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Madhya Pradesh High Court · body

2023 DIGILAW 831 (MP)

R. K. Singhal v. State of M. P.

2023-10-10

GURPAL SINGH AHLUWALIA

body2023
ORDER 1. Initially this case was filed before Madhya Pradesh State Administrative Tribunal, Principal Bench Jabalpur and was registered as O.A. No.398/1993. After abolition of Tribunal, case was transferred to this Court and accordingly, it has been registered as W.P. No.8020/2003. 2. Initially petition was not filed against any specific order. It was the case of petitioner that by letter dated 24.9.1991, he came to know that he is facing a departmental enquiry in regard to Thanwar Project and one more enquiry has been proposed. He was informed that Department is trying to dispose of departmental enquiry as early as possible and only thereafter, case of petitioner shall be considered for promotion to the post of Superintendent Engineer. It was the case of petitioner that no action was taken to finalize the departmental enquiry and State Government promoted Executive Engineers, who were juniors to petitioner w.e.f. November, 1990 to August 1991. Another DPC was held in month of January, 1992, in which again petitioner was denied promotion. It was learnt by petitioner that on the basis of pendency of departmental enquiry, State Government has kept the recommendation in a sealed cover. DPC again met on 21.1.1993. As per assessment of petitioner, fate would be the same. Thus, it was the case of petitioner that respondent cannot keep recommendation in sealed cover, right from year 1990. They were bound to open sealed cover and act on the recommendations irrespective of enquiry mentioned in letter dated 24.9.1991. In view of subsequent event, petition was subsequently amended and it was pleaded that in respect of first charge sheet dated 15.12.1989, no enquiry in terms of rule 14 or 16 of M.P. Civil Services (Classification, Control and Appeal) rules, 1966 was conducted. Only a show cause notice was given to petitioner on 4.12.1990 and State Government had proposed the punishment of withholding of one increment without cumulative effect for one year. The matter was sent to Public Service Commission (PSC). PSC advised State Government to exonerate petitioner and not to punish him. Although, respondent has not supplied the copies of opinion given by Public Service Commission but they should produce the same in the Court. Since persons, who were biased against petitioner, were interested to punish him, therefore, matter was again referred to PSC with a proposal that censure be imposed upon petitioner. Although, respondent has not supplied the copies of opinion given by Public Service Commission but they should produce the same in the Court. Since persons, who were biased against petitioner, were interested to punish him, therefore, matter was again referred to PSC with a proposal that censure be imposed upon petitioner. PSC agreed that censure is not a punishment but would come in way of promotion of anybody and accordingly, by order dated 29.1.1993, punishment of censure was given to petitioner, which was received by him on 20.5.1993. Petitioner preferred an appeal against order of censure. In the meantime, State Government issued an order dated 1.6.1995 in which it was clearly mentioned that State Government has taken a decision to quash the penalty imposed against him provisionally and sanction thereon was formally required from the Cabinet. Accordingly, petitioner was promoted as Superintendent Engineer w.e.f. the date of promotion of his juniors on ad hoc basis. This decision was taken on previous recommendation made by Public Service Commission, which required the State Government to exonerate the petitioner. Thereafter, matter was referred to PSC at appellate stage. PSC did not agree to it. PSC wanted that punishment should remain and there was a tug of war between State Government and PSC, which ended in sufficient detriment to the career of petitioner. The Cabinet did not give the formal sanction for allowing the appeal and quashing the punishment of censure in view of the opinion of PSC and accordingly, appeal was dismissed. It is the case of petitioner that opinion of PSC was not binding on the State Government. What is required in law was consultation with PSC. It cannot be interpreted like effective consultation under Constitution. Once State Government had already taken a decision to promote petitioner as Superintendent Engineer, then it should have risen to occasion to uphold its own decision. 3. Another departmental enquiry was started against petitioner with second charge sheet dated 14.3.1992. In this case a detailed enquiry was conducted. The Enquiry Officer found that no charge was proved against petitioner and State Government has passed the final order on 18th July, 1995, whereby petitioner was exonerated of the charges. It is the case of petitioner that censure is not a punishment and therefore, he was entitled for promotion to the post of Superintendent Engineer from the date when his juniors were promoted. 4. It is the case of petitioner that censure is not a punishment and therefore, he was entitled for promotion to the post of Superintendent Engineer from the date when his juniors were promoted. 4. Per contra, petition is vehemently opposed by counsel for respondent. It is submitted that since petitioner was punished with punishment of censure, therefore, sealed cover was rightly not opened. The respondent also relied upon circular dated 2.5.1990, according to which if a person is facing departmental enquiry or departmental enquiry is under contemplation, recommendations of DPC should be kept in sealed and he should be granted promotion only if delinquent officer was completely exonerated. It is further provided in the said circular that in case, if a person is awarded minor penalty, then his case should be considered in next DPC only after currency of minor penalty comes to an end and thus, it was mentioned that if a delinquent officer has not been exonerated and has been saddled with some minor penalty, then he should not be promoted. 5. Heard the learned counsel for parties. 6. Petitioner was 52 years of age in the year 1993, therefore, it is clear that he must have retired by now and no useful purpose would be served. 7. So far as decision taken by State Government to allow the appeal filed by petitioner against order of censure is concerned, since it did not receive approval from Cabinet therefore, it cannot be said that State Government is bound by its own decision. 8. Now the only question for consideration is as to whether the case of petitioner was rightly not considered for promotion in the light of pendency of departmental enquiry and thereafter in the light of punishment of censure? 9. According to petitioner, first charge sheet was issued on 15.12.1989, whereas DPC was convened in the year 1990. Thus, it is the case of petitioner that just before holding meeting of DPC, he was issued a charge sheet. However, it is the case of petitioner that no departmental enquiry was conducted and ultimately by order dated 23.1.1993, punishment of censure was given to petitioner. It is the case of petitioner that censure is not a punishment and therefore, recommendation made by DPC should not have been kept in sealed cover. 10. However, it is the case of petitioner that no departmental enquiry was conducted and ultimately by order dated 23.1.1993, punishment of censure was given to petitioner. It is the case of petitioner that censure is not a punishment and therefore, recommendation made by DPC should not have been kept in sealed cover. 10. Per contra, it is the case of respondent that censure is punishment and therefore, procedure adopted by respondent for keeping the recommendation of DPC in sealed cover is correct. 11. Heard the learned counsel for parties. 12. The following two questions arise for adjudication in present case: (i) Whether censure is a punishment? (ii) What is the life of punishment of censure? Whether Censure is punishment? 13. The contention of petitioner that censure does not amount to penalty is misconceived. 14. The Supreme Court in the case of Union of India and others v. A.N. Mohanan reported in (2007) 5 SCC 425 has held as under: “11. Awarding of censure, therefore, is a blameworthy factor. A bare reading of Para 3.1 as noted above makes the position clear that where any penalty has been imposed the findings of the sealed cover are not to be acted upon and the case for promotion may be considered by the next DPC in the normal course.” 15. By considering the judgment passed by Supreme Court in the case of A.N. Mohanan (supra), a Coordinate Bench of this Court by order dated 3.4.2017 passed in the case of Jagjit Singh v. Secretary M.P.S.E.B. and others (WPS No.3273/2005) has also held that censure is a punishment and recommendation of DPC cannot be implemented and promotion cannot be granted. However, it was held that since departmental enquiry was kept pending unnecessarily for a period of seven years, therefore, in order to do complete justice, it was held that respondents shall treat the punishment of censure as in the year 1994 within one year from the date of initiation of departmental enquiry and accordingly, it was held as under: “16. In order to do complete justice between the parties, I deem it proper to direct the respondents to treat the punishment of “censure” as imposed in the year 1994 i.e., within one year from the date of initiation of departmental inquiry. In order to do complete justice between the parties, I deem it proper to direct the respondents to treat the punishment of “censure” as imposed in the year 1994 i.e., within one year from the date of initiation of departmental inquiry. The aforesaid punishment of “censure”, in other words, should relate back to the year 1994, i.e. within the reasonable period of one year from the date of issuance of charge-sheet. In view of this finding, the said punishment of “censure” will not be an impediment for the petitioner for consideration for TBPS/promotion etc. Hence, the respondents are required to open the sealed cover which was adopted pursuant to selection held on 5.10.1999. The respondents shall forthwith open the sealed cover and implement the recommendation. If petitioner is found fit by the Selection Committee for promotion/grant of TBPS, the respondents shall implement the said recommendation from due date with all consequential benefits. In the peculiar facts and circumstances of this case, where petitioner was all alone willing to be promoted/considered for grant of benefit of TBPS and it was the prolonged inquiry which deprived him from the said benefit, the respondents cannot deny the consequential benefits to the petitioner by applying principles of “no work no pay”. Hence, the petitioner shall reap all consequential benefits in the event he is found fit for grant of promotion/TBPS scale. The entire exercise of opening the sealed cover and implementing the recommendation shall be completed within 30 days from the date communication of copy of this order.” 16. In the present case also, charge sheet was issued on 15.12.1989. It was the case of petitioner that earlier DPC was expected to meet sometime in the month of January-February of 1990 and ultimately, it met in the month of October, 1990 and order of censure was passed after three years of initiation of departmental enquiry i.e. on 23.1.1993. Therefore, this Court is of considered opinion that facts and circumstances of the case are duly covered by order passed by a Coordinate Bench of this Court in the case of Jagjit Singh (supra) and accordingly, this petition is disposed of with a direction to open the sealed cover, which was adopted pursuant to recommendations of DPC held in the year 1990. Respondent by treating the punishment of censure as imposed in the year 1990 i.e. within one year from the date of initiation of departmental enquiry (15.12.1989), shall forthwith open the sealed cover and implement the recommendations. If petitioner is found fit by Selection Committee for promotion, then respondent shall implement the said recommendations from due date with all consequential benefits. Since petitioner was denied the benefit of recommendation of promotion on account of prolonged enquiry, therefore, consequential benefits to petitioner cannot be denied by applying the principles of “no work no pay”. Thus, petitioner shall reap all consequential benefits in case if he is found fit for grant of promotion. 17. The entire exercise of opening the sealed cover and implementing the recommendation shall be completed within a period of four months from the date of receipt of certified copy of this Order. Petitioner is directed to make a representation alongwith certified copy of this order to respondent for necessary information and compliance. 18. With aforesaid observation, petition is finally disposed of.