Vishnu Vs. State of M.P. and ors. - Court Judgment

Excerpt:
- constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. - learned counsel for the petitioner further submitted that since the enquiry report was not annexed with the show cause notice, therefore, the entire action is bad in law in view of the law laid down by the supreme court in the case of union of india and ors. learned counsel for the petitioner submitted the dies non causes a break in service and the past services are forfeited, therefore, the order dated 31.3.1999 is bad in law and cannot be sustained. this aspect of the matter has been well established after the decision of the supreme court in the matter of union of india and ors.s.k. seth, j.1. petitioner is aggrieved by the order dated 11.9.1998 passed by the commissioner, handlooms. petitioner is also aggrieved by the order dated 31.3.1999 and the order dated 30.5.2000. by the order dated 11.9.1998, a sum of rs. 25,276.66 has been ordered to be recovered from the dcrg payable to the petitioner. by order dated 31.3.1999, the absence from 7.9.1994 to 30.4.1996 has been regularised as dies non and by order dated 30.5.2000 it was communicated that as the period from 7.9.1994 to 30.4.1996 has been treated as dies non, therefore, petitioner is not entitled for the revised pay-scale w.e.f. 1.1.1996.2. relevant facts necessary for the disposal of the case are as under : at the relevant point of time petitioner was holding the post of senior inspector (handlooms). he was sent on deputation to work as officer-in-charge of the slate and pencil co-operative society limited, mandsaur. for certain irregularities committed by the petitioner, a regular departmental enquiry was instituted by issuing the charge-sheet on 17.8.1.994. after enquiry, the show cause notice dated 9.3.1998 was issued proposing to recover rs. 41,940/- as one-third amount of the financial loss (rs. 1,25,820/-) caused to the society. after getting the reply, by the order impugned dated 11.9.1998, commissioner after adjusting rs. 50,000/- came to the conclusion that society sustained a loss of rs. 75,820/- and one-third thereof should be recovered from the petitioner. the one-third amount comes to rs. 25,276.66. against the said punishment order, petitioner preferred a review, which was rejected by order dated 3.8.1999. petitioner retired from the government service on attaining the age of superannuation on 30.4.1996.3. learned counsel for the petitioner submitted that in view of the punishment order the pension papers of the petitioner has not been finalised and he is not getting the regular pension. learned counsel for the petitioner further submitted that since the enquiry report was not annexed with the show cause notice, therefore, the entire action is bad in law in view of the law laid down by the supreme court in the case of union of india and ors. v. mohd. ramzan khan, air 1991 sc 471. learned counsel for the petitioner further submitted that pension includes gratuity and in support of this contention he has placed reliance on the decision of the supreme court in the case of jarnail singh v. secretary, ministry of home affairs and ors., air 1994 sc 1484. he, therefore, contended that (he amount cannot be deducted or withheld without complying with the provisions contained in rule 9(2)(a) of the m.p. civil services (pension) rules, 1978. learned counsel for the petitioner further submitted that the order dated 31.3.1999 was passed without affording any opportunity of hearing and the absence from 7.9.1994 to 30.4.1996 has been treated as dies non. learned counsel for the petitioner submitted the dies non causes a break in service and the past services are forfeited, therefore, the order dated 31.3.1999 is bad in law and cannot be sustained. learned counsel for the petitioner further criticized the order dated 30.5.2000 refusing to extend the benefit of revised pay-scale to the petitioner, which has come into effect from 1.1.1996. lastly it is contended that 'ill date respondents have not finalised the pension case of the petitioner and the petitioner is getting meagre amount as anticipatory pension.after notice respondents have filed their reply and justified the action. the stand taken by the respondents in the reply is that since the recovery has been ordered from the dcrg, therefore, they are not required to comply with the rule 9 of the m.p. civil services (pension) rules, 1976.4. i have heard learned counsel for the parties at length and have gone through the material available on the record. undisputedly, no enquiry report was supplied to petitioner as is contemplated under the law. this aspect of the matter has been well established after the decision of the supreme court in the matter of union of india and ors. v. mohd. ramzan khan (supra). this petition can be allowed only on this short ground as also on the ground that no opportunity of hearing was given to the petitioner before passing the order dated 31.3.1999. similarly, the order dated 30.5.2000 is also unsustainable. accordingly, they are hereby quashed. normally matter would have been remanded back to the disciplinary authority to proceed in the matter in accordance with law but at this stage shri a.k. sethi, learned counsel appearing for the petitioner made a statement at the bar that petitioner is ready and willing to accept the retiral dues after deducting a sum of rs. 25,276.66 paise so that he can avoid further litigation and his pension case can be finalised at an early date.5. in view of the statement of shri sethi, respondents are directed to finalise the pension papers of the petitioner in accordance with law within a period of six weeks from the date of communication of the order. shri sethi, learned counsel appearing for the petitioner also submitted that petitioner had submitted leave applications for the regularisation of his absence from 7.9.1994 to 30.4.1996. respondents shall take up those applications and pass appropriate orders in accordance with law. thereafter, respondents shall also consider the relaxation of salary of the petitioner in the revised pay-scale which was introduced w.e.f. 1.1.1996 and work out his pension case.6. in view of the foregoing discussion, this writ petition is allowed. impugned orders are hereby quashed, however, there shall be no orders, as to costs.