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IN THE HIGH COURT OF MADHYA PRADESH
Sanjay Dwivedi, J.
S. D. Richharia v. State of Madhya Pradesh
Writ Petition No. 20492 of 2020 (Jabalpur);
Decided on 5.4.2024
(1) Civil Services (Classification, Control and Appeal) Rules, 1966 (M. P.) -- R.29 -- suo motu review -- bar of limitation -- is applicable in respect of appealable order -- order not appealable -- does not mean it cannot be reviewed -- maximum period for exercising power of review under R. 29 is six months. 2001 (2) MPLJ 690 relied on. (2002) 5 SCC 685, (2010) 13 SCC 311, (2006) 12 SCC 28 and 161 (2009) DLT 413 referred to. [Paras 10 & 11]
(2) Civil Services (Classification, Control and Appeal) Rules, 1966 (M. P.) -- R. 29 -- suo motu review -- nowhere mentioned in show cause notice that authority has exercised power of review under R. 29 -- petitioner was not aware of power under which authority was acting -- no reference to R. 29 even in chargesheet -- held -- Court can infer that when said action of authority has been assailed then to save themselves, respondent/State have taken stand in reply that they exercised power of review under R. 29 -- in absence of any opportunity given to petitioner, earlier order of exoneration of petitioner cannot be given a go-by -- that order was never assailed by respondent for four years -- second disciplinary action on same charges cannot be initiated taking shelter of power of review -- it is nothing but double jeopardy. Writ Petition No. 10032 of 2022 decided on 29.8.2023 relied on. [Para 13]
(3) Constitution of India -- Art. 226/227 -- justifying impugned order -- taking additional stand by way of affidavit and supplementing a new fact -- cannot be made basis to justify action of authority -- impugned order has to be tested on basis of facts mentioned therein. AIR 1978 SC 851 followed. [Para 13]
(4) Departmental Enquiry -- second disciplinary proceeding on same charges -- authority held that no misconduct was committed by petitioner -- that order was never challenged by respondent -- attained finality -- second chargesheet and initiation of disciplinary proceeding on same charges, that too after four years and at verge of retirement of petitioner, cannot be said to be proper -- it is contrary to law and apparently illegal.Writ Petition No. 10032 of 2022 decided on 29.8.2023 relied on. [Paras 15 & 16]
(5) Civil Services (Classification, Control and Appeal) Rules, 1966 (M. P.) -- R.16 -- chargesheet -- issued in anticipation of approval of Government -- held -- approval for initiation of disciplinary proceeding would not amount to approval of charge memo -- chargesheet not placed before competent authority for approval but issued in anticipation of approval cannot be said to be competent and valid. (2014) 1 SCC 351 followed. [Para 17]
¼1½ flfoy lsok ¼oxhZdj.k] fu;a=.k rFkk vihy½ fu;e] 1966 ¼e-ç-½ & fu- 29 & Loçsj.kk ls iqufoZyksdu & ifjlhek dk otZu & vihy;ksX; vkns'k ds laca/k esa ykxw gksrk gS & vkns'k vihy;ksX; ugha & bldk ;g vFkZ ugha fd mldk iqufoyksdu ugha fd;k tk ldrk & fu- 29 ds v/khu iqufoZyksdu dh 'kfä ç;qä djus ds fy, vf/kdre vof/k Ng ekl gSA 2001 ¼2½ ,eih,yts 690 voyafcrA ¼2002½ 5 ,llhlh 685] ¼2010½ 13 ,llhlh 311] ¼2006½ 12 ,llhlh 28 rFkk 161 ¼2009½ Mh,yVh 413 fufnZ"VA ¼iSjk 10 ,oa 11½
¼2½ flfoy lsok ¼oxhZdj.k] fu;a=.k rFkk vihy½ fu;e] 1966 ¼e-ç-½ & fu- 29 & Loçsj.kk ls iqufoZyksdu & dkj.k crkvks lwpuk esa dgha mfYyf[kr ugha fd çkf/kdkjh us fu- 29 ds v/khu iqufoZyksdu dh 'kfä ç;qä dh gS & ;kph dks Kkr ugha fd çkf/kdkjh fdl 'kfä ds v/khu dkjZokbZ dj jgk gS & vkjksii= esa Hkh fu- 29 dk dksbZ funsZ'k ugha & vfHkfu/kkZfjr & U;k;ky; fu"d"kZ fudky ldrk gS fd tc çkf/kdkjh dh mä dkjZokbZ ij vk{ksi fd;k x;k rc Lo;a dks cpkus ds fy, çR;FkhZ jkT; us mÙkj esa ;g i{kk/kkj fy;k fd mUgksaus fu- 29 ds vèkhu iqufoZyksdu dh 'kfä ç;qä dh Fkh & ;kph dks dksbZ volj fn, tkus ds vHkko esa] ;kph dh foeqfä ds iwoZrj vkns'k dh mis{kk ugha dh tk ldrh & ml vkns'k dks çR;FkhZ us pkj o"kks± esa dHkh vk{ksfir ugha fd;k & iqufoZyksdu dh 'kfä dk vkJ; ysrs gq, mUgha vkjksiksa ij f}rh; vuq'kklfud & dkjZokbZ vkjaHk ugha dh tk ldrh & ;g nksgjs ladV ds vfrfjä dqN ughaA fjV ;kfpdk Ø- 10032 lu~ 2022 fu.khZr fnukad 29-8-2023 voyafcrA ¼iSjk 13½
¼3½ Hkkjr dk lafo/kku & vuq- 226@227 & vkf{kIr vkns'k U;k;ksfpr Bgjkuk & 'kiFki= ds ek/;e ls vfrfjä i{kk/kkj ysuk rFkk uohu rF; tksM+uk & çkfèkdkjh dh dkjZokbZ dks U;k;ksfpr Bgjkus dk vk/kkj ugha cuk;k tk ldrk & vkf{kIr vkns'k dk ijh{k.k mlh esa mfYyf[kr rF;ksa ds vk/kkj ij fd;k tkuk gksrk gSA ,vkbvkj 1978 ,llh 851 vuqlfjrA ¼iSjk 13½
¼4½ foHkkxh; tk¡p & mUgha vkjksiksa ij f}rh; vuq'kklfud dk;Zokgh & çkfèkdkjh us vfHkfu/kkZfjr fd;k fd ;kph }kjk dksbZ vopkj ugha fd;k x;k & og vkns'k çR;FkhZ }kjk dHkh vk{ksfir ugha fd;k x;k -- vafre gks x;k & f}rh; vkjksii= dks rFkk mUgha vkjksiksa ij f}rh; vuq'kklfud dk;Zokgh vkjaHk fd, tkus dks] og Hkh pkj o"kZ i'pkr~ rFkk ;kph dh lsokfuo`fÙk ds dxkj ij] mfpr ugha dgk tk ldrk & ;g fof/k ds çfrdwy rFkk çR;{kr% voS/k gSA fjV ;kfpdk Ø- 10032 lu~ 2022 fu.khZr fnukad 29-8-2023 voyafcrA ¼iSjk 15 ,oa 16½
¼5½ flfoy lsok ¼oxhZdj.k] fu;a=.k rFkk vihy½ fu;e] 1966 ¼e-ç-½ & fu- 16 & vkjksii= & ljdkj ds vuqeksnu dh çR;k'kk esa tkjh & vfHkfu/kkZfjr & vuq'kklfud dk;Zokgh vkjaHk djus ds fy, vuqeksnu vkjksi Kkiu ds vuqeksnu dh dksfV esa ugha vk,xk & vuqeksnu ds fy, l{ke çkf/kdkjh ds le{k ugha j[k dj vuqeksnu dh çR;k'kk esa tkjh fd;k x;k vkjksii= l{ke vkSj fof/kekU; ugha dgk tk ldrkA ¼2014½ 1 ,llhlh 351 vuqlfjrA ¼iSjk 17½
ORDER
1. This petition is of the year 2020. Since pleadings are complete and learned counsel for the parties are ready to argue the matter finally, therefore, it is heard finally.
2. The issue involved in the present case is that the petitioner although retired from service on 31.12.2020, received a show cause on 18.12.2020, submitted reply to the said show cause and got charge-sheet served upon him on 23.12.2020. He has filed this petition mainly on two grounds, firstly that the charge-sheet was issued to him by an incompetent authority and secondly that on the same set of facts and charges, earlier he was served with a charge-sheet but being satisfied with the reply submitted by the petitioner, the proceedings were dropped by the Department in the year 2016 and order in this regard got issued on 13.1.2016 (Annexure P/4) but again disciplinary proceeding was initiated which is illegal and is a clear example of double jeopardy.
3. To resolve the controversy involved in the case and the question emerges to be adjudicated, it is necessary to reproduce the facts of the case in nutshell which are as under :--
(3.1) The present petitioner was substantively holding the post of Dy. Commissioner (Commercial Tax) in the Tax Audit Wing, Department of Commercial Taxation, Bhopal. He was also holding the current charge of the post of Additional Commissioner (Commercial Tax), Bhopal Zone.
(3.2) The petitioner joined the services on 14.1.1988 as Sales Tax Officer after qualifying the examination through Public Service Commission. He was timely promoted during the period of 2009-2013. He also worked as OSD to the Ministry of Finance and Commercial Taxation and subsequently during the period from April 2016 till 31.8.2020 as Deputy Secretary.
(3.3) That, during the period from 2003 to 2010 while working as Assistant Commissioner, Commercial Tax Division, due to certain assessment in the routine course of his functioning, petitioner faced a departmental action i.e. show cause notice qua rule 16 of Charge Sheet under the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 (for short, ‘Rules, 1966’).
(3.4) Pursuant to the said show cause notice, petitioner submitted a detailed reply on 17.12.2014 and thereafter the State Government after examining the reply submitted by the petitioner found it acceptable and accordingly proceedings were dropped/closed against him.
(3.5) Thereafter, after having rendering more than 30 years of service, the petitioner was superannuated with effect from 31.12.2020 and order in this regard was issued on 6.1.2020. However, on 18.12.2020 (Annexure P/1), a show cause notice was issued to the petitioner for initiating disciplinary action against him in regard to the identical issues which were earlier raised by the Department vide notice dated 1.7.2014 (Annexure P/2) and were closed/dropped after due scrutiny by the Department vide order dated 13.1.2016 (Annexure P/4).
(3.6) During the pendency of the present petition, in pursuance to Annnexure P/1, the impugned charge-sheet dated 23.12.2020 (received on 28.12.2020) (Annexure P/6) was issued to the petitioner and that charge-sheet was also assailed by the petitioner and amendment in this regard has been made in the petition; hence, this petition.
4. Shri Manoj Sharma, learned senior counsel appearing for the petitioner has submitted that petitioner is assailing the action of the respondent mainly on the ground that the charge-sheet was issued to him without prior approval of the State Government, in anticipation of approval by the Government. It is also contended by him that once order has been passed, dropping the charges levelled against the petitioner after considering the reply submitted by him then without challenging the said order, reviewing the same comes within the power exercised by the authority under Rule 29 of Rules, 1966 that too after after a period of four years but that cannot be done after such a long time. It is also contended by
Charge-sheets can be valid if issued on the retirement date, even if served afterward; mere issuance does not impede a candidate's rights until an adverse order is made.
Disciplinary proceedings against government servants must be initiated with proper authorization from the competent authority, failing which the proceedings are rendered void.
Disciplinary proceedings must be approved by the competent authority; failure to do so renders the proceedings void.
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