Madhya Pradesh High Court
Virendra Singh Bhadoriya vs Madhya Pradesh Road Transport ... on 5 August, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 5 th OF AUGUST, 2024
WRIT PETITION No. 2770 of 2010
VIRENDRA SINGH BHADORIYA
Versus
MADHYA PRADESH ROAD TRANSPORT CORPORATIO
Appearance:
Shri Ajay Sharma, learned counsel for the petitioner.
Shri Sanjay Shrivastava, learned counsel for the respondent.
ORDER
The present petition under Article 226/227 of the Constitution of India
is preferred against the order dated 12.03.2009 passed bythe Managing
Director of the respondent Corporation, whereby punishment of dismissal
from service has been imposed upon the petitioner in pursuance to
departmental enquiry, wherein charges with regard to dereliction of duties
were inflicted and were found to be proved.
2. At the outset, learned counsel for the petitioner had brought to the
notice of this Court orders dated 28.10.2009 passed in W.P. No.4938/2009 in
the matter of petitioner, wherein the petition was disposed of with a direction
to the petitioner to prefer an appeal against the impugned order of his
termination and appellate authority was directed to take in account the order
passed by this Court in writ petition No.1829/2009 in the matter of another
employee on 26.08.2009, which was affirmed by the Division Bench of this
Court in writ appeal No.401/2009.
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3. Learned counsel which referring to the order dated 26.08.2009
passed in writ petition No.1829/2009, wherein similar controversy was
adjudicated contended that in paragraph 16 and 17, it has been held that the
authority, who was appointed as enquiry officer was not competent to hold
the enquiry, as at the relevant point of time he was working as Deputy
Secretary in the department of Transport on deputation and his substantive
post was that of Professor in the Higher Education Department and
accordingly it was held that the enquiry conducted by him was against the
provisions of Regulations of 1975 and were beyond his power, thus, the
proceedings were declared as null and void.
4. Learned counsel has also taken this Court to the order dated
06.03.2010 passed in writ appeal No. 401/2009, wherein the order passed by
learned Single Judge dated 28.06.2009 in writ petition No.1829/2009 was
under challenge, wherein in paragraph 25 and 26 the aforesaid findings of
learned Single Judge, with regard to the incompetency of the enquiry officer
was upheld and it was held that learned writ Court had not committed any
error in holding that the departmental enquiry conducted by Shri Dilip Raj
Dwivedi, Deputy Secretary, Department of Transport runs dehors the spirit
of the Act 1950 as well as the Regulations framed under Section 45 of the
said Act.
5. On the strength of the aforesaid orders, it was argued that since the
enquiry officer, who had been held to be incompetent to hold the enquiry
was the same person, who had conducted the enquiry in the matter of present
petitioner, therefore, the entire enquiry stands vitiated and though this Court
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while remitting back the matter to the appellate authority with a direction to
take into account the order passed by this Court in writ petition
No.1829/2009 and thereafter pass the orders but the appellate authority had
shredded its responsibility over the Managing Director and had remanded the
matter to him and in turn, the Managing Director vide impugned order dated
12.03.2009 without considering the judgements of this Court in the aforesaid
matters had held the enquiry to be proved and had passed the order of
dismissal of the petitioner from service, which was per se illegal and
deserves to be quashed.
6. It was, thus, prayed that the present petition in the light of aforesaid
judgments deserves to be allowed and the order impugned is liable to be
quashed and the petitioner is entitled for the mandatory benefits which is
attached to the post.
7. Per contra, Shri Sanjay Shrivastava, learned counsel appearing for
the respondent/Corporation submits that no illegality has been committed by
the Managing Director in passing the impugned order, hence the petition
being devoid of any merits is liable to be dismissed.
8. Heard learned counsel for the parties and perused the record.
9. From bare perusal of the orders passed in writ petition
No.1829/2009 and in writ appeal No.401/2009, it would be abundantly clear
that in the matter of another employee of the same department the enquiry
officer appointed in the matter, who is also the inquiry officer in the present
matter, was held to be not competent to hold the enquiry, as at the relevant
point of time though the enquiry officer was posted as Deputy Secretary in
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the department of Transport on deputation but admittedly he was holding
substantively the post of Professor in the Higher Education.
10. The order passed by the learned Single Judge, was thereafter
affirmed by the Division Bench in writ appeal No.401/2009 preferred by the
respondent/Corporation. For ready reference paragraph 16 and 17 of writ
petition No.1829/2009 and paragraph No.25 and 26 of writ appeal
No.401/2009 are reproduced herein below:-
paragraph 16 and 17 of writ petition No.1829/2009
16. In the present case, the Managing Director has appointed
respondent No.2 as the Inquiry Officer. Respondent No.2
admittedly is not an employee of the Corporation. He was working
at the relevant time as Deputy Secretary in the Department of
Transport on deputation. Admittedly his substantive post at the
relevant time was Professor in the Higher Education Department.
Consequently, the enquiry conducted by respondent No.2 is
against the provisions of Regulations of 1975 and beyond his
power, hence the proceedings are null and void.
17. When the enquiry proceedings have been declared as null and
void in such circumstances, it is not necessary to decide the merits
of the case. Consequently the petition of the petitioner are
allowed. The order dated 15.12.2009, Annexure P/1, appointing
respondent No.2 as Inquiry Officer (filled in W.P. No.314/2009(S)
is hereby quashed and subsequent proceedings conducted by him
and also the order dated 08.04.2009, Annexure P-1 (filed in W.P.
No.1829/099(S) is also quashed. Because this Court granted stay
in favour of the petitioner in spit of the petitioner has been
dismissed from service, hence petitioner is entitled to get arrears
of salary. After going through the facts of the case, in may
opinion, the respondents have deliberately passed the order of
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dismissal in spite of stay order granted by this Court. It is hereby
clarified that the respondents are free to take disciplinary action
against the petitioner on the basis of charge sheet issued by the
Managing Director in accordance with Regulations of 1975. No
order as to cost.
paragraph No.25 and 26 of writ appeal No.401/2009
25. We also do not find any merit in the contention of the learned
counsel for the appellant that under Madhya Pradesh Civil
Services (Classification, Control and Appeal) Rules, 1966 it is not
necessary that the enquiry officer should be a government servant;
he may even be a stranger and because the Regulations are more
or less akin to the aforesaid CCA Rules of 1966, therefore, Dilip
Raj Dwivedi, Deputy Secretary, Department of Transport was
competent to hold departmental enquiry even though he is not an
officer of the Corporation. The answer is simple, as we have
already held herein above that the Corporation is a creature of the
statue and has been constituted under Section 3 of the Act of 1950.
Delegation of the powers of the Managing Director of the
Corporation is strictly in terms of Section 12(2) of the Act of 1950
and there is no other provision of delegation of powers to any
other person, except an officer of the Corporation. Therefore, this
contention of the learned counsel for the appellant is having no
merit.
26. Hence, according to us, the learned writ Court did not commit
any error in holding that the departmental enquiry conducted by
Shri Dilip Raj Dwivedi, Deputy Secretary, Department of
Transport runs dehors to the spirit of the Act 1950 as well s the
Regulations framed under Section 45 of the said Act. Indeed,
holding of departmental enquiry against the writ petitioner is also
prejudicial to him.
11. This Court in writ petition No.4938/2009 preferred by the
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petitioner vide order dated 28.10.2009 had directed the appellate authority to
consider the case of the petitioner in the light of order passed in writ petition
No.1829/2009 dated 26.08.2009 but it appears that the appellate authority
without considering the actual effect of the order passed in writ petition
No.1829/2009 dated 26.08.2009-had remanded the matter to the Managing
Director and Managing Director had not at all considered the judgements of
this Court in the aforesaid writ petition and writ appeal.
12. This Court, thus finds that the impugned order has been passed
without applying any mind and in total derogation of the orders passed by
this Court in writ petition No. 1829/2009 and writ appeal No.401/2009.
Accordingly, the present petition is hereby allowed and the impugned order
dated 12.03.2009 (Annexure P/1) is set aside.
13. As a result, the petitioner is held entitled for receiving his
legitimate dues till his attaining the age of superannuation.
14. With the aforesaid direction, the present petition is allowed and
disposed of.
15. Certified copy as per rules.
(MILIND RAMESH PHADKE)
JUDGE
neetu
