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2012 Supreme(MP) 455
IN THE HIGH OF MADHYA PRADESH
K.K. Trivedi, J.
M.M. Mudgal v. State of M.P. and others
Writ Petition No.16132 of 2003 (Jabalpur);
Decided on 24.8.2012.
Petitioner in person;
Samdarshi Tiwari, Government Advocate for respondent/State.
Headnote:(1) Civil Services (Classification, Control and Appeal) Rules, 1966 (M.P.) -- Rr.14, 16 and 27 -- punishment of withholding of one increment of pay with cumulative effect -- cannot be imposed without complying due procedure -- mere show cause notice not sufficient -- appellate authority competent to confirm, enhance, reduce or set aside the penalty -- order of appellate authority quashed in absence of the same -- matter remitted back to reconsider the appeal.
Held : The appellate authority is required to examine whether the procedure laid down in the rules has been complied with and if not, whether such non-compliance has resulted in violation of any provision of the Constitution of India or in the failure of justice. The appellate authority was required to examine whether the penalty of withholding of one increment of pay with cumulative effect could be imposed on the petitioner or not, by giving him a show cause only and not conducting a detailed enquiry as has been held by the apex Court in the case of Kulwant Singh Gill (supra). The entire order passed by the appellate authority as contained in Annexure A-1 indicates nothing except that the Tribunal has remitted back the matter to the appellate authority with a direction that the appeal of the petitioner be decided on merits. The appellate authority has not examined whether the penalty of withholding of one increment of pay with cumulative effect was justified or not. The appellate authority is competent authority to confirm, enhance, reduce or set aside the penalty. Since this has not been done, in the considered opinion of this Court, the appellate authority has not rightly decided the appeal of the petitioner.
Consequently, this writ petition is allowed to the extent that the order of the appellate authority dated 27.5.2000 (Annexure A-1) is quashed. The matter is remitted back to the appellate authority to re-consider the appeal of the petitioner after extending an opportunity of hearing to him and to decide the appeal of the petitioner afresh. 1991 Supp.(1) SCC 504 followed.
(2) Constitution of India -- Art.226/227 -- pleas in writ petition which could be raised but not raised -- cannot be permitted to be re-raised. [Para 8
¼1½ flfoy lsok ¼oxhZdj.k] fu;a=.k rFkk vihy½ fu;e 1966 ¼e-iz-½ & fu-14] 16 rFkk 27 & lap;h izHkko ls ,d osruo`f) jksdus dk naM & lE;d~ izfdz;k dk vuqikyu fd, fcuk vf/kjksfir ugha fd;k tk ldrk & ek= dkj.k crkvks lwpuk i;kZIr ugha & vihy izkf/kdkjh ‘kkfLr iq”V djus] o`f) djus] de djus ;k vikLr djus esa l{ke & blds vHkko esa vihy izkf/kdkjh dk vkns’k vfHk[kafMr & vihy ij iqufoZpkj ds fy, ekeyk okil Hkstk x;kA
vfHkfu/kkZfjr % vihy izkf/kdkjh ls bldh ijh{kk djuk visf{kr gS fd D;k fu;eksa esa vf/kdfFkr izfdz;k dk vuqikyu fd;k x;k rFkk ;fn ugha rks D;k ;g vuuqikyu Hkkjr ds lafo/kku ds fdlh mica/k ds vfrdze.k esa ;k U;k; dh vlQyrk esa ifj.kkfer gqvkA vihy izkf/kdkjh ls bldh ijh{kk djuk visf{kr Fkk fd D;k ;kph ij mls dsoy dkj.k crkvks nsdj rFkk dqyoar flag fxy ¼iwoksZDr½] ds ekeys esa mPpre U;k;ky; )kjk ;Fkk vfHkfu/kkZfjr foLr`r tk¡p u dj lap;h izHkko ls ,d osruo`f) jksdus dh ‘kkfLr vf/kjksfir dh tk ldrh Fkh ;k ughaA mikca/k ,&1 esa ;Fkk varfoZ”V vihy izkf/kdkjh )kjk ikfjr laiw.kZ vkns’k ls blds flok dqN Hkh minf’kZr ugha gksrk fd vf/kdj.k us ekeys dks vihy izkf/kdkjh ds ikl bl funs’k ds lkFk okil Hkstk fd ;kph dh vihy xq.kkxq.k ds vk/kkj ij fofu’pr dh tk,A vihy izkf/kdkjh us bldh ijh{kk ugha dh fd D;k lap;h izHkko ls ,d osruo`f) jksdus dh ‘kkfLr U;k;laxr Fkh ;k ughaA vihy izkf/kdkjh ‘kkfLr iq”V djus] o`f) djus] de djus ;k vikLr djus ds fy, l{ke izkf/kdkjh gSA D;ksafd ,slk ugha fd;k x;k gS] bl U;k;ky; dh lqfopkfjr jk; esa vihy izkf/kdkjh us ;kph dh vihy dk fofu’p; Bhd izdkj ls ugha fd;k gSA
ifj.kkeLo:i] ;g vihy bl foLrkj rd eatwj dh tkrh gS fd vihy izkf/kdkjh dk vkns’k fnukad 27-5-2000 ¼mikca/k ,&1½ vfHk[kafMr fd;k tkrk gSA ekeyk ;kph dks lquokbZ dk volj nsus ds i’pkr~ mldh vihy ij iqufoZpkj djus rFkk ;kph dh vihy dk u, fljs ls fofu’p; djus ds fy, vihy izkf/kdkjh dks okil Hkstk tkrk gSA 1991 lIyh- ¼1½ ,l lh lh 504 vuqlfjrA
¼2½ Hkkjr dk lafo/kku & vuqPNsn 226 ,oa 227 & fjV ;kfpdk esa tks vfHkokd~ mBk, tk ldrs Fks ijarq ugha mBk, x, & iqu% mBk, tkus dh vuqKk ugha nh tk ldrhA
¼iSjk 8½
1. This petition was initially filed as O.A. No.5341/2000 before the M.P. State Administrative Tribunal, Jabalpur by the petitioner, who is a retired Deputy Collector, challenging the validity of the order dated 27.5.2000 by which the appeal of the petitioner against the order of punishment has been dismissed on the various grounds. Many reliefs have been claimed by the petitioner, as enumerated in paragraph 9 of the petition. The petition has been transferred to this Court on abolition of the M.P. State Administrative Tribunal and is registered as writ petition.
2. Brief facts giving rise to filing of this petition are that the petitioner was working on the post of Deputy Collector and has superannuated from service on 31.7.1995. Previously the petitioner was posted at Jabalpur and was transferred on the post of Land Acquisition Officer in Ban Sagar Project, Rewa. The said posting was done on deputation in the Water Resources Department. The order of posting was issued on 2.7.1988, pursuant to which the petitioner gave his joining at Rewa on 1.8.1988. It is contended by the petitioner that since he was suffering from Sciatica and was not in a position to move freely, was not in a position to travel in the rural areas for the purposes of discharge of his duty as Land Acquisition Officer, he moved an application for his shifting in the office and since his application was not considered, he was left with no option but to proceed on medical leave. The petitioner submitted the leave applictions with medical certificate and did not join the duties till an order was issued re-transferring him to Jabalpur on 23.11.1989. Pursuant to the said order, the petitioner gave his joining at Jabalpur on 31.11.1989. The period of leave of the petitioner was not being regularized, therefore, certain correspondence was done by him. Thereafter, a show cause notice was issued to him on 15.7.1991 alleging that the petitioner has not discharged any duties after the joining at Rewa and thereby had committed misconduct by not rejoining at the place of posting from where he was re-transferred to Jabalpur and without even handing over the charge at Rewa, he joined at Jabalpur. It was alleged that such act of the petitioner was a misconduct as prescribed in rule 3 of the M.P. Civil Services (Conduct) Rules, 1965 and the State Government has decided to impose a punishment of withholding of one increment of pay with cumulative effect. The said show cause was issued to the petitioner under rule 16 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as ‘Rules’).
3. It is the contention of the petitioner that on receipt of the show cause notice, he filed his reply on 2nd August, 1991 but instead of considering the reply of the petitioner in appropriate manner, by order dated 10.9.1993, with the concurrence of the Public Service Commission, penalty of withholding of one increment of pay with cumulative effect was imposed on the petitioner. An appeal was preferred by the petitioner against the said order but since the appeal was not being decided, he was left with no option but to file an original application before the M.P. State Administrative Tribunal, which was registered as O.A. No.249/1996. The said original application came to be decided on 4.5.1999. While not disturbing the order of punishment, the Tribunal remanded back the matter to the appellate authority with a direction to decide the appeal of the petitioner by a speaking order within a period of three months. Despite passing of a said order, the appeal of the petitioner was not properly decided and since the same was dismissed by the order impugned, the original application was against filed, which has been transmitted to this Court and is registered as writ petition.
4. In response to the notice of the original application, a return has been filed by the respondents and it is contended that the punishment was rightly imposed on the petitioner. It
