Vishnuprasad Sharma vs Rajendra Chouhan and others

This petition has been filed under Article 226 of the Constitution of India against the order of dismissal dated 18.12.2006 (Annexure P/7)

passed by the respondent No.3/Chief Engineer, M.P.P.K.V.V. Co. Ltd. as also against the order passed in appeal dated 18.02.2013 (Annexure

P/12) passed by the respondent No.2/Chairman-cum-Managing Director of Madhya Pradesh Power General Co. Ltd., Jabalpur.

The case of the petitioners is that the petitioner was serving as Assistant Grade III with respondent No.2 company and posted in Power

Distribution Center, Chakghat from 15.8.1988 to 25.8.2000 and while serving in the said Center, he was issued a charge sheet by respondent

No.4/Superintending Engineer on 11.5.2001. A supplementary charge sheet was also issued to the petitioner on 30.03.2002 wherein three

charges were framed against him that he misappropriated the amount collected from the consumers against their electricity bills by not depositing

the same in the account of the company and the further charge was that when the said act of the petitioner came to light, he deposited a sum of

Rs.1,18,033.00 and Rs.1,99,688.00 through different bank drafts in the accounts of the Electricity Board. Thus, it was stated that the petitioner

had caused a loss to the tune of Rs.3,17,721/- to the Electricity Board by misappropriation. In charge No.2, it was contended that the petitioner

had collected Rs.4,644/- from 10 consumers and did not deposit the said amount in the accounts of the company and misappropriated the same.

In charge No.3, it was also stated that the petitioner had misappropriated a sum of Rs.6,348/- collected from the consumers and failed to deposit

in the Company''s accounts. A reply to the aforesaid charge sheet was also submitted by the petitioner and on 7.2.2002 a departmental enquiry

was instituted against the petitioner and an enquiry officer was appointed.

It is contended by the petitioner that the principles of natural justice were violated as he was not afforded proper opportunity to defend during

the enquiry and he was also not given opportunity to cross-examine the witnesses.

The enquiry officer submitted his report on 1.9.2003 wherein it was held that the petitioner is guilty of charge-1 and partially guilty of charge

Nos. 2 & 3. The aforesaid report was submitted by the enquiry officer to respondent No.4. The respondent No.5 issued a notice to the petitioner

on 18.11.2005 asking to show cause as to why the penalty of withholding of four increments with cumulative effect be not imposed upon him.

Before the petitioner could reply to the aforesaid show cause notice. the same was withdrawn and another show cause notice was issued on

6.10.2006 and by the same he was asked to show cause as to why he should not be dismissed from service. A reply to the aforesaid show cause

notice was also submitted by the petitioner wherein it was stated that since show cause notice was already issued to the petitioner on prior

occasion regarding withholding of four increments with cumulative effect hence subsequent show cause notice can not be issued imposing major

penalty. The respondent No.3 passed the final order on 18.12.2006 imposing major penalty of dismissal from service and also directed recovery

of Rs.4,644/-from the provident fund account of the petitioner and the appeal preferred against the aforesaid order was also rejected by the

respondent No.1 vide order dated 16.5.2007. The aforesaid order was challenged by the petitioner in W.P. No.7462/2007 before this Court and

this Court vide its order dated 20.11.2012 quashed the order dated 16.5.2007 referring to non-compliance of Rule 27(2) of the M.P. Civil

Services (Classification, Control & Appeal) Rules, 1966 (hereinafter referred to as ''the Rules of 1966'') and the appellate authority was directed

to decide the petitioner''s appeal afresh after affording opportunity of hearing to the petitioner. A fresh appeal was submitted by the petitioner but

the same has also been rejected by the respondent No.2 vide order dated 18.2.2013 which is under challenge before this Court.

The petitioner''s contention is that the order dated 18.02.2013 is illegal and arbitrary and has further submitted that since the enquiry was

conducted in utter disregard to the provisions of the Rules of 1966 and he was not given proper opportunity to lead the evidence, hence also the

order is liable to be quashed.

It is further submitted that the disciplinary authority has not evaluated the evidence on record in its proper perspective and no reasons have been

assigned for imposing the major penalty. It is further submitted that the earlier order of major penalty was remanded by this Court but subsequently

also same mistake has been committed by the respondents in passing the impugned order dated 18.2.2013. Thus it is prayed that the order

imposing major penalty be quashed.

On the other hand, it is submitted by the counsel for the respondents that in the enquiry report in the last para it is clearly mentioned that the

money was taken by the petitioner from the consumers and was not deposited in the Department''s Account which in itself is sufficient to hold that

the integrity of the petitioner is rather dubious and no relief can be granted to the petitioner as he was found to be involved in misappropriation of

the respondent''s amount which was entrusted to him. It is further submitted that due opportunity of hearing was given to the petitioner as also the

opportunity to cross-examine the presenting officer.

The respondents have also brought on record an undertaking given by the petitioner that the departmental proceeding initiated against him were

satisfactory in nature and he was given due opportunity of hearing to contest his case. It is further submitted that earlier show cause notice issued to

the petitioner dated 18.11.2005 was withdrawn on 23.9.2006 because the same was issued by the Executive Engineer, who was not competent to

issue show cause notice and for which the aforesaid order dated 23.9.2006 is also placed on record.

Heard learned counsel for the parties and perused the record.

From the record it is apparent that in the first round of litigation, this Court had directed the appellate authority to reconsider the petitioner''s

appeal afresh strictly in terms of subrule (2) of Rule 27 of the Rules of 1966 and pass a speakingorder. Sub-rule (2) of Rule 27 reads as under :

27(2). In the case of an appeal against an order imposing any of the penalties specified in rule 10 or enhancing any penalty imposed under the said

rule, the appellate authority shall consider,-

(a) whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of

any provisions of the Constitution of India or in the failure of justice;

(b) whether the findings of the disciplinary authority are warranted by the evidence on the records; and

(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe, and pass orders -

(i) confirming, enhancing, reducing or setting aside the penalty; or

(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the

circumstances of the case.

In the considered opinion of this Court, the order passed by the appellate authority subsequently has been passed taking into account the

grounds raised by the petitioner. This Court does not find that the reasons assigned by the appellate authority can be said to be perverse or

uncalled for. The other important aspect of the matter is that admittedly the petitioner had got deposited the sums to the tune of Rs.1,18,033/- and

Rs.1,99,688/- through the different bank drafts in the accounts of the Electricity Board. The aforesaid lump-sum amount deposited by the

petitioner leads to only conclusion of his guilt owing to criminal breach of trust. Thus, in the considered opinion of this Court, the petitioner has

been let off rather cheaply by simple termination order otherwise it could have been a worst case scenario.

In the circumstances, the petition fails and is hereby dismissed.