Kamelsh Kumar Khare vs M.P. Power Generating Co.Ltd.
2023 Latest Caselaw 5811 MP

                                                                  1
                                   IN    THE      HIGH COURT OF MADHYA PRADESH
                                                       AT JABALPUR
                                                             BEFORE
                                               HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                       ON THE 11 th OF APRIL, 2023
                                                    WRIT PETITION No. 25767 of 2021

                                  BETWEEN:-
                                  KAMELSH KUMAR KHARE S/O LATE SHRI UMA SAHAI
                                  KHARE, AGED ABOUT 60 YEARS, OCCUPATION:
                                  ASSISTANT ENGINEER (PRODUCTION) R/O QTR NO. NC
                                  25 MPPGCL COLONY CHACHAI DISTT. ANUPPUR
                                  (MADHYA PRADESH)

                                                                                             .....PETITIONER
                                  (BY SHRI ANVESH SHRIVASTAVA - ADVOCATE)

                                  AND
                                  1.    M.P. POWER GENERATING CO.LTD. THR. ITS
                                        MANAGING DIRECTOR, BLOCK NO.9, SHAKTI
                                        BHAWAN,   RAMPUR   JABALPUR   (MADHYA
                                        PRADESH)

                                  2.    EXECUTIVE DIRECTOR (HR & A), MP POWER
                                        GENERATING COMPANY LTD BLOCK NO 9 , 1ST
                                        FLOOR,    SHAKTI      BHAWAN,     RAMPUR
                                        JABALPUR(482008) (MADHYA PRADESH)

                                  3.    CHIEF ENGINEER (HR & A) MPPGCL BLOCK NO 9,
                                        1ST FLOOR, SHAKTI BHAWAN, RAMPUR
                                        JABALPUR(482008) (MADHYA PRADESH)

                                  4.    CHIEF    ENGINEER(PRODUCTION)    MPPGCL,
                                        AMARKANTAK THERMAL POWER STATION,
                                        CHACHAI , ANUPPUR, MP (MADHYA PRADESH)

                                                                                          .....RESPONDENTS

(BY SHRI ANUJ SHRIVASTAVA - ADVOCATE)

This petition coming on for admission this day, th e court passed the Signature Not Verified

following:

  SAN




Digitally signed by TULSA SINGH
Date: 2023.04.11 19:16:08 IST                                      ORDER

This petition is filed assailing the act of the respondents in de novo enquiry into the charge and passing the order dated 09/11/2021 (Annexure-P/8) whereby petitioner is inflicted with a penalty of stoppage of two increments permanently.

It is submitted that petitioner was subject-matter of an enquiry containing the same set of charges for which charge sheet was issued to him on 26/09/2011 (Annexure-P/3). On completion of enquiry, petitioner was exonerated by the Executive Director of respondent-M.P. Power Generating Co. Ltd. vide order dated 26/02/2014 and he was visited with a warning. It is submitted that after closure of these proceedings, another charge sheet was

issued and then impugned order came to be passed which is illegal and arbitrary.

Shri Anuj Shrivastava, learned counsel for respondents, submits that some new facts were discovered, therefore, exercising powers under Rule 29 of M.P. Civil Services (Classification, Control and Appeal) Rules, impugned order has been passed and it needs to be maintained.

Learned counsel for the respondents was specifically asked to elaborate that vide order dated 15/03/2023 whether de novo enquiry into the charges which were already inquired into, can be made and if it is permissible, then under which provisions of law. Though Shri Anuj Shrivastava , learned counsel, has tried to convinced this Court that it was not a de novo enquiry but a review of the earlier order but fact of the matter is that there is limitation of six months to review the order, therefore, the order dated 26/02/2014 could not

Signature Not Verified SAN have been reviewed vide order dated 09/11/2021. This factual position is

Digitally signed by TULSA SINGH settled by Hon'be Supreme Court in the case of Lt. Governor, Delhi and Date: 2023.04.11 19:16:08 IST

others Vs. H.C. Narinder Singh, (2004) 13 SCC 342 wherein it is held that

second penalty based on the same cause of action would amount to double jeopardy and such action cannot be sustained.

Same is the ratio of law laid down by Rajasthan High Court in the case of Dwarkachand Vs. State of Rajasthan, 1957 RLW 587 wherein it is held that State cannot hold second departmental enquiry on the same facts. Same is the ratio of judgment of Patna High Court in the case of Hridaya Narayan Prasad Vs. The State of Bihar and others, 1974 SCC Online Patna 218.

After hearing learned counsel for the parties and going through the record, it is evident that the action of respondents in either reviewing the earlier order or conducting a de novo enquiry is not in accordance with law. If the order impugned is considered to be a order passed in review as prescribed under Rule 29 of M.P. Civil Services (Classification, Control and Appeal) Rules, then authority was exercised beyond the period of limited. There is no explanation for exercise of such authority. If it is treated as to be a de novo enquiry, then said enquiry is not permissible under the M.P. Civil Services (Classification, Control and Appeal) Rules, itself.

Accordingly, this petition deserves to be allowed and the same is hereby allowed. The impugned order dated 09/11/2021 is hereby quashed.

(VIVEK AGARWAL) JUDGE ts

Signature Not Verified SAN

Digitally signed by TULSA SINGH Date: 2023.04.11 19:16:08 IST