Vikash Kumar Gupta vs The State Of Madhya Pradesh
2023 Latest Caselaw 369 MP

                              1

     IN THE HIGH COURT OF MADHYA PRADESH
                        AT GWALIOR
                            BEFORE
     HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
                 ON THE 6th OF JANUARY 2023

                WRIT PETITION No.15 of 2023

       Between:-

       VIKASH KUMAR GUPTA, S/O LATE SHIR
       KAUSHLENDRA SHARAN GUPTA, AGED 43
       YEARS, OCCUPATION: GOVT. SERVANT,
       R/O CIVIL LINES, PANCHSHEEL NAGAR,
       DATIA,    DISTRICT   DATIA    (MADHYA
       PRADESH)


                                      .....PETITIONER

       (BY SHRI NITIN AGARWAL - ADVOCATE )

       AND
1.     STATE OF MADHYA PRADESH THROUGH
       THE PRINCIPAL SECRETARY, WOMEN &
       CHILD DEVELOPMENT DEPARTMENT,
       VALLABH BHAWAN, BHOPAL (MADHYA
       PRADESH)
2.     THE COMMISSIONER, WOMEN & CHILD
       DEVELOPMENT DEPARTMENT, GWALIOR
       DIVISON, GWALIOR (MADHYA PRADESH)
3.     THE COLLECTOR, DISTRICT DATIA
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       (MADHYA PRADESH)
4.     SUB DIVISIONAL OFFICER, DIVISION
       DATIA, DISTRICT DATIA (MADHYA
       PRADESH)
5.     DISTRICT PROGRAMME OFFICER,
       WOMEN & CHILD DEVELOPMENT
       DEPARTMENT, DATIA (MADHYA
       PRADESH)
6.     PROJECT OFFICER WOMEN & CHILD
       DEVELOPMENT DEPARTMENT (URBAN)
       DATIA (MADHYA PRADESH)
7.     SHRI PAWAN TIWARI THE THEN PROJECT
       OFFICER, CHILD DEVELOPMENT
       DEPARTMENT (URBAN) DISTRICT DATIA
       (MADHYA PRADESH) CURRENTLY
       POSTED AS ASSISTANT DIRECTOR, BAL
       BHAWAN, GWALIOR (MADHYA PRADESH)

                                                     .....RESPONDENTS

       (BY SHRI DEEPAK KHOT - GOVT. ADVOCATE)

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       This petition coming on for admission this day, Hon'ble
Shri Justice Milind Ramesh Phadke passed the following:

                               ORDER

1. This writ petition under Article 226 of the Constitution of India had been preferred by the Petitioner challenging the order dated 28/11/2019, whereby Respondent No.2 had dismissed the

Appeal on the ground that limitation holding that the period of limitation for preferring an appeal against any order passed under rule 10 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 is 45 days and since the appeal had been preferred after a lapse of 6 years it was dismissed.

2. Facts in brief are that, the Petitioner was appointed in the year 2006 on the post of Assistant Grade III in the Office of Respondent No. 5. On 28/02/2012 a show cause notice was issued to the Petitioner to explain the act of indiscipline committed by him. Immediately a reply was filed on 03/03/2012 and the allegation levelled in the show cause notice were denied. No action on that basis was taken against the Petitioner. Thereafter, another show cause notice dated 02/04/2013 was issued to him on the same set of allegations as that to the earlier show cause notice dated 28/02/2013. The second show cause notice dated 02/04/2013 was also duly replied on 04/04/2013.

3. On 25/04/2013 without issuing any charge sheet and giving any opportunity of hearing to the Petitioner, an order of major penalty was issued against the Petitioner. Representations were forwarded by the Petitioner for seeking explanation from Shri Pawan Tiwari, who was the then Project Officer and on whose telephonic instructions, he had issued the orders, which were made the basis of the show cause notice, in response to

which a letter was issued on 12/09/2014 to Shri Pawan Tiwari to which he didn't responded and when no action was taken by the Respondents, the Petitioner preferred a Writ Petition No. 23349/2017 before this Court, which was withdrawn on 09/01/2018, with a liberty to approach the appellate authority.

4. The Petitioner than preferred an appeal, but the appeal was dismissed by the impugned order holding it to be time barred. Hence this Petition.

5. Learned counsel vehemently argued that the initial order of punishment of stoppage of one increment with cumulative effect passed by the Collector, it self was bad in law since the petitioner was not put to notice as to why he should not be punished, rather the notice was to the effect that as to why disciplinary proceedings should not be 'initiated' against the petitioner. In the case of (1991) 4 SCC 109 (Union of India Vs. K.V. Jankiraman and others), the Hon'ble Apex Court made it clear that disciplinary proceedings begins with issuance of charge memorandum. In the instant case, since no charge memorandum was issued and only on the basis of aforesaid show cause notices dated 28/02/2012 and 02/04/2013 which were the notices for the purpose of 'initiating' the disciplinary proceedings, the petitioner was punished and when since the initial order itself was not in consonance with the settled principles of law, the appeal should not have been thrown away

on the ground of delay. He further contended that the punishment imposed for stoppage of one increment with cumulative effect will have adverse consequential effect even after retirement of the Petitioner, as it could be said to have a continuous adverse effect and when such is a situation, delay should have been condoned and the appeal should have been decided on merits. To bolster his submissions Counsel for the Petitioner placed reliance in the matter of Hari Saran Shrivastava Vs. State of M.P. passed in W.P. No. 8632/2015 on 16/11/2017.

6. Per Contra Learned Government Advocate while supporting the impugned order dated 28/11/2019 passed in Appeal, contended that the delay of approx. 6 years in filing the appeal was not explained by the Petitioner, as when statutorily a period of only 45 days had been prescribed under the rules, thus, the conclusion arrived at by the Appellate authority cannot be faulted with and no interference is required in the matter. He further contended since the allegations were based on documentary evidence, there was no need to conduct a departmental enquiry and even on merits the Petitioner has no case, thus prayed for dismissal of the Writ Petition. Learned Govt. Advocate had placed reliance in the matter of State of Orissa and another Vs. Mamata Mohanty, (2011) 3 SCC 436 with the contention that a litigant cannot wake up from deep

slumber and claim impetus from judgment in cases where some diligent person had approached court within a reasonable time and the courts should not consider the petitions ignoring the delay and latches.

DISCUSSION

7. The core issue is whether in the aforesaid factual backdrop, it was necessary to conduct the enquiry. The replies of petitioner dated 06/03/2012 and 04/04/2013 shows that petitioner has put forth his defence on merits. In other words, factual charges were rebutted by filing a factual reply. In O.K. Bhardwaj Vs. Union of India reported in (2001) 9 SCC 180, the Apex Court opined as under:-

"3. ..........Even in the case of a minor penalty an opportunity has to be given to the delinquent employee to have his say or to file his explanation with respect to the charges against him. Moreover, if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for. This is the minimum requirement of the principle of natural justice and the said requirement cannot be dispensed with."

(Emphasis Supplied)

12) This view was followed by Division Bench of this Court in Bholeram Vs. Union of India reported in (2015) 2 MPLJ 526. The relevant portion reads as under:-

"8. In view of judgment of O.K. Bhardwaj (Supra), it is clear that when allegations are factual in nature and are denied by the delinquent employee, enquiry needs to be conducted in order to fulfil the requirement of principle of natural justice.

As noticed, in the present case, the petitioner specifically denied the allegation of the charge sheet and put forth his defence on the basis of factual assertions. In our view, the petitioner had a valuable right as per principle of natural justice to put forth his defence by leading evidence in the enquiry. If enquiry would have been conducted, the petitioner would have been in a position to lead the evidence to establish that the delay was neither deliberate nor amount to misconduct. In such case, department also would have been in a position to lead the evidence to establish the charges. Tribunal has merely opined that looking to the type of charges imputed against the applicant, the decision of not conducting enquiry is justifiable. However, Tribunal has not assigned any reasons as to why the judgment of O.K. Bhardwaj is not applicable in the matter. Needless to mention that Tribunal was bound by the decision of Apex Court in O.K. Bhardwaj (Supra)."

(Emphasis Supplied)

13) In view of judgments of Supreme Court reported in (1999) 1 SCC 759 (Apparel Export Promotion Council Vs. A.K. Chopra), (2007) 7 SCC 236 (Bank of

India Vs. T. Jogram), (2009) 8 SCC 310 (State of U.P. Vs. Man Mohan Nath Sinha), (2020) 3 SCC 423 (State of Karnataka Vs. N.Gangaraj) and (2020) 9 SCC 471 (Pravin kumar vs. Union of India), the judicial review on a disciplinary proceeding is mainly confined on the decision making process or in other words, on the aspect of procedural impropriety. If impugned disciplinary proceedings are tested on the anvil of principles of natural justice, it will be clear like cloudless sky that the show cause notice nowhere indicates that it 'initiates' the disciplinary proceeding. At the cost of repetition, the show cause notice directs the petitioner to file reply as to why disciplinary proceedings should not be 'initiated' against him.

8. Thus, on the touchstone of the above enunciations, if the present matter is put to test, it could be said Collector was not justified in imposing punishment, without holding an inquiry and therefore, on this Count the order of punishment is not justified.

9. As analysed above, in view of this Court, appellate authority and the disciplinary authority had missed the real controversy. Since factual allegations were denied and petitioner gave explanation on facts and merits, in the fitness of things, the disciplinary authority should have conducted an enquiry as per Rule 16(1)(b) of CCA Rules. This would have

been in consonance with the principle of natural justice. Apart from this, the discretion vested with the disciplinary authority to conduct an enquiry must be exercised in objective and judicious manner. The disciplinary authority in the present case has committed an error in not instituting the enquiry as per rules. Thus, this Court finds flaw in the decision making process adopted by the department.

10. So far as the delay in preferring the appeal and dismissal of the same on the ground of delay, is concerned, when this Court had come to a conclusion that the initial order of punishment passed by the Collector dated 25/03/2013 was bad, the delay in filling the appeal should had been condoned and too hyper technical approach should not have been adopted and therefore, the appellate court's order dated 28/11/2019 is also held not to be proper. The judgment cited by the counsel for the State since based on some different facts and even the analogy which has been laid down do not cocurr with the facts of the present case cannot be said to be applicable.

11. In the matter of S. Ganesharaju (Dead) through L.RS and another -vs- Narasamma (Dead) through L.RS and others reported in (2013) 11 SCC 341, the following paragraphs are relevant for our purpose:-

"12. The expression "sufficient cause" as appearing in Section 5 of the Limitation Act, 1963, has to be given a liable

construction so as to advance substantial justice. Unless the respondents are able to show mala fides in not approaching the court within the period of limitation, generally as a normal rule, delay should be condoned. The trend of the courts while dealing with the matter with regard to condonation of delay has tilted more towards condoning delay and directing the parties to contest the matter on merits, meaning thereby that such technicalities have been given a go-by."

"14. We are aware of the fact that refusal to condone delay would result in foreclosing the suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. In fact, it is always just, fair and appropriate that matters should be heard on merits rather than shutting the doors of justice at the threshold. Since sufficient cause has not been defined, thus, the courts are left to exercise a discretion to come to the conclusion whether circumstances exist establishing sufficient cause. The only guiding principle to be seen is whether a party has acted with reasonable diligence and had not been negligent and callous in the prosecution of the matter."

12. Resultantly, the punishment order dated 19.11.2007 and the appellate order dated 07.05.2009 are set aside. The matter is remitted back to the disciplinary authority to conduct the enquiry as per Rule 16(1)(b) of CCA Rules. It is open to the

respondents to proceed against the petitioner from the said stage in accordance with law.

It is made clear that this Court has not expressed any opinion on the merits.

12. With the aforesaid observation the Petition is allowed.

E-copy/Certified copy as per rules/directions.

(Milind Ramesh Phadke) Judge Pawar/-

ASHISH PAWAR 2023.01.12 19:28:47 +05'30'