N.S. Bhadauriya vs State of M.P. and Others

S.K. Gangele, J.—The appellant has filed this appeal against the order dt. 12.11.2009 passed by the learned Single Judge in W.P. No. 2320/2004 (S). By the aforesaid order, learned Single Judge dismissed the writ petition filed by the appellant/petitioner. A charge sheet was served on the appellant vide memo of charge dt. 13.12.1982. Two charges were levelled against him. Charge No. 1 was that he was posted from 20.6.1975 to 30.5.1980 as Industries Extension Officer at Gwalior and during that period he had made recommendation for issuance of registration certificate to M/s. Gangaram Nemichand, Jinsi Nala No. 2, Gwalior. The second charge was that the appellant submitted false information in regard to existence of the unit and due to the aforesaid act, the raw material iron and steel had been supplied to the firm and same was sold in black market. An enquiry was conducted and after enquiry the order of punishment of compulsory retirement was passed on 23.9.1993 against the appellant. He challenged the order of punishment before the State Administrative Tribunal.

The Tribunal vide order dt. 20.11.1997 quashed the order of punishment on the ground that no second show cause notice alongwith enquiry report was issued to the appellant, hence, the order of punishment was in violation of Article 311 of the Constitution and remanded the matter back to the department to proceed further after supplying the copy of the charge sheet and enquiry report to the appellant. Tribunal further observed that looking to the facts of the case lesser punishment be awarded to the appellant.

Thereafter, on 5.4.1999 a show cause notice alongwith enquiry report was issued to the appellant. He submitted his reply, then disciplinary authority passed the order of punishment and imposed punishment of downgrading for a period of five years and on minimum of pay scale vide order dt. 2.8.2001. Subsequently, the order of punishment was modified vide another order dt. 8.4.2002 and by the aforesaid order, it was directed that during the period of five years, the appellant shall not be entitled for increment and stagnation allowance. Against the aforesaid order, an appeal was filed, that has also been dismissed vide order dt. 5.4.2005.

The appellant challenged the orders of punishment dt. 2.8.2001 and 8.4.2002 (Annexure P/1) and order of dismissal of appeal dt. 5.4.2005 in the writ petition.

The Writ Court dismissed the petition after observing that proper opportunity was granted during the enquiry to the appellant. Tribunal remanded the matter back on limited ground, hence, the order of punishment passed by the competent authority is in accordance with law.

Learned counsel appearing on behalf of the appellant has submitted that the enquiry officer found the charges proved against the appellant on the basis of the evidence of the employees, who conducted the preliminary enquiry. It is further submitted by the learned counsel that the charge No. 2 was not proved by the enquiry officer and charge No. 1 was found proved. On the basis of the aforesaid evidence, which is hearsay, misconduct could not be proved. He also contended that the charge sheet is vague and the findings of the enquiry officer are perverse. No documentary evidence was produced during the enquiry. He further submitted that subsequently the disciplinary authority amended the order of punishment which is contrary to law because before passing the order no show cause notice was issued to the appellant and once the disciplinary authority becomes functus officio, second order could not be passed. In support of his arguments, learned counsel relied on the following judgments:-

(i) The Government of Andhra Pradesh and Others Vs. A. Venkata Rayudu,

(ii) M.V. Bijlani Vs. Union of India (UOI) and Others, .

(iii) Narinder Mohan Arya Vs. United India Insurance Co. Ltd. and Others,

(iv) Nirmala J. Jhala Vs. State of Gujarat and Another,

(v) Roop Singh Negi Vs. Punjab National Bank and Others,

(vi) Union of India and Others Vs. P. Thayagarajan,

(vii) Narmada Pd. Yadav Vs. State of M.P. and Others,

(viii) Bhupinder Pal Singh Vs. Director General of Civil Aviation and Others,

(ix) Ministry of Finance and Another Vs. S.B. Ramesh,

(x) M.V. Bijlani Vs. Union of India (UOI) and Others,

(xi) Kuldeep Singh Vs. The Commissioner of Police and Others,

(xii) Central Bank of India Ltd. Vs. Prakash Chand Jain, .

(xiii) State of Bihar and Ors. v. Lakshmi Shankar Prasad reported in, (2003) 3 LLJ 225SC

(xiv) State Bank of India and Others Vs. S.N. Goyal,

Contrary to this, learned Government Advocate has submitted that the appellant challenged the enquiry proceedings earlier before the Tribunal. The Tribunal after considering the merits of the case has held that the enquiry conducted against the appellant was in accordance with law and remanded the matter back in regard to issue of second show cause notice. The Tribunal further observed that a lesser punishment be awarded to the appellant, hence, the appellant could not challenge the merits of the enquiry. Learned counsel further submitted that the authority has passed the order of punishment after considering the facts of the case and proper punishment has been awarded to the appellant. Learned Single Judge has also considered all the facts of the case, hence, the order is in accordance with law.

The contention of the learned counsel for the appellant about the merits of the departmental enquiry that the findings of the enquiry officer are based without any evidence could not be considered in the second round of litigation. Earlier the appellant challenged the order of compulsory retirement and the departmental enquiry before the Tribunal. The Tribunal vide order dt. 20.11.1997 passed in OA No. 879/1993 held that there was no illegality in the enquiry conducted against the appellant. It means that the Tribunal has upheld the findings of the enquiry officer in regard to charge No. 1, which was found proved. The Tribunal in para 7 of the order passed in O.A. No. 879/93 recorded its finding in regard to merits of the enquiry and held as under:-

The other points as raised by the learned counsel for the applicants during the course of the arguments are not so forceful. The respondents on their return had mentioned clearly that the applicants never prayed for any defence assistance to them. The learned counsel for the applicants could not point out that as to what copies of the documents were not furnished to them and how non-functioning of these documents had prejudiced them. On perusal of Ann. A-2, it appears that the competent authority had granted the valid permission for holding joint enquiry against all the delinquents including the applicants also.

Before parting with these cases, we are of the opinion that the punishment as warded in these cases on the applicants appears to be harsh. The respondents conducted the departmental enquiry for the alleged misconduct of the applicants, which took place in the year 1978-79 after a lapse of a period of more than 3 years. The alleged mis-conduct against the applicants is that they gave their inspection report false, so the Govt. authorities had issued the permits of controlled items, which were allegedly sold by those units in black. It may be mentioned here that for issuing of those permits, the report of the delinquents was not the sole basis thereof. The authorities, who had issued such permits must satisfy this from their own sources that these S.S.I. Units were working and also were in a position to consume the controlled articles as per direction of the authorities. The departmental enquiry took a time of about 13 years. The main delinquents, who had issued the permits of controlled items to those units were not punished so because of the retirement and death of those persons. The mis-conduct of the delinquents were lesser than those persons, who had issued the permits of the controlled item to those units for their consumption. We hope that the disciplinary authority shall keep these facts in his mind, while awarding any punishment on the applicants at the time of passing final order.

Thereafter, the Tribunal remanded the matter back to the department on the ground that the second show cause notice alongwith the report of the enquiry officer was not issued to the appellant, which was mandatory in accordance with the judgment passed by the Hon''ble Supreme Court in Union of India and others Vs. Mohd. Ramzan Khan, The Tribunal further observed that lesser punishment be awarded to the appellant. In such circumstances, in our opinion, the appellant could not challenge the merits of the enquiry because the appellant did not challenge the aforesaid findings of the Tribunal further in any proceedings in a writ petition or before the Hon''ble Supreme Court, hence, these findings have become final.

In regard to the other contentions, the charge No. 1 has been found proved against the appellant and after issuing a show cause notice and supplying the charge sheet, the disciplinary authority awarded the punishment to the appellant of reduction of minimum pay scale for a period of five years. In our opinion, looking to the nature of the charge and gravity of charge the aforesaid punishment is in accordance with law.

Learned counsel further submitted that the disciplinary authority amended the order of punishment vide order dt. 9.4.2012 which is contrary to law.

We have found substance in the argument advanced by the learned counsel in this regard. Earlier vide order dt. 2.8.2001 the disciplinary authority awarded a punishment of reduction in the minimum of pay scale for a period of five years. Subsequently, vide order dt. 8.4.2002 the order of punishment was amended and it is ordered that the petitioner shall not be liable to earn increment and stagnation allowance during the aforesaid period. Once the disciplinary authority passed an order of punishment in a departmental proceedings, which are quasi judicial in nature it becomes functus officio.

Rule 15(3) of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as the Rules of 1966") prescribes procedure by the disciplinary authority in regard to passing of the order of punishment. The aforesaid rule is as under:-

(3) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in rule 10 should be imposed on the Government servants, it shall, notwithstanding anything contained in rule 16, make an order imposing such penalty but in doing so it shall record reasons in writing:

Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant.

From the aforesaid rule, it is clear that the disciplinary authority can impose penalty on the government servant and shall pass an order in this regard recording the reasons. The rule does not provide any power to the disciplinary authority to pass another order after passing the order of punishment. Rule 27 of the Rules of 1966 gives power to the appellate authority to set aside the order of penalty or enhance any penalty imposed against the delinquent employee.

Hon''ble Supreme Court in State Bank of India and Others Vs. S.N. Goyal, has held as under in regard to functus officio:-

It is true that once an Authority exercising quasi judicial power, takes a final decision, it cannot review its decision unless the relevant statute or rules permit such review. But the question is as to at what stage, an Authority become functus officio in regard to an order made by him. P. Ramanatha Aiyar''s Advance Law Lexicon (3rd Edition, Vol. 2 Pages 1946-47) gives the following illustrative definition of the term ''functus officio.''

Thus a Judge, when he has decided a question brought before him, is functus officio, and cannot review his own decision.

Black''s Law Dictionary (Sixth Edition Page 673) gives its meaning as follows:

Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore, of no further force or authority.

Admittedly, the disciplinary authority was performing the quasi judicial power and it passed the final order in regard to imposition of punishment. Thereafter, it became functus officio, hence, it could not pass the second amended order of punishment. In this view of the matter, the appeal filed by the appellant is allowed partly. The order dt. 8.4.2002 modifying the order of punishment dt. 2.8.2001 is hereby quashed. Writ Petition filed by the appellant is partly allowed. The impugned order passed by the learned Single Judge is modified accordingly. No order as to costs.