B.K. Chourasiya vs The State of M.P. and Others

Hon''ble Shri Justice K.K. Trivedi

The grievance of the petitioner is that by order dated 30.3.2012, the period of absence of the petitioner with effect from 4.1.2005 to 16.4.2005 and 18.4.2005 to 21.4.2005 has been regularised as leave without pay. It is further contended that by order dated 3.10.2011, a charge sheet is issued to the petitioner by the respondent No. 3 under Rule 14 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as the Rules of 1966 for brevity), whereas, the petitioner was holding a gazetted post and the power to punish the petitioner with a major penalty was not vested in the respondent No. 3. The other reliefs are claimed by the petitioner for payment of the salary of the period for which the leave is sanctioned without pay with interest @ 18% per annum and to release the increments of pay of the petitioner, which have been withheld and the grant of benefit of Revision of Pay Rules, 2009. The petitioner has further claimed the relief to the effect that his entire retrial dues be fixed, the pension be properly fixed and all retrial dues including pension, gratuity, General Provident Fund, group insurance, family benefits, leave encashment and all other benefits be paid to him with the interest @ 18% per annum. The contention is that now the petitioner is superannuated, therefore, all such reliefs are claimed in this writ petition. The contention raised by the petitioner is that he was working as Executive Engineer, at the relevant time and has retired from Mandsour on 31.10.2011. Since the petitioner was required to proceed on leave, he made the application for grant of leave for looking his ailing wife and to get her treated. The leave application of the petitioner was forwarded, but the same was not decided expeditiously, therefore, the petitioner was required to approach this Court Bench at Indore, by filing a Writ Petition No. 63/2011 (S). The said writ petition was disposed of with a direction to decide the leave application of the petitioner appropriately. Instead of considering the application of the petitioner in appropriate manner, certain period of leave of the petitioner was treated as leave without pay and the orders in this respect were issued on 14.3.2012. According to the petitioner, since the leave was available in his account, the order was not required to be passed in such a manner. It is contended that only because the order of the writ Court was not being complied with, a legal notice was issued and this being the prejudices, the action in this respect was not proper. Not only the salary of the leave period is denied, since appropriate action was not taken for release of increments, the petitioner has again suffered the loss. In the meantime, a charge sheet was issued by the respondent No. 3 treating himself to be the disciplinary authority for a detailed enquiry as prescribed under Rule 14 of the Rules of 1966. It is contended that such a power was not vested in the respondent No. 3 and, therefore, the orders impugned in all sence are bad in law and are liable to be quashed. The petitioner has claimed the reliefs aforesaid on the basis of the aforesaid pleading.

A return has been filed by the respondents. The complete Leave Rules has been annexed with the return. A circular of the State Government has also been placed on record to indicate that the power is vested in the Commissioner of the Division to impose a minor penalty on such Gazetted Officer and, therefore, the respondent No. 3 was competent to issue the charge sheet to the petitioner. It is contended that rightful action was taken as per the Leave Rules and a decision was taken to grant such leave to the petitioner. It is contended that multiple claims have been made in one writ petition and, as such, the writ petition is not maintainable. The same is liable to be dismissed.

Heard learned counsel for the parties at length and examined the record.

Undisputedly, there are provisions for treating any leave period as unauthorised absence. Rule 24 of the M.P. Civil Service (Leave) Rules 1976 (hereinafter referred to as Leave Rules for short), specifically prescribes that such absence from duty would mean a misconduct. If such a absence of leave is to be treated as a misconduct, before issuing any order, an enquiry is required to be conducted. The Notification issued by the State Government confers power on the Commissioner of the Division to impose a minor penalty on a Government servant as prescribed under Rule 10(i) to (iv) of the Rules of 1966. However, the Commissioner is not competent authority to impose a major penalty. Rule 14 of the Rules of 1966, specifically prescribes that enquiry is to be conducted for imposing a major punishment. Though a charge sheet as required to be issued under Rule 14 can be issued by a disciplinary authority and an authority competent to impose a minor penalty is also to be treated as a disciplinary authority, yet it is always better for such an authority to prepare the charge sheet and send it to the disciplinary authority competent to impose major punishment so that the competent authority after examining the same, may issue the charge sheet. It appears that the leave period of the petitioner was not appropriately decided by the State authority. On the other hand, it was decided to issue a charge sheet to the petitioner for certain misconduct. Had the charge sheet been prepared by the Commissioner, Ujjain Division, Ujjain would have been sent to the State Government, the disciplinary authority i.e. the State Government could have modified the said charge sheet by mentioning another charge of misconduct of remaining absent from duty with or without leave against the petitioner and could have conducted the enquiry in this respect and could have passed an appropriate order. Since now the petitioner is retired, at any rate, the penalty can be imposed only under M.P. Civil Service (Pension) Rules, 1976, by the State authority and, therefore, at this juncture, it would not be necessary to conduct such an enquiry against the petitioner only on the strength of the charge sheet so issued by the respondent No. 3.

Consequently, this writ petition is allowed in part. The charge sheet so issued by the respondent No. 3 contained in Annx. P/6 would be referred to the State Government and the said charge sheet would be examined by the State Government and a decision would be taken whether the period of absence of the petitioner on leave is to be added as a misconduct under the Leave Rules in the said charge sheet or not and a fresh charge sheet be issued to the petitioner in case it is found that the misconduct of the petitioner is such for which a punishment as prescribed in Rule 9 of Pension Rules, can be imposed on the petitioner. The enquiry be expeditiously conducted against the petitioner in respect of such charges and in case it is found that the misconduct is made out, appropriate orders be issued in respect of the petitioner under the Pension Rules by the State Government. The aforesaid exercise be completed within a period of 9 months from the date of receipt of certified copy of the order passed today. This time limit is prescribed only because the petitioner has attained the age of superannuation and has retired. With the aforesaid, the writ petition stands disposed of finally. There shall be no order as to costs.