N.S.Bundela Vs. Chairman,m.P.E.B. and ors. - Court Judgment

1 HIGH COURT OF MADHYA PRADESH : JABALPUR WRIT PETITION No.5267/2000 N.S. Bundela Vs. Chairman, M.P. Electricity Board & others ____________________________________________________________ Shri Akash Choudhary, learned Counsel for the petitioner. Shri Anoop Nair, learned Counsel for the respondents. ____________________________________________________________ Present : Hon’ble Shri Justice K.K. Trivedi ____________________________________________________________ ORDER

(13.12.2012) By filing this writ petition under Article 226 of the Constitution of India, the petitioner has called in question the order dated 17.03.1999 (Annexure P-1) by which penalty of withholding of one increment of pay with cumulative effect has been imposed on the petitioner after a departmental enquiry and the order dated 07.04.2000 (Annexure P-2) by which the appeal preferred by the petitioner against the order of penalty has been dismissed. It is contended that earlier a show cause notice was given to the petitioner making the allegation that on account of his lapses, respondents have suffered a loss of Rs.4,000/- and, therefore, for the said misconduct of the petitioner, action was required to be taken under Rule 16 of the M.P. Civil Services (Classification, Control & Appeal) Rules, 1966 (herein referred to as 'Rules'). After receiving reply to the show cause, penalty of withholding of one increment of pay with cumulative effect was imposed vide order dated 17.10.1996. This order was called in question by the 2 petitioner by filing W.P. No.749/1997 before this Court on the ground that the penalty of withholding of one increment of pay with cumulative effect is a major penalty and the same cannot be inflicted without holding the departmental enquiry as prescribed under Rule 14 of the Rules. This Court by passing an order in the writ petition quashed the order of penalty and remitted back the matter to the respondents to initiate the departmental enquiry against the petitioner in accordance to law. The charge-sheet was issued to the petitioner thereafter on 23.08.1997 of which a reply was submitted by him. In the meanwhile, a show cause notice was given to one Devanand Malviya, Junior Engineer, on 30th August, 1996 making the allegation that because of his lapses, despite the communication about the failure of the transformer, the Board has suffered the loss. It was contended by the petitioner in his response to the charge-sheet that such a charge could not have been levelled against the petitioner as the only charge against the petitioner was that he has not informed the aforesaid Devanand Malviya about the failure of the transformer. However, despite filing of the reply to the charge-sheet, the order of penalty was issued on 17.03.1999. This order was called in question by filing an appeal but the same has been dismissed on 07.04.2000, therefore, the writ petition is required to be filed.

2. It is contended by the petitioner that while he was working as Junior Engineer at Khargone, an information was given that a transformer put by the respondents had failed. The petitioner immediately informed the Junior Engineer, incharge, to take action and to lift the transformer from the spot. Despite sending this information, nothing was done by the said person and after about six months, the 3 transformer was retrieved. Since the transformer remained on the spot unattended, a theft was committed by some of the persons of nearby area and a loss of Rs.4,000/- was caused to the respondents. In view of this, earlier the show cause was issued to the petitioner and subsequently, the charge-sheet was given. In reply to the charge-sheet, the petitioner has categorically stated that the charge-sheet could not have been issued to the petitioner making such allegation when specifically the show cause was given to Shri Devanand Malviya, Junior Engineer, about the receipt of the information sent by the petitioner with respect to the aforesaid transformer and as such no such misconduct was committed by the petitioner. If said Devanand Malviya was let out with only a warning, no allegation of misconduct could have been levelled against the petitioner. However, despite making these submissions, the enquiry officer or even the disciplinary authority, which infact is the same authority in the case of the petitioner as well as in the case of Devanand Malviya, had taken no steps to verify this fact. It is contended that when the punishment order was challenged, in the memo of appeal also the petitioner has categorically raised this ground but even the appellate authority has not taken care of such a vitally important ground and as such the orders impugned are bad in law and are liable to be quashed.

3. Per contra it is contended by the respondents by filing a return that the petitioner was called upon to submit his response to the charge-sheet, which he did. However, the petitioner did not appear in the enquiry at all. Nothing was brought to the notice of the enquiry officer. After obtaining the report on the enquiry conducted against the petitioner, a second show cause notice was issued to him. In view of 4 these facts, if an order is passed by the competent authority holding the petitioner guilty of misconduct, no interference in the order of penalty is called for. It is also contended that the appeal preferred by the petitioner was considered in terms of the provisions of the Rules and as the appellate authority has given the definite opinion that the findings recorded by the disciplinary authority with respect to the misconduct of the petitioner are correct, the appellate authority has also rightly rejected the appeal of the petitioner. In view of these facts, it is contended that the power of judicial review to be exercised in exceptional circumstances in exercise of extraordinary power under Article 226 of the Constitution is not required to be invoked by this Court in the controversy involved in this petition and the writ petition being devoid of any substance, deserves dismissal.

4. Heard learned Counsel for the parties at length and perused the record.

5. Undisputedly the enquiry against the petitioner was conducted under the Rules. Rule 14 of the Rules specifically prescribes issuance of the definite charge-sheet. The statements of imputation of allegations, the list of witnesses and the list of documents on the basis of which charges are required to be proved, are to be supplied to the delinquent employee. In none other than the definite words, the charges are required to be framed. The charge-sheet (Annexure P-10) indicates that a definite charge was framed against the petitioner that he committed misconduct by not informing about the failure of the transformer to the concerning authority and this fact was deliberately concealed by him that the transformer was failed of which 5 the complaint was received by him. It was said in definite words that on account of misconduct of the petitioner of not informing about failure of the transformer, the transformer remained on the spot for a period of 8 moths in an insecure condition. Since a theft was committed by the villagers, a loss of Rs.4,000/- was caused to the respondents. Panchnama of the same was prepared and an F.I.R. was recorded on 26.02.1996. For proving the said misconduct, witnesses were referred, one of whom was Devanand Malviya, Junior Engineer, posted in this area. The defence taken by the petitioner was that he did inform about the failure of the transformer immediately by sending savingram, a copy of which is placed on record as Annexure P-4. Thus, it was contended by the petitioner that he in fact informed the immediate officer responsible to look after the failed transformer and thereby he has committed no misconduct.

6. The show cause notice was issued to Devanand Malviya on 30th August, 1996 by the very same Superintending Engineer. The said person has categorically levelled the allegation against Devanand Malviya that the information on 17.10.1995 was sent by the previously posted Junior Engineer (obviously the present petitioner) by sending a savingram to said Shri Malviya but he did not take any step to lift the transformer from the spot immediately, on the other hand, because of his inaction, the transformer remained on the spot up to 20.06.1996 and in between a theft was committed by the villagers. It was alleged against said Devanand Malviya as well that loss of Rs.4,000/- was caused to the respondents. If this was the allegation made against Devanand Malviya that despite receipt of information from the earlier Junior Engineer (obviously the 6 present petitioner) about the failure of the transformer, he had not taken any steps to lift the failed transformer, how could the charge be levelled against the petitioner that he has not sent such information in this respect, is not understood by this Court. In fact the enquiry officer has not dwelled upon such particular vitally important aspect and has given no finding in this respect as nothing has been placed on record by the respondents with respect to conduct of such enquiry. By no stretch of imagination even this could be said that the charge made against the petitioner was proved. Accordingly, this Court will have no hesitation in holding that in fact the charge-sheet issued to the petitioner itself was vague and meaningless. No enquiry whatsoever should have been conducted on the basis of such a charge-sheet against the petitioner, much less to say, to impose punishment of withholding of one increment of pay with cumulative effect.

7. In the aforesaid circumstances, such an objection raised by the respondents that the extraordinary power under Article 226 of the Constitution of India cannot be exercised by this Court to judicially review the order passed by the disciplinary authority or the appellate authority, cannot be sustained. In fact the enquiry itself was not conducted against the petitioner in appropriate manner in terms of the provisions of the Rules referred herein above. Similarly, the appeal preferred by the petitioner where specific grounds were raised with respect to making of such a charge against him without there being any cogent evidence, was not looked into by the appellate authority. The appeal against the order of penalty is required to be considered in terms of the provisions of Rule 27 of the Rules. Each and every ground raised in the memo of appeal 7 is required to be dealt with properly by the appellate authority and reasoned finding is required to be recorded. The appeals provided under the Rules are the statutory appeals and are required to be decided in the manner indicated in the Rules. The order passed by the appellate authority nowhere indicates that such a vitally important ground taken by the petitioner in his memo of appeal was looked into, considered or decided. Therefore, even the appellate authority of the respondents failed to discharge its obligations as per the Rules.

8. In view of the aforesaid discussion, the petition deserves to be and is hereby allowed. The orders dated 17.03.1999 (Annexure P-1) and 07.04.2000 (Annexure P-2) are hereby quashed. The charge-sheet issued to the petitioner also stands quashed. The petitioner would be entitled to the entire benefit of the increment withheld, which is required to be paid to him within a period of two months from the date of order.

9. The writ petition is allowed to the extent indicated herein above. However, there shall be no order as to costs. (K.K. Trivedi) Judge Skc