Bhagwati Prasad Jain vs M.D.,M.P.State Krishi Vipanan ...
2023 Latest Caselaw 12897 MP

                                -1-


      IN THE HIGH COURT OF MADHYA PRADESH
                            AT I N D O R E
                                BEFORE
               HON'BLE SHRI JUSTICE VIVEK RUSIA
                    WRIT PETITION No. 458 of 2009

BETWEEN:-
BHAGWATI PRASAD JAIN S/O ROSHANLAL JAIN, AGED
ABOUT 46 YEARS, OCCUPATION: SERVICE KRISHNA
NAGAR,NEEMUCH (MADHYA PRADESH)
                                                          .....PETITIONER
(BY SHRI GIRISH PATWARDHAN, SENIOR ADVOCATE ALONGWITH MS.
RACHNA ZAMIDAR-ADVOCATE)

AND
   M.D.,M.P.STATE KRISHI VIPANAN BOARD&ANR
1. 26,KISAN BHAWAN,ARERA HILLS,JAIL ROAD,BHOPAL
   (MADHYA PRADESH)
     SECRETARY KRISHI UPAJ MANDI SAMITI NEEMUCH
2.
     (MADHYA PRADESH)
                                                       .....RESPONDENTS
(BY SHRI SHASHANK SHARMA-ADVOCATE)
This petition coming on for orders this day, the court passed the
following:


       Heard and Reserved on :         25.07.2023

       Order pronounced on      :      09.08.2023


                                    ORDER

Petitioner has filed the present petition being aggrieved by the order

dated 10.08.2007 whereby punishment of two annual increments with cumulative effect and recovery of loss cause to the Mandi of Rs. 4,32,868/- as a measure punishment has been imposed.

The facts of the case in short are as under:-

2- The petitioner was working as Assistant Sub Inspector and at the relevant point of time he was posted in Krishi Upaj Mandi Neemuch. His services are governed under the M.P. Rajya Mandi Board Sewa Viniyam, 1998 ( hereinafter referred to as "the Viniyam,1998") framed by the M.P. State Marketing Board. The petitioner was served with the charge-sheet dated 30.12.2000 on the charges that he had issued ''Anugya Patra'' without ensuring the fee payable by the trader in pursuant which is a violation of Regulation 50(20) and 67 of the Viniyam,1998, and caused the financial losses to the Krishi Upaj Mandi .

3- The petitioner submitted a reply denying the charges that he has followed the provision of Section 19(6) and sub clause 20(10) of Mandi Adhiniyam, 1972. So far as compliance of circulars are concerned, he was not aware of these circulars issued by the Head Office. He was not deputed for the work of the grant of license and license which he issued during the election duty and holidays, the Mandi fees were recovered and deposited in the office. It is further submitted that since there was no due of Mandi fee on the licensee, therefore, the license was renewed in the year 2004-05 and 2005-06. All the licensees are trading in the Mandi premises, therefore, there is no violation of Regulation 50(20) and 67 of M.P. Rajya Mandi Board Sewa Viniyam, 1998 and no such loss was caused to the Mandi.

4- The Enquiry Officer submitted its report vide annexure P/3. The Enquiry Officer recorded the findings that the petitioner issued licenses

but did not recover the Mandi fee hence, indirectly causing loss to the Mandi. The petitioner was well aware about the Rules and Regulations issued by the Mandi Board and he was bound to follow the same. The petitioner was served with the show cause notice dated 10.07.2006 that Enquiry Officer has found charges No.1 to be proved against him and as to why the punishment of stoppage of two increments with cumulative effect be not imposed. Thereafter, vide order dated 10.08.2007 of punishment of two annual increments with cumulative effect and recovery of loss cause to the Mandi of Rs. 4,32,868/-hence, present before this Court.

5- The petitioner assailed the impugned order inter alia on the ground that stoppage of two increments with cumulative effect is not a minor penalty but a measure penalty, therefore, he has been imposed two penalties namely recovery of loss as well as stoppage of two increments which is not permissible as held by the Apex Court. It is further submitted that the Mandi comes under the definition of Industry as defined under Section 2 (J) of the Industrial Dispute Act, therefore, the Regulation framed by the Mandi Board does not apply to the petitioner. It is further submitted that provisions of the Standard Standing Order apply to the establishment where more than 220 employees are working, therefore, the entire exercise under the Viniyam,1998 is void as the petitioner was subjected to disciplinary proceedings under the Certified Standard Standing Orders, hence, punishment is liable to be quashed.

6- Respondent No.1 filed a reply by submitting that the Krishi Upaj Mandi Adhiniyam, 1972 enacted with the object to provide better regulation of buying and selling of agricultural produce and the establishment of proper administration of markets of agricultural produce

in the State of M.P. Section 80 of the Adhiniyam, 1972 empowers market Committee to make bylaws for the regulation of business condition of trading in the mandi area. Section 7 of Adhiniyam, 1972 provides for the constitution of the Market Committee and Section 40 provides for the constitution of M.P. State Agriculture Marketing Board. Section 81(a) empowers the Board to make regulations in regard to the transaction of its business, delegation of powers, duties to the officers and servants, and matters relating to their service, therefore, the Board in exercise of power under Section 81(a) read with Section 26(2) framed the regulation called as '' M.P. Rajya Mandi Board Sewa Viniyam, 1998''. The services of the petitioner are governed under the said the Viniyam,1998, thus disciplinary action was initiated against him. It is further submitted that Section 19(6) of Mandi Adhiniyam 1972, prohibits removal of notified agricultural produce of the Mandi Yard without permit and byelaws 20(10) (ka) provides that such permit shall not be issued unless Mandi fees as well as Nirasharit Sahayat Rashi be paid. Respondent No.1 had issued circulars dated 30.12.2000 and 20.08.2002 for securing strict compliance in the issuance of permits to the traders, therefore, under the said Viniyam1998, the petitioner was placed under suspension and thereafter charge-sheet was issued and Enquiry Officer submitted report the petitioner who has imposed the punishment. It is further submitted that M.P. Industrial Employment Standing Order, 1961 is an act of the State Legislation enacted in the year 1961, thereafter Krishi Upaj Mandi Adhiniyam, 1972 is enacted by the State Legislation which has applied in all the Krishi Upaj Mandi in the State of Madhya Pradesh.

7- Respondent No.2 has also filed a return by submitting that the

provision of the M.P. Industrial Employment Standing Order does not apply to Mandis' employees. The petitioner was appointed for recovery of tax but he did not follow instructions issued by the Mandi Board and caused financial loss. The petitioner participated in the Departmental enquiry and never raised any objection about the validity of the enquiry and now the petitioner is estopped to raise such plea. Appropriate punishment has been imposed and no case is interference is made out, the petition is liable to be dismissed.

8- Learned senior counsel for the petitioner submitted that the employee working in the Mandi are more than 20 therefore, the punishment imposed under the provision of the Viniyam,1998 is not liable to be sustained and same is liable to be set aside. Learned senior counsel for the petitioner has placed reliance over the judgment passed in the case of M.P. Vidyut Karamchari Sangh Vs. M.P. Electricity Board (2004) 9 SCC 755 in which it has been held that the under M.P. Industrial Employment (Standing Orders) Act, 1961 it is imperative that an appropriate notification in terms of 2 (2) of the 1961 Act is issued which makes an exception to the applicability of the Act stating that nothing therein shall apply to the employees of an undertaking to whom, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules and other Regulations be notified in this behalf the State Government in the official gazette apply. In the absence of any notification by the Government, the impugned action is without authority and liable to be set aside.

I have heard the learned counsel for the parties and perused the record.

8- Chapter V of the M.P. Krishi Upaj Mandi Adhiniyam, 1972 deals with the constitution of State Mandi Board Services. Sub section (1) of Section 26 authorized the Board to provide officers and employees to the Board and Marketing Committee and said Board to be called the State Mandi Board Service. The Board is authorized to make Rules and Regulation in respect of recruitment, qualifications, appointment, promotion, scale of pay, leave, leave salary, acting allowance, loan, pension, gratuity, annuity, compassionate fund, provident fund, dismissal, removal, conduct, departmental enquiry, punishment, appeal and other service conditions by way of regulation framed by the Board. Sub Section (4) of 26 says that the officers and employees appointed or absorbed under any Rules or Regulations and belonging to the State Marketing Service, Board Service and the Nakedars (Assistant Sub-Inspector) of Market Committee Service immediately before the constitution of the State Mandi Board Service under sub-section (1) shall be treated as members of the State Mandi Board Service. The Division Bench of this Court in the case of Gyaniram Meshram Vs. Managing Director reported in (2010) 1 MPLJ 646 has held that in the exercise of power under Sections 26 and 80, the Mandi Committee made M.P. Rajya Mandi Services Board which has framed the Viniyam,1998 came into force w.e.f. 30.04.1999 but Nakedar / Assistant Sub Inspector appointed were appointed by Mandi prior to applicability of such regulation and such appointment has been earmarked for the State Mandi Board Services. The Mandi Board has become an appointing and disciplinary authority, not the Mandi Samiti, therefore, the petitioner is an employee of the State Marketing Board not an employee of Mandi which might come under the category of Industry. Therefore, all the powers of disciplinary action is lies with the Board, therefore the Board is

competent to take action, hence, objection by the petitioner is not tenable.

9- So far as the punishment part is concerned, the petitioner has not assailed such findings on merits. Petitioner has also not preferred any appeal on merit, therefore, the punishment part is not liable to be examined in Writ Petition under Article 226 of the Constitution of India. So far as double punishment is concerned, the petitioner caused the loss to the Mandi Board, therefore, such losses are liable to be recovered and punishment of stoppage of two increments with cumulative effect in respect of violation of direction issued by the Higher Authorities and violation of the provision of the Viniyam,1998 therefore, recovery and punishment both can be imposed altogether and both are minor punishments.

In view of above, Writ Petition is dismissed.

(VIVEK RUSIA) JUDGE Praveen

Digitally signed by PRAVEEN Date: 2023.08.09 15:49:11 +05'30'