Harbhajan Singh vs M.P.E.B. and Another

C.K. Prasad, J.

By this writ petition filed under Articles 226 and 227 of the Constitution of India, petitioner has prayed for the following reliefs -

(a) quash the order of promotion of respondent no. 2 and further be pleased to issue a writ in the nature of Mandamus directing respondent no. 1 to consider the name of the petitioner for promoting him to the post of Divisional Engineer w.e.f. 13th July 1984;

(b) direct respondent no. 1 to give the benefit of the higher pay scale to the petitioner along with the arrears thereof immediately after the expiry of 9 years of service of the petitioner on the post of Assistant Engineer w.e.f. 20.10.1983 in pursuance to the circular dt. 6.5.82 as contained in Annexure ''L'' to the petition;

(c) to quash the order of punishment by issuing a writ in the nature of Certiorari and its modification which are contained in Annexures ''F'' and ''H'' to the petition.

Shorn of unnecessary details facts giving rise to the present writ petition are that the petitioner was appointed as Assistant Engineer w.e.f. 20.9.1974 and was confirmed on the said post w.e.f. 1.4.1977. While the petitioner was working as Assistant Engineer a Departmental Enquiry was initiated against him and charges were framed on 19.6.1985. Charges pertain to the period 25.8.1981 to 15.8.1982 while he was working as Assistant Engineer CSD (I) Rajnandgaon. Charges leveled against the petitoner were of misappropriation of Board''s money by way of claiming excess wages by showing false/excess attendance of labour in the muster rolls and non supervision of the work properly resulting into injury to labour. Petitioner submitted his reply and on consideration of the same the disciplinary authority imposed the punishment that ''the next one annual grade increment of Shri Harbhajan Singh, Assistant Engineer shall stand with held and this will have effect of postponing his future increment of pay". Petitioner aggrieved by the same preferred appeal and on consideration of the appeal the appellate authority amended the penalty and directed that ''withholding of the said increment for a period of one year, will not have the effect of postponing his future increment of pay''.

Matter of the petitioner as also respondent no. 2 who is junior to him, for promotion to the post of Divisional Engineer from Assistant Engineer was placed for consideration before the Departmental Promotion Committee (hereinafter referred to as DPC). On the recommendation of the DPC respondent no. 2 was promoted to the post of Divisional Engineer w.e.f. 13.7.1984. According to the minute of the DPC petitioner was although selected, but in view of the pendency of the departmental enqiry, recommendation was directed to be kept in a sealed cover.

On 6.5.1982 respondent Board had taken a policy decision that an Assistant Engineer who has worked for 9 years and who have not been able to get promotion to the higher post for want of clear vacancy shall be eligible for exercising option to the next higher scale from the date following the date on which an Assistant Engineer has completed 9 years of service. The aforesaid benefit of grant of higher scale was to be given irrespective of the fact whether suitable vacancy in the higher scale is available or not, but the said decision of the Board has put certain riders and one of it is that an employee has to be otherwise fit for promotion on the basis of over-all performance as per normal rule of the Board.

It is the stand of the petitioner that on 16.6.1984 i.e. the date on which the DPC met for consideration of his case for promotion to the post of Divisional Engineer, no departmental enquiry was pending against him and in that view of the matter, action of respondent no. 1 in resorting to sealed cover procedure is illegal. To drive home the point, Shri Gupta, appearing on behalf of the petitioner draws my attention to the chargesheet dated 19.6.1985 (Annexure-B). This according to Shri Gupta clearly shows that although the DPC met on 16.6.1984, but charge-sheet against the petitioner for the first time was issued on 19.6.1985 and this according to Shri Gupta clearly shows that the DPC proceeded on a clearly wrong assumption that departmental enquiry was pending against the petitioner on the date of consideration of his case. However, it is the stand of the respondents that when the matter for promotion of the petitoner was placed for consideration a departmental proceeding was about to be initiated against the petitioner and as such resort to sealed cover procedure was taken. It is stated that such a procedure is permissible in view of memo dated 31.1.1964 of the General Administration Department of the Government of M.P. which has been adopted by the respondent Board. According to the aforesaid decision sealed cover procedure is to be adopted in case of promotion ''of officers under suspension or whose conduct is under investigation or against whom departmental proceedings are to be initiated''. It is relevant here to state that vide memo dated 17.1.83 the Chief Enginner has initiated a proposal to charge-sheet the petitioner for his alleged involvement in the irregularity in preparation/operation of the muster rolls and in fact vide memo dated 12.6.1984 the Chief Enginner forwarded the draft charge-sheet against the petitioner to the respondent Board. It is relevant here to State that Selection Committee met thereafter on 16.6.1984. It is further relevant here to State that the decision to frame charges against the petitioner was taken by the Board on 11.6.1985 and thereafter charges against the petitioner were framed on 19.6.1985.

Shri Gupta, appearing on behalf of the petitioner submits that on 16.6.1984 when the DPC met there was no departmental enquiry pending against the petitioner and for the first time charges having been framed on 19.6.1985, respondent no. 1 committed illegality in resorting to seal cover procedure. Shri Mishra, however, appearing on behalf of the respondent no. 1 submits that as departmental proceeding was about to be initiated against the petitioner, respondent no. 1 was clearly justified in resorting to sealed cover procedure. True it is that on 16.6.1984 when the DPC met, charges against the petitioner were not framed but the fact remains that it was on 17.1.1983 the Chief Engineer initiated proposal to charge sheet the petitioner and on 12.6.1984 i.e. before the date when the DPC met draft charge sheet was also prepared. Although respondents took time to issue the charge sheet against the petitioner and the same was issued on 19.6.1985, but from the facts stated above it is evident that the departmental proceeding against the petitioner was about to be initiated and in fact was under active consideration of respondent no. 1 when the DPC met on 16.6.1984. Memo dated 31.1.1984 referred to above gives discretion to the employer to resort to sealed cover procedure in a case where departmental proceeding against an employee is about to be initiated. This being so, I am of the opinion that the procedure adopted by the respondent no. 1 cannot be said to be illegal.

It is relevant here to state that by order dated 28.2.1986 (Annexure F) disciplinary authority imposed punishment of withholding of one annual grade increment with cumulative effect, but the same has been modified by the appellate authority and in view of the decision of the appellate authority punishment imposed on the petitioner is withholding of one increment with non cumulative effect. Shri Gupta submits that as the disciplinary authority had imposed the punishment of withholding of one increment with cumulative effect, the same would have been permissible only when a regular dapartmental enquiry is held against the petitioner. It is the stand of the petitioner that without holding any regular departmental enquiry the disciplinary authority has imposed punishment of withholding of one increment with cumulative effect, which fact has not been controverted by the respondents. Thus, there is no dispute that the disciplinary authority imposed major penalty without holding a regular departmental enquiry. According to Shri Gupta this will not only vitiate the order passed by the disciplinary authority, but the appellate authority also. As stated earlier, appellate authority has imposed the punishment of withholding of one increment with non cumulative effect. It is common ground that this is a minor penalty and for that no regular departmental enquiry is required to be initiated and the requirement of the service rules as also natural justice is satisfied, if a show cause notice is given to the employee. Having heard Shri Gupta for the petitioner and Shri Mishra for respondent no. 1, I am of the opinion that the appellate authority having reduced the penalty and the same being minor penalty, his order cannot be faulted on the ground that regular departmental enquiry was not held. In fact, the appellate authority corrected the mistake by reducing the penalty imposed by the disciplinary authority. Order of the disciplinary authority was illegal and not void, which was possible to be set right by the appellate authority and, in fact, it has been done so. I do not find any merit in this grievance of the petitioner.

Next grievance of the petitioner pertains to grant of higher scale after completion of nine years service. According to the decision of respondent Board dated 6.5.1982 benefit of higher scale is to be given to the employee who is otherwise fit for promotion on the basis of over all performance as normal rules of the Board. Petitioner was appointed on 20.9.1974 and it was on 17.1.1983 that the proposal to charge sheet the petitioner was taken. It is the stand of the respondents that as the petitioner was not otherwise fit for promotion on the basis of over all performance i.e., normal rules of the Board he was denied the higher scale. I do not find any substance in this grievance of the petitioner.

From the discussion aforesaid, it is apparent that none of the submissions made on behalf of the petitioner has any merit and accordingly the reliefs sought for by him cannot be granted. In the result, I do not find any merit in this writ petition and it is dismissed accordingly. In the facts and circumstances of the case, there shall be no order as to cost. Security amount, if deposited, be refunded to the petitioner.