Rahmat Noor Khan vs State Of Madhya Pradesh & Anr

The challenge in this petition u/Art. 226 of the Constitution is to the order of penalty dated 27/1/2015, P/2 passed by the Collector Guna (M.P.)

inflicting penalty of two annual increments non-cumulatively. Further challenge is made to the appellate order P/1 dated 30/8/2016 passed by the

Commissioner Gwalior Division Gwalior rejecting the appeal against the said order of penalty.

Learned counsel for the rival parties are heard.

The solitary ground raised by the learned counsel for the petitioner is that charges against the petitioner being factual in nature and the same having

been denied by written reply P/4, it was incumbent upon the disciplinary authority to conduct full scale enquiry under Rule 14 of the M.P. Civil

Services (Classification, Control and Appeal) Rules, 1966 (in short CCA Rules) instead of adopting shortcut method of merely issuing a show cause

notice vide P/3, calling for the reply of the petitioner vide P/4 and straightway passing the said penalty order, P/2. The decision of the Apex Court in

the case of O.K.Bhardwaj Vs. Union of India & others (2001) 9 SCC 180 is relied upon.

The undisputed facts in nutshell are that petitioner while functioning as Upper Division Teacher (Urdu) at Govt. Middle School Khairai, Block

Ragogarh, District Guna was issued showcause notice dated 27/11/2014 P/3 by the District Education Officer, Ragogarh, district Guna, asking the

petitioner to explain as to why disciplinary action be not initiated and penalty be not imposed on the misconduct discovered during surprise inspection

carried out on 21/11/2014 at 2 p.m. The misconduct alleged was that on 21/11/2014 when the DEO carried out surprise inspection casual leave was

found recorded against name of the petitioner in the attendance register but no application for casual leave was found to have been sanctioned and

further no signature of the petitioner was found in the attendance register for 20/11/2014. Further misconduct which was pointed out is that the

attendance of students in Class 6,7 and 8 was found deficient. The petitioner vide P/4 denied all the allegations and gave his explanation, which was

duly submitted. The Collector, Guna by the impugned order, P/2 found the reply to be not satisfactory and finding the misconduct disclosed in the

show-cause notice to be proved imposed penalty of withholding of two annual increments noncumulatively. The appellate authority while considering

the appeal called for the comments of the Collector, Guna which were submitted on 14/5/2015. Further comments were called by the appellate

authority from the Headmaster of the institute in which the petitioner was working as UDT. The appeal was ultimately dismissed by relying upon

the above said adverse material in shape of comments of Collector, Guna and that of Headmaster of the school concerned.

The show-cause notice appears to be issued under Rule 16 of the CCA Rules 1966 which deals with the procedure for imposing of minor penalty.

Rule 16 is reproduced below for ready reference and convenience:-

“16. Procedure for imposing minor penalties.- (1) Subject to the provision of sub-rule (3) of rule 15, no order imposing on a Government servant

any of the penalties specified in clauses (i) to (iv) of rule 10 and rule 11 shall be made except after,-

(a) informing the Government servant in writingof the proposal to take action against him and of the imputations of misconduct or misbehaviour and

which it is proposed to be taken, and given him a reasonable opportunity of making such representation as he may wish to make against the proposal;

(b) holding an inquiry in the manner laid down in sub-rule (3) to (23) of rule 14, in every case in which the disciplinary authority is of the opinion that

such inquiry is necessary;

(c) taking the representation, if any, submitted bythe Government servant under clause (a) and the record of inquiry, if any, held under clause (b) into

consideration:

(d) recording a finding on each imputation ofmisconduct or misbehaviour;

(e) consulting the Commission where suchconsultation is necessary.

[(1-A) Notwithstanding anything contained in clause (b) of sub-rule (1), if in a case it is proposed after considering the representation, if any, made by

the Government Servant under such withholding or increments of pay or Stagnation Allowance is likely to effect adversely the amount of pension

payable to the Government Servant or to withhold increments of pay or Stagnation allowance for a period exceeding three years or to withhold

increments of pay or Stagnation allowance with cumulative effect for any period, an inquiry shall be held in the manner laid down in sub-rule (3) to

(23) of rule 14, before making any order imposing on the Government Servant any such penalty.

(2) The record of the proceedings in such cases shall include

(i) a copy of the intimation to the Governmentservant of the proposal to take action against him;

(ii) a copy of the statement of imputations ofmisconduct or misbehaviour delivered to him;

(iii) his representation, if any;

(iv) the evidence produced during the inquiry;

(v) the advice of the Commission, if any;

(vi) the findings on each imputation of misconduct or misbehaviour; and

(vii) the orders on the case together with the reasons therefore. “

5.1 The plain reading of the above Rule discloses that the same contemplates conduction of a detailed inquiry provided from subrule (3) to (23) of rule

14 relating to procedure for imposing major penalty in two contingencies as follows:-

(i) When holding of enquiry as per procedure provided from sub-rule (3) to (23) of rule 14 is necessary in the opinion of the disciplinary authority.

(ii) When withholding of increments is for a period exceeding 3 years or with cumulative effect.

5.2 The present case deals with withholding of two increments non-cumulatively and therefore the second contingency (supra) is inapplicable herein.

The opinion contemplated in Rule 16(1)(b) (supra) is required by the disciplinary authority to be arrived at after considering certain relevant aspects.

The aspects which can be termed to be relevant and which go into formation of the opinion by the disciplinary authority in Rule 16(1)(b) can be

enumerated as follows:-

(1) Where nature of the charges is basically factual or not ?.

(2) Where the delinquent employee has not only refuted the said charges but tried to explain his stand to prove his innocence.

(3) Where the charges alleged are complicated enough to oblige the disciplinary authority to adopt the procedure contemplated by sub-rule (3) to (23)

of rule 14 lest the delinquent employee may be denied reasonable opportunity to defend himself.

The above said three aspects are illustrative and not exhaustive in nature and are some of the least of the relevant consideration which should be

taken into account by the disciplinary authority to form the opinion under Rule 16(1)(b).

6.1 The material on record does not disclose either from the impugned order or from the return that any mind was applied by the competent authority

to form an opinion as contemplated under Rule 16(1)(b) of the CCA Rules. Neither has the State produced any material during course of final

arguments to satisfy that any opinion as regards necessity of following detailed procedure laid down in sub-rule (3) to (23) of rule 14 of the CCA

Rules was formed by the competent authority before the impugned order of penalty was passed. As such, for the said reason too, the order of penalty

is vitiated for non-application of mind.

6.2 Another aspect which deserves consideration is that the said opinion contemplated under Rule 16(1)(b) should be reflected either in the penalty

order or should at least be part of the relevant record of the disciplinary proceedings so that the same can be looked into while assessing

legality,validity and propriety of the order of penalty/appellate order

6.3 The Apex Court in the case of O.K.Bhardwaj (supra) has laid down as follows:-

“3. While we agree with the first proposition of the High Court having regard to the position which expressly says that “without increments of

pay with or without cumulative effect†is a minor penalty, we find it not possible to agree with the second proposition. Even in the case of a minor

penalty an opportunity has to be given to the delinquent employee to have his say or to file his explanation with respect to the charges against him.

Moreover, if the charges are factual and if they are denied by the delinquent employee, an enquiry should also be called for. This is the minimum

requirement of the principle of natural justice and the said requirement cannot be dispensed with.â€​

6.4 Though the above decision of the Apex Court is not a very detailed one but it vividly reflects the anxiety and concern of the Apex Court about the

procedural pitfalls which are inherent in Rule 16 where the disciplinary authority by adopting shortcut method can impose a minor penalty denying the

delinquent employee of the bare minimum reasonable opportunity to which he is otherwise entitled under the rule of law. Thus, to fill up these pitfalls

and lacuna in Rule 16 the Apex Court laid down the law as enumerated in case of O.K.Bharadwaj (supra).

6.5 Coming back to the factual matrix of the present case, it is seen that the petitioner has categorically denied misconduct alleged in the show-cause

notice and had also given explanation to demonstrate his innocence. Thus, it was incumbent upon the disciplinary authority especially when the

misconduct was factual in nature to conduct full scale inquiry under sub-rule (3) to (23) of rule 14 of the CCA Rules 1966 to satisfy the concept of

“reasonable opportunity†which is a pre-requisite for passing order entailing adverse consequences with the object of enabling the delinquents to

defend themselves. The said concept of “reasonable opportunity†inter alia stems out of the U.N.Charter which has been adopted by India as a

guiding force for making laws in a democratic form of government. The relevant portion of the said U.N.Charter is reproduced below:

“Article 10.

“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and

obligations and of any criminal charge against him.â€​

In view of the above discussions, the order of punishment and the appellate order are not sustainable in the eyes of law.

Consequently, the present petition stands allowed with the following directions:-

(i) The appellate order, P/1 dated 30/8/2016 passed by the Commissioner Gwalior Division Gwalior and the the order of penalty dated 27/1/2015, P/2

passed by the Collector Guna (M.P.) are hereby quashed.

(ii) The employer is at liberty to proceed against the petitioner in accordance with law as enumerated above as expeditiously as possible if it so

desires.

(iii) The question of consequential relief to the petitioner on account of quashment of the penalty and appellate order, would be decided by the

competent authority after it takes a call on the aforesaid directions contained in para (i) and (ii) above, by passing a separate order.

No cost.