Madhya Pradesh High Court
Dharmendra Silarpuriya vs The State Of Madhya Pradesh on 5 March, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 5 th OF MARCH, 2024
WRIT PETITION No. 7873 of 2018
BETWEEN:-
DHARMENDRA SILARPURIYA S/O SHRI G.C.
SILARPURIYA, AGED ABOUT 54 YEARS, OCCUPATION:
GOVT. SERVANT O/O EXECUTIVE ENGINEER, PWD,
DIVISION SEHORE, DISTRICT SEHORE (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI PRAVEEN DUBEY - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR. THE
PRINCIPAL SECRETARY PUBLIC WORKS
DEPARTMENT MANTRALAYA, VALLABH
BHAWAN, BHOPAL (MADHYA PRADESH)
2. ENGINEER IN CHIEF PUBLIC WORKS
D EPARTM EN T DISTRICT BHOPAL (MADHYA
PRADESH)
3. CHIEF ENGINEER PUBLIC WORKS DEPARTMENT
DISTRICT UJJAIN (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AMIT PANDEY - PANEL LAWYER)
This petition coming on for admission this day, th e court passed the
following:
ORDER
Petitioner/employee has invoked writ jurisdiction of this Court challenging
order dated 16.9.2016 (Annexure-P-3) passed by respondent No.2/Engineer-in-
Chief, PWD, Bhopal whereby minor penalty of withholding two increments
without cumulative effect has been imposed on petitioner and further recovery
of some of Rs.23,55,654/- has been directed in installments from the salary
payable to the petitioner towards loss caused to the Government in discharging
of official duties by petitioner.
2. Heard learned counsel for parties on the question of admission as well as
final disposal.
3. Shri Praveen Dubey, learned counsel appearing for petitioner assailing the
order of penalty mainly on the ground that when charge sheet was issued,
departmental inquiry ought to have been carried out and the order of
punishment without following Rule 10 & 14 of M.P. Civil Services
(Classification, Control and Appeal) Rules, 1966 (hereinafter referred as 'Rules
1966') amounts to denial of justice and is in violation of principle of natural
justice. Thus, order is liable to be set aside. Second ground raised by petitioner
is that two punishment were inflicted, one is under Rule 10(iii) and another is
under Rule 10(iv), which is not permissible under Rules, 1966.
4. Bolster the arguments, learned counsel heavily relied upon judgment
delivered by the Apex Court in O.K. Bhardwaj vs. Union of India, (2001) 9
SCC 180 and the relevant portion of the order are extracted hereunder:-
"2. The High Court has recorded its opinion on two questions: (i) that the
punishment imposing stoppage of three increments with cumulative
effect is not a major penalty but a minor penalty; (ii) in the case of minor
penalties, "it is not necessary to give opportunity to the employee to give
explanation and it is also not necessary to hear him before awarding the
penalty": a detailed departmental enquiry is also not contemplating in a
case in which minor penalty is to be awarded.
3. While we agree with the first proposition of the High Court having
regard to the rule position which expressly says that "withholding
increments of pay with or without cumulative effect" is a minor penalty,
we find it not possible to agree with the second proposition. 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."
3. Learned counsel further relied on the order passed by coordinate Bench in
W.P. No.7328 of 2022 (Mangleshwar Prasad Shukla vs. State of M.P. and
others), wherein coordinate Bench relying upon law laid down in the case of
O.K. Bhardwaj (supra) opined that since no opportunity of hearing was
extended to the petitioner therein before passing impugned order, the order of
penalty was quashed with liberty to proceed afresh after given reasonable
opportunity of hearing to petitioner.
4. He further relied on the order passed by coordinate Bench in W.P.
No.471/2017 (P.G. Kelkar vs. State of M.P. and another), wherein almost in the
similar circumstance, coordinate Bench opined that stoppage of two increments
without cumulative effect and direction to recover amount of loss caused to the
Department due to the acts of employee, inquiry was required to be conducted
after issuance of charge sheet in terms of law laid down by the Supreme Court
in O.K.Bhardwaj (supra). The coordinate Bench quashed the order with liberty
to respondent to conduct detail inquiry according to law. Learned counsel for
petitioner prays for quashment of order in view of existing facts and
circumstances of the case.
5. Per contra, learned Panel Lawyer appearing on behalf of
respondents/State submits that there is no violation of procedure contemplated
under M.P. Civil Services (Classification, Control and Appeal), Rules 1966 and
the present petition is not maintainable as the petitioner has straight way
approach this Court under Article 226 of the Constitution of India, without
availing statutory remedy of appeal provided under Rule 23 of Rules, 1966.
6. It is further argued that minor penalty of withholding of two increments
without cumulative effect was imposed and further for the loss caused to the
State exchequer and this order of penalty dated 16.9.2016, which is appealable
under Rule 23. There is no violation of principle of natural justice. It is further
argued that according to Rule 16 of Rules, 1966, for the purpose of imposing
minor penalty as specified in clause (i) to (iv) of Rule 10 and 11, there is no
requirement to conduct a full fledged inquiry and it was well within competence
and jurisdiction to disciplinary authority to impose minor penalty after issuing
show cause notice as provided under the Rule.
7. In the present matter, charge sheet was issued to petitioner wherein
specific charges were levelled against him. Petitioner filed his reply to the said
charge sheet and as the reply was not satisfactory, order of imposing of minor
penalty was passed and it is not a case of violation of principle of natural
justice. Learned Panel Lawyer relied on judgment of Larger Bench passed in
W.A. No.968/2018 (State of M.P. and another vs. P.N. Raikwar), wherein it is
held that even if an order passed in the name of Governor, appeal shall lie as the
order has not been passed by a Governor personally and appeal would lie under
Rule 23 of Service Rules. He prays for dismissal of the order. The relevant
portion of judgment is extracted herein below:-
22- The present is a case where an order authenticated in the name of
the Governor is said to have been passed by the Governor personally,
therefore, appeal to the Governor is not maintainable. Such argument
does not stand as the executive functions of the State are carried out in
the name of the Governor, but are not exercised by the Governor
personally, as it is not a function which is required to be exercised by
him in his personal capacity. Reference may be made to the
Constitution Bench judgment reported as Nabam Rebia and Bamang
Felix Vs. Deputy Speaker, Arunachal Pradesh Legislative Assembly
and others, 2016 (8) SCC 1 holding as under:-
"153. Though the debate could be endless, yet we would consider it
apposite to advert to the decisions rendered by this Court in B.K.
Sardari Lal Vs. Union of India, 1971 (1) SCC 411, and Samsher Singh
Vs. State of Punjab and another, AIR 1974 SC 2192. Insofar as Sardari
Lal case is concerned, this Court had held therein that the President or
the Governor, as the case may be, would pass an order only on his
personal satisfaction. In the above case, this Court while examining the
case of an employee under Article 311(2) [more particularly, under
proviso (c) thereof], recorded its conclusions, in the manner
expressed above. The same issue was placed before a seven-Judge
Bench constituted to re-examine the position adopted in Sardari Lal
case. The position came to be reversed. This Court in Samsher Singh
case declared that wherever the Constitution required the satisfaction
of the President or the Governor, for the exercise of any power or
function, as for example under Articles 123, 213, 311(2), 317,
352(1), 356 and 360, the satisfaction required by the Constitution was
not the personal satisfaction of the President or the Governor "... but
is the satisfaction of the President or of the Governor in the
constitutional sense under the Cabinet system of Government". It is,
therefore, clear that even though the Governor may be authorised to
exercise some functions, under different provisions of the
Constitution, the same are required to be exercised only on the basis
of the aid and advice tendered to him under Article 163, unless the
Governor has been expressly authorised, by or under a constitutional
provision, to discharge the function concerned, in his own discretion.
154. We are, therefore, of the considered view that insofar as the
exercise of discretionary powers vested with the Governor is
concerned, the same is limited to situations, wherein a constitutional
provision expressly so provides that the Governor should act in his
own discretion. Additionally, a Governor can exercise his functions in
his own discretion, in situations where an interpretation of the
constitutional provision concerned, could not be construed otherwise.
We, therefore, hereby reject the contention advanced on behalf of the
respondents, that the Governor has the freedom to determine when and
in which situation, he should take a decision in his own discretion,
without the aid and advice of the Chief Minister and his Council of
Ministers. We accordingly, also turn down the contention, that
whenever the Governor in the discharge of his functions, takes a
decision in his own discretion, the same would be final and binding,
and beyond the purview of judicial review. We are of the view that
finality expressed in Article 163(2) would apply to functions
exercised by the Governor in his own discretion, as are permissible
within the framework of Article 163(1), and additionally, in situations
where the clear intent underlying a constitutional provision, so
requires i.e. where the exercise of such power on the aid and advice,
would run contrary to the constitutional scheme, or would be
contradictory in terms.
155. We may, therefore, summarise our conclusions as under:
155.1. Firstly, the measure of discretionary power of the Governor, is
limited to the scope postulated therefor, under Article 163(1).
155.2. Secondly, under Article 163(1) the discretionary power of the
Governor extends to situations, wherein a constitutional provision
expressly requires the Governor to act in his own discretion.
155.3. Thirdly, the Governor can additionally discharge functions in
his own discretion, where such intent emerges from a legitimate
interpretation of the provision concerned, and the same cannot be
construed otherwise.
155.4. Fourthly, in situations where this Court has declared that the
Governor should exercise the particular function at his own and
without any aid or advice because of the impermissibility of the other
alternative, by reason of conflict of interest.
155.5. Fifthly, the submission advanced on behalf of the respondents,
that the exercise of discretion under Article 163(2) is final and beyond
the scope of judicial review cannot be accepted. Firstly, because we
have rejected the submission advanced by the respondents, that the
scope and extent of discretion vested with the Governor has to be
ascertained from Article 163(2), on the basis whereof the submission
was canvassed. And secondly, any discretion exercised beyond the
Governor's jurisdictional authority, would certainly be subject to
judicial review. .........."
23- In view of the above, we find that no appeal shall lie to the
Governor if an order is passed by him personally in terms of Rule 22
Clause (i) of the Service Rules, but since the order of punishment has
not been passed by the Governor personally but has been passed in the
name of the Governor, therefore, an appeal would lie under Rule 23 of
the Service Rules. The appellate authority shall be Governor in terms
of Rule 24(1)(i)(b) of the Service Rules, but again it is not the power
to be exercised by the Governor personally, but in terms of Rule of
Business by the 'Council of Ministers' or the 'Minister' as may be
warranted in the Rule of Business.
8. Heard learned counsel for the parties and perused record.
9. Impugned order 16.9.2016 was passed by Engineer-in-Chief, PWD,
Bhopal, wherein it is mentioned that after serving the charge sheet, petitioner
was permitted to file the return/reply and after examining the reply submitted by
petitioner, the reply was not found satisfactory and the order of imposing
penalty and recovery was passed. So far as objection regarding maintainability
of petition and not availing the statutory rule of appeal provided Rule 23 of
1966 is concerned, there may not be any quarrel to the effect that impugned
order is appealable. But despite preferring appeal, petitioner chose to prefer the
present petition under Article 226 of the Constitution of India mainly on the
ground of not conducting detailed departmental inquiry before inflicting
punishment. Present petition is pending since 2018 and after a period of five
years, relegating the petitioner to avail statutory remedy of appeal, is not
justified. Even in the present matter, it appears that in light of judgment of
Supreme Court delivered in O.K. Bhardwaj (supra), respondent No.2 was
required to conduct a detailed departmental inquiry before inflicting any
punishment but since that procedure is not followed and order of punishment
was passed, it appears that the present case is an example of violation of
principle of natural justice and it is trite law that if there is violation of natural
justice, aggrieved person may approach directly to High Court under Article
226 of the Constitution of India without availing statutory remedy of appeal.
Resultantly, objection raised by learned Panel Lawyer regarding maintainability
of present petition is overruled.
10. Stoppage of two increments without cumulative effect and direction to
recover amount of loss caused to the department from petitioner cannot be
inflicted without any detailed departmental inquiry though it is minor penalty but
even in the case of minor penalty, an opportunity has to be given to delinquent
employee and if the charges are factual and denied by delinquent employee, an
inquiry should also be called for. Judgment delivered in the matter of O.K.
Bhardwaj (supra) is directly applicable to present case and same has been
relied by the coordinate Benches also.
11. In view of above, impugned order dated 16.9.2016 (Annexure-P-3)
deserves to be quashed and is hereby quashed. However, respondents shall be
at liberty to proceed afresh against the petitioner and if they so desire, may
conduct a detailed inquiry and all the claims of petitioner will be subject to
outcome of the said inquiry.
12. With the aforesaid liberty, the present petition is disposed of. No order as
to costs.
(VINAY SARAF)
JUDGE
irfan
