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Madhya Pradesh High Court · body

2020 DIGILAW 1263 (MP)

Layak Ram Visariya v. State of M. P.

2020-12-07

G.S.AHLUWALIA

body2020
ORDER 1. This petition under Article 226 of the Constitution of India has been filed against the order dated 26.7.2019 (Annexure P1) passed by respondent No.4,by which minor penalty of withholding two increments without cumulative effect has been imposed. 2. Challenging the order passed by respondent No.4 Collector, Morena, it is submitted by the counsel for the petitioner that since the petitioner had denied the allegations made in the show cause notice by filing his written reply, therefore, the respondents were under obligation to conduct a departmental enquiry. In support of his contention, the counsel for the petitioner has relied upon the judgment passed by the Supreme Court in the case of O.K. Bhardwaj vs. Union of India and Others, reported in (2001) 9 SCC 180 . 3. Per contra, the counsel for the State submitted that it is incorrect to say that the petitioner had ever filed any written reply to the show cause notice and submitted that the respondents have taken a specific stand in their return, which reads as under :- ''6. reply to para 5.5 and 5.6 are that the contents as alleged in these paragraphs are not correct hence denied. In this regard it is submitted that on the date of hearing i.e. on 23.7.2019, the petitioner was personally present before the answering respondent and had submitted orally in response to the showcause notice dated 18.7.2019. As far as the reply dated 23.7.2019 (Annexure P/7) to the show-cause notice dated 18.7.2019 is concerned it is submitted that on 23.7.2019 the petitioner has neither submitted any reply to the show-cause notice in the writing nor has sought any time for filing reply to the show-cause notice dated 18.7.2019 from the answering respondents therefore on the basis of oral submission of the petitioner wherein, he has not disputed the factual aspect of not achieving the target, the minor penalty was imposed upon the petitioner. As far as the reply dated 23.7.2019 is concerned it is submitted that same was filed belatedly by the petitioner and not before the concerning officer who is Collector at the relevant point of time.'' 4. As far as the reply dated 23.7.2019 is concerned, it is submitted that the same was filed belatedly by the petitioner and not before the concerning officer, who is Collector at the relevant point of time. 5. As far as the reply dated 23.7.2019 is concerned, it is submitted that the same was filed belatedly by the petitioner and not before the concerning officer, who is Collector at the relevant point of time. 5. The petitioner has filed his rejoinder and submitted that the petitioner had filed his reply on 24th July, 2020. It is submitted that on 23rd July, 2020, the petitioner had personally appeared before the concerning officer without any reply. Paragraph 3 of the rejoinder reads as under :- ''3. That, the contents advanced by the respondents in the return are totally misconceived and trying to misleading this Hon'ble Court. The O.I.C. of the case has made incorrect facts, just to misleading this Hon'ble Court. Though on 24th of July, 2020, the petitioner did appear along with the written reply and disputing the fact that the petitioner did not committed any breach and submitted his reply. Therefore, it is apparent that the contentions advanced by the respondents are totally misconceived, which deserves to be discarded.'' 6. Considered the submissions made by the counsel for the parties. 7. It is the case of the petitioner that he had filed his written response/reply to the show cause notice whereas it is the case of the respondents that the written response/reply was never filed. In the return, the respondents have taken a specific stand that the reply to the show cause was filed belatedly by the petitioner and was not filed before the concerning officer. The respondents in their return have not pleaded that the petitioner had never filed written reply at all and the copy of the written reply filed along with the writ petition is a forged document. However, their contention is that the written reply was filed belatedly but on which date the said application filed has also not been disclosed. 8. Since the respondents are in possession of the abovementioned details, but they have chosen not to file the same, therefore, this Court is left with no other option but to accept the rejoinder of the petitioner that the written reply was filed on 24.7.2020.The impugned order was passed by Collector, Morena on 26th July, 2019 i.e. subsequent to filing of written reply by the petitioner. 9. 9. Under these circumstances, once the petitioner had disputed the allegations made in the show cause notice, then even for imposing minor penalty, the respondents are under obligation to hold a full-fledged departmental enquiry. 10.The Supreme 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.'' 11. Under these circumstances, the impugned order dated 26th July, 2019 passed by Collector, Morena is hereby set aside. The Collector, Morena is directed to issue a charge-sheet to the petitioner for a departmental enquiry into the allegations made against the petitioner. The Department is free to pass a fresh order in accordance with law after completion of departmental enquiry. 12. Let the charge-sheet be issued within a period of three months from today. 13. With aforesaid observations, this petition is finally disposed of. D.P. Singh for petitioner; Abhishek Sharma, Paned Lawyer for respondents/State.