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IN THE HIGH COURT OF MADHYA PRADESH
Sanjay Dwivedi, J.
Diwakar Narayan Patel v. State of M.P. and others
Writ Petition No. 14376 of 2020 (Jabalpur);
Decided on 12.1.2023
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(1) Natural Justice -- arguments heard by disciplinary authority -- order could not be passed due to transfer -- order passed by subsequent disciplinary authority without providing opportunity of hearing -- such order is vitiated and also in violation of principles of natural justice and without application of mind -- such order not sustainable in eye of law -- set aside.
Held : Show cause notice Annexure P/20 dated 13.9.2012 was issued to the petitioner directing him to appear before the disciplinary authority on 2.11.2012 and petitioner appeared before the authority and submitted his stand and submission, but that authority got transferred and another authority took charge of the post and acted as disciplinary authority, who without giving opportunity of hearing to the petitioner, passed the order of punishment dated 21.6.2013. [Para 14
When an authority called the petitioner, gave him personal hearing and directed to submit his response then the order should have been passed by the same authority, but in the present case it has not been done. Therefore, the order passed by subsequent authority without hearing the petitioner is vitiated and it also vitiates the decision-making process as it suffers from violation of principles of natural justice. The order passed by the subsequent authority can also be said to be an order passed without application of mind as he did not give opportunity of hearing to the petitioner wherein he would have submitted his stand so as to get himself exonerated from the charges levelled against him. Thus, the order passed by the disciplinary authority, in my opinion, is not sustainable in the eyes of law and is liable to be set aside. It is further a settled principle of law that when basic order is held to be illegal, all the subsequent orders and proceedings based upon it would automatically be held to be illegal and also deserve to be set aside. Therefore, the order of appellate authority is also liable to be set aside. 1959 Supp. (1) SCR 319 = AIR 1959 SC 308 followed. [Paras16 & 17
(2) Civil P.C., 1908 -- O. 8 R. 3 -- admission -- meaning -- when any factual aspect is not denied in reply -- it is deemed that same has been accepted by other party. 1993 Supp. (4) SCC 46 and AIR 2004 SC 230 followed. [Para 15
ORDER
1. At the outset, learned counsel for the petitioner has raised a ground for challenging the order of appellate authority and also the disciplinary authority that the disciplinary authority after conclusion of enquiry although had given an opportunity of personal hearing to the petitioner but before passing the final order of punishment, the disciplinary authority got transferred and a new authority came but that new incumbent did not give any opportunity of hearing or time to the petitioner and pass the order on the basis of record available. Counsel submits that this ground has been raised by the petitioner in the appeal preferred before the appellate authority but the said authority has also not dealt with this aspect and passed the order affirming the order passed by the disciplinary authority. He further submits that even in the reply submitted by the State this particular aspect of the matter has not been rebutted despite the fact that the petitioner has raised this ground in his petition also. He submits that considering the aforesaid, once the factual aspect of the matter has not been denied by the respondents, the same shall be considered to be correct and admitted by other party, as such the petition deserves to be allowed and the orders passed by the disciplinary authority and also the appellate authority are liable to be set aside.
2. On the other hand, learned counsel for the respondents/State submits that merely because an opportunity of personal hearing was not provided to the petitioner by the authority, but order inflicting punishment has been passed by some other authority not heard the petitioner, does not vitiate the whole enquiry or cannot be considered to be in violation of principles of natural justice. He submits that the authority can decide the matter on the basis of material and the evidence collected by the enquiry officer during course of enquiry and the enquiry does not suffer from any violation of principles of natural justice because proper opportunity of hearing has been granted to the petitioner during decision making process and full opportunity of hearing has been provided to him.
3. To reach a justify end of the issue involved in the case, it is apt to mention the facts of the case which are as under:-
At the relevant time, when the petitioner was posted as Chief Executive Officer, Janpad Panchayat, Waidhan, District Singaruli, the Government issued an order on 26.3.2007 for construction of Kitchen Sheds and the said work was to be carried out through the concerned Gram Panchayat. The petitioner being authority to get the work of construction of Kitchen Sheds executed issued a tender and awarded the same to one M/s Shiv Associates. The work order was also issued in favour of the contractor and the information in that regard was sent to Chief Executive Officer, Jila Panchayat.
4. As per the circular dated 3.1.1996 (Annexure P/1), the Government issued instructions that if any work is carried out on the basis of oral instructions or directions of superior authority, the said instructions be got confirmed in writing . Since the petitioner awarded the work to the contractor on the basis of oral instructions of the Chief Executive Officer, he sought confirmation of such instructions and sent a letter on 1.8.2007 (Annexure P/2) to the Chief Executive Officer, Jila Panchayat, Sidhi, but despite repeated efforts, the confirmation was not given and the contractor carried out the work in pursuance to the oral order of the Chief Executive Officer, Janpad Panchayat (Petitioner) and total 56 Kitchen Sheds were constructed spending total Rs. 33 lakhs.
5. Thereafter, complaints were made that the work got done through a private contractor instead of concerned Gram Panchayat contrary to the instructions of the Government dated 26.3.2007. In the complaint several irregularities were also pointed out. A committee was constituted to enquire into the matter, which submitted its report on 1.3.2008 (Annexure P/4
The principles of natural justice require that a delinquent employee be given a copy of the preliminary enquiry report before the disciplinary authority arrives at its conclusions with regard to the ....
The court emphasized the necessity of adhering to principles of natural justice, particularly the right to be heard before imposing penalties in disciplinary proceedings.
The disciplinary authority must provide reasons for disagreement with the inquiry report, record its own findings on the charges, and provide the government servant with an opportunity to file a writ....
Penalties not specified in service rules cannot be imposed, and employees must be given a hearing when disciplinary authorities disagree with inquiry findings.
It is a duty of Inquiry Officer to scan entire evidence in order to arrive at a finding after judging case of all the parties, adhering to the principles of natural justice, otherwise, inquiry is vit....
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