AI Structured Summary
Not yet generated for this judgment
Judgment
Manindra Mohan Shrivastava, J.—The petitioner, filed an original application before the State Administration Tribunal, Principal Bench at Jabalpur, registered as Original Application No. 837/90. During the pendency of the petition, the State Administrative Tribunal was abolished and under statutory enactment provided for transfer of cases, this petition has been transferred to this Court. By this petition, the petitioner has assailed the legality and validity of departmental enquiry instituted by issuance of charge sheet dated 10-7-87 (Annexure A/22), the order of penalty of compulsory retirement imposed on the petitioner vide order dated 9-9-87 (Annexure A/2) as also order dated 21-2-89 (Annexure A/1), by which the appeal against the penalty has been dismissed.
During the period the petitioner was posted and working as Revenue Inspector in the office of Assistant Settlement Officer No. 2, Wadrafnagar, Settlement Officer (East) Sarguja (Ambikapur)/respondent No. 3 instituted a departmental enquiry by issuance of charge sheet dated 10-7-87 (Annexure A/22). As many as four charges of misconduct were leveled against the petitioner. The departmental enquiry culminated in issuance of order dated 9-9-87 passed by respondent No. 3 by which, the authority, agreeing with the enquiry report, held the petitioner guilty of all the charges and imposed a major penalty of compulsory retirement from service. By the said order, the authority also directed that period of absence i.e. the period from 28-6-85 to 30-6-86 and from 19-11-86 to 30-11-86 shall be treated as period of unauthorised absence and break in service and be treated as leave without pay. Aggrieved by the order of penalty, the petitioner availed remedy of appeal before the appellate authority, the Commissioner, Land Records and Settlement, M.P./respondent No. 2. The appeal was however dismissed by impugned order dated 21-2-89 (Annexure A/1). The order of penalty and order passed in appeal are under challenge in his petition.
Assailing the legality and validity of aforesaid action orders, learned counsel for the petitioner raised following contentions-
(i) That the Settlement Officer is an authority subordinate to the Collector. The petitioner was appointed by he Collector. The Settlement Officer is not the disciplinary authority of the petitioner (Revenue Inspector). Therefore, the order of penalty is violative of Article 311(2) of the Constitution of India as also in violation of Rules 12 and 13 of M.P./C.G. Civil Services (Classification, Control and Appeal) Rules, 1966 (for short ''the Rules of 1966''). Therefore, initiation of departmental enquiry and imposition of penalty is non-est.
(ii) That the petitioner was not afforded due and proper opportunity of hearing in the departmental enquiry, consequently, order of penalty is vitiated on account of violation of principles of natural justice.
(iii) Both the Settlement Officer as well as Enquiry Officer were biased against the petitioner.. Therefore, the enquiry and consequent punishment orders are vitiated on the ground of mala fide.
(iv) The appellate authority did not consider the grounds raised in the appeal nor examined the order of penalty as required under Rule 27 of the M.P./C.G. Civil Services (Pension) Rules, 1976 but mechanically confirmed the order of penalty, abdicating its statutory obligation under the Rules of 1966.
On the other hand, learned counsel for the respondent/State opposed the prayer and the grounds raised in the writ petition and controverting the submission of learned counsel for the petitioner submitted that the petitioner was working under direct administrative control of the Settlement Officer, therefore, the Settlement Officer was not only competent to institute departmental enquiry but also impose penalty. In any case, once the order passed by the Settlement Officer/respondent No. 3 is affirmed by the appellate authority, the illegality, if any, is cured. Further submission of learned State counsel is that a charge sheet containing specific allegations of misconduct was served on the petitioner and sufficient opportunity was afforded to the petitioner. He did not file reply but made alt attempts to avoid the enquiry by not participating and raised frivolous objections relating to appointment of enquiry officer which were found baseless. Based on oral evidence led by the presenting Officer and other material on record including documentary evidence, the enquiry officer found the charges proved and imposed penalty which is neither illegal nor can be said to be based on no evidence at all. The appeal of the petitioner was also duly considered by the appellate authority who found no substance in the appeal and the appeal was also dismissed. Therefore, departmental enquiry was instituted by the competent authority and penalty was also imposed by the competent authority. He submits that the petitioner was afforded due and proper opportunity of hearing.
I have considered the rival contentions of learned counsel for the parties and perused the records.
The first ground of attack to the order of penalty is founded on the submission relating to competence of the Settlement Officer to issue charge sheet, hold department enquiry and impose major penalty of compulsory retirement. The submission can be further sub divided into two parts as below-
(a) The petitioner was appointed by the Collector. The Settlement Officer is subordinate in rank to the Collector. Therefore, the major penalty of compulsory retirement could not be imposed by the Settlement Officer as it violates constitutional mandate engrafted in Article 311(2) of the Constitution of India.
(b) The Settlement Officer is not even a disciplinary authority under the Rules of 1966, therefore, he had no authority whatsoever to institute departmental enquiry or to impose penalty on the petitioner.
The submissions regarding competence on the ground of it being in violation of constitutional mandate under Article 311(2) of the Constitution of India, deserves rejection at the threshold for the reason that the said provision is applicable against an order of penalty of dismissal, removal or reduction in rank. Admittedly, the penalty imposed on the petitioner is of compulsory retirement which cannot be categorised or classified as either dismissal or removal or reduction in rank. Retirement cannot be equated with dismissal, removal or reduction in rank. Therefore, the said ground does not hold water.
However, the other contention that Settlement Officer was not the disciplinary authority specified under the rule nor was competent to impose penalty of compulsory retirement under the Rules, has considerable force.
Disciplinary action against a Government servant, which the petitioner admittedly was, is governed by rules framed by the Governor in exercise of powers under the provision of Article 309 of the Constitution of India known as M.P./C.G. Civil Services (Classification, Control and Appeal) Rules, 1966.
Rule 12(1) thereof provides in not uncertain terms that the Government may impose any of the penalty specified in Rule 10 on any Government servant. Cause (a) of sub-rule (2) provides that without prejudice to provisions contained in sub-rule (1) but subject to the provisions of sub-rule (3) any of the penalties specified in Rule 10 may be imposed by the appointing authority, or the authority specified in the schedule in this behalf or by any other authority empowered in this behalf by general or special order of the Governor. Further, clause (a) of sub-rule (3) of Rule 12 provides that notwithstanding anything contained in the rule, no penalty specified in clause (v) to (ix) of Rule 10 shall be imposed by any authority, subordinate to the appointing authority.
Rule 13 specifies authority competent to institute departmental enquiry. While sub-rule (1) thereof empowers the Governor or any authority empowered by him by general or special order to institute disciplinary proceedings against any Government Servant and direct disciplinary authority to institute disciplinary proceedings against any Government Servant, sub-rule (2) empowers the disciplinary authority, competent under the rules to impose any of the penalties specified in Clause (i) to (iv) of Rule 10, to institute disciplinary proceedings against any Government servant for imposition of any of the penalties specified in Clause (v) to (ix) of Rule 10 notwithstanding that such disciplinary authority is not competent under the rules to impose any of the latter penalties. Therefore, it has to be examined, with reference to the aforesaid provisions read with the schedule, as to whether the Settlement Officer was either competent to institute departmental enquiry or to impose penalty either being an authority competent to impose any of the penalties specified in Rule 10 or under general or special order of the Governor.
It is opposite to mention that the petitioner has very specifically raised a ground in the petition with regard to the competence of the Settlement Officer to impose penalty by stating that the petitioner was appointed by the Collector and the Settlement Officer had no jurisdiction. In the rejoinder also, the petitioner raised this very specific ground by way of very specific pleadings to the effect that the charge sheet was issued to him by the authority not competent to do so as the authority was neither the disciplinary authority nor the appointing authority of the petitioner.
As the return of the respondents was conspicuously silent on this aspect, this Court granted opportunity to the State counsel on 30-11-12 to seek instructions in this regard. On 3-12-12, one last opportunity was granted to the State counsel to satisfy the Court that the Settlement Officer was competent to act as disciplinary authority. However, no material has been placed before the Court by the State counsel, much less any specific pleadings to controvert such pleadings with support of any provision of law, statutory rules, notification, general or special order in this regard.
The schedule appended to the rules specifies the authority competent to impose penalty which it may impose. Under the heading "Settlement and Land Record-department" and sub-heading "II Class III executive" at serial No. 5, makes provisions with regard to appointing authority, disciplinary authority, penalty which it can impose and the appellate authority. In respect of Revenue Inspector, the Collector has been specified as appointing authority as also disciplinary authority competent to impose all the penalties. Either in the main body of the rule or in any of the provisions contained in schedule there is no reference at all to the Settlement Commissioner either as appointing authority or authority competent to impose any of the penalties on the Revenue Inspector. All those powers have been conferred only on the Collector. There is nothing in the rule to show that for the purposes of disciplinary action against Revenue Inspector posted in settlement, the Settlement Officer would become the competent authority in place of Collector. Therefore, it is writ large on the face of it that the Settlement Officer was neither the appointing authority nor the authority competent to impose any of the penalties much less penalty of compulsory retirement as specified in Rule 10 of the Rules of 1966.
Learned State counsel, despite repeated opportunities, could not place before the Court any provisions of law, statutory rule, notification, or any general or special order of the Governor as contained in Rules 12 and 13 of the Rules of 1966, conferring such power of disciplinary authority and competence to impose penalty of compulsory retirement, on the Settlement Officer.
The fact that the petitioner was a Revenue Inspector, is not in dispute. Moreover, it is also clear from perusal of order dated 10-5-1963 (Annexure A/3) that the petitioner was appointed as Chakbandi Inspector by the order of the Collector. The order dated 1-3-66 (Annexure A/4) of the State Government regarding change in the nomenclature of the posts borne on the same cadre also shows that nomenclature of Chakbandi Inspector was changed to that of Revenue Inspector.
It is therefore apparent that the very institution of departmental enquiry and subsequent order of appointment of enquiry officer, conduct of enquiry and issuance of order of penalty, are without jurisdiction and competence and non-est in the eye of law. Therefore, on this short ground alone, institution of departmental enquiry and order of penalty are declared illegal, non-est and inoperative in law.
Though learned State counsel sought to impress upon this Court by canvassing that the order having been affirmed by the appellate authority, the illegality if any, stands cured, the submission deserves rejection because an order which is void ab-initio and non-est from its very inception cannot be validated by subsequent order of appellate authority. In view of the above finding on the aspect of jurisdiction and competence, I need not dwell into other submissions raised to assail the legality and validity of the order of penalty and order passed in appeal.
The question which now arises for consideration is as to what relief can be granted to the petitioner Ordinarily, this Court might have reserved liberty to the competent authority i.e. the Collector to initiate department enquiry against the petitioner on the charges leveled against the petitioner. However, taking into consideration that more than 25 years have elapsed, relying upon the decision of the Supreme Court in the case of G. Vallikumari Vs. Andhra Education Society and Others, , it would be in the interest of justice that the chapter be closed giving quietus to the dispute. Once the order of removal is declared illegal and non-est, the petitioner would have been reinstated in service. However, during the pendency of the petition, the petitioner has already attained the age of superannuation. Therefore, it is directed that the petitioner shall be deemed to be reinstated in service and retired from service on the due date upon attaining the age of superannuation under the conditions of service applicable to him.
As far as the question of back wages are concerned, learned counsel for the petitioner placing reliance on the decisions Union of India (UOI) Vs. Madhusudan Prasad, V.C., Banaras Hindu University and Others Vs. Shrikant, , and Roop Singh Negi Vs. Punjab National Bank and Others, , submitted that the petitioner is entitled to full back wages.
The old legal position that upon reinstatement, the employee shall invariably be entitled to full back wages has undergone sea change and no longer a rule of thumb.
In the case of M.L. Binjolkar Vs. State of Madhya Pradesh, , following ratio of law was laid down by the Supreme Court--
6........Though the High Court has not specifically dealt with the question as to what would be the appropriate quantum, keeping in view the law laid down by this Court in various cases e.g. Hindustan Motors Ltd. Vs. Tapan Kumar Bhattacharya and Another, Rajendra Prasad Arya Vs. State of Bihar, , Management of Sonepat Cooperative Sugar Mills Ltd. Vs. Ajit Singh, , Haryana State Coop. Land Development Bank Vs. Neelam, , Manager, R.B.I., Bangalore Vs. S. Mani and Others, and Allahabad Jal Sansthan Vs. Daya Shankar Rai and Another, , we do not find any scope for interference. The earlier view was that whenever there is interference with the order of termination or retirement, full back wages were the natural corollary. It has been laid down in the cases noted above that it would depend upon several factors and the Court has to weigh the pros and cons of each case and to take a pragmatic view.
Therefore, in the present case, the issue is required to be examined in the light of peculiar facts and circumstances of the present case. Present is not a case that the petitioner was altogether removed from service and was not paid anything since the order of imposition of penalty ever since the date of imposition of penalty. Present is a case where the petitioner was given compulsory retirement from service vide order dated 4-9-87. Therefore, the petitioner has been receiving pension. The order of Settlement Officer passed on 9-9-87 shows that the petitioner had completed 24 years of service, meaning thereby that the petitioner is getting substantial amount as pension. Not only this, the petitioner must have received amount of gratuity, provident fund, leave encashment benefit, group insurance etc. in substantial sum in the year 1987 itself. Moreover, taking into consideration that as a consequence of the order passed by this Court, the pensionary benefits of the petitioner, including pension as if he had continued till the date of attaining the age of superannuation, would be revised on higher side and so also, the gratuity, leave encashments, which the petitioner would be getting as arrears in respect of the period from his retirement in the year 2000 till now, in order to do complete justice, instead of ordering payment of any back wages as part of salary, following consequential benefits shall ensue to the petitioner:
(a) The pension of the petitioner shall be revised, treating him as reinstated in service without any break from the date, he was compulsorily retired till his actual date of superannuation in the year 2000 and his pay shall also be notionally fixed in the pay scale which he was getting till his date of superannuation which shall include benefit of notional fixation including any revised pay which may have accrued between the period from 9-9-87 till the date, he attained the age of superannuation.
(b) The amount of gratuity and leave encashment shall also be accordingly revised.
(c) The arrears so computed in the manner as described above in (a) and (b) shall carry interest @ 10% from the actual date of superannuation till the date of payment.
(d) The entire amount of arrears with interest shall be paid to the petitioner within a period of four months from the date of receipt of copy of the order.
The petition is accordingly allowed. No order as to cost.