S.B.Singh vs State Of M.P. Thru The Principal
2023 Latest Caselaw 5218 MP

                                 1
 IN      THE     HIGH COURT OF MADHYA PRADESH
                       AT GWALIOR
                           BEFORE
         HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
                    ON THE 29 th OF MARCH, 2023
                   WRIT PETITION No. 5141 of 2005

BETWEEN:-
S.B.SINGH S/O BRIJ MOHAN SINGH, AGED ABOUT 50
YEAR S, OCCUPATION: SUB REGISTRAR POSTED AT
MORENA (MADHYA PRADESH)

                                                            .....PETITIONER
(NONE)

AND
1.    STATE OF M.P. THRU : THE PRINCIPAL
      SECRETARY, COMMERCIAL TAX DEPARTMENT,
      VALLABH     BHAWAN,    BHOPAL (MADHYA
      PRADESH)

2.    THE INSPECTOR GENERAL REGISTRATION,
      PANJIYAN BHAWAN, OPP. OLD VIDHAN SABHA,
      MADHYA      PRADESH,     BHOPAL (MADHYA
      PRADESH)

3.    THE  DISTT.  COLLECTOR DISTT.           MORENA
      (MADHYA PRADESH)

4.    THE DISTT. REGISTRAR, O/O STAMPS AND
      REGISTRATION,  DISTT. MORENA (MADHYA
      PRADESH)

                                                          .....RESPONDENTS
(BY SHRI S.K.SHARMA - GOVT. ADVOCATE)

      This petition coming on for HEARING this day, the court passed the
following:
                                  ORDER

Present petition under Article 226/227 of the Constitution of India has been preferred being aggrieved by the order dated 09.03.2005 passed by

Inspector General of Registration whereby, penalty of stoppage of one increment with non cumulative effect has been imposed in the departmental inquiry, inspite of the fact that the inquiry officer had not found the petitioner guilty and the disciplinary authority while not agreeing with the finding of inquiry officer without giving any opportunity of hearing has passed the impugned order which is de-hores the mandatory provisions of Rule 15 of M.P. Civil Services (Classification, Control and Appeal) Rules 1966 (hereinafter would be referred as `the Rules of 1966'). Thus, the present petition has been filed.

Brief facts of the case are that on 13.10.1997, a notice for holding the departmental inquiry was issued and thereafter departmental inquiry was set up

against the petitioner after lapse of more than five years and charge sheet for following charge was issued to him :

(a) When the petitioner was posted at Gwalior as Sub-Registrar 14 sale-deeds were registered by him deeming the land in question as agricultural land. Though the same was declared for urban purposes. Therefore, financial loss has been caused".

Reply was filed to the said charge sheet by the petitioner denying all the allegations and it was contended that no loss of revenue has been caused to the Deptt. nor any fault is there on the part of the petitioner. On the basis of the inquiry, final report was filed by the inquiry officer wherein, the inquiry officer had not found the petitioner guilty and no charges levelled against the petitioner were found to be proved.

Inquiry was completed in the year 2002 but the same was kept pending by the Inspector General, Registration for long and thereafter without providing any opportunity of hearing, imposed the penalty of stoppage of one increment with non cumulative effect in a very arbitrary manner vide impugned order dated

08.03.2005 and since the order has been passed by the disciplinary authority in derogation of Rule 15 of the Rules of 1966, the present petition has been preferred.

None for the petitioner.

Shri S.K.Sharma, learned Govt. Advocate submits that as per the provisions of Rule 15 of the Rules of 1966, there is no provision for issuing any notice to the petitioner in the case of minor penalty nor any opportunity of hearing is required to be afforded and only requirement is that the order should be speaking and reasoned and the disciplinary authority vide order Annexure P/1 had considered the inquiry report and only thereafter, he had come to the conclusion that since the petitioner had not followed the directions issued on various dates therefore, the allegation levelled against him are partly proved and accordingly, he imposed the penalty of stoppage of one increment with non cumulative effect which cannot be faulted with and therefore, the order passed by respondent No.2 does not deserve interference and prayed for dismissal of this petition.

Heard learned counsel for the respondents/State and perused the record. In the present case, it is not in dispute that the disciplinary authority did not issue any show cause notice while disagreeing with the findings arrived at by the inquiry officer. In the light of the aforesaid, the relevant provisions

pertaining to the procedure for taking action on the inquiry report is to be analyzed. For the sake of reference, Section 15 of the Rules of 1966 reads as under :

"15. Action on the inquiry report. - (1) The disciplinary authority if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority

shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14 as far as may be.

(2) The disciplinary authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own finding on such charge, if the evidence on record is sufficient for the purpose.

(3) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in [x x x] Rule 10 should be imposed on the Government servants, it shall, notwithstanding anything contained in Rule 16, make an order imposing such penalty [but in doing so it shall record reasons in writing] :Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant".

Aforesaid statutory provisions of law provides for a procedure in respect of action to be taken on the basis of the inquiry and the same clearly provides that the disciplinary authority while disagreeing with the finding arrived at by the inquiry officer has to record reasons for his disagreement. The contention of learned Govt. Advocate for the respondent/State that Sub Rule 2 of Rule 15 of the Rules of 1966 only postulates recording of reasons and there is no requirement to issue any notice or affording any opportunity of hearing, is totally misconceived. It is settled principle of law that the disciplinary authority shall, if it disagrees with the findings of the inquiry authority on any article of charge, it must record its reasons for such disagreement and record its own finding on such charge, if the evidence on record is sufficient for the purpose and communicate the delinquent employee the tentative reason for disagreeing with the finding of inquiry officer.

In the case of Yoginath D.Bagde Vs. State of Maharashtra, (1999) 7

SCC 739, and others the Apex Court relying on the judgement passed in the case of Punjab National Bank Vs. Kunj Behari Misra, reported in (1998) 7 SCC 84, held that the requirement of affording opportunity of hearing as laid in Kunj Behari Misra (Supra) being in consonance with Article 311 (2) of the Constitution and being a constitutional right to be heard, has to be read into a rule which does not make specific provision to the effect. Disciplinary authority before forming its final opinion has to convey to the charged employee its tentative reasons for disagreeing with the findings of the Inquiry Officer. The Apex Court further in the case of Mathura Prasad Vs. Union of India (2007) 1 SCC 437 again referred to the akin provisions of Rule 10 of Railway Servant (Discipline and Appeal) Rules, 1968 held that an opportunity of hearing to the delinquent officer is required to be given. Para 18 of the said judgment is reproduced as under :

"Even if the Inquiry Officer had, in his first report, proceeded on surmises and conjectures as was observed by the High Court, the disciplinary authority could disagree with the said finding but it was therefore, required to record its reasons. No reason was recorded. Sub- rules (2) and (3) of Rule 10 aim at achieving the same purpose. If sufficient material are not available on record, a direction for holding a further inquiry may be issued in terms of sub-rule (2) of Rule 10 so as to enable the department to lead further evidence before him. For the said purpose also, reasons are required to be recorded by the disciplinary authority. An opportunity of hearing to the delinquent officer is required to be given however, in the event, the disciplinary authority comes to the conclusion that the conclusion arrived at by the inquiry officer on the basis of material placed by the parties are incorrect, he may disagree

with the said findings but even, therefor, he is required to record reasons in support thereof. The requirement of sub-rule (2) or sub-rule (3) having not been complied with, the inquiry officer could not have arrived at a different finding. The High Court unfortunately did not consider this aspect of the matter".

Relying on the aforesaid judgment, a coordinate Bench of this Court has considered the provisions of Rule 15 (2) of the Rules of 1966 in the case of Vikram Singh Rana Vs. Principal Secretary, State of M.P. reported in 2013 (2) MPLJ 232 and had held that the show cause notice and opportunity of hearing to the delinquent officer in the case of disagreement by the disciplinary authority with the findings of inquiry officer is mandatory and it has to be read in the Rule 14 of "Rules 1966". Similar view has been taken by the another coordinate Bench in the matter of Ram Krishna Kanade Vs. State of reported in 2018 (1) MPLJ 698.

In the case of B.S.Jaiswal Vs. State of MP and others reported in

2008 (1) JLJ 291 wherein, while incorporating Rule 15 (2) of the Rules of 1966, a coordinate Bench of this Court has held that if the disciplinary authority disagreeing with finding of inquiry officer who held delinquent officer not guilty of any charges, it casts a duty upon the disciplinary authority to inform the delinquent officer of the tentative reason and also has to hear him.

Thus, in view of the aforesaid pronouncements of law in respect of Rule 15 of the Rules of 1966, it is held that the rule is mandatory and the disciplinary authority is under legal obligation to issue show cause notice and to afford opportunity of hearing to the delinquent officer while disagreeing with the finding of the inquiry officer. Hence, the impugned order of punishment dated

09.03.2005 being per illegal and contrary to law, is hereby quashed.

Since the matter is an old one, there is no point in remitting it back to the disciplinary authority to take fresh decision on this issue. However, liberty is granted to the State Government to initiate appropriate action against the petitioner warranted under the law.

With the aforesaid, this petition stands allowed.

(MILIND RAMESH PHADKE) JUDGE Rks

RAM KUMAR SHARMA 2023.04.01 18:38:11 +05'30'