall be referred as ‘Hospital’) from 04:00 pm to 08:00 pm between Monday to Saturday. It is also alleged against the petitioner in the said show-cause notice that being a Medical Officer in the clinical department, he has to take evening rounds between 05:00 pm to 07:00 pm as per the instructions issued by the Government of Madhya Pradesh vide memo dated 20.12.2012 but the same was not done by the petitioner, therefore, by the said showcause notice, it was asked as to why, penalty be not imposed against him under rule 13(2) of the Madhya Pradesh Autonomous Medical Teachers Model Service Rules, 2018 (in short the ‘Rules, 2018’). The petitioner, in turn, filed a reply to the showcause notice on 17.10.2018 and denied the allegations made against him especially the fact regarding not taking evening rounds as per the memo dated 20.12.2012. In the said reply, it was also stated by him that he was merely engaged as a visiting consultant (Cardiologist) at the Hospital where no specific time schedule was fixed for rendering the services. He had also stated in the reply that he had never missed his evening rounds during 05:00 pm to 07:00 pm. In the said reply, it was also stated by him that he was merely engaged as a visiting consultant (Cardiologist) at the Hospital where no specific time schedule was fixed for rendering the services. He had also stated in the reply that he had never missed his evening rounds during 05:00 pm to 07:00 pm. He further stated in the reply that during his whole service period of almost five years, he had not been issued any notice by the respondents asking him that he is not taking evening rounds scheduled between 05:00 pm to 07:00 pm in the College. Thereafter, the respondents passed an order on 5.11.2018 holding the petitioner guilty for violating the conditions enumerated in sub rules (i) (ii) (iii) and (iv) of rule 13(2) of the Rules, 2018. The petitioner thereafter, submitted his resignation on 29.10.2018 and the Authorities while considering the same asked the petitioner to deposit the salary of one month amounting to Rs.81,247/- till 30.10.2018 and also accepted the resignation of the petitioner w.e.f. 31.10.2018. After accepting the resignation of the petitioner, order impugned dated 3.5.2019 (Annexure-P/5) has been passed asking the petitioner to deposit an amount of Rs.23,68,212/- as he had committed irregularity as has been mentioned in order dated 5.11.2018 and, therefore, salary paid to him w.e.f. 15.10.2015 to 30.9.2018 was asked to be deposited. Left with no option, the petitioner filed this petition challenging the said action of the respondents mainly on the ground that no such order can be passed by the respondents as after acceptance of his resignation by the Authorities, relation of an employee and employer has ended w.e.f. 31.10.2018. 4. Learned counsel for the petitioner submits that there is no material available with the respondents to substantiate that the petitioner did not take the evening rounds and as such violated the instructions issued by the State Government vide memo dated 20.12.2012. He further submits that in rebuttal to the show-cause notice, the petitioner had very categorically taken a stand that he had not violated the instructions issued on 20.12.2012 and also not escaped from the duties entrusted upon him including the evening rounds scheduled between 05:00 pm to 07:00 pm. He further submits that in rebuttal to the show-cause notice, the petitioner had very categorically taken a stand that he had not violated the instructions issued on 20.12.2012 and also not escaped from the duties entrusted upon him including the evening rounds scheduled between 05:00 pm to 07:00 pm. He submits that during the services rendered by the petitioner with the respondents, no notice was ever issued to him by the respondents asking that he had not taken the evening rounds as per the instructions issued vide memo dated 20.12.2012. He 4 Writ Petition No.10602/2019 also submits that on a bare perusal of order Annexure-P/4, it can be gathered that the sole basis of holding the petitioner guilty was the letter issued by the management of the Hospital in which timing of the petitioner was shown from 04:00 pm to 08:00 pm from Monday to Saturday, therefore, it was not possible for the petitioner to take evening rounds in the College between 05:00 pm to 07:00 pm. He also submits that the letter issued by the Hospital cannot be made basis as the respondents did not have any material to substantiate that the petitioner did not take the evening rounds whereas in the reply to the showcause, he had very categorically stated that he had never missed his duties including the evening rounds from 05:00 pm to 07:00 pm and as such, he claimed that the order impugned is liable to be set aside. 5. The respondents have filed their reply in which it is stated by them that the petitioner had played fraud with the respondent/Institution and not performed the assigned duties and at the same time, he was engaged with the Hospital, therefore, whatever salary paid to him is nothing but a loss caused to the public exchequer and as such, the impugned order has been issued asking the petitioner to deposit Rs.23,68,212/- with the respondents. It is also stated by the respondents that the order impugned is appealable and without availing the said remedy, this petition is not maintainable. It is also stated by the respondents that after receiving the showcause notice, the petitioner submitted his resignation on 29.10.2018 and it is the clear sign of admitting the guilt by the petitioner. It is also stated by the respondents that the order impugned is appealable and without availing the said remedy, this petition is not maintainable. It is also stated by the respondents that after receiving the showcause notice, the petitioner submitted his resignation on 29.10.2018 and it is the clear sign of admitting the guilt by the petitioner. In their reply, the respondents have also relied upon the letter issued by the Hospital giving appointment to the petitioner as a visiting consultant in the department of Cardiology showing timings of his duties from 04:00 pm to 08:00 pm and as per the respondents that letter dated 15.10.2015 itself indicates that it was not possible for the petitioner to take evening rounds in the College. Learned Panel Lawyer appearing for the respondents submits that in view of aforesaid facts and circumstances of the case, the order impugned does not call for any interference and the petition being without any substance, deserves dismissal. 6. After hearing the rival contentions of learned counsel for the parties and after perusal of the record, I am of the opinion that the contention raised by learned counsel for the petitioner has some substance because after issuing the show-cause notice dated 11.10.2018 (Annexure-P/1) that he was not taking evening rounds which were scheduled from 05:00 pm to 07:00 pm; a satisfactory reply has been filed by the petitioner denying the said allegation saying that he had never escaped from his duties which were entrusted upon him especially with respect to evening rounds. Thereafter, an order has been passed on 5.11.2018 by the respondents relying upon a letter issued by the Hospital in which the petitioner’s time of duties has been shown from 04:00 pm to 08:00 pm but the respondents did not produce their official record showing that the petitioner did not follow the instructions issued vide memo dated 20.12.2012 and did not take the evening rounds scheduled between 05:00 pm to 07:00 pm. However, it was obligatory on the part of the respondents to substantiate the allegation made against the petitioner by adducing cogent evidence. Indeed, the official record was the material evidence to produce even before this Court when their action has been assailed by the petitioner saying that the allegation made against him is ill-founded. However, it was obligatory on the part of the respondents to substantiate the allegation made against the petitioner by adducing cogent evidence. Indeed, the official record was the material evidence to produce even before this Court when their action has been assailed by the petitioner saying that the allegation made against him is ill-founded. In absence of the said material, adverse inference could be drawn against the respondents and the stand taken by the petitioner can be prima facie treated to be correct. Apart from that, I am also not satisfied with the stand taken by the respondents basing their order on a document issued by the Hospital because if the petitioner had not performed his duties assigned to him by the respondents then they could have very well proved the same by adducing their record and can take action against the petitioner on the basis of the same. But here in this case, the letter of another Hospital has been made basis without ascertaining the fact whether the petitioner was available in the said Hospital during the duty hours shown in the said document issued by the Hospital or not. It is also astonishing that when the respondents were of the opinion that the petitioner had not performed his duties in the College then they should have not accepted his resignation or before accepting the resignation, he could have been asked to deposit the amount which is proposed to be recovered by way of impugned order but after accepting the resignation, the order of recovery cannot be issued for the reason that the relation of an employee and employer stood seized. Adverting to the contention of learned Panel Lawyer that the order impugned is appealable and without availing the remedy of appeal, this petition cannot be entertained as also the order of recovery can also be issued even after retirement of the petitioner, I am not convinced with the said stand for the reason that the order impugned is not an order passed under the provisions of M.P. Civil Services (Classification, Control & Appeal) rules, 1966 by way of punishment and, therefore, the appeal as prescribed under rule 23 of the rules, 1966 can be filed, but contrary to that, the impugned order has been issued by the respondents on their administrative capacity, therefore, the order is not appealable. Furthermore, the stand of the respondents that the recovery can be made even after retirement is also not applicable in the present case because the recovery as proposed against the petitioner is not by way of punishment but it is only against the alleged irregularity, which in my opinion, has not been properly proved by the respondents. 7. On considering the fact situation of the case, I am of the opinion that the order impugned has been passed by the respondents without any proper foundation as the allegation made against the petitioner has not been proved for the reason that during petitioner’s service period, he had never been given any notice even asking him to take evening rounds and no record has been shown that the petitioner had not taken the evening rounds scheduled between 05:00 pm to 07:00 pm. Thus, the order impugned is not sustainable in the eyes of law and accordingly it is set aside. 8. Resultantly, the petition filed by the petitioner stands allowed. Parties shall bear their own costs.