M.S. Sahgal vs State Of Chhattisgarh And Ors
2021 Latest Caselaw 1031 Chatt

                                 1

                                                                        AFR
       HIGH COURT OF CHHATTISGARH AT BILASPUR
             Writ Petition (S) No. 3267 of 2010
  M.   Ram      Prasad    Rao,       S/o    Late    Shri      M.    Surya
  Narayan,      Aged     about    51       years,    R/o    27      Kholi,
  Vikash Nagar, Bilaspur, Presently posted Asstt.
  Grade      II,     Cattle      Breeding           Farm      Pakariya,
  Veterinary        Department,            Pendra     Road,         Distt.
  Bilaspur, Chhattisgarh.

                                                      ­­­Petitioner

                               Versus

1. State   of    Chhattisgarh,         through       the    Secretary,
  Department       of    Agriculture         &     Animal     Husbandry
  Department,       Mantralaya,        D.K.S.       Bhawan,        Raipur,
  Chhattisgarh.

2. Director,       Directorate       of     veterinary        Services,
  Raipur, Distt. Raipur, Chhattisgarh.

3. Joint   Director,      Veterinary         Services,        Composite
  Building,         Opposite         Collectorate,            Bilaspur,
  Chhattisgarh.

                                                    ­­­ Respondents

Writ Petition (S) No. 3286 of 2010 M.S. Sahgal, S/o Late B.S. Sahgal, Aged about 48 years, Working as Asstt. Grade III at office of Joint Director, Veterinary Services, Bilaspur, Chhattisgarh.

­­­Petitioner

Versus

1. State of Chhattisgarh, through the Secretary, Veterinary Department, D.K.S. Bhawan, Raipur, Chhattisgarh.

2. Director, O/o Directorate veterinary Services, Raipur, Distt. Raipur, Chhattisgarh.

3. Joint Director, O/o Veterinary Services, Bilaspur, Distt. Bilaspur, Chhattisgarh.

­­­ Respondents

For Petitioner in WPS/3267/2010 :­ Mr. P. Acharya, Advocate For Petitioner in WPS/3268/2010 :­ Mr. Vinod Deshmukh, Advocate For Respondents/State :­ Mr. Animesh Tiwari, Dy. A.G.

Hon'ble Shri Justice Sanjay K. Agrawal Order on Board (Through Video Conferencing) 12/07/2021

1. Since common question of fact and law is

involved in both these writ petitions, they are

heard together and are being decided by this

common order.

2. In a regular departmental enquiry held against

the two petitioners herein and two other

employees, the Disciplinary Authority

(respondent No. 2 herein) vide order dated

15/01/2009 (Annexure P­6) inflicted minor

penalty under Rule 10(iv) of the Chhattisgarh

Civil Services (Classification, Control and

Appeal) Rules, 1966 (in short 'Rules of 1966')

withholding three annual increments with

non­cumulative effect. The petitioners did not

call in question the order dated 15/01/2009

(Annexure P­6) and it had thus attained

finality, but thereafter, vide order dated

02/06/2010 (Annexure P­1), the Disciplinary

Authority cancelled its earlier order (Annexure

P­6) of withholding three annual increments of

the petitioners with non­cumulative effect and

substituted it with the order of recovery of

₹ 7,50,000/­ from each of the petitioners, which

has now been called in question by the

petitioners by way of both these writ petitions.

3. Mr. P. Acharya, learned counsel for petitioner

in WPS No. 3267/2010, as well as Mr. Vinod

Deshmukh, learned counsel for petitioner in WPS

No. 3268/2010, both would make a solitary

submission that the Disciplinary Authority

(respondent No. 2) has not been conferred with

the power of review under the Rules of 1966 as

it has only been conferred upon the Appellate

Authority under Rule 29(1) of the Rules of 1966,

therefore, the Disciplinary Authority

(respondent No. 2) could not have cancelled its

earlier order dated 15/01/2009 (Annexure P­6)

inflicting minor penalty upon the petitioners

withholding three annual increments with

non­cumulative effect and then it could not have

substituted it with the impugned order dated

02/06/2010 (Annexure P­1) passed for recovery to

the tune of ₹ 7,50,000/­ from each of the

petitioners under Rule 10(iii) of the Rules of

1966 and that too, without recording any finding

that such an amount is recoverable from the

petitioners because of the loss caused to the

State Government for negligence or breach of

order on the part of the petitioners as required

under Rule 10(iii) of the Rules of 1966, as

such, the impugned order deserves to be quashed.

4. Mr. Animesh Tiwari, learned Deputy Advocate

General appearing for respondents/State, would

support the impugned order and submit that since

huge loss was caused by the act of misconduct on

the part of the petitioners, therefore, pursuant

to the order of the Government, the Disciplinary

Authority directed for recovery of loss to the

tune of ₹ 7,50,000/­ from each of the

petitioners, as such, the writ petitions deserve

to be dismissed.

5. I have heard learned counsel for the parties,

considered their rival submissions made herein­

above and went through the records with utmost

circumspection.

6. It is not in dispute that in a regular

departmental proceeding held against the

petitioners as well as two other employees, the

Director, Veterinary Services i.e. respondent

No. 2 being the Disciplinary Authority had

inflicted minor penalty within the meaning of

Rule 10(iv) of the Rules of 1966 and directed

for withholding three annual increments of the

petitioners with non­cumulative effect vide

order dated 15/01/2009 (Annexure P­6) and the

said order was not questioned by the petitioners

and it had already come into force and had

become final. Thereafter, vide the order

impugned dated 02/06/2010 (Annexure P­1), the

Disciplinary Authority (respondent No. 2),

pursuant to the order of the Government,

cancelled its earlier order (Annexure P­6)

directing withholding of three annual increments

with non­cumulative effect and substituted it

with the order of recovery of ₹ 7,50,000/­ from

each of the petitioners.

7. The question for consideration is, whether the

Director, Veterinary Services i.e. respondent

No. 2 herein, being the Disciplinary Authority,

was justified in cancelling its earlier order

dated 15/01/2009 (Annexure P­6) imposing minor

penalty of withholding three annual increments

of the petitioners with non­cumulative effect

under Rule 10(iv) of the Rules of 1966 and

substituting that order with the order dated

02/06/2010 (Annexure P­1) passed for recovery of

₹ 7,50,000/­ from each of the petitioners under

Rule 10(iii) of the Rules of 1966 ?

8. It is well­settled law that there is no inherent

power of review vested in a Court or a body

exercising judicial function. The power of

review is a creature of statute and unless the

statute expressly provides for it, there is no

power vested in judicial or quasi­judicial

authority to review the decision already taken

by it.

9. It is well­settled law that administrative

authority does not have inherent power of

review. The Supreme Court in the matter of Patel

Harshi Thakershi v. Shri Pradyumansinghji

Arjunsinghji1 has held as under :­

"It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order."

10. In the matter of Major Chandra Bhan Singh v.

Latafat Ullah Khan2, the Supreme Court has held

that review is creature of statute and cannot be

entertained in the absence of a provision

therefor relying upon its earlier judgments in

the matter of Harbhajan Singh v. Karam Singh3

and Patel Chunibhai Dajibhai v. Narayanrao

Khanderao Jambekar4. As such, the above­stated

principle will equally apply to the

administrative bodies also who sometimes take

decisions which are semi­judicial in character.

Thus, the Disciplinary Authority has no power

and jurisdiction to exercise the power of review

as it has not been conferred by Rules of 1966

which is applicable to the Government servant.

1 AIR 1970 SCC 1273 2 (1979) 1 SCC 321 3 AIR 1966 SC 641 4 AIR 1965 SC 1457

11. Rule 29(1) of the Rules of 1966 provides for

review which states as under :­

"29. (1) Notwithstanding anything contained in these rules except Rule 11 ­

(i) the Governor; or

(ii) the head of a department directly under the State Government, in the case of a Government servant serving in a department or office (not being the secretariat), under the control of such head of a department, or

(iii) the appellate authority, within six months of the date of the order proposed to be reviewed, or

(iv) any other authority specified in this behalf by the Governor by a general or special order, and within such time as may be prescribed in such general or special order may at any time, either on his or its own motion or otherwise call for the records of any inquiry and review any order made under these rules or under the rules repealed by Rule 34 from which an appeal is allowed but from which no appeal has been preferred or from, which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may ­

(a) confirm, modify or set aside the order; or

(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or

(c) remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or

(d) pass such other orders as it may deem fit:

Provided that no order imposing or enhancing any penalty shall be made by any

reviewing authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose; any of the penalties specified in clauses (v) to

(ix) of Rule 10 or to enhance the penalty imposed by the order sought to be reviewed to any of the penalties specified in those clauses, no such penalty shall be imposed except after an inquiry in the manner laid down in Rule 14 and except after consultation with the Commission where such consultation is necessary :

Provided further that no power to review shall be exercised by the head of department unless :

(I) the authority which made the order in appeal; or

(ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him."

12. A careful perusal of the aforesaid rule would

show that the power of review has been conferred

to the Governor, the head of a Department

directly under the State Government, the

appellate authority or any authority specified

in this behalf by the Governor by a general or

special order.

13. In the instant case, respondent No. 2 i.e. the

Director, Veterinary Services is neither the

head of a department directly under the State

Government in the case of a Government servant

serving in a department or office nor he is the

Appellate Authority being the Disciplinary

Authority and further he has not shown that he

has been conferred with the power of review by

general of special order of the Governor. As

such, respondent No. 2 being the Disciplinary

Authority reviewing its earlier order in

exercise of the power of review is without

jurisdiction and without authority of law in

absence of provision therefor in the Rules of

1966.

14. There is one more reason for not upholding the

impugned order dated 02/06/2010 (Annexure P­1).

By the supersession of order dated 15/01/2009

(Annexure P­6) inflicting minor penalty upon the

petitioners withholding three annual increments

with non­cumulative effect under Rule 10(iv) of

the Rules of 1966, now minor penalty under Rule

10(iii) of the Rules of 1966 has been imposed

and order for recovery of ₹ 7,50,000/­ from each

of the petitioners has been passed.

15. Rule 10(iii) of the Rules of 1966 states as

under :­

"10. Penalties. ­ The following penalties may, for good and sufficient reasons and as hereinafter provided, by imposed on a Government servant, namely :­

Minor penalties :­ (I) XXXX

(ii) XXXX

(iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of order;"

16. It is clear from perusal of the aforesaid rule

that penalty of recovery of any pecuniary loss

from the pay of the Government servant can be

imposed only when it is found that the loss has

been caused by the Government servant to the

Government by negligence or breach of order. In

the instant case, no such notice has been issued

to the petitioners informing them that they are

liable for the loss caused to the Government

either by their negligence or by breach of order

on their part. Even the impugned order dated

02/06/2010 (Annexure P­1) does not clearly show

that the alleged pecuniary loss to the extent of

₹ 7,50,000/­ from each of the petitioners has

been caused to the Government because of

negligence or breach of order on the part of the

petitioners which is sine qua non for imposing

penalty under Rule 10(iii) of the Rules of 1966.

The impugned order (Annexure P­1) directing

recovery of ₹ 7,50,000/­ from each of the

petitioners does not contain any clear finding

that the said loss was caused to the Government

by petitioners' negligence or breach of order.

17. In view of the aforesaid legal analysis, the

impugned order dated 02/06/2010 (Annexure P­1)

passed by respondent No. 2 substituting its

earlier order (Annexure P­6) deserves to be and

is hereby set aside and the earlier order dated

15/01/2009 (Annexure P­6) is restored.

18. With the aforesaid observations, both of these

writ petitions are allowed to the extent

indicated herein­above. No cost(s).

Sd/­ (Sanjay K. Agrawal) Judge

Harneet

HIGH COURT OF CHHATTISGARH, BILASPUR WPS No. 3267 of 2010

Petitioner M. Ram Prasad Rao

Versus

Respondents State of Chhattisgarh & Ors.

                  WPS No. 3286 of 2010



Petitioner         M.S. Sahgal


                               Versus


Respondents        State of Chhattisgarh & Ors.


                      (English)

Disciplinary Authority has no power and jurisdiction to review its order imposing minor punishment.

(Hindi)

FR अननशशसननक पशनधकशरर अपनन ऐसन आदनश, नजसकन दशरश लघन शशनसस अनधररनपस ककयश गयश हह, कर पननरररलरकन करनन कक शनक एरव अनधकशररसश नहह हह |