Shiv Kirti Shukla vs Madhya Pradesh Poorv Kshetra ...
2022 Latest Caselaw 301 MP

                                                                     1                               WP-24414-2021
                                          The High Court Of Madhya Pradesh
                                                   WP No. 24414 of 2021
                                  (SHIV KIRTI SHUKLA Vs MADHYA PRADESH POORV KSHETRA VIDYUT VITRAN LTD. MPPKVVCL AND
                                                                        OTHERS)

                                  Jabalpur, Dated : 06-01-2022
                                        Mrs. Shobha Menon, learned Senior counsel with Ms. Sonali

                                  Shrivastava and Mr. Rahul Choubey, learned counsel for the petitioner.
                                        Shri Prashant Singh, learned senior counsel with Shri Anoop Nair,
                                  learned counsel for the respondents.

Heard finally with the consent of both the parties.

In this petition under Article 226 of the Constitution of India, a challenge has been made to the impugned charge sheet dated 21.01.2020 (Annexure P/13), supplementary charge sheet dated 15.05.2020 (Annexure P/19) issued by the respondent No.2 as well as the penalty order dated 25.10.2021 (Annexure P/29) passed by the respondent No.1.

Learned senior counsel for the petitioner contended that the charge sheet as well as supplementary charge sheet have been issued by the incompetent authority i.e. by the respondent No.3/Chief General Manager (Works), who does not have the jurisdiction to initiate disciplinary inquiry and

issue charge sheet against the petitioner.

Smt. Shobha Menon, learned senior counsel appearing for the petitioner raised following contentions:-

"i. Whether the impugned charge sheet dated 21.01.2020, as also, supplementary charge sheet dated 15.05.2020 are issued by an incompetent authority and suffer from patent lack of jurisdiction?

ii. Whether issuance of charge sheets by the incompetent authority/respondent no.2, which lacks jurisdiction; could such an inherent defect be cured subsequently, by imposition of penalty by the

Signature Not Verified competent authority/respondent no.1?

SAN

Digitally signed by VINAY KUMAR BURMAN Date: 2022.01.08 18:01:39 IST 2 WP-24414-2021 iii. Whether the respondent no.2, who is not the disciplinary authority of the petitioner, could invoke powers under Rule 18 of 'the 1966 Rules', for holding joint inquiry?

iv. Whether the impugned enquiry report could

be said to have been prepared in terms of statutory requirement contained in sub/rule (23) (i) of Rule 14?

v. Whether impugned order of penalty dated 25.01.2021, to the extent of recovery from gratuity, is passed beyond the scope and ambit of statutory provisions contained in rule 10 of 'the 1966 Rules'; could such a penalty be inflicted on petitioner, which is not enumerated under the rules?

vi. Whether the preliminary enquiry reports which were prepared behind the back of petitioner, could be relied in departmental enquiry, for arriving at adverse finding; is it not in violation of principles of natural justice?

vii. Whether on the substratum of provisional preliminary enquiry reports, respondents could have issued supplementary charge sheet and arrive at a adverse finding?

viii. Whether in absence of any evidence in departmental proceedings, could respondents assess the alleged loss on the basis of preliminary enquiry reports; could such a finding be sustained in law?

ix. Whether, the departmental enquiry, leading to passing of impugned order of penalty are held in utter negation of principles of natural justice?"

Signature Not Verified SAN Learned counsel for the petitioner placed reliance on the judgment of Digitally signed by VINAY KUMAR BURMAN Date: 2022.01.08 18:01:39 IST 3 WP-24414-2021 Tarun Kumar Mishra vs. State of M.P. and Ors passed in W.P.No.14649/2021 dated 21.10.2021. It is submitted that the respondent No.3 is neither the appointing authority nor the disciplinary authority and, therefore, action of the respondents is in violation of Rule 14 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as 'the 1966 Rules'). The Managing Director is the competent authority. In view of the aforesaid submissions, learned counsel for the petitioner prayed for quashing of the impugned charge sheets as well as the penalty order. It is also contended that the case of the petitioner is exactly identical to that of Tarun Kumar Mishra (supra) inasmuch as from perusal of the note sheet annexed at page No.19 with the return, it can be seen that

charge sheet was never placed before the Managing Director for its approval and the same was straightway issued by the Chief General Manager, who is the incompetent authority.

Learned Senior counsel further contended that the penalty of recovery has been imposed in accordance with Rule 10 of the 1966 Rules. From a bare perusal of Rule 10 of the 1966 Rules, it is very clear that no amount can be recovered from gratuity.

On the other hand, learned senior counsel for the respondents submitted that the respondent No.3 had issued the charge sheet on the basis of approval given by the Managing Director of the company. It is further contended that the Managing Director had given the approval to the proposal to initiate charge sheet against the petitioner. The proposal was mooted by the Manager (Administration), which was approved by the General Manager (Administration), then by the Chief General Manager (HR&A) and then by the Managing Director. It is also pointed out that the note sheet contains approval of the Managing Director. It is also contended that since the final order of punishment has been passed, the petitioner has an efficacious alternative remedy of filing an appeal under Rule 26 of the 1966 Rules. As such, this

Signature Not Verified SAN petition itself is not maintainable and the same is liable to be dismissed.

Digitally signed by VINAY KUMAR BURMAN Date: 2022.01.08 18:01:39 IST 4 WP-24414-2021 Heard the learned counsel for the parties. On perusal of the note sheet, which is placed on record as Annexure R/6 with the return, it is found the departmental inquiry has been initiated after the opinion is formed by the General Manager (Administration) and with the approval of the Chief General Manager (Administration) and the Chief General Manager (HR&A). Though, the Managing Director had approved the issuance of the charge sheet but the copy of the charge sheet was not placed before the Managing Director for its approval and thereafter the same has been issued by the Chief General Manager under his signature. In identical matters in W.P.No.24421/2021 Anrath Sing Thakur vs. State of M.P. and Ors and W.P.No.24471/2021 K.K. Mishra vs. State of M.P. and Ors , this Court has already set aside the impugned charge sheet. In view of the fact that the Managing Director being the competent authority had not approved the charge sheet, therefore, initiation of enquiry itself a nullity. In the present case also the Managing Director has not approved charge sheet, which was never placed before him. Since, it is already held that the charge sheet issued by an incompetent authority, this Court would not like to dwell upon the other submissions put forth by the learned senior counsel appearing for the petitioner as well as the respondents.

Therefore, in view of the aforesaid, the charge sheet dated 21.01.2020 (Annexure P/13), supplementary charge sheet dated 15.05.2020 (Annexure P/19) and the order of penalty dated 25.10.2021 (Annexure P/29) are hereby quashed and set aside.

However, the respondents shall be at liberty to proceed against the petitioner in accordance with law from the stage of issuance of charge sheet, if so advised.

The petition stands allowed.

No order as to costs.

Signature Not Verified (S. A. DHARMADHIKARI) SAN JUDGE Digitally signed by VINAY KUMAR BURMAN Date: 2022.01.08 18:01:39 IST 5 WP-24414-2021 vinay*

Signature Not Verified SAN

Digitally signed by VINAY KUMAR BURMAN Date: 2022.01.08 18:01:39 IST