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2012 Supreme(MP) 371
IN THE HIGH OF MADHYA PRADESH
Rajendra Menon, J.
Duli Chand Kumar (Dr.) v. State of M.P. and another
Writ Petition(S) No.2612 of 2005 (Jabalpur);
Decided on 3.7.2012.
Akash Choudhary for petitioner;
B.P. Pandey, Deputy Government Advocate for respondent.
Headnote:(1) Civil Services (Classification, Control and Appeal) Rules, 1966 (M.P.) -- R.14 -- application for leave -- not considered -- employee remained absent for period of 274 days -- without any inquiry -- order passed treating entire period as ‘dies non’ -- such order quashed in writ petition on technical ground -- after order in writ petition -- fresh charge-sheet issued -- department is free to issue such charge-sheet -- no interference called for.
It is clear that the order passed by this Court on 15.7.2004 interfering with the order of ‘dies non’ dated 6.9.1997 was not on merits, it was on technical grounds that the action was taken without notice to the petitioner, without hearing him and without conducting an inquiry. Once an order is quashed on the grounds of non-grant of opportunity or breach of procedural irregularities, there is no necessity for the Court to grant any liberty to the employer concerned. The law permits the employer to proceed further in the matter in accordance to law until and unless the impugned decision on merits is interfered with by this Court. (1993)4 SCC 727 followed.
(2) Civil Services (Classification, Control and Appeal) Rules, 1966 (M.P.) -- R.14 -- delay in issuing charge-sheet -- effect of -- initial action against employee -- taken in the year 1997 -- such action challenged by employee -- from 1997 upto 15.7.2004 matter pending before High Court -- charge-sheet issued within six months after decision of High Court -- such delay is not inordinate and unexplained delay -- no interference called for on ground of delay.
Initially when on 6.9.1997 action was taken by the employer, petitioner challenged the said action in the year 1997 and from 1997 upto 15.7.2004 the matter was pending before this Court. It was only on 15.7.2004 that the matter was decided and within a period of six months thereof after completing the requisite administrative formalities the impugned charge-sheet is issued on 12.4.2005. That being so, it is a case where there is no inordinate, unexplained delay on the part of the respondents. 2006(3) JLJ 176 (SC) followed. 1990 JLJ 319 (SC), 1997(2) JLJ 28 and 2001(2) MPLJ 54 referred to.
(3) Civil Services (Classification, Control and Appeal) Rules, 1966 (M.P.) -- R.14 -- employee remained absent for a period of 274 days -- charge-sheet issued against him -- merely granting higher pay-scale or promotion -- it does not mean that misconduct is condoned -- department is free to proceed in the matter in accordance with law. [Para 8
¼1½ flfoy lsok ¼oxhZdj.k] fu;a=.k rFkk vihy½ fu;e] 1966 ¼e-iz-½ && fu-14 && NqV~Vh ds fy, vkosnu && fopkj ugha fd;k x;k && deZpkjh 274 fnol dh dkykof/k ds fy, vuqifLFkr jgk && fcuk fdlh tk¡p ds && dqy dkykof/k ^vdk;Z fnu* ekudj vkns’k ikfjr && ,slk vkns’k fjV ;kfpdk esa rduhdh vk/kkj ij vikLr && fjV ;kfpdk esa vkns’k ds i’pkr~ && uohu vkjksi&i= tkjh fd;k x;k && foHkkx ,slk vkjksi&i= tkjh djus ds fy, Lora= gS && gLr{ksi visf{kr ughaA
;g Li”V gS fd ^vdk;Z fnu* ds vkns’k fnukad 6-9-1997 esa gLr{ksi dj bl U;k;ky; }kjk 15-7-2004 dks ikfjr vkns’k xq.kkxq.k ij ugha Fkk] ;g rduhdh vk/kkjksa ij Fkk fd ;kph dks lwpuk&i= fn, fcuk] mls lqus fcuk rFkk fcuk tk¡p fd, dk;Zokgh dh xbZ FkhA tc ,d ckj volj iznku u djus ;k izfdz;kRed vfu;ferrkvksa ds Hkax ds vk/kkj ij vkns’k vikLr fd;k x;k gS] U;k;ky; ds fy, lacaf/kr fu;ksDrk dks fdlh izdkj dh Lora=rk iznku djus dh vko’;drk ughaA tc rd fd bl U;k;yk; }kjk vk{ksfir fu.kZ; esa xq.kkxq.k ij gLr{ksi u fd;k gks fof/k fu;ksDrk dks ekeys esa fof/k ds vuqlkj vfxze dk;Zokgh djus ds fy, vuqer djrh gSA ¼1993½4 ,l lh lh 727 vuqlfjrA
¼2½ flfoy lsok ¼oxhZdj.k] fu;a=.k rFkk vihy½ fu;e] 1966 ¼e-iz-½ && fu-14 && vkjksi&i= tkjh djus esa foyac && dk izHkko && deZpkjh ds fo:) izkjafHkd dk;Zokgh && o”kZ 1997 esa dh xbZ && deZpkjh }kjk ,slh dk;Zokgh vk{ksfir dh xbZ && 1997 ls 15-7-2004 rd ekeyk mPp U;k;ky; esa yafcr && mPp U;k;ky; ds fu.kZ; ds i’pkr~ Ng ekl ds Hkhrj vkjksi&i= tkjh fd;k x;k && ,slk foyac vR;f/kd rFkk vLi”Vhd`r foyac ugha gS && foyac ds vk/kkj ij gLr{ksi visf{kr ughaA
fu;ksDrk }kjk tc 6-9-1997 dks izkjafHkd :i ls dk;Zokgh dh xbZ Fkh] ;kph }kjk ml dk;Zokgh dks o”kZ 1997 esa vk{ksfir fd;k x;k rFkk 1997 ls 15-7-2004 rd ekeyk bl U;k;ky; ds le{k yafcr jgkA ;g dsoy 15-7-2004 Fkk] fd ekeys dk fofu’p;u fd;k x;k rFkk mlds Ng ekl dh dkykof/k ds i’pkr~ visf{kr iz’kkldh; vkSipkfjdrk,¡ iw.kZ djus ds i’pkr~ 12-4-2005 dks vk{ksfir vkjksi&i= tkjh fd;k x;kA bl dkj.k ls] ;g ,d ,slk ekeyk gS tgk¡ izR;FkhZx.k dh vksj ls vR;f/kd] vLi”Vhd`r foyac ugha gSA 2006¼3½ ts ,y ts 176 ¼mPpre U;k-½ vuqlfjrA 1990 ts ,y ts 319 ¼mPpre U;k-½] 1997¼2½ ts ,y ts 28 rFkk 2012¼2½ ,e ih ,y ts 54 fufnZ”VA
¼3½ flfoy lsok ¼oxhZdj.k] fu;a=.k rFkk vihy½ fu;e] 1966 ¼e-iz-½ && fu-14 && deZpkjh 274 fnol dh dkykof/k ds fy, vuqifLFkr jgk && mlds fo:) vkjksi&i= tkjh fd;k x;k && dsoy ek= mPpre osrueku ;k inksUufr djuk && bldk ;g vFkZ ugha gksrk fd nqjkpj.k ekQ dj fn;k gS && foHkkx ekeys esa fof/k ds vuqlkj dk;Zokgh djus ds fy, Lora= gSA ¼iSjk 8
1. Seeking quashment of a charge-sheet issued to the petitioner on 12.4.2005, proposing to conduct an inquiry as contemplated under rule 14 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as ‘Rules of 1966’), petitioner has filed this writ petition.
2. Petitioner was working as an Assistant Surgeon and was posted in the Jail Hospital at Jabalpur. According to the petitioner, he was suffering from ‘acute rheumatic arthritis’ and, therefore, was unable to perform his duties properly. According to him in the year 1990-91, he submitted application for leave in the prescribed proforma for the period from 8.8.1990 to 31.11.1990 total 115 days, and thereafter from 1.9.1991 to 24.11.1991 total 85 days. Similarly, he sought leave for 274 days during the period 1.12.1990 to 31.8.1991. Applications in this regard are filed as Annexures P-1, P-2 and P-3. It is the case of the petitioner that the applications were not decided by the competent authority inspite of recommendations made by the Superintendent Central Jail, Jabalpur vide Annexure P-4, but all of a sudden the entire period was treated as ‘dies non’ and an order was passed on 6.9.1997 vide Annexure P-7, treating the entire period of 476 working day as ‘dies non’ on the ground that petitioner was on unauthorized leave. This order dated 6.9.1997 Annexure P-7 was challenged by the petitioner by initiating proceedings under section 19 of the Administrative Tribunal Act, 1985 before the State Administrative Tribunal in O.A. No.2302/1998 and after winding up of the Tribunal matter stood transferred to this Court and was registered as Writ Petition No.12902/2003. In the said proceedings initiated by the petitioner, it was his case that treating the period as ‘dies non’ has adverse consequence on the service of the petitioner, the same amounts to punishment, is stigmatic in nature and, therefore, the action impugned without notice to the petitioner and without conducting a proper departmental inquiry, is unsustainable. It seems that the aforesaid contention of the petitioner found favour before this Court and on 15.7.2004 an order was passed, and a Bench of this Court found that the period of 476 days has been treated as ‘dies non’, the order is stigmatic in nature and, therefore, action taken without conducting a departmental inquiry is not proper and on such ground the order was quashed. After the order was quashed the matter was referred to the competent authority and the proposed departmental inquiry is now initiated with regard to the same allegations of unauthorized absence for the period of 476 days, as indicated hereinabove.
3. It is the case of the petitioner that the charge-sheet issued to him is unsustainable and in support thereof the following contentions are raised :
(a) The first contention raised is that the incident for which the charge-sheet is issued in the year 2005 pertains to certain action which was taken in the year 1990-91, there is inordinate delay in issuing the charge-sheet and, therefore, placing reliance on the following judgments it is stated that issuance of the charge-sheet after inordinate delay is unsustainable and the charge-sheet is liable to be quashed on this count alone. The judgments referred to are : State of M.P. v. Bani Singh and another [1990 JLJ 319=1990 (Supp.) SCC 738]; N.K. Solomon v. Food Corporation of India and another [1997(2) JLJ 28=1997(2) MPLJ 94]; and Lavkush Prasad Gautam v. Food Corporation of India and others [2001(2) MPLJ 54].
(b) Secondly, it was argued by learned counsel that when the matter was agitated before this Court in the earlier writ petition, i.e., Writ Petition No.12902/2003 and once this Court has quashed the order which treated the period as ‘dies non’, in the absence of any liberty being granted to the respondent/department to conduct departmental inquiry, the action which runs contrary to the decision of this Court is unsustainable. Accordingly, the secon
