Madhya Pradesh High Court
Ramesh Singh Thakur vs State Of M.P. & Ors. on 16 February, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 16 th OF FEBRUARY, 2023
WRIT PETITION No. 5505 of 1999
BETWEEN:-
RAMESH SINGH THAKUR S/O JHAM SINGH THAKUR,
AGED ABOUT 42 YEARS, WORKS ASSISTANT GRADE-III,
CIVIC CENTER, JABALPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ASHISH SHROTI - ADVOCATE)
AND
1. STATE OF M.P. THROUGH SECRETARY, MINISTRY
OF HOUSING AND ENVIRONMENT, VALLABH
BHAWAN, BHOPAL (MADHYA PRADESH)
2. CHIEF EXECUTIVE OFFICER JABALPUR
DEVELOPMENT AUTHORITY, MARHATAL, CIVIC
CENTRE, JABALPUR (MADHYA PRADESH)
3. SURENDRA UPADHYAY S/O NOT KNOWN
OCCUPATION : CHIEF EXECUTIVE OFFICER,
JABALPUR DEVELOPMENT AUTHORITY,
MARHATAL JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI SWAPNIL GANGULY - ADVOCATE FOR THE RESPONDENTS NO.2
AND 3)
Th is petition coming on for hearing this day, th e court passed the
following:
ORDER
This writ petition is filed by the petitioner being aggrieved of order dated
Signature Not Verified
SAN
16.08.1999 passed by the Chief Executive Officer, Jabalpur Development
Digitally signed by PUSHPENDRA PATEL
Date: 2023.02.21 19:48:28 IST
Authority, Jabalpur vide which petitioner was demoted to his original post of
Assistant Tractor Driver on the basis of an enquiry report dated 22.12.1998,
which was conducted on the basis of charge-sheet dated 21.08.1998 (Annexure
P-5).
2. Petitioner's submission is that petitioner was initially appointed as
Assistant Tractor Driver in Jabalpur Development Authority. He worked as
Assistant Tractor Driver from 09.11.1982 till he was promoted as Assistant
Grade-III on 11.04.1984. Thereafter, he was promoted as Assistant Grade-II on
16.01.1991. A show cause notice was give to the petitioner on 16.04.1998,
which is not on record, alleging that petitioner had illegally withheld file of
scheme No.35 despite repeated orders.
3. It is an admitted fact that petitioner had not filed any reply to this show
cause notice and petitioner was visited with punishment of stoppage of two
increments without cumulative effect vide order dated 12.05.1998.
4. Thereafter, respondents initiated Departmental Enquiry against the
petitioner by issuing a charge-sheet dated 21.08.1998. Charges which were
levelled against the petitioner, are as under:-
^^AA vkjksi i= AA
[email protected] vkids }kjk ;kstuk dzekad 35 dh ,d egRoiw.kZ uLrh
yacs le; rd tkucw> dj nqHkkZouko'k yacs le; rd yafcr j[kh x;hA
;kstuk dzekad 35 dh uLrh ¼isM½ dk;Zikyu ;a=h dzekad 4 ds
}kjk fnukad 31-01-1998 dks vko';d tkudkjh gsrq iz'kklfud
vf/kdkjh dks ekdZ dh x;h FkhA vkius ;g uLrh iz'kklfud vf/kdkjh
dks u Hkstdj vius ikl gh yafcr j[kh tks fnukad 03-04-1998 dks
cqykus ij izLrqr dhA blds fy, vkidks dkj.k crkvksa uksfVl
fnukad 16-04-1998 tkjh fd;k x;k Fkk] ijUrq vkids }kjk uksfVl
dk dksbZ mRrj ugha fn;k x;kA
[email protected] ;kstuk dzekad 35 dh mDr uLrh dk;Zikyu ;a=h
Signature Not Verified
¼4½ }kjk fnukad 25-04-1998 dks lgk;d ;a=h ls
SAN
tkudkjh ysus gsrq vkidks vkns'k fd;s x;s] ijUrq vkids }kjk nks
Digitally signed by PUSHPENDRA PATEL
ekg rd iqu% uLrh vius ikl yafcr j[kus ds ckn fnukad 18-06-
1998 dks lgk;d ;a=h ds ikl izLrqr dh x;h ftlesa fiNyh frfFk 25-
Date: 2023.02.21 19:48:28 IST
04-1998 vafdr dhA
[email protected] vkidk mijksDr d`R; drZO; ds izfr ykijokgh]
nqHkkZoukiw.kZ ,oa LFkk;h vkns'k fnukad 04-07-1996 ,oa 24-
10-1997 dh vogssyuk gS vkSj dnkpj.k dh Js.kh esa vkrk gSA
tks e0iz0flfoy lsok ¼oxhZdj.k] fu;a=.k o vihy½ fu;e 1966 ds
varxZr naMuh; gSA**
5. The Enquiry officer vide his report gave finding that non-filing the reply
to the show cause notice made an act of indiscipline and for which he may be
issued a warning and also held that since other charges were not proved
completely, inasmuch as, delinquent employee-petitioner could prove that he
has not kept the file deliberately and there was no gain to him from such
pendency of the file, report was submitted to the Disciplinary Authority.
6. After following the due procedure of show cause notice seeking reply to
the enquiry report, impugned order dated 16.06.1999 came to be passed, which
is the bone of contention in this writ petition.
7. Shri Ashish Shroti, learned counsel for the petitioner submits that
petitioner has been punished for something which is not part of the charge-
sheet. Operative portion of the impugned order, reads as under:-
^^ewy drZO; esa pwd nqHkkZouk iw.kZ dnkpj.k dk gh izFke
n`"V;k izek.k gS] vr% dk;Z esa ykijokgh vuq'kklughurk rFkk
dnkpj.k ds fy;s e0iz0 flfoy lsok vkpj.k ¼oxhZdj.k] fu;a=.k o
vihy½ fu;e 1966 ds varxZr Jh Bkdqj] dk;Z lgk;d f}rh; xzsM
dks uksfVl dz- 128 fnukad 12-01-1999 }kjk inkoufr ds n.M
ls nafMr fd;s tkus gsrq uksfVl fn;k x;k Fkk] ftldk tokc vkjksih
us fnukad 25-01-1999 dks izLrqr fd;k x;k] tks iw.kZr%
larks"kizn ugha gSA Jh jes'k flag Bkdqj] dk;Z lgk;d f}rh;
xzsM dks orZeku osrueku ls fuEuLrj osrueku fn;s tkus dh
'kkfLr vkjksfir dh tkrh gS] pwafd mudh ewy fu;qfDr lgk;d
Signature Not Verified
SAN
VªSDVj pkyd ds in ij gqbZ FkhA lgk;d VªSDVj pkyd ls
Digitally signed by PUSHPENDRA PATEL
vfu;fer inksUufr dk;Z lgk;d r`rh; xzsM ij dh xbZ Fkh] ftldh
Date: 2023.02.21 19:48:28 IST
ik=rk ugh curh ,oa dk;Z lgk;d r`rh; xzsM dk in foyksfir fd;k
tkdj dk;Z lgk;d f}rh; xzsM fd;k x;k] ftl ij ;s orZeku esa inLFk
gSA
vr% rRdky izHkko ls mUgsa orZeku in dk;Z lgk;d f}rh; xzsM
osrueku 825&15&900&20&1220 ls inksUufr ds iwoZ ds
ewy fu;qfDr ds in lgk;d VªSDVj pkyd osrueku
750&12&870&15&945 ij inkour fd;k tkrk gSA**
8. It is submitted that part of the order vide which petitioner was demoted
to the post of Assistant Tractor Driver is illegal and arbitrary, inasmuch as,
appointment of the petitioner as Assistant Tractor Driver and, thereafter, his
eligibility to be promoted as Assistant Grade-III and Assistant Grade-II was
never a subject matter of the charge-sheet. Subject matter of the charge-sheet
was only in regard to illegal detention of file. subject on which charge-sheet was
issued and enquiry was conducted.
9. It is also submitted that for the same act, two punishments have been
inflicted on the order dated 16.04.1998 show cause notice was issued and
12.05.1998, Chief Executive officer has passed a punishment of stoppage of
two increments without cumulative effect for illegally withholding the file of
scheme No.35. Now for the same charge major penalty of reduction to the
lowest of the Assistant Grade-II has been passed which too is illegal and
arbitrary.
10. Shri Swapnil Ganguly, learned counsel for the respondents No.2 and 3
submits that there is no illegality in the impugned order. Impugned order of
punishment is in two parts. By first part, petitioner has been brought to the
lowest stage of the pay of Assistant Grade-II and in the second part of the
Signature Not Verified
SAN
impugned order, petitioner has been demoted to the post of Assistant Tractor
Digitally signed by PUSHPENDRA PATEL
Driver. It is submitted that first part of the impugned order bringing down the
Date: 2023.02.21 19:48:28 IST
petitioner to the lowest stage of the pay-scale of Assistant Grade-II is in terms
of the stipulations of the charge-sheet and on taking a view different from the
enquiry officer which the disciplinary authority was entitled to take that part of
the punishment is inflicted.
11. However, he is in agreement that second part of the order, demoting
the petitioner to the post of Assistant Grade-II is illegal, inasmuch as, that was
never a part of the charge-sheet that petitioner's appointment is illegal and,
thereafter, promotion were erroneous and against the Rules.
12. Shri Ganguly also submits that matter be remitted to the disciplinary
authority to initiate proceedings from the stage from where irregularity and
illegality is committed. He placed reliance on the judgment of the Supreme
Court in The State of Uttar Pradesh and others Vs. Rajit Singh (Civil Appeal
Nos.2049-2050 of 2022, decided on March 22, 2022), wherein Hon'ble
Supreme Court has held that if the Enquiry Proceedings were vitiated on the
ground of violation of principles of natural justice, the matter ought to have
been remanded to the Enquiry Officer and the Disciplinary Authority to proceed
further with the enquiry from the stage of violation of the principles of natural
justice.
13. Shri Ashish Shroti has an objection in regard to competence of the
Chief Executive Officer on the basis of the decision rendered by a coordinate
Bench of this Court in case of Ramesh Singh Thakur Vs. Jabalpur Development
Authority and others (W.P. No.1534/1999, decided on 26.11.2009), wherein it
is held that as per the provisions contained in Madhya Pradesh Development
Authority Services (Officers and Servants) Recruitment Rules, 1987,
Signature Not Verified
SAN
''appointing authority'' of member belonging to authority service, ''appointing
Digitally signed by PUSHPENDRA PATEL
Date: 2023.02.21 19:48:28 IST
authority'' for Class III and Class IV is the Chairman with prior approval of the
Board.
14. However, Shri Shroti is not in a position to point out as to when
punishment was inflicted in the year 1999 or the Departmental Enquiry was
initiated with the issuance of the charge-sheet dated 21.08.1998, whether Chief
Executive Officer was delegated with the powers of the Disciplinary Authority
or not. Thus, in absence of any such material being brought on record that
Chief Executive Officer has the authority to initiate departmental proceedings
against the petitioner, without there being any material on record, merely
pointing out certain paragraphs of the earlier order will not be sufficient,
inasmuch as, petitioner was required to plead and establish through cogent
evidence that there is no delegation of power in favour of the Chief Executive
Officer, therefore, to that extent, this petition deserves to be rejected and is
rejected.
15. After hearing learned counsel for the parties and going through the
record, it is evident that on the same set of charge, petitioner was in respect of a
show cause notice dated 16.04.1998. Thus, it is an admitted fact as is apparent
from the enquiry report that petitioner has not filed any reply to the said show
cause notice, petitioner was visited with penalty of stoppage of two increments
without cumulative effect vide order dated 12.06.1998. Thus, after having
inflicted punishment of stoppage of two increments on the same charge, no new
departmental enquiry could have been initiated by the authorities.
16. Shri Ganguly has though tried to show that there was but the fact of the
matter is that order of punishment as was inflicted vide order dated 12.05.1998
Signature Not Verified
SAN
was never withdrawn before passing any order and there is no material on
Digitally signed by PUSHPENDRA PATEL
record ... ... ... thereafter.
Date: 2023.02.21 19:48:28 IST
17. Thus, the only charge which could have been sustained and levied that
after issuance of show cause notice dated 16.07.1998, petitioner was guilty of
keeping the file for an extra period of two months i.e. from 25.04.1998 to
18.06.1998, which is the subject matter of the second charge. Thus, as far as
first charge is concerned, that was already covered under the show cause notice
dated 16.04.1998 and for which he was already inflicted punishment of
stoppage of two increments without cumulative effect and, therefore, charge
could not be the subject matter of the charge-sheet for which action was already
taken against the petitioner.
18. As far as second charge is concerned, Enquiry Officer has
categorically mentioned that petitioner was not having any knowledge of the
standing orders dated 24.10.1997 and 04.07.1996 and he was not to make any
gain by keeping the file pending. Enquiry Officer has also noted a fact that for
the second time file was delayed as it was tagged with another file dealing with
the subject of HUDCO project. In view of such facts, Enquiry Officer had
recorded a finding that other charges are not proved that there any deliberate act
of holding the file to gain for himself or to the Contractor.
19. It is apparent from the show cause notice contained in Annexure P-8
after receiving the copy of the enquiry report tat petitoner was held guilty of the
second charge i.e. of keeping the same file again up to 18.06.1996 for which file
was sent by the Executive Engineer No.4 on 25.04.1998. Thus, the Chief
Executive Officer was competent to pass orders in regard to Charge No.2 only
but arbitrarily Chief Executive Officer has mentioned in the impugner dated that
petitioner is to be brought to the lower pay-scale of Assistant Grade-II but has
Signature Not Verified
SAN
not stopped there and, therefore, it cannot be said that impugned order is in two
Digitally signed by PUSHPENDRA PATEL
Date: 2023.02.21 19:48:28 IST
parts and has held that since petitioner appointment was illegal and, therefore,
his promotion on the post of Assistant Grade-III was without eligibility. As a
result, he was brought down to the post of Assistant Tractor Driver, which is
not permissible because none for the major penalty under Rule 10 of the CCA
Rules provides for downgrading of … by two steps. Moreover as
mentioned above, validity of appointment of the petitioner was only a subject
matter of the charge-sheet and, therefore, no cognizance could have been taken
by the Chief Executive Officer, which was not the part of the charge-sheet and
thus, the order passed by the Chief Executive Officer being illegal and having
been passed on the extraneous consideration, which is not part of the charge-
sheet.
20. The judgment of the Hon’ble Supreme Court in case of Rajit
Singh (supra) has no application to the facts of the case, inasmuch as, there is
no illegality in the conduct of the departmental enquiry or violation of the
principles of natural justice extraneous consideration and passing the order of
punishment on the basis of the material which was not the subject matter of the
charge. Therefore, the impugned order deserves to be set aside and is set
aside.
21. Allowed.
(VIVEK AGARWAL)
JUDGE
pp
Signature Not Verified
SAN
Digitally signed by PUSHPENDRA PATEL
Date: 2023.02.21 19:48:28 IST
