Rameshwar Dayal vs The State Of M.P.
2023 Latest Caselaw 6652 MP

                              1
 IN    THE     HIGH COURT OF MADHYA PRADESH
                    AT JABALPUR
                          BEFORE
            HON'BLE SHRI JUSTICE ANAND PATHAK
                   ON THE 25 th OF APRIL, 2023
                WRIT PETITION No. 25294 of 2021

BETWEEN:-
RAMESHWAR DAYAL S/O SHRI HARPRASAD DAYAL,
AGED ABOUT 62 YEARS, OCCUPATION: INSPECTOR (P)
RETIRED BAJRANG NAGAR, CHHATARPUR DISTT.
CHHATARPUR (MADHYA PRADESH)

                                                   .....PETITIONER
(BY SHRI D. K. TRIPATHI - ADVOCATE)

AND
1.    THE STATE OF M.P. THROUGH PRINCIPAL
      SECRETARY HOME DEPARTMENT VALLABH
      BHAWAN, BHOPAL (MADHYA PRADESH)

2.    DIRECTOR  GENERAL OF POLICE      P.H.Q.
      JAHAGIRABAD BHOPAL (MADHYA PRADESH)

3.    INSPECTOR GENERAL OF POLICE SAGAR ZONE
      DISTT- SAGAR (MADHYA PRADESH)

4.    SUPERINTENDANT OF POLICE CHHATRAPUR
      DISTT. CHHATARPUR (MADHYA PRADESH)

                                                 .....RESPONDENTS
(BY SMT. G. K. PATEL - GOVERNMENT ADVOCATE)

                WRIT PETITION No. 25296 of 2021

BETWEEN:-
RAMESHWAR DAYAL S/O LATE SHRI HARPRASAD,
AGED ABOUT 62 YEARS, OCCUPATION: INSPECTOR (P)
RETIRED BAJRANG NAGAR CHHATARPUR (MADHYA
PRADESH)

                                                   .....PETITIONER
                                2
(BY SHRI D. K. TRIPATHI - ADVOCATE)

AND
1.    THE STATE OF M.P. THROUGH PRINCIPAL
      SECRETARY HOME DEPARTMENT VALLABH
      BHAWAN, BHOPAL (MADHYA PRADESH)

2.    DIRECTOR GENERAL OF POLICE                    POLICE
      H E A D Q U A R T E R S JAHIGIRABAD           BHOPAL
      (MADHYA PRADESH)

3.    INSPECTOR GENERAL OF POLICE SAGAR ZONE
      (MADHYA PRADESH)

4.    SUPERINTENDENT OF POLICE POLICE DISTT.
      CHHATARPUR (MADHYA PRADESH)

                                                             .....RESPONDENTS
(BY SMT. G. K. PATEL - GOVERNMENT ADVOCATE)

      This petition coming on for admission this day, th e court passed the
following:
                                      ORDER

The petitioners, with regard being had to the similitude of the controversy, both the cases are heard analogously and decided by this common order. For convenience sake, facts of Writ Petition No.25294/21 is taken into consideration.

2. By these petitions, filed under Article 226 of the Constitution of India, the petitioner prays for the following reliefs:

(i) To call for the entire relevant record.

(ii) To quash the impugned order dated 4.10.2021 (Annexure P/1) issued by respondent no.3.

(iii) To direct the respondents to restore increment of petitioners and then make fixation of pension, and pass such any other order as deem fit under the facts and circumstances of the case.

(iv) Any other relief together cost of the petition which this Hon'ble Court deem fit and proper under the facts and circumstances of this case may also be awarded in favour of the petitioner.

3. It is the submission of learned counsel for petitioner that at the relevant point of time the petitioner was posted as S.H.O. Police Station Orchha Road, Chhatarpur and he was served with a charge-sheet on 30.10.2017 with similar charge about casualness in investigation. It appears that petitioner retired from service after completion of age of superannuation on 30.6.2021 whereas enquiry report was submitted on 28.6.2021 and the said findings have been served to the petitioner after his retirement on 12.7.2021. It also appears that after hearing the petitioner, the punishment order has been passed on 4.10.2021 after almost four months from the date of his retirement.

4. Learned counsel for petitioner relied upon the Division Bench judgment of this court passed in the case of State of M.P. and another v. Vishnu Prasad Maran and another I.L.R. 2021 M.P. 614 (DB) and judgment passed by a co-ordinate Bench in the case of A.A. Abraham v. State of M.P. and others I.L.R. (2021) M.P. 78. According to him, once a departmental enquiry has been initiated against a serving Government employee and meanwhile he retires then proceedings shall continue but the punishment shall be awarded by the Governor only.

5. Learned counsel for respondent-State opposed the prayer and prayed for dismissal of this petition.

6. Heard.

7. It is a case where petitioner was retired on 30.6.2021 and before retirement, departmental enquiry was initiated but punishment order was passed on 4.10.2021 by the I.G. Sagar Zone, Sagar. As per Rule 9 (2) of the Madhya

Pradesh Civil Services (Pension) Rules, 1976 if enquiry is instituted before retirement of a Government employee, it shall continue in the same manner and shall be deemed to be proceedings under the pension rules. However, right of punishment would be with the Governor because authority shall submit a report regarding its findings to the Governor.

8. Rule 9(1) and (2)(a) of the Pension Rules read as under:

9. Right of Governor to withhold or withdraw pension. - (1) The Governor reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from pension of the whole or part of any pecuniary loss caused to the Government if, in any departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement:

Provided that the State Public Service Commission shall be consulted before any final orders are passed : Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below [the minimum pension as determined by the Government from time to time];

(2) (a) The departmental proceedings [xxx], if instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced, in the same manner as if the Government servant had continued in service:

Provided that where the departmental proceedings are instituted by an authority subordinate to the Governor, that authority shall submit a report regarding its findings to the Governor.

9. A perusal of the above provisions reveal that a departmental proceeding instituted by an authority shall be continued and concluded by the authority by which they were commenced, in the same manner as if the Government servant had continued in service, however authority shall submit a report regarding its findings to the Governor. Here, findings were to be submitted before the Governor and not before the authority. Therefore, impugned order dated 4.10.2021 stands vitiated and therefore deserves to be set aside.

10. Since departmental enquiry was initiated in 2017 and six years have already been passed and, therefore, in view of the judgment passed by the Division Bench of this Court in the case of State of M.P. and another v. Vishnu Prasad Maran and another (supra) and in the case of M. V. Bijlani v. Union of India (2006) 5 SCC 88 continuance of departmental enquiry prejudice the delinquent officer.

11. Resultantly, impugned orders dated 4.10.2021 and dated 6.10.2021 are set aside and both departmental enquiries pending against the petitioner stand terminated.

12. With the above, the petitions stand disposed of.

(ANAND PATHAK) JUDGE ps Digitally signed by PRASHANT SHRIVASTAVA Date: 2023.04.27 10:23:22 +05'30'