State of M.P. vs N.S. Chouhan

Rajendra Menon, J.—In this appeal under Section 2 of the M. P. Uchcha Nyayalaya Khandpith Ko Appeal Adhiniyam, 2005, tenability of an order dated 27.08.12 passed by the Writ Court in W. P. No. 18818/03 is called in question.

By the aforesaid judgment, the learned Writ court has quashed the charge-sheet/show-cause notice issued to the respondent under Rule 16 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as ''the Discipline and Appeal Rules'').

Facts in nut-shell goes to show that respondent Shri N. S. Chouhan at the relevant time when the cause of action for initiating the departmental proceedings arose was working as a ''Superintending Engineer'' and was Incharge Superintending Engineer in Nowgaon Division Nowgaon. It seems that on account of certain irregularities said to have been committed by him while discharging the duties as an Incharge Superintending Engineer along with the then Superintending Engineer Shri G. P. Pathak, a show-cause notice dated 4.09.97 was issued to him. In this show-cause notice, it was indicated that in the matter of procuring cement and calling tender for procurement of the aforesaid material, three irregularities were indicated.

Treating the three irregularities to be imputations of misconduct, a show-cause notice was issued under the provisions of Rule 16 of the Discipline and Appeal Rules and a proposal for imposing minor punishment was also indicated in the show-cause notice.

Shri Chouhan submitted a detailed reply to the said show-cause notice and also enclosed a note-sheet and various defence which includes his explanation to say that at the relevant time, when the irregularities were said to have been committed, Shri Chouhan was not responsible for the same and he indicated that in the preliminary enquiry conducted as is evident from the note-sheet, he was exonerated of the allegations. Be it as it may be, the disciplinary authority proceeded in the matter and vide order dated 8.08.01, imposed a punishment of stoppage of one increment without cumulative effect. Challenging the aforesaid punishment, the writ petition was filed and in the writ petition, even though various grounds were raised, the learned Writ Court placing reliance on a judgment of the State Administrative Tribunal in the case of Ku. Shailja R. Jeswani Vs. State of M. P. and others [2000 (II) M. P. L. S. R. 187] held that even if departmental proceedings are held under Rule 16 of the Discipline and Appeal Rules, charge-sheet with regard to imputations of misconduct and allegations of misconduct as contemplated under Rule 16 is necessary and as the charges and imputations of misconduct are not in accordance with the requirement of Rule 14, the entire proceedings and charge-sheet were quashed. However, the Writ Court did not go into the merits of the matter and allowed the writ petition.

Shri Rahul Jain, learned Dy. Adv. General invited our attention to Rule 16 of the Discipline and Appeal Rules, wordings of the said Rule, and submits that the provisions of Rule 16 only contemplates issuance of show-cause notice along with the imputations of misconduct and there is no specific provision in this Rule which contemplates for proving imputation of allegation or misconduct, in detail as contemplated under Rule 14. It is said that requirement of Rule 14 cannot be made applicable to a proceeding under Rule 10. The learned Writ Court had committed an error in relying the judgment of the State Administrative Tribunal in interfering into the matter.

That apart, Shri Rahul Jain argued that Shri N. S. Chouhan was only entitled to a show-cause notice and liberty to submit his reply. As the impugned order of punishment is imposed after following the said procedure, the same is in accordance to law, no interference is called for.

Shri N. S. Ruprah argued that the learned Writ Court has not committed any error and, therefore, no interference be made. However, in the alternate, Shri Ruprah argued that this Court is inclined to accept the contentions of Shri Rahul Jain on the first ground, then as far as the merits of the case is concerned, he invited our attention to a detailed reply filed in the writ appeal and emphasized that his defence, explanation and the justification given to the allegations of misconduct has not been considered and in the preliminary enquiry conducted, based on the note-sheet dated 6.02.01, there being clear-cut stipulation that respondent/petitioner Shri N. S. Chouhan was not incharge, the findings of the enquiry officer without giving any reason and without application of mind or considering the defence is unsustainable.

We have heard learned counsel for the parties. The first ground is with regard to manner in which the charge- sheet is to be issued in the matter of imposing a minor punishment under Rule 16, for the said purpose, it would be appropriate to take note of the requirement of Rule 14, 15 and 16 of the M. P. Civil Services (Classification, Control and Appeal) Rules, 1966.

Rule 14 contemplates a detailed procedure for imposing penalties. This Rule provides for a procedure to be followed for imposing any of the penalties as are contemplated in Rule 10 from clause (v) to clause (ix) thereof and these punishments are classified as major punishments. Sub-rule (3) of Rule 14 contemplates that where it is proposed to hold an enquiry against a Government servant under this rule and Rule 15, the disciplinary authority shall draw up or cause to be drawn up- the substance of the imputation of misconduct or misbehaviour into definite and distinct articles of charge. Thereafter, the statement of misconduct and misbehaviour has to be drawn up containing the requirements as contemplated in the sub-rule (ii) of Rule (3). Thereafter, sub-rule (4) mandates the disciplinary authority to deliver or cause to be delivered to the Government servant a copy of the article of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which article of charge is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.

It is said that under sub-rule (3) of Rule 14, the statute itself contemplates the manner in which the Articles of charge, the substance of the imputation of misconduct and a statement of the imputations of misconduct have to be drawn or delivered to the delinquent employee which includes the list of documents and list of witnesses along with the Articles of charge.

If the procedure of Rule 16 is taken note of, this procedure pertains to imposing of minor punishment and sub-rule (1) of Rule 16 contemplates that no order imposing on a Government servant any of the penalties specified from clause (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 the action is proposed to be taken, and giving him a reasonable opportunity of making such representation as he may deem appropriate and, thereafter, if advised in sub-rule (b), the disciplinary authority is of the discretion to hold an enquiry in the manner provided from sub-rules (3) to (23) of Rule 14, the disciplinary authority after taking note of the representation submitted if any by the Government servant under clause (a) and the record of inquiry, if any has to record a finding on which misconduct and after consulting a commission has to pass an order.

If the manner of drawing of imputations of misconduct, misbehaviour or charges as are indicated in Rules 14 and 16 are analyzed, it would be clear that for holding an enquiry for imposing minor punishment under Rule 16, the only requirement of the rule is to inform to the Government servant about the imputations of misconduct or misbehaviour, and there is nothing in this regard which goes to show that distinct separate charges are to be drawn out along with list of documents, list of witnesses etc. and communicated to the employee or copy of the charges etc. to be drawn separately. The rule contemplates that if the disciplinary authority is proposed to conduct an enquiry under Rule 14 by invoking the powers available to him under sub-rule 1(b) of Rule 16, then the charge-sheet has to be drawn and the imputations of misconduct has to be communicated to the delinquent employee as per the proceeding contemplated under Rule 14, not otherwise.

Rules 14 and 16 are entirely different and when the statute contemplates a specific procedure which is laid down therein, the Writ Court has committed an error in reading into Rule 16, the requirement of Rule 14, when rule 16 did not intend or prescribe any separate procedure as in Rule 14 in the matter of issuance of charge-sheet the writ Court could not read into Rule 16 the procedure of Rule 14. If the show- cause notice issued to the petitioner Annexure A-17 dated 4.09.97 is taken note of, it would be seen that even though, it is termed as a show-cause notice, the facts with regard to purchase of cement and issuance of tender are indicated. Thereafter, three allegations amounting to misconduct are detailed and then in para 2, the employee is directed to show- cause as to why the minor punishment of imposing one increment without cumulative effect be not imposed upon him.

In our view, the show-cause notice Annexure A-17 is nothing but a charge-sheet under Rule 16 meeting all the requirements of Rule 16 and the Writ Court referring to the requirement of drawing separate imputations and allegations of misconduct etc. as provided in Rule 14 into the provisions of Rule 16 has committed a grave error.

It is the discretion of the disciplinary authority whether to issue a charge-sheet even for a minor punishment in accordance with the requirement of Rule 14 and if he does not so decide and if the disciplinary authority issues a charge-sheet or notice after complying with the requirements of sub-rule (a) of Rule 16, then the action taken cannot be violated on such consideration.

In our view, the learned Writ Court has committed an error by relying on the judgment in the case of Ku. Shailja R. Jeswani (supra), the show-cause notice and the charge- sheet dated 4.09.97 issued to the respondent employee meets the requirement of Rule 16 and, therefore, we hold that the learned Writ Court has committed an error in quashing the charge-sheet on such consideration.

Accordingly, the findings recorded by the learned Writ Court in the impugned order being erroneous and contrary to law is quashed and the matter can be now remanded back to the learned Writ Court for considering the question of imposing of penalty. However, considering the fact that respondent employee is retired and the matter pertains to the year 1997, we now propose to go into the merits of the matter and consider all the questions in this appeal itself.

Even if the proceeding is held under Rule 16, the provisions of Rule 16 (1) (c) and 16 (1) (d) mandates that the disciplinary authority before imposing the punishment has to take representation from the employee with regard to the allegations contained in the show-cause notice and after referring to the same, findings on each misconduct or misbehaviour is to be recorded and then can impose the punishment. It is therefore the requirement of law that in a proceeding held under Rule 16 for imposing minor punishment, when the show-cause notice or charges are levied on the employee and when the employee submits his defence by way of his representation, the defence has to be considered and analyzed by way of discussions and by a reasoned order showing application of mind, it is either required to be accepted or rejected.

If such a procedure is not followed and, thereafter, a finding of guilt is not recorded, then the disciplinary authority is said to have not only violated the rule but also the principles of natural justice and in such cases, the entire proceedings stands vitiated due to non-application of mind or passing an order of punishment without recording of reasons.

That being so, we propose to deal with the merit of the matter, in the backdrop of the above procedure. In the show- cause notice Annexure A-17 dated 4.09.97, three allegations are levelled against the petitioner pertaining to issuance of tender, quality of cement and getting approval of the competent authority with regard to the tender document.

Respondent employee submitted a detailed reply vide Annexure A-18 on 19.09.97 running to more than 4 pages and also enclosed more than three documents including the note-sheet dated 6.02.01 and gave his defence by saying that he was not responsible for the irregularities committed and also placed reliance on the note-sheet wherein in the preliminary enquiry, he was exonerated. However, the disciplinary authority in its order dated 8.08.01 after reproducing the allegations and by saying about considering the reply submitted by the petitioner in a very casual manner held that the reply submitted is rejected, the explanation cannot be accepted and imposed the punishment.

The manner in which the disciplinary authority has proceeded in the matter is contrary to the rules as indicated by us. The disciplinary authority did not analyze the defence and explanation of the employee, did not record any reason as to why he does not accept the explanation and infact, did not consider the reply at all. In the reply submitted by the petitioner for example, the note-sheets relied upon were not adverted to nor considered at all by the Disciplinary authority. The Disciplinary authority infact has passed the impugned order of punishment dated 8.08.01 without recording a proper finding of guilt, without considering the defence of the employee and without following the requirement of sub rule 1 (c) and 1(d) of Rule 16 and, therefore, on this count Shri Ruprah is right in contending that the action taken and punishment imposed is unsustainable.

We are satisfied that the punishment imposed upon the respondent is by an order which does not show any application of mind, no reason for rejecting the defence of the employee is given and, merely, without giving any reasons, the punishment is imposed which is unsustainable.

Even though, we allow this appeal on the grounds as indicated hereinabove but we quash the impugned order of punishment on the second ground and, therefore, the writ appeal filed by the appellants/State Government stands allowed. However, the impugned order of punishment dated 8.08.01 is quashed on the grounds and reasons indicated by us.

With the aforesaid, the petition stands allowed and disposed of.