Madhya Pradesh High Court

Diwakar Narayan Patel vs The State Of Madhya Pradesh on 12 January, 2023

Author: Sanjay Dwivedi

IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 12TH OF JANUARY, 2023
WRIT PETITION NO. 14376/2020

BETWEEN:-

DIWAKAR NARAYAN PATEL, S/O SHRI RAM
GOPAL PATEL, AGED ABOUT 51 YEARS, CHIEF
EXECUTIVE OFFICER, JANPAD PANCHAYAT,
ASHTA, DISTRICT SEHORE (M.P.), OCCUPATION
-SERVICE.

......PETITIONER

(BY SHRI SANJAY K. AGRAWAL - ADVOCATE)

AND

1. STATE OF M.P. THROUGH ITS PRINCIPAL
SECRETARY, DEPARTMENT OF
PANCHAYAT AND RURAL DEVELOPMENT,
GOVERNMENT OF MADHYA PRADESH,
MANTRALAYA, VALLABH BHAWAN,
BHOPAL (M.P.).

2. THE DEVELOPMENT COMMISSIONER,
GOVERNMENT OF MADHYA PRADESH,
VINDHYACHAL BHAWAN, BHOPAL (M.P.).

3. THE DIVISIONAL COMMISSIONER
(REVENUE) REWA, DISTRICT REWA (M.P.).

.....RESPONDENTS
(BY SHRI GIRISH KEKRE - GOVERNMENT ADVOCATE)
................................................................................................................................................
Reserved on : 02.01.2023
Pronounced on : 12.01.2023
2

This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Court pronounced the following:

ORDER

At the outset, learned counsel for the petitioner has raised a ground for challenging the order of appellate authority and also the disciplinary authority that the disciplinary authority after conclusion of enquiry although had given an opportunity of personal hearing to the petitioner but before passing the final order of punishment, the disciplinary authority got transferred and a new authority came but that new incumbent did not give any opportunity of hearing or time to the petitioner and pass the order on the basis of record available. Counsel submits that this ground has been raised by the petitioner in the appeal preferred before the appellate authority but the said authority has also not dealt with this aspect and passed the order affirming the order passed by the disciplinary authority. He further submits that even in the reply submitted by the State this particular aspect of the matter has not been rebutted despite the fact that the petitioner has raised this ground in his petition also. He submits that considering the aforesaid, once the factual aspect of the matter has not been denied by the respondents, the same shall be considered to be correct and admitted by other party, as such the petition deserves to be allowed and the orders passed by the disciplinary authority and also the appellate authority are liable to be set aside.

2. On the other hand, learned counsel for the respondents/State submits that merely because an opportunity of personal hearing was not provided to the petitioner by the authority, but order inflicting punishment has been passed by some other authority not heard the petitioner, does not vitiate the whole enquiry or cannot be considered to

be in violation of principles of natural justice. He submits that the authority can decide the matter on the basis of material and the evidence collected by the enquiry officer during course of enquiry and the enquiry does not suffer from any violation of principles of natural justice because proper opportunity of hearing has been granted to the petitioner during decision making process and full opportunity of hearing has been provided to him.

3. To reach a justify end of the issue involved in the case, it is apt to mention the facts of the case which are as under:-

At the relevant time, when the petitioner was posted as Chief Executive Officer, Janpad Panchayat, Waidhan, District Singaruli, the Government issued an order on 26.03.2007 for construction of Kitchen Sheds and the said work was to be carried out through the concerned Gram Panchayat. The petitioner being authority to get the work of construction of Kitchen Sheds executed issued a tender and awarded the same to one M/s Shiv Associates. The work order was also issued in favour of the contractor and the information in that regard was sent to Chief Executive Officer, Jila Panchayat.

4. As per the circular dated 03.01.1996 (Annexure P/1), the Government issued instructions that if any work is carried out on the basis of oral instructions or directions of superior authority, the said instructions be got confirmed in writing . Since the petitioner awarded the work to the contractor on the basis of oral instructions of the Chief Executive Officer, he sought confirmation of such instructions and sent a letter on 01.08.2007 (Annexure P/2) to the Chief Executive Officer, Jila Panchayat, Sidhi, but despite repeated efforts, the confirmation was not given and the contractor carried out the work in pursuance to the oral order of the Chief Executive Officer, Janpad Panchayat (Petitioner)

and total 56 Kitchen Sheds were constructed spending total Rs. 33 lakhs.

5. Thereafter, complaints were made that the work got done through a private contractor instead of concerned Gram Panchayat contrary to the instructions of the Government dated 26.03.2007. In the complaint several irregularities were also pointed out. A committee was constituted to enquire into the matter, which submitted its report on 01.03.2008 (Annexure P/4) and the same was sent to the Government. In pursuance to the said report, the Government vide order dated 25.04.2008 (Annexure P/5) directed the Commissioner, Rewa Division, Rewa to enquire into the matter through Superintending Engineer, Rural Engineering Services. The Superintending Engineer, RES asked the Chief Executive Officer, Jila Panchayat, Sidhi to provide the requisite measurement books so as to enable him to submit enquiry report.

6. The Divisional Commissioner, Rewa also issued a letter on 18.06.2008 (Annexure P/7) directing Superintending Engineer, RES to submit the requisite report within a stipulated period and in response to the same, the petitioner vide letter dated 25.06.2008 (Annexure P/8) requested the Commissioner to constitute a committee to examine the quality and cost of construction work, but during the course of enquiry, the petitioner has been placed under suspension by order dated 30.07.2008 (Annexure P/9) and a charge sheet was also issued to him on 07.08.2008 (Annexure P/10) levelling a solitary charge that he got 56 kitchen sheds constructed at the cost of Rs. 33.598 lakhs through a private agency.

7. The petitioner submitted reply to the charge sheet making it clear that the construction got done as per the instructions issued by the higher authority and also in pursuance to the order passed by the Chief Executive Officer, Jila Panchayat, Sidhi but that reply was not taken

note of and a regular departmental enquiry was initiated appointing enquiry officer and presenting officer. An additional charge sheet was also issued to the petitioner on 24.04.2009 (Annexure P/12) levelling additional charge against him that he remained absent unauthorisedly from duty w.e.f. 25.02.2008. The petitioner denied the said charge also. During the course of departmental enquiry several witnesses were examined on behalf of the department. The petitioner also examined his witness i.e. contractor in his defence. Thereafter, enquiry report was submitted before the Collector on 30.04.2010 (Annexure P/18). The Additional Commissioner, Rewa vide letter dated 24.09.2020 (Annexure P/16) directed the enquiry officer to submit a joint enquiry report including the report of the additional charge levelled against the petitioner. Thereafter, enquiry officer submitted a fresh enquiry report on 24.12.2011 including both the charges and comments were invited from the petitioner in respect of the enquiry report. The petitioner submitted his objection to the enquiry report on 21.02.2012 (Annexure P/17).

8. Thereafter, vide memo dated 15.03.2012, the Commissioner forwarded the matter to the State Government to take appropriate decision on the report. The Divisional Commissioner however did not propose imposition of any major punishment upon the petitioner. A show cause notice was issued to the petitioner by the State Government on 11.04.2012 (Annexure P/18) alongwith enquiry reports dated 30.04.2010 and 24.12.2011. The petitioner submitted reply to the said show cause notice. Thereafter, by another notice dated 13.09.2012 (Annexure P/20) the petitioner was directed to appear before the disciplinary authority. The petitioner appeared for personal hearing on 02.11.2012. The hearing was conducted by the then Secretary Smt. Alka

Upadhyay. A patient hearing was given by the said authority. The disciplinary authority issued certain instructions and closed the matter for orders. Later on, the said Secretary i.e. Smt. Alka Upadhyay got transferred and in her place new Secretary Shri Rajesh Rajora joined, but no hearing took place before him and he passed the order on 21.06.2013 (Annexure P/21) inflicting major penalty upon the petitioner.

9. As per the petitioner, the punishment was inflicted upon him by the Disciplinary Authority who joined subsequently i.e. Dr. Rajesh Rajora whereas the arguments were advanced by him and other parties before the earlier disciplinary authority i.e. Smt. Alka Upadhyay. The order Annexure P/21 has been passed by the subsequent disciplinary authority observing in the order itself that the delinquent was heard in person, but he failed to submit any satisfactory defence and as such major penalty of withholding of four increments with cumulative effect is inflicted upon him.

10. In the present case, the petitioner has taken a stand that personal hearing was given by Smt. Alka Upadhyay, the then disciplinary authority, but the final order has been passed by the officer acting as Disciplinary Authority i.e. Dr. Rajesh Rajora only on the basis of record, but no hearing was conducted before him. He submits that the situation as existing in the present case is a clear sign of violation of principles of natural justice because hearing got conducted by one officer and punishment was inflicted by another officer. He submits that the order of punishment was inflicted after three years of submitting the enquiry report because the report was submitted on 24.12.2011, the personal hearing of petitioner got done on 01.11.2012 and the order of punishment was passed on 21.06.2013 i.e. almost after seven months.

11. An appeal was preferred by the petitioner before the disciplinary

authority against the order of punishment raising grounds that the order of punishment is liable to be set aside as the same has been passed in violation of principles of natural justice because giving personal hearing was a futile exercise as the officer who heard the petitioner has not passed the order but some other officer has passed the order. The appellate authority did not give his finding on this point and approved the order of the disciplinary authority, although passed an order modifying the order of major penalty into minor penalty i.e. withholding of two increments with non-cumulative effect and as such minor penalty has been inflicted upon the petitioner. Learned counsel for the petitioner has therefore assailed the impugned order on two counts firstly that it is in violation of principles of natural justice and secondly it has been passed without application of mind.

12. Reply has been filed by the respondents trying to justify the order passed by the disciplinary authority and also by the appellate authority, but they have not denied the fact with regard to hearing the petitioner by one disciplinary authority and passing of the order by another disciplinary authority after transfer of the authority who heard the petitioner in person.

13. As has already been mentioned in the opening paragraph of the this order that during the course of arguments learned counsel for the petitioner confined his arguments only to the extent that in view of the law laid down by the Supreme Court in the case of Gullapalli Nageswara Rao and others vs. Andhra Pradesh State Road Transport Corporation and another reported in 1959 Supp (1) SCR 319 : AIR 1959 SC 308, the order passed by the subsequent disciplinary authority is illegal as the same suffers from violation of principles of natural justice. He has drawn attention of this Court towards the observation

made by the Supreme Court in para 31 of its judgment, which reads as under:-

31. The second objection is that while the Act and the Rules framed thereunder impose a duty on the State Government to give a personal hearing, the procedure prescribed by the Rules impose a duty on the Secretary to hear and the Chief Minister to decide. This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. Personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. We therefore hold that the said procedure followed in this case also offends another basic principle of judicial procedure.

[Emphasis supplied]

14. Taking note of the observation and the view taken by the Supreme Court in the case of Gullapalli Nageswara Rao (supra), the facts and circumstances of the present case clearly reveal that show cause notice Annexure P/20 dated 13.09.2012 was issued to the petitioner directing him to appear before the Disciplinary Authority on 02.11.2012 and petitioner appeared before the authority and submitted his stand and submission, but that authority got transferred and another authority took charge of the post and acted as disciplinary authority, who without giving opportunity of hearing to the petitioner passed the order of punishment dated 21.06.2013. This factual aspect has not been denied by the respondents in their reply and even it has not been answered and this issue was not addressed by the appellate authority whereas the petitioner in his appeal has raised this ground very categorically. Copy of the memo of appeal available on record as Annexure P/23 also

indicates that this ground was raised by the petitioner in his appeal saying that the argument was done before the then Secretary/Disciplinary Authority namely, Smt. Alka Upadhyay and she was convinced with the arguments as is clear from the note sheets of the case, but after transfer of Smt. Alka Upadhyay, the matter was placed before other officer namely, Rajesh Rajora, who without giving hearing to the petitioner passed the order modifying the penalty from major penalty of withholding of four increments with cumulative effect into minor penalty of withholding of two increments with non-cumulative effect.

15. It is needless to say that when any factual aspect is not denied in the reply, it is deemed that the same has been accepted by the other party. The Supreme Court in this regard has very categorically observed in the case of Naseem Bano (Smt.) vs. State of U.P. and others reported in 1993 Supp (4) SCC 46 and held as under:

"9. The aforesaid reply would show that on behalf of respondents 1 to 4, it was not disputed that 40 per cent posts which have to be filled up by promotion had not been filled up and the denial of promotion to the appellant was justified on the sole ground that she was not qualified to be promoted to L.T. grade. This shows that in the pleadings before the High Court, there was no contest on the question that the post of L.T. grade which was sanctioned on August 29, 1977 was required to be filled up by promotion for the reason that 40 per cent posts had not been so filled. Even though there was no contest on this question the High Court has gone into it and has held that the appellant has failed to establish her case that at the time of the appointment of respondent 6 by direct recruitment 40 per cent of the total number of posts in the College were not filled up by promotion as prescribed by Regulation 5(2)(a) of the Regulations. Since no dispute was raised on behalf of respondents 1 to 4 in their reply to the averments made by the appellant in the writ petition that 40 per cent of the total number of posts had not been filled by

promotion, inasmuch as the said averments had not been controverted, the High Court should have proceeded on the basis that the said averments had been admitted by respondents."

The Supreme Court further in the case of Sushil Kumar vs. Rakesh Kumar reported in AIR 2004 SC 230 has observed as under:-

"69. In terms of Order VIII Rule 3, a defendant is required to deny or dispute the statements made in the plaint categorically, as an evasive denial would amount to an admission of the allegation made in the plaint in terms of Order VIII Rule 5 of the Code of Civil Procedure.

70. Under Section 58 of the Indian Evidence Act a fact admitted need not be proved.

71. In paragraph 15 of the written statement, the respondent has not specifically contended that the statements made in paragraph 18 of the election petition are incorrect or how they are so. Merely the said allegations have been denied as being imagination of the election petitioner without making a statement of fact that Rohit Kumar is not the elder brother of the respondent or in fact younger to him. Such an evasive denial attracts Order VIII Rule 5 of the Code of Civil Procedure. The statements made in paragraph 18 of the election petition must, therefore, be deemed to have been admitted. Birla Institute of Technology, Mesra, has produced the Application for undergraduate Admission for Rohit Kumar, wherein his date of birth has been shown as 1-3- 1979. Even in the inquiry made by the Chief Electoral Officer, the respondent had not specifically denied the said fact. The Governor of the State of Bihar in his order (Ext. 4) observed:

"Shri Rakesh Kumar has not denied that his elder brother is a student of Birla Institute of Technology. Documents furnished by Birla

Institute of Technology about the age of his elder brother are extremely significant and relevant to determine Shri Rakesh Kumar's likely age. The documents furnished by the Institute reveal that the date of birth of the elder brother of Shri Rakesh Kumar is 1-3-1979. Hence, on 19-5-1999 Shri Rakesh Kumar's elder brother was 20 years, 2 months and 18 days old. So, it can be safely and conclusively assumed that on 19-5-1999 Shri Rakesh Kumar, when he was sworn in as a Minister, was less than 20 years, and definitely much less than 25 years, the qualifying age to become a Member of the State Legislative Assembly."

72. The High Court, on the other hand, observed:

"... It is true that it has not been specifically stated in the reply to paragraph 18 of the election petition that Rajesh Kumar happens to be the younger brother of Rakesh Kumar but making him an elder brother has been totally denied. In that way, it cannot be said that only an evasive reply is there and when this fact could not be proved by any cogent evidence from the side of the election petitioner that Rajesh Kumar happens to be the elder brother of the respondent Rakesh Kumar, rather when contrary evidence is there from the side of the respondent then the age group of Rohit Kumar @ Rajesh Kumar does not come in aid to the election petitioner to prove the underage of Rakesh Kumar, the respondent."

73. In our opinion, the approach of the High Court was not correct. It failed to apply the legal principles as contained in Order VIII Rules 3 and 5 of the Code of Civil Procedure. The High Court had also not analysed the evidences adduced on behalf of the appellant in this behalf in details but merely rejected the same summarily stating that vague statements had been made by some witnesses. Once it is held that the statements made in paragraph 18 of the election petition have

not been specifically denied or disputed in the written statement, the allegations made therein would be deemed to have been admitted, and, thus, no evidence contrary thereto or inconsistent therewith could have been permitted to be laid."

16. In view of the aforesaid factual situation and taking note of the view taken by the Supreme Court, I am also of the opinion that when an authority called the petitioner, given him personal hearing and directed to submit his response then the order should have been passed by the same authority, but in the present case it has not been done. Therefore, the order passed by subsequent authority without hearing the petitioner is vitiated and it also vitiates the decision making process as it suffers from violation of principles of natural justice. The order passed by the subsequent authority can also be said to be an order passed without application of mind as he did not give opportunity of hearing to the petitioner wherein he would have submitted his stand so as to get himself exonerated from the charges levelled against him. Thus, the order passed by the disciplinary authority, in my opinion, is not sustainable in the eyes of law and is liable to be set aside. It is further a settled principle of law that when basic order is held to be illegal, all the subsequent orders and proceedings based upon it would automatically held to be illegal and also deserve to be set aside. Therefore, the order of appellate authority is also liable to be set aside.

17. Accordingly, this petition is allowed. The orders dated 21.06.2013 (Annexure P/21) and 28.07.2018 (Annexure P/25) passed by the respondent No. 1 are hereby set aside. However, liberty is granted to the respondents that if they so desire, they may initiate proceedings in accordance with law from the stage from where violation of principles

of natural justice has been done i.e. opportunity of personal hearing to the petitioner before the disciplinary authority, who joined after transfer of Smt. Alka Upadhya i.e. the then disciplinary authority and take appropriate decision in accordance with law. No order as to costs.

(SANJAY DWIVEDI) JUDGE

Raghvendra

RAGHVENDRA SHARAN SHUKLA 2023.01.13 11:08:56 +05'30'