Jugal Kishor Tiwari vs Madhya Pradesh State Electricity Board

On the last date of hearing also nobody appeared on behalf of the respondents. Since the matter is of the year 2007, therefore, case is heard in

absence of respondents.

The petitioner has filed the present petition challenging the order dated 26/08/2006 whereby he was imposed with a punishment by withholding of one

increment without cumulative effect and also the order dated 07/04/2007 whereby his appeal has been rejected.

The petitioner was initially appointed in the year 1974 on the post of Office Assistant Grade-I. During his 33 years of service career he has never

served any charge sheet. In 28/09/2005 a show cause notice was issued to the petitioner wherein certain allegations were made against the petitioner.

The petitioner submitted his reply to the said show cause notice. However, without considering the reply submitted by the petitioner and without

affording any opportunity of hearing, respondents have passed an order on 26/08/2006Â whereby he was imposed punishment by withholding of one

increment without cumulative effect. The petitioner against the said order preferred an appeal which was also dismissed vide order dated 07/04/2007.

Hence, the present writ petition before this Court.

Learned counsel for the petitioner argues that the entire action of the respondents in imposing the  punishment on the petitioner is illegal and

arbitrary. He submits that the charges which are made in the show cause notice are of grave nature and, therefore, respondents should conduct a

regular departmental enquiry. He further submits that in the present case, neither charge sheet was issued to the petitioner nor any enquiry has been

conducted against the petitioner and straight away order of punishment inflicting the penalty has been passed. He further submits that the appellate

authority also rejected the appeal preferred by the petitioner by non-speaking order which does not show any application of mind on the part of the

appellate authority.

Learned counsel for the petitioner relied on the judgment passed by this Court in W.P.No.16504/2016 (Ravindra Kumar Mishra vs. The state of

Madhya Pradesh & others) decided on 19/01/2017.

Respondents have filed their reply and stated that the petitioner has miserably failed in executing his duties and has shown negligence in his

working, therefore, show cause notice was issued to the petitioner to explain misconduct and to show why not a minor penalty shall be imposed

against him. The charges levelled against the petitioner in the show cause notice are of grave nature. Respondents have further stated that all relevant

Rules of Madhya Pradesh Civil Services (Classification, control and appeal) Rules, 1966 have been followed by the respondents in imposing the

penalty by withholding of one increment without cumulative effect. As per Rule 10(iv) of the CCA Rules, withholding of increment is a minor penalty

and Rule 16 provides the procedure for imposing the minor penalties and Rule 16(1)(a) provides that only a notice is required to be issued to the

employee for giving him an opportunity for making a representation against the said proposal. Thus, in the present case, the procedure laid down in

Sections 16 & 16(1)(a) has been complied with. In such circumstances, respondents stated that penalties imposed against the petitioner is not at all

excessive and the same has been imposed after following due procedure as laid down in the Rules.

Heard learned counsel for the petitioner and perused the record.

In the present case, the respondents have issued a show cause notice dated 28/09/2005 to the petitioner alleging certain irregularities committed by the

petitioner while he was on duty. The petitioner has filed detail reply to the said show cause notice denying each and every allegations made in it.

However, without considering the reply, respondents have passed the impugned order thereby inflicting the punishment withholding the one increment

without cumulative effect. As the charges are of grave nature and the petitioner also denied the same and has given the detailed reply to the said

show cause notice, it was incumbent part of the respondents to conduct departmental enquiry against the petitioner. This Court in the case of Ravindra

Kumar Mishra vs. State of M. P. & others passed in W. P. No. 16504/2016 in para 8, 9, 10 & 11 has held as under :-

This is trite law that judicial review of departmental inquiry is limited to the extent of examining whether the decision making process is in

accordance with law or not. [See: 1999 (1) SCC 759 (Apparel Export Promotion Council Vs. A.K. Chopra)].

Rule 16 of CCA Rules prescribes a summary procedure forimposition of minor penalty. However, Rule 16(1)(b) makes it clear that under certain

circumstances, an inquiry may be conducted as per Rule 14 of CCA Rules. The ancillary question is : whether in the present case, a full fledged

inquiry was required to be conducted ? This point is no more res integra. In 2001 (9) SCC 180 (O.K. Bhardwaj Vs. Union of India and others), the

Apex Court opined that even in case of minor penalty, an opportunity has to be given to delinquent employee to have his say or to file his explanation

with respect to the charges against him. If the charges are factual and if they are denied by the delinquent employee, an inquiry should also be called

for. The Apex Court emphasized that this is the minimum requirement of principles of natural justice and the said requirement cannot be dispensed

with. As noticed, in the present case, the petitioner has not only denied the allegations mentioned in the show-cause notice, but also advanced his

defence supported by documents. Thus, in this factual backdrop, the respondents were not justified in not conducting inquiry and directly imposing the

punishment.

The punishment order cannot sustain judicial scrutinyfor yet another reason. The Disciplinary Authority has recorded a conclusion that the

petitioner's defence is not satisfactory. However, no reasons are assigned as to why he reached to such a conclusion. Reasons are held to be heart

beat of conclusion. In absence of reasons, conclusions cannot be permitted to stand. The Apex Court in M/s Kranti Associate Pvt. Ltd. and another

Vs. Masood Khan and other, laid down the importance of assigning reasons. The relevant portion is as under :-

a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

b. A quasi-judicial authority must record reasons in support of its conclusions.

c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done

as well.

d. Recording of reasons also operators as a valid restraint on any possible arbitrary exercise of judicial and quasi-juridical or even administrative

power.

e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous consideration.

f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by

judicial, quasi-judicial and even by administrative bodies.

g. Reasons facilitate the process of judicial review by superior Courts.

h. The ongoing judicial trend in all countriescommitted to rule of law and constitutional governance is in favour of reasoned decisions based on relevant

facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.

i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one

common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the

litigants faith in the justice delivery system.

j. Insistence on reason is a requirement for both judicial accountability and transparency.

K. If a judge or a quasi-judicail authority is not candid enough about his/her decision making process then M/s Kranti Asso. Pvt. Ltd. & Anr. vs

Masood Ahmed Khan & Ors on 8 September, 2010 it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to

principles of incrementalism.

l. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes

the judges and decisions makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial

Candor (1987) 100 Harward Law Review 731-737).

n. Since the requirement to record reasons emanates from the brad doctrine of fairness in decision making, the said requirement is now virtually a

component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University

of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, ""adequate and

intelligent reasons must be given for judicial decisions"".

o. In all common law jurisdictions judgmentsplay a vital role in setting up precedents for the future. Therefore, for development of law, requirement of

giving reasons for the decision is of the essence and is virtually a part of ""Due Process"".

The appellate orders also suffer from similar infirmity. The same are not in consonance with Rule 27 of CCA Rules which mandates that the

Appellate Authorities should examine the decision making process to ensure it is as per principles of natural justice. The aspect of quantum of

punishment etc. is also required to be seen. The Appellate Authorities have failed to notice the violation of principles of natural justice.

Thus, in light of the aforesaid, petition filed by the petitioner is allowed and the orders dated 26/08/2006 and 07/07/2007 are hereby set aside.

However, a liberty is granted to the respondents to proceed against the petitioner in accordance with law by taking into consideration the observations

made herein-above.

Accordingly, petition stands allowed and disposed of, with no order as to cost.

Certified copy as per rules.