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2021 DIGILAW 182 (MP)

Dhruv Singh Sikarwar v. State of Madhya Pradesh

2021-02-19

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. 1. With the consent of parties, the matter is finally heard. 2. Present petition has been filed assailing the order dated 07.07.2018 whereby, the penalty of withholding of one increment with non cumulative effect has been passed against the petitioner by the respondent no. 3. Petitioner is also assailing the order dated 18.12.2018 passed by the Commissioner, being appellate authority whereby, the order passed by Collector district Morena is being upheld. 3. It is alleged that the petitioner was posted as Assistant Teacher in Govt. Primary School Tenhta, Block and District Morena. In the Govt. District Institute of Education Training (DIET) the examinations of D.EL.Ed. was conducted by National Open University Noida between 31.5.2015 to 2.6.2018 in the DIET building Morena, wherein, the petitioner was engaged as an invigilator in the computer room of the examination center. On 1.6.2018, Sub Divisional Officer, Morena has inspected the examination center and two cases of unfair means being done by two candidates were found, on the basis of which, a notice dated 2.6.2018 was issued to the petitioner levying the allegations against him that various chits were found from the students in the examination room wherein, the petitioner was performing his duties as an invigilator and owing to negligency in duties performed by the petitioner such unfair activities were permitted. The notice was received by the petitioner on 2.6.2018 and on the same day, he has submitted detailed reply denying the allegations levied against him. He has filed reply of the notice to respondent no. 3. It is submitted that the reply filed by the petitioner was not taken into consideration by the Collector District Morena and out rightly without affording any opportunity of hearing to the petitioner, impugned order has been passed observing that despite notice being issued to the petitioner, he has chosen not to file any response to the show cause notice meaning thereby, he has accepted the allegations levied against him. Therefore, in exercise of powers conferred under Section 10(4) of M.P. Civil Service (Classification, Control and Appeal) Rules 1966, order for withholding of one increments with non cumulative effect has been passed against the petitioner on 07.07.2018. Therefore, in exercise of powers conferred under Section 10(4) of M.P. Civil Service (Classification, Control and Appeal) Rules 1966, order for withholding of one increments with non cumulative effect has been passed against the petitioner on 07.07.2018. An appeal was preferred by the petitioner to the Commissioner, Chambal Division Morena raising the grounds that without following the principles of natural justice and without considering the reply submitted by the petitioner of the show cause notice, the impugned order has been passed. The appellate authority considering the record has arrived at the conclusion that the petitioner was negligent towards his duties and the order passed by learned Collector is just and proper and does not call for any interference and accordingly, the same was upheld. It is submitted that the law with respect to imposition of even minor penalty is settled by Hon'ble Supreme Court in the case of O.K. Bhardwaj Vs. Union of India and others as reported in 2001 (9) SCC 180 and in the case of Oryx Fisheries Pvt. Ltd. Vs. Union of India and Others reported in 2010 (13) SCC 427 and it has been observed that if the reply to the show cause notice is being submitted denying the allegations then in such circumstances, the procedure for imposition of minor penalty should be followed and at least, an inquiry should be conducted into the allegations levied against the employee. He has further relied upon a judgment rendered by coordinate Bench this court in W.P. No. 2652 of 2019 in the case of Rajesh Sharma Vs. State of M.P. dated 10.12.2019 wherein, in similar situation and with respect to the same examination conducted by National Open University Noida levying similar allegations against Rajesh Sharma, a coordinate Bench of this court has allowed the writ petition following the judgment passed by Hon'ble Apex Court in the case of O.K. Bhardwaj (Supra) and Oryx Fisheries Pvt. Ltd. (Supra) and order imposing penalty was set-aside. He submits that the similar relief be extended to the petitioner as the case of petitioner is identical to that of Rajesh Sharma. 4. He submits that the similar relief be extended to the petitioner as the case of petitioner is identical to that of Rajesh Sharma. 4. Per contra, counsel for the State by filing the reply has denied all the averments of the writ petition and has contended that the petitioner was functioning as an invigilator in the examination center and in his presence, illegal means were being used by two students who were subsequently caught by SDO on sudden inspection. A show cause notice was issued to the petitioner. Although the same was replied by him as has been considered by the appellate authority but the reply submitted by the petitioner was not found to be satisfactory as he has admitted the fact that he could not trace out the chits being used by the students as the same were kept at some interior place in the body which could not be examined. It is submitted that the aforesaid aspect clearly reveals the negligence of the petitioner. The petitioner should have been vigilant as he was an invigilator of the examination and he should have checked each and every student. Even otherwise, he has not even caught the students at the time when they were using unfair means. In such circumstances, the reply submitted by the petitioner was not found satisfactory and the order passed by Collector was affirmed. The petitioner was also afforded opportunity of hearing as show cause notice was issued to him and admittedly, he has submitted reply to the show cause notice which though was not considered by the Collector District Morena but subsequently, the appellate authority has considered the same. In such circumstances, at the time of imposing minor penalty, the principles of natural justice were followed in the matter. Therefore, in such circumstances, the relief claimed by the petitioner cannot be granted to him and the order impugned has rightly been passed and the same does not call for any interference in this petition under Article 226 of the Constitution of India. 5. Heard learned counsel for the parties and perused the record. 6. From perusal of record, it is not disputed that the petitioner was doing his duties as invigilator during the examination being conducted by National Open University, Noida. 5. Heard learned counsel for the parties and perused the record. 6. From perusal of record, it is not disputed that the petitioner was doing his duties as invigilator during the examination being conducted by National Open University, Noida. During this period, certain inspection was carried out by SDO wherein, two students were found using unfair means and on checking, several chits were recovered from them. The petitioner was on duty in the same room wherein, the incident had taken place. Accordingly, a show cause notice dated 2.6.2018 was issued to him. The show cause notice was replied by the petitioner wherein, it is admitted that as the chits were kept in interior portion of the clothes/body by the students, therefore, the same could not be collected as the same could not be checked out. It is further seen that learned Collector has not even considered the reply submitted by the petitioner to the show cause notice and has imposed punishment of penalty of stoppage of one annual increments with non cumulative effect observing that the petitioner has chosen not to file reply to the show cause notice. But the fact remains that the reply to the show cause notice was submitted by the petitioner i.e. annexure P/4 of the writ petition. The appellate authority has taken note of the reply filed by the petitioner in his appeal but held that the petitioner should have been vigilant towards his duties and the reply submitted by the petitioner was not found to be satisfactory. 7. The Coordinate Bench of this court has considered similar issue in the case of Rajesh Sharma which is not disputed by the State counsel wherein, it has been held as under : (8) 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. ................... 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.'' (9) 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 therefor.'' (10) 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 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. (11) Accordingly, this Court is of the considered opinion that the impugned order dated 18th December, 2018 (Annexure P1) passed by the Commissioner, Chambal Division, Morena in Case No. 288/2017-18/Appeal (CCA) and the impugned order dated 7th July, 2018 (Annexure P2) passed by the Collector, District Morena in Case No. MC2/Exam/2018 are not in accordance with the provisions of Rule 16 of CCA Rules, 1966 as well as in accordance with 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 the charge sheet to the petitioner. (12) With aforesaid liberty, this petition is finally disposed of. 8. The aforesaid case also deals with the same examination conducted by the National Open University, Noida with respect to D.EL.Ed course. The similar allegations were levied against said Rajesh Sharma wherein, the coordinate Bench has set-aside the order placing reliance upon the judgment rendered by Apex Court in the case of O.K. Bhardwaj and Oryx Fisheries Pvt. Ltd. (Supra). 9. Counsel for the respondents could not dispute the factum of passing of order by the coordinate Bench in similar circumstances. 10. In such circumstances, the order passed by coordinate Bench is exactly identical to the facts and circumstances of the present case also. Therefore, same is fully applicable in the present petitioner also. Accordingly, maintaining parity and placing reliance upon the judgment rendered by Apex Court in the case of O.K. Bhardwaj and Oryx Fisheries Pvt. Ltd. (Supra), the order impugned are unsustainable and is hereby quashed. However, liberty is extended to the respondents to issue charge sheet to the petitioner and carry out inquiry into the matter if they so desire. 11. The petition stands allowed with the aforesaid observations. 12. CC as per rules.