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2020 DIGILAW 1260 (MP)

Mamta Gurjar v. State of M. P.

2020-12-05

S.A.DHARMADHIKARI

body2020
ORDER 1. In pursuance of the directions issued by the apex Court and guidelines issued by the High Court of Madhya Pradesh in the wake of COVID-19 outbreak, the matter was taken up through video conferencing while adhering to the norms of social distancing prescribed by the Government. 2. I.A. No.7337/2020, an application for urgent hearing is considered and allowed. 3. Heard finally with the consent of the parties. 4. This petition under Article 226 of the Constitution of India has been filed against the order dated 18.12.2018 (Annexure P/2) passed by the Commissioner, Chambal Division, Morena in Case No.335/2017-18/Appeal(CCA) as well as the order dated 26.7.2018 (Annexure P/1) passed by Collector, District Morena in Case No.SC2/Exam/2018, by which the punishment of stoppage of two increments without cumulative effect has been imposed. 5. Brief facts leading to filing of this case are that the petitioner is holding the post of Assistant Teacher and was discharging her duties as an Invigilator on 1.6.2018 at the examination centre of Saraswati Hall No.1, Govt. District Institute of Education Training (DIET), Morena, wherein a case of unfair means in the D.El.Ed. Examination 2018 was found. A notice was served on the petitioner that during surprise check by SDO (Revenue), Morena, a case of unfair means was registered against a student and accordingly, it was alleged that the petitioner was negligent in performing his duty, which is contrary to rule 3 of the Madhya Pradesh Civil Services (Conduct) Rules, 1965 and accordingly, the same is punishable under Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter shall be referred to as “the CCA Rules, 1966'') and a show cause notice was issued as to why two increments without cumulative effect may not be stopped. 6. The petitioner filed his reply and denied the allegations but the respondents without considering the reply and without conducting any enquiry passed the impugned order dated 26.7.2018 (Annexure P/1), which is a non-speaking order and rejected the reply only on the ground that the reply is not satisfactory and accordingly two increments without cumulative effect were stopped. 7. Being aggrieved by the order dated 26.7.2018 (Annexure P/1) passed by Collector, Morena, the petitioner filed an appeal, which was also dismissed by Commissioner, Chambal Division, Morena by order dated 18.12.2018 (Annexure P/2) passed in Case No. 335/2017-18/Appeal (CCA). 8. 7. Being aggrieved by the order dated 26.7.2018 (Annexure P/1) passed by Collector, Morena, the petitioner filed an appeal, which was also dismissed by Commissioner, Chambal Division, Morena by order dated 18.12.2018 (Annexure P/2) passed in Case No. 335/2017-18/Appeal (CCA). 8. Challenging the orders passed by Collector, Morena as well as the Commissioner, Chambal Division, Morena, learned counsel for the petitioner submitted that when an employee has denied the allegations made against him, then it is incumbent upon the authorities to conduct an enquiry under rule 14 of CCA Rules,1966 and a minor penalty of stoppage of increment cannot be imposed by merely holding that the reply submitted by the petitioner was not found to be satisfactory. Learned counsel in support of his contention, has placed reliance on the judgment of the apex Court in the case of O.K. Bhardwaj vs. Union of India and Others, reported in [ (2001) 9 SCC 180 ] and in the case of Oryx Fisheries Private Limited v. Union of India and Others, reported in [ (2010) 13 SCC 427 ]. 9. Per contra, learned Panel Lawyer appearing for the respondents/State submitted that the reply submitted by the petitioner was duly considered and imposition of minor penalty of stoppage of two increments is justified. Moreover, since the minor penalty was imposed, therefore, enquiry was not necessary. Accordingly, he prays for dismissal of the writ petition. 10. Heard learned counsel for the parties. 11. Apex Court in the case of Oryx Fisheries Private Limited (supra), has held as under :- ''36. The appellant gave a reply to the show cause notice but in the order of the third respondent by which registration certificate of the appellant was cancelled, no reference was made to the reply of the appellant, except saying that it is not satisfactory. The cancellation order is totally a non-speaking one..........'' Apex Court in the case of O.K. Bhardwaj (supra), has held as under :- ''3. ...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.'' 12. 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.'' 12. Rule 16 of the CCA Rules, 1966 reads as under :- ''16. Procedure for imposing minor penalties : (1) Subject to the provisions of sub-rule (3) of rule 15, no order imposing on a Government servant any of the penalties specified in clauses (i) to (iv) of rule 10 and rule 11 shall be made except after- (a) informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal; (b) holding an inquiry in the manner laid down in subrules (3) to (23) of Rule 14, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary; (c) taking the representation, if any, submitted by the Government servant under clause (a) and the record of inquiry, if any, held under clause (b) into consideration; (d) recording a finding on each imputation of misconduct or misbehaviour; and (e) consulting the commission where such consultation is necessary. [(1-a) Notwithstanding anything contained in clause (b) of sub-rule (1), if in a case it is proposed after considering the representation, if any, made by the Government Servant under clause (a) of that sub-rule to withhold increments of pay of Stagnation Allowance and such withholding or increments of pay or Stagnation Allowance is likely to effect adversely the amount of pension payable to the Government Servant or to withhold increments of pay or Stagnation allowance for a period exceeding three years of to withhold increments of pay or Stagnation allowance with cumulative effect for any period, an inquiry shall be held in the manner laid down in sub-rules (3) to (23) of rule 14, before making any order imposing on the Government servant any such penalty.] (2) The record of the proceedings in such cases shall include- (i) a copy of the intimation to the Government servant of the proposal to take action against him; (ii) a copy of the statement of imputation of misconduct or misbehaviour delivered to him; (iii) his representation, if any; (iv) the evidence produced during the inquiry; (v) the advice of the commission, if /any; (vi) the findings on each imputation of misconduct or misbehaviour; and (vii) the orders on the case together with the reasons therefor.'' 13. Thus, from the plain reading of rule 16(1)(b) of CCA Rules, 1966, it can be seen that where the disciplinary authority is of the opinion that the said enquiry is necessary, then the minor penalty can be imposed by holding an enquiry under sub-rules(3) to (23) of rule 14 of CCA Rules, 1966. Rule 16(1)(d) of CCA Rules, 1966 requires a finding on each imputation of misconduct or misbehaviour. In the present case, except by mentioning that the reply submitted by the petitioner is not satisfactory, no findings have been recorded by Collector, Morena. 14. Accordingly, this Court is of the considered opinion that the impugned order dated 18.12.2018 (Annexure P/2) passed by the Commissioner, Chambal Division, Morena in Case Case No.335/2017- 18/Appeal (CCA) and the impugned order dated 26.7.2018 (Annexure P/1) passed by the Collector, District Morena in Case No. SC-2/Exam/2018 deserve to be and are hereby set aside. However, the respondents/authorities are at liberty to proceed after issuing charge sheet to the petitioner, if so advised. With aforesaid liberty, this petition is finally disposed of. No order as to costs. However, the respondents/authorities are at liberty to proceed after issuing charge sheet to the petitioner, if so advised. With aforesaid liberty, this petition is finally disposed of. No order as to costs. R.B.S. Tomar for petitioner; Vinay Kumar, Panel Lawyer for respondents/State.