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2021 DIGILAW 180 (MP)

Kunwar Pal Singh Sikarwar v. State of M. P.

2021-02-19

G.S.AHLUWALIYA

body2021
JUDGMENT : Gurpal Singh Ahluwalia, J. 1. This petition under Article 226 of the Constitution of India has been filed against the order dated 18/12/2018 passed by respondent no. 2 in case No. 283/2017-18/Appeal (CCA) and order dated 7/7/2018 passed by respondent no. 3 in case No. SC-2/Exam/2018, by which a minor penalty of withholding one increment without cumulative effect has been imposed. 2. The necessary facts for disposal of the present petition in short are that the petitioner is holding the post of Sahayak Adhyapak and he was appointed as Invigilator on 1/6/2018 in Computer Room, Examination Center DIET Morena where cases of unfair means were found and accordingly, a notice dated 2/6/2018 was issued to the petitioner by the respondent no. 3, which was replied by the petitioner denying the allegation regarding his negligence in the discharge of duties. After considering the reply submitted by the petitioner, the respondent no. 2 came to a conclusion that the petitioner was negligent in discharging his duties and, therefore, punishment of withholding one increment without cumulative effect was imposed. Being aggrieved by the said order, the petitioner preferred an appeal, which too has been dismissed. 3. Challenging the orders passed by the authorities below, it is submitted by the counsel for the petitioner that since the petitioner had denied the allegations in his reply to the show-cause notice dated 2/6/2018, therefore, the respondents should have conducted a departmental enquiry into the allegations even for the purpose of imposition of minor penalty and to buttress his contentions, 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 and in the case of Oryx Fisheries Private Limited vs. Union of India and others reported in (2010) 13 SCC 427 . 4. Per contra, it is submitted by the counsel for the State that the respondents after considering the reply submitted by the petitioner had come to a conclusion that he was discharging his duties as an Invigilator and one case of cheating was found in the room of the petitioner. 5. Heard learned counsel for the parties. 6. 4. Per contra, it is submitted by the counsel for the State that the respondents after considering the reply submitted by the petitioner had come to a conclusion that he was discharging his duties as an Invigilator and one case of cheating was found in the room of the petitioner. 5. Heard learned counsel for the parties. 6. The Collector, District Morena on 2/6/2018 had issued a notice to the petitioner that the petitioner was appointed as an Invigilator in Examination Center No. 32302004, DIET, Morena and on surprise inspection carried out by SDO (Revenue) Morena on 1/6/2018, one case of cheating was found in the room of the petitioner. The petitioner filed his reply and submitted that he was performing his duties in Computer Room and he had found six cases of cheating, however, some of the students had hidden the slips at such places which could not be found during general physical inspection. In most of the cases of cheating, the students were women and in absence of any lady Invigilator, it was very difficult for him to physically screen the women candidates and accordingly, it was pleaded that there is no negligence on the part of the petitioner. 7. The Supreme 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.........." 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." 8. Rules 16 of the CCA Rules, 1966 reads as under:- "16. 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." 8. Rules 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 sub-rules (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 therefore." 9. Thus, from the plain reading of Rule 16(1)(b) of CCA Rules, 1966, it is clear that where the disciplinary authority is of the opinion that enquiry is necessary, then the minor penalty can be imposed after 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. 10. Accordingly, this Court is of the considered opinion that the impugned order dated 18/12/2018 passed by respondent no. 2 and order dated 7/7/2018 passed by respondent no. 3 are not in accordance with the provisions of Rule 16 of M.P. Civil Services (Classification, Control & Appeal) Rules, 1966 as well as in accordance with the law laid down by the Supreme Court in the case of O.K. Bhardwaj (supra) and Oryx Fisheries Private Limited (supra). Accordingly, both the orders are set aside. 3 are not in accordance with the provisions of Rule 16 of M.P. Civil Services (Classification, Control & Appeal) Rules, 1966 as well as in accordance with the law laid down by the Supreme Court in the case of O.K. Bhardwaj (supra) and Oryx Fisheries Private Limited (supra). Accordingly, both the orders are set aside. The respondents/authorities are granted liberty that if they so desire, they can proceed after issuing charge-sheet to the petitioner. 11. With aforesaid liberty, the petition is finally disposed of.