Rajesh Bhagat vs State Of Chhattisgarh

This writ petition is directed against the order dated 25-01-2016 (Annexure P-1) passed by the disciplinary authority/respondent No.2, by which the

petitioner has been inflicted with minor penalties of stoppage of two annual increments with non-cumulative effect.

Mr.M.K.Sinha, learned counsel appearing for the petitioner, would submit that the petitioner was only served with show-cause notice and thereafter

the disciplinary authority/respondent No.2 has passed the impugned order of punishment and the procedure prescribed in Rule 16(1) of the

Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966 (for short, 'the Rules of 1966') has not been followed, which runs contrary

to the decision rendered by this Court in Ajeet Singh Jat v. State of Chhattisgarh and others {Writ Petition (S) No.4980 of 2009}, decided on 1-7-2021.

On the other hand, Mr.Anshuman Shrivastava, learned Panel Lawyer appearing for the respondents/State, would support the impugned order and

submit that show-cause notice has been served to the petitioner.

I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the records with

utmost circumspection.

The State of Chhattisgarh by notification dated 4-8-2008, delegated the power to impose minor penalty to Class-II Gazetted Officers upon the

Divisional Commissioner, in exercise of its power under Rule 12(2) (a) and (b) of the Rules of 1966.

Rule 10(i) to (iv) of the Rules of 1966 provides for minor penalties which states as under: -

Penalties.--The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant,

namely:--

Minor penalties :--

(i) Censure;

(ii) Withholding of his promotion;

(iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of order;

(iv) withholding of increments of pay or stagnation allowance;

Rule 16 of the Rules of 1966 provides procedure for imposing minor penalties which states as under: -

Procedure for imposing minor penalties.--(1) Subject to the provisions 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 writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on

which it is proposed to be taken, and giving 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- rules (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 by the 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 of misconduct or misbehaviour; and

(e) consulting the commission where such consultation is necessary.

(1-a) xxx xxx xxx (2) The record of the proceedings in such cases shall include-

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

(ii) a copy of the statement of imputation of misconduct 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 therefor.

A careful perusal of the aforesaid Rule would show that the punishment of withholding of increment which is minor penalty can be imposed on any

Government servant only after informing him under Rule 16(1)(a) of the Rules of 1966 in writing of the proposal to take action against him and of the

imputations of misconduct or misbehaviour on which it is proposed to be taken, and after giving him a reasonable opportunity to make representation

as he may wish to make against the proposal and after taking into consideration such representation, if any. Rule 16(1)(a) of the Rules of 1966

prohibits imposition of any penalty without serving a charge-sheet on the delinquent and giving him reasonable opportunity to defend.

The M.P. High Court in the matter of Ku. Shailja R. Jeswani v. State of M.P. and others 2000(3) MPHT 85 (NOC) has held that notice cannot be

construed as a proposal to take action against the petitioner with regard to imputation of misconduct and quashed the order imposing minor penalty.

In the matter of Lal Audhraj Singh Lal Rampratap Singh v. State of Madhya Pradesh 1967 MPLJ 528, a Division Bench of the Madhya Pradesh

High Court has clearly held that merely giving a notice to the Government servant saying that he is guilty of certain lapse or misconduct and asking

him to show cause against the punishment of withholding of increments is not sufficient. It was observed in para 5 as under: -

The petitioner's grievance that he was not given an effective opportunity of showing cause against the proposed punishment of withholding of his

increments is also substantial. Under rule 55-A of the M.P. Civil Services (Classification, Control and Appeal) Rules, which were in force before 13th

August 1965, such a punishment could be imposed on any Government servant only after giving him   an adequate opportunity of making a

representation that he desired to make and after taking into consideration such representation, if made. So also, under rule 13(1)(a) of the M.P. Civil

Services (Classification, Control and Appeal) Rules, 1965, the punishment of withholding of increment can be imposed only after the Government

servant is informed in writing of the proposal to take this action against him and of the allegations on which it is proposed to be taken and given an

opportunity to make any representation he may wish to make and after taking into consideration such representation, if made. No doubt, it is not

necessary to hold a departmental enquiry for imposing on a Government servant the punishment of withholding an increment. But he is clearly entitled

to an effective opportunity of meeting the allegations on which it is proposed to withhold his increment. Merely giving a notice to the Government

servant saying that he is guilty of certain lapse or misconduct and asking him to show cause against the punishment of withholding of increments is not

sufficient. The Government servant must be informed of the allegations against him and the material on which they are based. In the present case, the

second notice, which was issued to the applicant on 15 th April 1963, was, as stated in the return itself, on the basis of report of enquiry which was

held in July 1954. A copy of that report should have been supplied to the petitioner for enabling him to meet the charge of negligence levelled against

him and to show that he did not deserve any punishment.

Clause (b) of sub-rule (1) of Rule 16 of the Rules of 1966 confers discretion upon the disciplinary authority to decide whether an enquiry is to be

conducted. The disciplinary authority must apply its mind to the facts and circumstances of the case as disclosed in the representation of the employee

and other available material and give a reasoned finding whether an enquiry is necessary or not. In absence of such finding, order imposing penalty

would be invalid unless of course, it can show that omission has not resulted in prejudice to the employee.

Not only this, the M.P. High Court in the matter of Union of India and another v. C.P. Singh  2004 (II) MPJR 252, taking into consideration the

decision of the 3 Â Supreme Court on this point and further taking into consideration the decisions of the Supreme Court in the matters of D.K.

Bharadwaj v. Union of India (2001) 9 SCC 180 and Food Corporation of India v. A. Prahalada Rao (2001) 1 SCC 165, summarised the legal position

for imposing minor penalty in paragraphs 16 and 17 as under: -

The position as can be gathered from the Rules and the aforesaid decisions can be summarised thus:

(i) In a summary inquiry, a show cause notice is issued informing the employee about the proposal to take disciplinary action against him and of the

imputations of misconduct or misbehaviour on which such action is proposed to be taken. The employee is given an opportunity of making a

representation against the proposal. The Disciplinary Authority considers the records and the representation and records of findings on each of the

imputations of misconduct.

(ii) In a regular inquiry, the Disciplinary Authority draws up the articles of charge and it is served on the employee with a statement of imputation of

misconduct, list of witnesses and list of documents relied on by the Department. The Disciplinary Authority calls upon the employee to submit his

defence in writing. On considering the defence; the Disciplinary Authority considers the same and decides whether the inquiry should be proceeded

with, or the charges are to be dropped. If he decides to proceed with the enquiry, normally an Inquiring Authority is appointed unless he decides to

hold the inquiry himself. A Presenting Officer is appointed to present the case. The employee is permitted to take the assistance of a co-employee or

others as provided in the rules. An inquiry is held where the evidence is recorded in the presence of the employee. The employee is permitted to

inspect the documents relied upon by the employer. The employee is also permitted to call for other documents in the possession of the Management

which are in his favour. The delinquent employee is given an opportunity to rebut the evidence of the management by cross-examining the

management witnesses and by producing his evidence both documentary and oral. Arguments-written and/or oral-are received/heard. The delinquent

employee is given full opportunity to put forth his case. Therefore, the Inquiring   Authority submits his report. The copy of the report is furnished

to the employee and his representation is received. Thereafter the Disciplinary Authority considers all the material and passes appropriate orders. The

detailed procedure for such inquiries is contained in sub-rules (6) to (25) of Rule 9 of the Railway Servants (Discipline & Appeal) Rules, 1968

corresponding to sub-rules (3) to (23) of Rule 14 of the Central Civil Services (CCA) Rules, 1965 and M.P. Civil Services (CCA) Rules, 1966.

(iii) The normal rule, except where the employee admits guilt, is to hold a regular inquiry. But where the penalty proposed is a 'minor penalty', then the

Rules give the Disciplinary Authority a discretion to dispense with a regular inquiry for reasons to be recorded by him, and hold only a summary

enquiry.

(iv) Though the Rules contemplate imposing a minor penalty without holding a regular enquiry, where the Disciplinary Authority is of the opinion that

such enquiry is not necessary, such decision not to hold an enquiry can be only for valid reasons, recorded in writing. Dispensation with a regular

enquiry where minor penalty is proposed, should be in cases which do not in the very nature of things require an enquiry, for example, (a) cases of

unauthorised absence where absence is admitted but some explanation is given for the absence; (b) non-compliance with or breach of lawful orders of

official superiors where such breach is admitted but it is contended that it is not willful breach; (c) where the nature of charge is so simple that it can

easily be inferred from undisputed or admitted documents; or (d) where it is not practicable to hold a regular enquiry.

(v) But, even where the penalty proposed is categorised as minor penalty, if the penalty involves withholding increments of pay which is likely to affect

adversely the amount of pension (or special contribution to provident fund payable to the employee), or withholding increments of pay for a period

exceeding three year or withholding increments of pay with cumulative effect for any period, then it is incumbent upon the disciplinary authority to hold

a regular inquiry.

(vi) Position before decision in FCI: Where the charges are factual and the charges are denied by the employee or when the employee requests for an

inquiry or an opportunity to put forth the case, the discretion of the Disciplinary Authority is virtually taken away and it is imperative to hold a regular

inquiry.

Position after decision in FCI: Where the Rules give a discretion to the Disciplinary Authority to either hold a summary enquiry or regular enquiry, it is

not possible to say that the Disciplinary Authority should direct only a regular enquiry, when an employee denies the charge or requests for an inquiry.

Even in such cases, the Disciplinary Authority has the discretion to decide, for reasons to be recorded, whether a regular enquiry should be held or

not. If he decides not to hold a regular enquiry and proceeds to decide the matter summarily, the employee can always challenge the minor punishment

imposed, on the ground that the decision not to hold a regular enquiry was an arbitrary decision. In that event, the Court or Tribunal will in exercise of

power of judicial review, examine whether the decision of the Disciplinary Authority not to hold an enquiry was arbitrary. If the Court/Tribunal holds

that the decision was arbitrary, then such decision not to hold an enquiry and the consequential imposition of punishment will be quashed. If the Court/

Tribunal holds that the decision was not arbitrary, then the imposition of minor penalty will stand.

It is also possible to read the decisions in Bharadwaj and FCI harmoniously, if Bharadwaj is read as stating a general principle, without reference

to any specific rules, that it is incumbent upon the Disciplinary Authority to hold a regular enquiry, even for imposing a minor penalty, if the charge is

factual and the charge is denied by the employee. On the other hand, the decision in FCI holding that the Disciplinary Authority has the discretion to

dispense with a regular enquiry, even where the charge is factual and the employee denies the charge, is with reference to the specific provisions of a

Rule vesting such discretion.

This Court in Ajeet Singh Jat (supra) has held as under:-

Reverting to the facts of the case in the light of the aforesaid proposition, it is quite vivid that in the instant case, the petitioner has been served

only with show-cause notice dated 22-5-2008 filed in W.P.(S)No.4980/2009, but thereafter, nothing has been done and straightway, order dated 6-12-

2008 has been passed holding him guilty of misconduct imposing minor penalty of withholding of two increments with non-cumulative effect which is

contrary to the principle of law laid down by the M.P. High Court in Lal Audhraj Singh Lal Rampratap Singh (supra) and C.P. Singh's case (supra), as

show cause notice would not amount to proposal to take action against the delinquent and it would also not amount to serving of imputations of

misconduct or misbehaviour on which action is proposed to be taken under Rule 16(1)(a) of the Rules of 1966 and there is complete non-compliance

of Rule 16(1)(b) of the said Rules as no opinion has been recorded by the disciplinary authority that as to why inquiry is not necessary; taking the

representation submitted by the Government servant under clause (a) and the record of inquiry, if any, held under clause (b) into consideration. No

enquiry was held and nothing further was done and straightway the order has been passed. As such, the contention of learned counsel for the

petitioner that the order imposing punishment passed on 6-12-2008 is in teeth of the provisions contained in Rule 16(1) of the Rules of 1966 holds

water and accordingly, order dated 6-12-2008 deserves to be set aside.

In this case also, the petitioner has been served only with show-cause notice and thereafter nothing has been done and the impugned order holding

him guilty of misconduct imposing minor penalties withholding of two annual increments with non-cumulative effect has been passed and he has not

been served with imputations of misconduct or misbehaviour on which action is proposed to be taken under Rule 16(1)(a) of the Rules of 1966. There

is complete non-

compliance of Rule 16(1)(b) of the said Rules as no opinion has been formed by the disciplinary authority that as to why inquiry is not necessary.

Accordingly, the writ petition is allowed and the impugned order dated 25-01-2016 (Annexure P-1) passed by respondent No.2 is hereby set-aside.

No order as to cost(s).