Nageshwar Upadhyay vs M.P State Civil Supplies ...
2023 Latest Caselaw 7738 MP

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               IN THE HIGH COURT OF MADHYA PRADESH
                            AT JABALPUR
                             WP No. 9918 of 2023
      (NAGESHWAR UPADHYAY Vs M.P STATE CIVIL SUPPLIES CORPORATION AND OTHERS)

Dated : 11-05-2023
      Shri Sankalp Kochar - Advocate for the petitioner.

      Shri Shobhitaditya - Advocate for the respondents.

By the instant petition filed under Article 226 of the Constitution of India, the petitioner is challenging the orders dated 18.11.2022 (Annexure-P/15) and 17.04.2023 (Annexure-P/18).

Learned counsel for the petitioner submits that the order of punishment was passed by the disciplinary authority whereby punishment of removal from service was inflicted upon the petitioner. However, against the said order, an appeal was preferred, but the appellate authority after affirming the order of disciplinary authority, dismissed the petitioner's appeal. According to him, after conducting the enquiry, the enquiry officer submitted the report in which he found the petitioner guilty and also proposed minor punishment upon him. The disciplinary authority after receiving the report of enquiry officer issued a show- cause notice to the petitioner mentioning therein that he agreed with the finding

of the enquiry officer and as such, sought explanation/reply from the delinquent within seven days failing which an ex parte order of penalty shall be passed against him.

Learned counsel for the petitioner is challenging the proceeding mainly on the ground that in the show-cause notice issued to the petitioner when there was no proposed punishment showing agreement with the finding of the enquiry officer, then no punishment more than proposed by the enquiry officer could be inflicted. He submits that though in the final show-cause notice, no punishment

was proposed but it was opined by the disciplinary authority that he agreed with the opinion of the enquiry officer meaning thereby the disciplinary authority was also of the opinion that minor punishment should be inflicted upon the petitioner, but major penalty of removal from service was inflicted upon him. In support of his submissions, learned counsel for the petitioner has placed reliance upon a judgment of Supreme Court reported in (1997) 11 SCC 467 [Indian Oil Corporation Ltd. Vs. J. Krishnamurthy].

On the other hand, learned counsel for the respondents has opposed the submissions advanced by learned counsel for the petitioner and submitted that it is a case of disciplinary proceeding in which final order has already been

passed, appeal dismissed and if any interim relief is granted then that would amount to final relief. He has submitted that the Supreme Court in a case reported in AIR 2011 SC 3101 [Secretary, U.P.S.C. and Anr Vs. S. Krishna Chaitanya] has observed that an interim relief should not be granted which amounts to grant of final relief. He submits that though it is a mandatory requirement that the disciplinary authority should also propose the punishment in the final show-cause notice, but if that is not done, the punishment inflicted upon the petitioner cannot be said to be illegal.

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

The relevant part of the show-cause notice dated 21.10.2022 (Annexure- P/13) reads as under:-

'eSa tkapdrkZ vf/kdkjh ds fu"d"kZ ls lger gWawA vr% bl vaaufre dkj.k crkvks lwpuk i= dh izkfIr ds 07 fnol esa eq[;ky; dks voxr djkosa fd izdj.k esa vkids n~okjk dh x;h ykijokgh ,oa i;Zos{k.k esa deh ds fy, D;ksa u vkids fo:n~/k e/; izns'k flfoy lsok¼oxhZdj.k] fu;a=.k ,oa vihy½ fu;e 1966 ds izko/kku

vuqlkj 'kkfLr vf/kjksfir dh tk;sA vkids n~okjk fu/kkZfjr vof/k esa izR;qRrj ugha fn, tkus dh fLFkfr esa ;g ekurs gq, fd vkidks bl lEcU/k esa dqN ugha dguk gS ,oa tkWap vf/kdkjh n~okjk izfrikfnr tkWap fu"d"kZ ls vki lger gS] vkids fo:n~/k

,di{kh; dk;Zokgh djrs gq, 'kkfLr vf/kjksfir dh tkosxhA'

From the aforesaid, it is clear that the disciplinary authority was in agreement with the enquiry officer and stated that punishment under the provisions of Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules 1966 can be inflicted upon the petitioner. Prima facie, I am of the opinion that there is nothing illegal in the show-cause notice issued by the disciplinary authority nor the authority could impose minor punishment only upon the delinquent. Though, the show-cause notice does not contain the punishment proposed, but it specifies that the punishment can be imposed under the provisions of the Rules 1966 and in the present case that has done which cannot be said to be illegal.

In view of the above, no case of any interim relief is made out in the petitioner's favour and as such, the prayer for interim relief is hereby rejected.

However, the respondents are granted six weeks' time to file reply to the petition.

Looking to the issue involved, this petition is directed to be listed in the week commending 03.07.2023.

(SANJAY DWIVEDI) JUDGE Devashish

DEVASHISH MISHRA 2023.05.13 13:55:04 +05'30'