Vishwanath Laharia vs State of M.P. and Others

Sujoy Paul, J.—In this petition filed under Article 226 of the Constitution petitioner has assailed the action of the respondents in not promoting him on the post of Assistant Director from 28.02.2004 when other similarly situated persons were promoted vide Annexure P/4. Brief facts necessary for adjudication of this matter are as follow:- (i) Petitioner was served with a charge sheet on 17.03.1986. By the punishment order dated 22.08.1988 (Annexure P/1) petitioner was inflicted with various punishments, which are as under:-

(i) Stoppage of two increments with cumulative effect.

(ii) Debarred from promotion for six years.

(iii) Recovery of Rs. 2600/-

(iv) Recover of Rs. 220/-

(v) Claim for travelling allowance was rejected.

The petitioner preferred an appeal before the appellate authority and that appeal was not decided. He then preferred O.A. No. 02/2002 and it was disposed of by directing the appellate authority to decide the appeal within a period of three months. In turn, the appellate authority passed an order dated 24.10.2002 (Annexure P/3) whereby punishment imposed by the disciplinary authority was modified as under:-

(i) For charge No. 1 stoppage of two annual increments with cumulative effect.

(ii) Recovery of Rs. 2820/-and

(iii) Rejected the claim of travelling allowance.

Shri Raghuvanshi submits that modification of the punishment will take effect from the date of original punishment order i.e. 22.08.1988, however, his case has not been considered by the DPC for next promotion when it took place pursuant to which promotion order Annexure P/4 was passed whereby his statutory, fundamental right of promotion is infringed and is taken away.

In turn, Shri Newaskar, learned Deputy Government Advocate submits that the punishment is to be counted from the date of passing of the appellate order i.e. 24.10.2002 and not to be counted from the date of original punishment order and when DPC met i.e. 31.01.2004, petitioner was undergoing aforesaid punishment imposed by the appellate authority. In such circumstances, petitioner is not entitled for any relief.

I have considered the rival contention of the parties and perused the record.

The singular question to be decided in this matter is what would be the effect of the appellate order on the date when DPC met i.e. 31.01.2004. As per M.P. C.S (CCA) Rules 1966, the appellate authority is empowered to set aside, modify, reduce or enhance the punishment order. For the purpose of enhancing punishment order, appellate authority is obliged to hear the delinquent employee before taking any adverse action. The appellate authority is also empowered to annul, modify or cancel the punishment order passed by the disciplinary authority. The appellate order in this case shows that the appellate authority after due application of mind has substituted the punishment, which was imposed by the disciplinary authority. Thus, modification so imposed by the appellate authority will relate back to the date of imposition of original punishment order dated 22.08.1988. This view is recently taken by the Supreme Court in the case of Chairman-Cum-M.D., Coal India Ltd. and Others Vs. Ananta Saha and Others,

In (1997) (6) 5CC 159 (Punjab Dairy Development Corporation Ltd. And Another Vs. Kala Singh And Others) the Supreme Court by the following the Constitutional Bench Judgement has held as under:-

Follwing the judgement of the Constitution Bench, we hold that on the Labour Court''s recording a finding that the domestic enquiry was defective and giving opportunity to adduce the evidence by the management and the workman and recording of the finding that the dismissal by the management was valid, it would relate back to the date of the original dismissal and not form the date of the judgment of the Labour Court.

Considering the above legal position, in the opinion of this Court, the doctrine of relation back would apply in the present case and the substituted punishment imposed by the appellate order has to be counted from the date of the imposition of original punishment order. If it is counted from the original punishment order i.e. 22.08.1988 the petitioner''s punishment came to an end much before the date of DPC i.e. 31.01.2004. Thus, on the date when the DPC met, petitioner was neither facing any disciplinary proceedings nor undergone punishment. No other ground is pressed by the learned Government Advocate to support their stand. On the basis of the aforesaid factual back drop it is clear that petitioner''s right of consideration is taken away and infringed by the respondents. Accordingly, it is directed to convene a review DPC and consider the case of the petitioner on the date of original DPC. If on such consideration petitioner is found entitled, he be promoted to the post of Assistant Director with all consequential benefits. The aforesaid exercise be completed within a period of four months.

With the aforesaid, petition is allowed.

No order as to costs.