Madhya Pradesh High Court
Yashpal Dabakwal vs Jail Department on 9 May, 2024
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
th
ON THE 9 OF MAY, 2024
WRIT PETITION No. 15371 of 2019
BETWEEN:-
YASHPAL DABAKWAL S/O LATE SHRI MOTILAL
DABAKWAL, AGED ABOUT 54 YEARS,
OCCUPATION: MAJDURI 777, KULKARNI KA
BHATTA, NARAYAN MALI KA KHET, BACK STREET
OF KAMALA SETHANI HOUSE, INDORE (MADHYA
PRADESH)
.....PETITIONER
( BY SHRI L.C.PATNE, ADVOCATE)
AND
JAIL DEPARTMENT CHIEF SECRETARY STATE OF
M.P., MANTRALAYA, ARERA HILLS, BHOPAL
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI MUKESH PARWAL, PANEL LAWYER APPEARING ON BEHALF
OF ADVOCATE GENERAL).
..........................................................................
This petition coming on for admission this day, the court passed
the following:
ORDER
1] This petition has been filed by the petitioner-Yashpal
Dabakwal under Article 226 of the Constitution of India being
aggrieved of the order of dismissal dated 30.5.2019, passed by the
respondent No.1/ the Chief Secretary, Department of Jail, Bhopal.
2] In brief, the facts of the case are that the petitioner was posted
as Jail Warder, and was deputed at M.Y. Hospital, Indore on
21.07.2014, for night duty from 02:00 a.m. to 06:00 a.m. to guard
one Ramdayal S/o Sunder Lal, resident of Harda, who was arrested
and facing the trial for offence punishable under Sections 302 and
308 of the Indian Penal Code, 1860, and was admitted in the M.Y.
Hospital for treatment. However, to the misfortune of the prisoner
Ramdayal, he was murdered, in the Hospital itself on 21.07.2014,
by some assailants while the petitioner was on guard.
3] Because of this incident in his presence, the petitioner was
suspended on 21.07.2014 itself, and after a Departmental Enquiry,
on 29.6.2015, the penalty of one increment with cumulative effect
was imposed on the petitioner. Although no appeal was preferred
by the petitioner against the aforesaid order, however, Writ Petition
No.5895/2014 (PIL) was filed by a Non-Government Organization
before the Division Bench of this Court, which was finally decided
by this Court on 01.10.2015, in which, it was directed to the jail
authorities to review the order of punishment imposed on the
petitioner. And thus, a show cause notice was again issued to the
petitioner on 06.01.2016, and after the reply filed by the petitioner,
final order was passed by the Jail Superintend, Central jail, Indore
on 10.02.2016 (Annexure P/20), and again the penalty of
withholding of one increment for one year with cumulative effect
was imposed on the petitioner. Again, the petitioner did not file
appeal against the aforesaid order and has already suffered the
punishment not only imposed on 10.02.2016, but also on
29.06.2015.
4] However, after more than two and half years, the petitioner
was again issued a show cause on 13.7.2018 (Annexure P/21), as to
why the punishment already imposed on him be not reviewed;
citing the same judgment delivered by the Division Bench of this
Court in W.P. No.5895/2014 (PIL) dated 01.10.2025, and also by
invoking Rule 29(1)(ii) of the M.P. Civil Services (Classification,
Control and Appeal) Rules, 1966 (hereinafter referred to as "the
CCA Rules of 1966") to which, a reply was also filed by the
petitioner stating that he has already suffered the penalty which was
imposed on him on earlier occasions, and also that as per the Jail
Manual, the prisoner in the hospital was required to be guarded by
two guards as per rules; whereas only one guard was posted.
However, the final order was passed by the Director General of Jail,
Bhopal on 27.10.2018, whereby the petitioner was dismissed from
the services.
5] Shri L.C. Patne, learned counsel for the petitioner has
submitted that earlier the order of punishment was imposed on the
petitioner on 29.06.2015, and subsequently, on 10.02.2016, after the
order was passed by Division Bench of this Court in W.P. No.
5895/2014(PIL) dated 01.10.2015, thus, the respondents could not
have issued a fresh notice dated 13.7.2018, to the petitioner after a
period of two and a half years, which is clearly barred under Rule
29(1)(ii) of the CCA Rules of 1966, which provides that the
Appellate Authority can review the order within six months' time.
Thus, it is submitted that the order being passed without jurisdiction
is liable to be set aside.
6] Counsel for the petitioner has also submitted that the order
dated 27.10.2018, passed by the Director General of Jail, Bhopal
was also appealed by the petitioner and the Appellate Authority has
rejected the order on 30.5.2019 (Annexure P/1), affirming the
aforesaid order.
7] Counsel for the petitioner has further submitted that the order
passed by the Division Bench of this Court in the case of State of
Madhya Pradesh and another vs. Omprakash Gupta and another
reported as 2001(2) M.P.L.J. 690, lays down that the power of
review under Rule 29 can be exercised within a period of six
months only and not thereafter.
8] A reply to the petition has also been filed by the respondents
traversing the averments made in the petition.
9] Shri Mukesh Parwal, learned Govt. Advocate appearing for
the respondent/State, on the other hand, has opposed the prayer and
it is submitted that no case for interference is made out, as the
impugned order has been passed by the authority, and in line with
the order passed by the Division Bench of this Court in Writ
Petition No.5895/2024 (PIL) dated 01.10.2015, and thus, the
provisions of Rule 29 of the CCA Rules of 1966 would not be
applicable as this Court had directed the authorities to review the
earlier order of punishment as it was found that the punishment
imposed upon the petitioner was insufficient; whereas in the second
order of punishment, the same penalty was imposed, and when it
was realized by the respondents that the same penalty would not be
the proper compliance of the order passed by the Division Bench of
this Court, a separate show cause notice was issued to the petitioner
and the penalty of dismissal has been imposed after giving due
opportunity of hearing to the petitioner.
8] Heard the learned counsel for the parties and also perused the
record.
10] On perusal of the documents filed on record, this Court finds
that admittedly, the petitioner was earlier punished vide order dated
29.6.2015, with the penalty of stoppage of increment with
cumulative effect for a period of one year, thereafter, the order
dated 01.10.2015, was passed by the Division Bench of this Court
in W.P. No. 5895/2014 , directing the Authorities to review the
earlier order. Thus, the second order of punishment was again
passed on 10.02.2016 imposing the same penalty of stoppage of
increment with cumulative effect for a period of one year, and
thereafter, a fresh show cause notice was issued to the petitioner on
13.07.2018, i.e., after a period of two years and five months,
whereas the power of review as provided under Rule 29 of the CCA
Rules of 1966 provides that the Appellate Authority, within six
months of the date of the order proposed to be reviewed, or
confirm, modify or set aside the order; and inter alia pass such
other orders as it may deem fit. Thus, the power of the appellate
authority to review an order is six months only and not beyond that.
11] So far as the decision rendered by the Division Bench of this
Court in the case of Omprakash Gupta and another (supra) is
concerned, relevant paras 18, 19 and 20 of the order read as
follows:-
"18. The provision contained in rule 29(1) of the Madhya
Pradesh Civil Services (Classification, Control and Appeal)
Rules, 1966, provides as under:
"29. (1) Notwithstanding anything contained in
these rules except rule II.--
(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 (xxx) 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. 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."
(emphasis supplied)
12] In view of the aforesaid decision of the Division Bench of
this Court, the respondent No.2/appellate authority (in W.P.
No.5895/2014) could not have reviewed the earlier order after six
months, and this Court is also of the considered opinion that had it
be an intention of the respondent to pass the fresh order to comply
with the order passed by the Division Bench of this Court in Writ
Petition No.5895/2014 (PIL) dated 01.10.2015, in that case, they
were required to seek proper clarification or extension of time of
the order dated 01.10.2015, because the respondents had already
complied with the aforesaid order while passing the second order of
punishment dated 10.02.2016, and thus, it was not open for the
respondents to review their earlier order in the garb of the order
passed by the Division Bench.
13] In view of the same, the impugned order 30.05.2019
(Annexure P/1) cannot be sustained in the eyes of law and is liable
to be and is hereby quashed. Resultantly, the respondents concerned
are also directed to reinstate the petitioner with all consequential
benefits within a period of four months from the date of receipt of
the certified copy of this order.
14] The Writ Petition stands allowed.
(SUBODH ABHYANKAR)
JUDGE
moni
