Madhya Pradesh High Court
C.P.Tiwari 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. 6087 of 2018
BETWEEN:-
C.P.TIWARI S/O LATE BHAGWAT PRASAD TIWARI,
AGED ABOUT 52 YEARS, OCCUPATION: HELPER WORK
CHARGED (OFFICE OF PUBLIC HEALTH ENGINEERING
MECHANICAL DIVISIONAL REWA ) VILL. MAKARWAL
POST. RUPAULI, TEH. HUJUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI D.K. DIXIT-SR. ADVOCATE WITH SHRI SHAILESH K. JAIN-
ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
THE SECRETRY DEPARTMENT OF PUBLIC
HEALTH ENGINEERING MANTRALAYA, VALLABH
BHAWAN, (MADHYA PRADESH)
2. CHIEF ENGINEER PUBLIC HEALTH ENGINEERING
D EPARTM EN T REGION JABALPUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SANJEEV KUMAR SINGH-PANEL LAWYER)
This petition coming on for admission this day, th e court passed the
following:
ORDER
The petitioner/employee preferred this petition under Article 226 of
the Constitution of India assailing order dated 15.11.2016 (Annexure P-14) and
order dated 22.2.2018 (Annexure P-22) passed by respondent, State whereby
order of exonerating petitioner in departmental enquiry passed on 30.10.2015
was reviewed under Rule 29 (1) of M.P. Civil Services (Classification, Control
and Appeal) Rules, 1966 (in short, 'Rules, 1966') and penalty of compulsory
retirement was inflicted after holding fresh enquiry into the matter.
2. With the consent of parties, the matter is heard finally.
3. Shri D.K. Dixit, learned Sr. Counsel submits that petitioner was
appointed as a Store Clerk on daily wages and later on regularised on the post
of Helper in Work-Charged Establishment and when he was working at Beohari
District Shahdol, some complaints were made to Lokayukta against certain
officers of PHE Department including petitioner. Thereafter, a notice was issued
on 13.1.2014 to petitioner whereby it was alleged that petitioner was working as
Contractor in the name of his brother, which amounts to misconduct. Notice
was duly replied by petitioner, wherein petitioner denied allegations, however,
being dissatisfied with reply of petitioner, respondent no.2, Chief Engineer PHE
Jabalpur Region, Jabalpur issued a charge-sheet on 6.6.2014 asking petitioner to
submit his reply. Petitioner in the reply denied all the charges. On 26.6.2014, the
enquiry authority and presenting officers were appointed and enquiry was
initiated against petitioner, who participated in the enquiry.
4. After recording statements of witnesses and after considering material
and evidence available on record, enquiry authority submitted his report to
disciplinary authority on 30.9.2015, which was served on petitioner to submit
his representation and petitioner submitted his representation on 13.10.2015.
The disciplinary authority after considering enquiry report exonerated petitioner
from all the charges by order dated 30.10.2015.
5. Learned Sr. Counsel further submits that all of a sudden on
15.11.2016 i.e. after one year from the order of exoneration passed by
disciplinary authority dated 30.10.2015, respondent no.1 directed to hold
further enquiry into the matter by exercising powers of review under Rule 29(1)
of Rules 1966 and appointed new enquiry authority and presenting officer.
Additional statements of witnesses were recorded. No evidence to the extent
that petitioner was working as contractor in the name of his brother Radha
Mohan Tiwari was produced before enquiry authority and after recording
additional statements of witnesses, enquiry authority submitted enquiry report
on 27.11.2017, wherein it was alleged that someone else was working as
contractor in the name of Radha Mohan Tiwari and no one else than petitioner
could be worked on his behalf and, therefore, the petitioner was held guilty for
working as contractor. The petitioner denied all the allegations through his
representation dated 10.1.2018. However, respondent no.1 by order dated
22.2.2018 inflicted punishment of compulsory retirement on petitioner holding
that petitioner was acted as contractor in the name of his brother.
6. It is further submitted on behalf of petitioner that thereafter
petitioner approached this Court against order of review by preferring this
petition on 14.3.2018 and on 27.3.2018, an interim order was passed in favour
of the petitioner and operation of the order dated 22.2.2018 was stayed,
however, during pendency of the petition on 10.5.2018, once again, the order
was reviewed and petitioner was inflicted punishment of removal from services,
which was also challenged by incorporating amendment in present petition.
Impugned orders were assailed by learned Sr. Counsel on the following
grounds:
(i) There was no direct evidence available on record and
not a single witness stated that the petitioner was working as
contractor in place of Radha Mohan Tiwari, brother of
petitioner and the only evidence available on record is that
no one has seen Radha Mohan Tiwari in the office attending
and fulfilling formalities.
(ii) The order was passed only on the basis of inferences,
which is not permissible under the law.
(iii) The denovo enquiry was not permissible as per
disciplinary rules.
(iv) The petitioner was a work-charged employee
therefore, the Rules, 1966 are not applicable and Work-
Charged Contingency Paid Employees (Recruitment and
Condition) Rules, 2012 are applicable wherein there is no
provision for review therefore, the orders of review are
illegal, arbitrary, malafide and violative of service rules.
(v) The enquiry initiated by Special Police Establishment
(Lokayukta) was also dropped and petitioner was not
charge-sheeted.
(vi) The review was not permissible after a period of six
months from the date of passing of original order as per Rule
29(1) of the Rules, 1966.
7. Learned Sr. Counsel for the petitioner has relied on the judgment
delivered in the matter of State of M.P. & Anr. Vs. Om Prakash Gupta &
Anr. 2001 (2) MPLJ 690 wherein it was held as under:
"19. A perusal of the aforesaid rule clearly indicates that the provision
relating to the limitation of 6 months is in respect of the authorities
referred to in rule 29(1)(i), (ii) and (iii) of the Rules. The use of word "or"
in the aforesaid rule is indicative of the fact that the power of review
could be exercised by any of the authorities referred to in the rule 29(1)
(i), (ii) and (iii) of the Rules within a period of 6 months and not
thereafter.
20. In the present case, the undisputable and irrefutable facts clearly
indicate that the order of suspension dated 12-1-2000 which has the
effect of reviewing the earlier order passed by the same authority
dated 4-2-1998, had been passed much beyond the prescribed period
of limitation even though the concerned authority ceased to have any
jurisdiction in the matter."
He has relied on the judgment rendered in K.R. Deb Vs. The Collector of
Central Excise, Shilong, AIR 1971 SC 1447 and the relevant paragraph of
the said judgement reads as under:
"13 . It seems to us that Rule 15, on the face of it, really provides for
one inquiry but it may be possible if in a particular case there has
been no proper enquiry because some serious defect has crept into
the inquiry or some important witnesses were not available at the time
of the inquiry or were not examined for some other reason, the
Disciplinary Authority may ask the Inquiry Officer to record further
evidence. But there is no provision in Rule 15 for completely setting
aside previous inquiries on the ground that the report of the Inquiring
Officer or Officers does not appeal to the Disciplinary Authority. The
Disciplinary Authority has enough powers to reconsider the evidence
itself and come to its own conclusion under Rule 9."
He has also relied on the judgment in State of M.P. & Ors. Vs. Birjesh
Niboria 2007 (2) MPLJ 273, wherein it was held as under:
"8. We have also considered the Division Bench decision of this Court
in the case of State of M.P. v. Om Prakash Gupta, 2001 (2) MPLJ 690, in
which the similar question was involved before the Division Bench of
this Court and it was held that a perusal of the aforesaid Rule clearly
indicates that the provision relating to limitation of 6 months is in
respect of the authorities referred to the Rule 29(1)(i)(ii) and (iii) of the
Rules. The use of word "or" in the aforesaid rule is indicative of the fact
that the power of review could be exercised by any of the authorities
referred to the Rule 29(1)(i)(ii) and (iii) of the Rules within a period of 6
months and not thereafter. This clearly indicates that decision
regarding review of the order should be taken within a period of six
months and that is the outer limit for that. Though the question before
the Division Bench was not whether the final order should be passed
within a period of six months, but after considering the provisions of
Rule 29 of the Rules of 1966, we are of the view that Rule does not
envisage that final decision should be taken within a period of six
months as has been held by the Tribunal in the impugned order dated
16-11-2001 and argued by learned counsel for the respondent because
once the decision is taken to review the order, then a detailed
procedure is required to be followed, which has been mentioned in
Rule 29(1)(iv), (a), (b), (c), (d). After review, the authority may confirm,
modify or set aside the order; or, confirm, reduce, enhance or set aside
the penalty imposed by the order, or impose any penalty where no
penalty has been imposed; or remit the case to the authority which
made the order or to any other authority directing such authority to
make such further inquiry as it may consider proper in the
circumstances of the case; or pass such other order as it may deem fit.
If after the review of the order, case is remitted for further enquiry,
then certainly the same cannot be completed within a period of six
months. Therefore, the aforesaid rider of six months cannot be made
applicable for passing the final order after review. It can only be held
that the Appellate Authority shall take a decision within a period of six
months about reviewing the order. In this case the decision was taken
by the State Government on 7-4-1994. In the order dated 7-4-1994 it
has been mentioned that the State Government exercising powers
under Rule 29 proposed to review the order dated 27-10-1993 by which
the penalty of censure was imposed on the incumbent. This order
indicates that clear decision was taken by the authority on 7-4-1994
about reviewing the earlier order dated 27-10-1993, which was within a
period of six months. But the learned Tribunal considering the period
of six months has neither considered the order dated 7-4-1994 nor
assigned any reason whether the whole exercise till imposing the final
punishment is to be completed within a period of six months, therefore
we find that the order passed by the Tribunal is not a reasoned order
and the same has been passed without considering the effect of Rule
29(1)(iii) of Rule of 1966 and also without considering the effect of order
dated 7-4-1999 by which the decision was taken by the State
Government (Appellate Authority) to review the order.
9. As a result of the aforesaid discussion, we find that the Tribunal has
not passed a reasoned order and has not correctly considered the
provisions of Rule 29(1)(iii) of Rules of 1965 and has decided the case
only on the point of limitation and not on merits. Therefore, the same is
liable to be set aside. Accordingly, order dated 16-11-2001 passed by
the Tribunal is set aside. As a consequence of setting aside the order
of the Tribunal, the O.A. has to be remanded for deciding the same on
merits as the respondent has also challenged the final order dated 4-9-
1999, which has not been decided by the tribunal. Therefore, O.A. is
remanded back to the Tribunal for deciding the same on merits.
Admittedly, in the meantime after abolition of the Tribunal, the cases
have been transferred to the High Court, therefore now the O.A. has to
be registered as Writ. Petition and has to be placed before Writ Court
for its decision on merits. Accordingly, we direct the registrar to
register the aforesaid O.A. as Writ Petition and matter be placed before
the Writ Court for deciding the same on merits."
8. Learned Sr. Counsel submits that order of initiating review and
punishment dated 15.11.2016, 22.2.2018 and 10.5.2018 are liable to be quashed
and the petitioner be reinstated on his post with all consequential benefits.
9. Per contra, Shri Sanjeev Kumar Singh, learned P.L. appearing on
behalf of the respondent/State submits that delinquent employee was found
guilty and it was found that he was indulged in obtaining contracts of the
department for himself in the name of his brother, Radha Mohan Tiwari and
therefore, by exercising the powers of review available under Rule 29 of Rules,
1966, the Governor by order dated 22.2.2018 imposed punishment of
compulsory retirement and the contention of learned Sr. Counsel that review
cannot be exercised beyond the period of six months by Governor and State
Government is incorrect.
10. Learned P.L. submits that government can pass order for review
after a period of six months and the limitation is not applicable upon the
Governor. He further submits that no denovo enquiry was ordered or
conducted and only further enquiry was conducted as in the original enquiry, it
was held by enquiry authority that Radha Mohan Tiwari was not doing the work
of contractorship, but the finding in respect to the effect that who was working
in his place was not given therefore, further enquiry was directed which was
within the powers of State Government and the same was essential. The
petitioner was granted full opportunity to present his case and to submit his
evidence as well as to cross examine the witnesses and there was no violation of
any provision. He further submits that M.P. Work-Charged and Contingency
Paid Employee Rules, 1995 is not relevant rules for the purpose of deciding the
present petition and the relevant rules are Rules 1966 which provides the power
of review and limitation of six months prescribed in Rules 29(1)(iii) and
therefore, no illegality or irregularity committed in passing order of review by
the Governor. He also submits that order dated 10.5.2018 passed during
pendency of present petition clearly specified that the same will be applicable
after vacation of stay passed in present petition on 27.3.2018. He further
submits that the order dated 10.5.2018 was later on recalled by order dated
2.1.2022 and the same is not in force now. He prays for dismissal of the
petition.
11. Heard learned counsel for the parties and perused the record.
12. In the present matter, the enquiry was initiated upon the allegation
that petitioner is indulged in work of contractor in the name of his brother
Radha Mohan Tiwari and enquiry authority submitted enquiry report to
disciplinary authority and disciplinary authority by order dated 30.10.2015
exonerated petitioner from all the charges. However, in enquiry report as well as
in order dated 30.10.2015, it was recorded that Radha Mohan Tiwari was not
seen by anyone dealing with the department and someone else was indulging in
work of contractorship in the name of Radha Mohan Tiwari, but the allegations
were not found proved against petitioner.
13. When the enquiry report and order dated 30.10.2015 was
reviewed by order dated 15.11.2016, further enquiry was directed under Rule
29(1) by the State Government and the order was issued in the name of
Governor. The order of further enquiry was not challenged by petitioner at that
time and the petitioner participated in further enquiry and after conclusion of
further enquiry, whereby punishment order was passed on 22.2.2018, the
present petition was filed. However, during pendency of the present petition on
10.5.2018, the order of punishment dated 22.2.2018 was further reviewed and
order of dismissal was passed, but the same was later on withdrawn.
14. Copies of statements of witnesses recorded during the enquiry
and in further enquiry were placed on record which reflects that not a single
witness stated that the present petitioner was working as contractor in place of
Radha Mohan Tiwari, however, it is established on record that Radha Mohan
Tiwari himself was not indulged in contractorship and someone else was
carrying out the business in his name. But in the absence of any cogent and
clinching evidence, no interferences can be drawn against petitioner that he was
working in place of Radha Mohan Tiwari and no one else was having any cause
to carry on the contractorship in the name of Radha Mohan Tiwari. The finding
of enquiry authority as well as reviewing authority are perverse and not based
on evidence available on record. Therefore, this Court has no hesitation in
holding that despite there being no direct evidence available on record to
connect the present petitioner with work of contractorship carried out in the
name of Radha Mohan Tiwari, the findings were recorded only on the basis of
inferences and the same cannot be given seal of approval.
15. So far as the second ground raised by petitioner that De novo
enquiry cannot be ordered by appointing new enquiry authority or presenting
authority, it is suffice to examine the order dated 15.11.2016 whereby the de
novo enqiury was not ordered and further enquiry was ordered, which is
permissible under the Rules and for the purpose of further enquiry, new enquiry
authority and presenting officer may be appointed. Even the record reflects that
further statements of witnesses were recorded and de novo enquiry was not
conducted, therefore, the said contention is also not acceptable. Therefore, the
order passed by the Apex Court in the matter of K.R. Deb (supra) is not helpful
to the petitioner.
16. The contention of learned counsel for the petitioner is that Rules
1966 are not applicable and the Rules, 2012 are applicable. However, the same
is also not helpful to the petitioner as Rules, 2012 though do not provide any
provision for review, but at the same time, there is no bar in the Rules to review
order of punishment by appellate authority, the State Government or Governor.
However in the considered opinion of this Court Rules, 1966 are squarely
applicable to all government servants including the work-charged contingency
paid employees therefore, the issue raised by the petitioner that Rules 1966 are
not applicable is incorrect. More so, Rules 2012 does not provide detailed
procedure for the purpose of departmental enquiry and for that purpose Rules
of 1966 are applicable which provides detailed procedure for suspension,
enquiry, penalty, procedures, review etc. The Rules of 2012 are not in
interrogation of Rules 1966 and are in addition for the purpose of making
special provisions in respect of work charged contingency paid employees.
17. The enquiry initiated by Special Police Establishment (Lokayukt)
was dropped and petitioner was not charge-sheeted, has no bearing in the
present matter as it is trite law that the scope of inquiry for the purpose of
criminal prosecution is different and scope of enquiry for the purpose of
departmental proceedings is different.
18. Now the core question involved in the present petition is that
whether any order in the name of Governor may be passed by State
Government after a period of six months from order of penalty or not? Rule 29
of Rules 1966 provides as under:
"29. (1) Notwithstanding anything contained in these rules
except Rule 11-
(i) the Governor; or
(ii) the head of a department directly under the State
Government, in the case of a Government servant serving in a
department or office (not being the secretariat), under the
control of such head of a department, or
(iii) the appellate authority, within six months of the date of the
order proposed to be reviewed, or
(iv) any other authority specified in this behalf by the Governor
by a general or special order, and within such time as may be
prescribed in such general or special order may at any time,
either on his or its own motion or otherwise call for the
records of any inquiry and review any order made under these
rules or under the rules repealed by Rule 34 from which an
appeal is allowed but from which no appeal has been
preferred or from, which no appeal is allowed, after
consultation with the Commission where such consultation is
necessary, and may-
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed
by the order, or impose any penalty where no penalty has been
imposed; or
(c) remit the case to the authority which made the order or to
any other authority directing such authority to make such further
inquiry as it may consider proper in the circumstances of the
case; or
(d) pass such other orders as it may deem fit: Provided that no
order imposing or enhancing any penalty shall be made by any
reviewing authority unless the Government servant concerned
has been given a reasonable opportunity of making a
representation against the penalty proposed and where it is
proposed to impose; any of the penalties specified in clauses
(v) to (ix) of Rule 10 or to enhance the penalty imposed by the
order sought to be reviewed to any of the penalties specified in
those clauses, no such penalty shall be imposed except after an
inquiry in the manner laid down in Rule 14 [X X X] and except
after consultation with the Commission where such
consultation is necessary:
Provided further that no power to review shall be exercised by
the head of department unless:
(i) the authority which made the order in appeal; or
(ii) the authority to which an appeal would lie, where no
appeal has been preferred, is subordinate to him.
19. By order dated 30.10.2015, the petitioner was exonerated and
review order was passed on 15.11.2016 which was passed after a period of six
months. It is not the case of the respondent that order dated 30.10.2015 was
not communicated to reviewing authority and by mere perusal of order, it
appears that reviewing authority did not claim that order dated 30.11.2015 was
came into knowledge of reviewing authority on a later date.
20. The coordinate bench of this Court in the case of Ramesh
Prasad Tiwari Vs. State of M.P. & Ors. reported in 2009 (1) MPLJ 195
has held that power of review has to be exercised within a reasonable period of
time unless and until extra ordinary circumstances like collusion, fraud etc are
discovered. The relevant portion of judgement is reproduced below:
"9. Quite apart, from the above, admittedly the power of review under
Rule 29 of the Rules of 1966, has been invoked by the authority after a
long lapse of 19 years and though no period of limitation is prescribed
under Rule 29 of the Rules of 1966, for the exercise of the powers of
review, it is settled law that the power of review has to be exercised
within a reasonable period of time unless and until extra ordinary
circumstances like fraud, collusion, etc. are discovered, which are
totally absent in the present case as there is no allegation that a
punishment of compulsory retirement was imposed upon the
petitioner in the year 1987 fraudulently or there was some collusion
between the disciplinary authority and the petitioner. On the contrary,
the only ground on which the power has been exercised by the
reviewing authority is that the punishment imposed upon the
petitioner was grossly disproportionate to the misconduct and,
therefore, deserves to be enhanced."
21. Perusal of Rules 29 of the Rules 1966 clearly indicates that
provisions relating to limitation of six months are in respect of authority referred
under Rule 29 (i)(ii)(iii) of the Rules and it also clearly indicates that decision
regarding review of order should be taken within a period of six months and
that is the outer limit for that.
22. In view of the above, the order of review could not have been
passed after six months from original order of exoneration dated 30.10.2015
and the same is liable to be set aside.
23. Consequently, the present petition is disposed of. The impugned
order dated 15.11.2016 (Annexure P-14) and order dated 22.2.2018 (Annexure
P-22) are hereby set aside.
There shall be no order as to costs.
(VINAY SARAF)
JUDGE
P/-
