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2007(6) Supreme 172
Supreme Court of india
(From Madhya Pradesh High Court)
Dr. Arijit Pasayat & D.K. Jain, JJ.
M.P. State Agro Industries Development Corporation Ltd. & Anr. — Petitioners
versus
Jahan Khan — Resondent
Appeal (civil) 4041-4042 of 2007
(Arising out of SLP (C) Nos. 14853-14854 of 2005)
Decided on : 05-09-2007
(b)Service Law – Punishment – Having regard to the nature of acts of omission and commission, the punishment prescribed for minor lapses, and delinquencies, ostensibly not having perpetual effect, have been made non-appealable in comparison to the punishments for acts of misconduct having perpetual effect and characterized as major punishments. (Para 8)
(c)Service Law – Punishment – The penalty imposed on the respondent being a major penalty, called for a regular enquiry – This having not been done, High Court was right in quashing the same as vitiated by non-observance of principles of natural justice and being without jurisdiction. (Para 9)
(d)Constitution of India – Article 226 – Alternative remedy – The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion – In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged – In these circumstances, an alternative remedy does not operate as a bar. (Para 10)
Facts of the case :
While working as the Branch Manager of the Corporation at its Satna Branch, the respondent entered into an agreement for letting out some machinery belonging to the Corporation, to one M/s. Universal Construction Company. It was alleged that the respondent failed to recover the rent/charges under the said agreement and thereby caused loss to the Corporation. Consequently, a notice was issued to the respondent to show cause as to why the loss of Rs.16,903.41 caused to the Corporation due to dereliction of duty on account of non-recovery of the estimated amount of rent and the interest be not recovered from him and a penalty of stoppage of three increments with cumulative effect be not imposed. In his reply to the show cause notice, the respondent, inter alia, stated that since he had been transferred from the said Branch and his successor had not taken any steps to recover rent etc. from the said Company, he was not responsible for the loss caused to the Corporation. The disciplinary authority, found the explanation to be unsatisfactory. He observed that the respondent had let out the machinery contrary to the instructions from the Headquarters as a result whereof the Corporation had suffered financial loss of the aforesaid amount. Accordingly, vide a composite order dated 19th December, 1989, he directed the recovery of Rs.16,903.41 from the salary of the respondent at 20% per month and stoppage of three increments with cumulative effect.
Being aggrieved, the respondent challenged the order by way of a writ petition filed under Articles 226/227 of the Constitution mainly on the ground that the penalty of stoppage of three increments with cumulative effect being a major penalty, it could not be imposed without holding a regular departmental enquiry as per the procedure laid down for imposition of a major penalty. The plea found favour with the High Court. Accordingly, the order passed by the disciplinary authority was quashed. Nevertheless, leave was granted to the Corporation to proceed against the respondent, if so advised. Not being satisfied with the order, the Corporation moved an application for review of the said order but without any success.
Findings of the Court :
The penalty imposed being major one, called for regular enquiry. This having not been done, the order was vitiated by non-observance of principles of natural justice and being without jurisdiction.
Result : Appeals dismissed.
JUDGMENT
D.K. JAIN, J.—
Leave granted.
1.The M.P. State Agro Industries Development Corporation (hereinafter referred to as ‘the Corporation’) has preferred these appeals, questioning the correctness of the two orders dated 4th August, 2003 and 19th January, 2005 passed by the learned Single Judge of the High Court of Judicature at Jabalpur, in a writ petition filed by one of its employees’ (the respondent herein), and the review application filed by the Corporation respectively. By the former order, the High Court has set aside order dated 19th December, 1989 passed by the Managing Director, in his capacity as the disciplinary authority of the Corporation, imposing a penalty on the respondent in the form of recovery of an amount equivalent to the monetary loss suffered by the Corporation and stoppage of three increments with cumulative effect. By the latter order, the High Court has dismissed the application for review filed by the Corporation.
2.A few material facts, giving rise to the appeals, are as follows :
“While working as the Branch Manager of the Corporation at its Satna Branch, the respondent entered into an agreement for letting out some machinery belonging to the Corporation, to one M/s. Universal Construction Company. It was alleged that the respondent failed to recover the rent/charges under the said agreement and thereby caused loss to the Corporation. Consequently, a notice was issued to the respondent to show cause as to why the loss of Rs.16,903.41 caused to the Corporation due to dereliction of duty on account of non-recovery of the estimated amount of rent and the interest be not recovered from him and a penalty of stoppage of three increments with cumulative effect be not imposed. In his reply to the show cause notice, the respondent, inter alia, stated that since he had been transferred from the said Branch and his successor had not taken any steps to recover rent etc. from the said Company, he was not responsible for the loss caused to the Corporation. The disciplinary authority, found the explanation to be unsatisfactory. He observed that the respondent had let out the machinery contrary to the instructions from the Headquarters as a result whereof the Corporation had suffered financial loss of the aforesaid amount. Accordingly, vide a composite order dated 19th December, 1989, he directed the recovery of Rs.16,903.41 from the salary of the respondent at 20% per month and stoppage of three increments with cumulative effect.
3.Being aggrieved, the respondent challenged the order by way of a writ petition filed under Articles 226/227 of the Constitution mainly on the ground that the penalty of stoppage of three increments with cumulative effect being a major penalty, it could not be imposed without holding a regular departmental enquiry as per the procedure laid down for imposition of a major penalty. The plea found favour with the High Court. The High Court was of the view that as per the Rules/Regulations, the stoppage of three increments with cumulative effect was a major penalty and, therefore, could not be imposed without holding a proper enquiry. Accordingly, the order passed by the disciplinary authority was quashed. Nevertheless, leave was granted to the Corporation to proceed against the respondent, if so advised. Not being satisfied with the order, the Corporation moved an application for review of the said order but without any success. As noted above, both the said orders are under challenge in these appeals.
4.Learned counsel for the Corporation has submitted that under M.P. State Agro Industries Development Corporation Limited Service (Recruitment and Selection) Regulations of 1976 (for short ‘the Regulations’), punishment of stoppage of increments with cumulative effect is a minor penalty and, therefore, no regular enquiry is contemplated thereunder. It is contended that the High Court, lost sight of the relevant Regulations and going by the general notions, without referring to any other statu
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