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W.P. No.3537/2009 (S)
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Writ Petition No. 3537/2009 (S)
PETITIONER : Vikas Pathak
Versus
RESPONDENTS : State of Madhya Pradesh & others
P R E S E N T:
Hon'ble Mr. Justice R.K. Gupta
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For the Petitioner : Ms. Gurleen Chhabra, Advocate
For the Respondent : Mr. Sudhir K. Shrivastava, Govt. Advocate
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ORDER
10-02-2010
The present petition has been filed by the petitioner
impugning the correctness of the order dated 10.12.2007,
Annexure P/1, whereby a penalty of stoppage of two annual
increments without cumulative effect has been imposed on the
petitioner after holding a departmental enquiry. The petitioner
has also called in question the legality and validity of the order
dated 14.11.2008 passed by the appellate authority whereby the
appeal of the petitioner against the order of penalty has been
dismissed. The petitioner has also prayed for a direction to the
respondents to open the seal cover and release the benefit of
promotion to higher cadre (Senior Scale) and Senior Selection
Grade with all consequential benefits.
2. In short, the facts giving rise to this writ petition are that
at the relevant time in the year 2002 while serving as Deputy
Superintendent of Police (AJAKS) a departmental enquiry was
proceeded against the petitioner after holding a preliminary
enquiry wherein as many as four charges which were levelled
against the petitioner were found proved. The report of the
preliminary enquiry dated 6.8.2004 is Annexure P/8. Thereafter,
a charge sheet dated 26.8.2004, Annexure-P/9, was served upon
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the petitioner levelling as many as four charges which are
enumerated in Annexure-P/9. The crux of the charges as
enumerated in the charge sheet is that the petitioner in order to
avoid the arrest in Crime No.172/04, which was registered
against him at Police Station, Ratibad District Sehore,
proceeded on medical leave w.e.f. 2.7.2004. The second charge
was to the effect that the petitioner had not duly signed the
medical certificates dated 2.7.2004 and 10.7.2004. Thirdly, it
was alleged that the petitioner left for Jhansi from Bhopal on
10.7.2004 without obtaining prior permission of the respondent
No.3. The last of the four charges levelled against the petitioner
was that while serving as DSP (AJAKS) he was visiting Bhopal
without permission.
3. The petitioner submitted a detailed reply to the said
charge sheet which is contained in Annexure-P/10. It was
contented inter-alia that the charges do not constitute a
misconduct within the provisions of M.P. Civil Services
(Conduct) Rules 1965. According to the petitioner,
simultaneously he was also prosecuted in Crime No.172/04,
which ultimately led to honourable acquittal of the petitioner
vide judgment dated 17.11.2004 as contained in Annexure-P/11.
Thereafter, the petitioner was reinstated in service vide order
dated 24.3.2005, Annexure-P/12. However, a departmental
enquiry against the petitioner was proceeded with and
ultimately the Inquiry Officer held the petitioner guilty of the
charges No. 1, 3 and 4 and further found the charge No.2 as
partially proved. The said enquiry report is contained in
Annexure-P/13. The petitioner again submitted a detailed
representation refuting the findings arrived at by the inquiry
officer and thereafter being aggrieved the same approached this
Court in W.P. No.16748/2007, which was ultimately disposed of
vide order 10.12.2007 with a direction to the Director General
of Police to take appropriate steps with regard to the findings
submitted by the Inquiry Officer within a period of three
months. Pursuant to the same, the petitioner vide order
impugned order dated 10.12.2007 as contained in Annexure-P/1
was inflicted with a penalty of stoppage of two annual
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increments with non-cumulative effect. Being aggrieved by the
order of penalty the the petitioner submitted a detail appeal
before the Appellate Authority which is contained in Annexure-
P/16. The appeal also failed and it was turned down vide order
dated 14.11.2008 as contained in Annexure-P/2.
4. It is the grievance of the petitioner that the appellate
authority while rejecting the appeal of the petitioner has not
ascribed any reason and by way of a non-speaking order the
appeal has been summarily rejected.
5. True it is, the appeal against the order of penalty so
preferred by the petitioner was a statutory appeal in terms of
Rule 27 of the M.P. Civil Services (Classification, Control &
Appeal) Rules, 1966, therefore, it being a statutory appeal a
duty was cast upon the appellate authority to decide the said
appeal by ascribing reasons for rejection of the appeal. The
petitioner in his appeal has raised many a grounds but a perusal
of the order dated 14.11.2008, Annexure P/2, whereby the
appeal of the petitioner against the order of penalty has been
rejected specifically reveals that the appellate authority has not
given any reason while rejecting the appeal and there is no
consideration to the points raised by the petitioner in his appeal.
The appeal has been rejected by a reticent order thereby
warranting interference of this Court to quash the same.
6. It is further contended on behalf of the petitioner that the
records of the enquiry were placed before the Department of
Home for consideration on completion of the enquiry. The
matter was taken up by the Principal Secretary, Department of
Home who vide its order dated 17.4.2007 (internal page 125)
came to a conclusion that out of four charges, the charges No.1,
2 and 3 were not substantiated, however, the only charge for
which the disciplinary action remained to be taken was the
charge No.4 for which the Principal Secretary Home proposed
the consideration of imposition of minor penalty of Censure
against the petitioner. The grievance of the petitioner is that
contrary to the proposed punishment, the Hon’ble Chief
Minister vide order-sheet dated Nil contained at internal page
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125 of the writ petition directed to enhance the punishment for
stoppage of two increments without cumulative effect. On this
basis, it is urged on behalf of the petitioner that the Hon’ble
Chief Minister had no authority in law to enhance the
punishment and that too without assigning any reason thereto.
7. It is seen that in the present case the disciplinary
authority of the petitioner is the respondent No.1 who after
taking into account the charges and the report of the inquiry
officer vide note-sheet Annexure P-17 recommended for
imposition of minor penalty of ‘censure’ upon the petitioner,
however, the Hon’ble Chief Minister without ascribing any
reason thereto directed to impose a higher penalty of stoppage
of two annual increments without cumulative effect. Once the
note-sheet was put up before the Hon’ble Chief Minister and he
had chosen to impose a higher penalty than proposed by the
disciplinary authority then there ought to have been some
reason for the same but no reasons as such to impose the higher
penalty have been given.
8. In view of the aforesaid, the orders dated 10.12.2007,
Annexure P/1 and 14.11.2008 Annexure P/2 are quashed. As
both the impugned orders have been quashed, needless to
emphasise, the respondents shall open the sealed cover
envelope for his promotion to the next higher cadre as per law
and in case the petitioner is found fit for the promotion, the
necessary order of promotion shall be passed with all
consequential benefits flowing therefrom. The entire exercise as
such shall be conducted within a period of four months from the
date the petitioner furnishes the certified copy of this order to
the respondents. In the result, the petition succeeds and is
allowed. No order as to costs.
{R.K. GUPTA}
Judge
S/