Full Judgment
1 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR.
W.P.No.7462/2007 Pramod Kumar Mishra.
-Versus- Madhya Pradesh Power Generating Co.LTD.and otheRs.PRESENT : Hon’ble Shri Justice K.K.Trivedi.
Shri K.C.Ghildiyal, learned counsel for the petitioner.
Shri Anoop Nair, learned counsel for respondents.
ORDER
(20.11.2012) 1: This writ petition has been filed challenging the order of termination from service issued after a departmental enquiry by the disciplinary authority on 18.12.2006 as also the order dated 16.5.2007, by which the appeal filed by the petitioner has been dismissed by the appellate authority.
It is contended that a charge sheet was issued to the petitioner and a departmental enquiry was conducted after obtaining his reply.
A second show cause notice was issued to the petitioner after the receipt of the enquiry report by the disciplinary authority of which a reply was filed by the petitioner.
However, the reply submitted by the petitioner was not taken into consideration and without giving reasons, the order impugned was issued on 18.12.2006 terminating the services of the petitioner.
Such an order was assailed in appeal filed before 2 the Additional Secretary of the respondents, but the said appeal has also been dismissed without considering the grounds raised by the petitioner in the memo of appeal.
It is contended that the enquiry was not rightly conducted and, as such, no punishment whatsoever could be imposed on the petitioner.
The reliefs are claimed to the effect that after the quashment of the order impugned, the respondents be commanded to reinstate the petitioner in service with all the consequential benefits.
2: The respondents have filed their return and have contended that the enquiry was rightly conducted against the petitioner.
There were allegations of financial irregularities made against the petitioner.
Earlier a show cause notice was issued to the petitioner which was sought to be challenged in a writ petition before this Court, but subsequently the said show cause notice was withdrawn and, accordingly, the writ petition was dismissed as infructuous.
The petitioner had taken part in the departmental enquiry, was given the full opportunity of defence and this fact he has categorically accepted by making a declaration in a certificate on 4.6.2003.
It is contended that the material evidence was examined by the disciplinary authority and since it was found that the petitioner has embezzled the funds of the respondents, the penalty of termination from service was imposed on the petitioner.
It is contended that such facts were already considered by the appellate authority while deciding the appeal and since the appeal of the petitioner has been dismissed, no interference in the order impugned is called for.
It is contended that the petition being misconceived is liable to be dismissed.
3: After hearing learned counsel for the parties at length and going through the records, it transpired that the petitioner has raised various grounds in his memo of appeal, but the 3 appellate authority has not considered the appeal of the petitioner objectively in terms of the provisions of Rule 27 of the M.P.Civil Services (Classification, Control & Appeal) Rules, 1966 (hereinafter referred to as the Rules for short).It is categorically contended by the respondents that such Rules are applicable in the establishment of the respondents.
This being so, it was necessary on the part of the appellate authority to decide the appeal of the petitioner in the manner indicated in Rule 27 of the Rules.
However, the appellate order says nothing except that after going through the memo of appeal and considering the record made available to the appellate authority, it has been decided to reject the appeal of the petitioner.
This is not the right manner of consideration of appeal by the appellate authority as prescribed under the Rules aforesaid.
In fact, the appellate authority is required to consider the appeal against the order of punishment in terms of the provisions of Rule 27(2) of the Rules which read thus :- “27(2).In the case of an appeal against an order imposing any of the penalties specified in rule 10 or enhancing any penalty imposed under the said rule, the appellate authority shall consider,- (a) whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice; (b) whether the findings of the disciplinary authority are warranted by the evidence on the records; and (c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe, and pass ordeRs.(i) confirming, enhancing, reducing or setting aside the penalty; or (ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case.”
4: A perusal of order Annx.P/1 dated 16.5.2007 passed in the appeal of the petitioner makes it clear that the same has 4 been issued in complete non-compliance of the statutory provisions of Rule 27(2) of the Rules.
Such an order cannot be sustained in the eye of law.
5: Resultantly, this writ petition succeeds in part.
The order dated 16.5.2007 passed by the appellate authority of the respondents is, hereby, quashed.
The matter is remitted back to the appellate authority to consider the appeal of the petitioner afresh strictly in terms of the provisions of Sub-rule (2) of Rule 27 of the Rules and to pass speaking order, if necessary, after affording an opportunity of hearing to the petitioner, within a period of three months from the date of receipt of certified copy of the order passed today.
The order so passed on the appeal of the petitioner be communicated to him within the aforesaid period.
6: With the aforesaid, the writ petition stands allowed to the extent indicated herein above.
There shall be no order as to costs.
(K.K.Trivedi) Judge 20/11/2012 A.Praj.