SIKALCHAND PARASTE v. THE STATE OF MADHYA PRADESH
Court: High Court of Madhya Pradesh
Judgment date:
Case summary
High Court of Madhya Pradesh judgment dated 2020-01-06. SIKALCHAND PARASTE v. THE STATE OF MADHYA PRADESH. Read the judgment and case details on LawSphereX.
Judgment text
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR Case No. WP. No. 2752/2018 Parties Name Sikalchand Paraste Vs. State of M. P. & Ors. Date of Order 06/01/2020 Bench Constituted Single Bench Order delivered by Justice Sujoy Paul Whether approved for reporting NO Name of counsels for parties For Petitioner: Shri D. K. Tiwari, Advocate For respondents-State: Shri Saurabh Sundar, Government Advocate Law laid down - Significant paragraph numbers - O R D E R (06. 01. 2020) In this petition filed under Article 226 of the Constitution, the petitioner has called in question the legality, validity and propriety of the charge sheet dated 17. 02. 2016 (Annexure P/3). 2. Shri Tiwari, learned counsel for the petitioner submits that the charge sheet is bad in law on three counts namely (i) the petitioner is a Class-II employee. The Divisional Commissioner has no authority, jurisdiction and competence to issue the impugned charge sheet.
The Divisional Commissioner is only competent to inflict a minor punishment whereas impugned charge sheet is issued for the purpose of imposing a major penalty; (ii) the charges are related with quasi judicial functioning of the petitioner. The petitioner passed various quasi judicial orders in his official capacity. All such orders are filed alongwith a list of documents. If the petitioner has passed any erroneous order in exercise of quasi judicial function, he cannot be subjected to a disciplinary proceeding. Reliance is placed on the judgment of Supreme Court reported in (1999) 7 SCC 409 WP. No. 2752/2018 (Zunjarrao Bhikaji Nagarkar vs. Union of India); (iii) as per GAD Circular dated 12. 11. 1997, the coercive action of domestic enquiry against the petitioner runs contrary to this executive instructions. 3. To elaborate, Shri Tiwari urged that since the charge sheet is issued by Incompetent Authority and the charges are related with the judicial orders passed by the petitioner.
Hence, the disciplinary proceedings must be axed. 4. Prayer is opposed by Shri Saurabh Sundar, learned G. A. on the basis of return. He submits that the notification/order dated 01. 01. 2002 (Annexure R/1) shows that the Divisional Commissioner was declared as ‘Disciplinary Authority’ and was empowered to impose minor penalties enumerated in Clause (i) to (iv) of Rule 10 of M. P. C. S. (C. C. A. ) Rules, 1966 (hereinafter referred to as ‘CCA Rules, 1966’). Thus, the Commissioner is Competent Authority for the purpose of initiation of disciplinary proceeding. Shri Sundar urged that this Court by order dated 16. 03. 2018 restrained the respondents from conducting the departmental enquiry. However, before passing of said order, on 05. 03. 2018 itself the enquiry was over and Inquiry Officer has submitted his detailed report (Annexure R/3). The petitioner has suppressed this fact in the WP.
Learned government counsel urged that the scope of interference at the stage of charge sheet is limited. The charge sheet is not a final order. If certain factual allegations are made, it was open to the petitioner to file his response. He did so which was duly considered in the Inquiry Officer’s report. He raised objection against the third ground raised by Shri Tiwari. 5. No other point is pressed by the parties. 6. I have bestowed my anxious consideration on the rival contentions of the parties and perused the record. As to Point No. (i) 7. This is trite that initiation of departmental enquiry and imposition of punishment are two different facets in service jurisprudence. The Apex Court WP. No. 2752/2018 way back in (1970) 1 SCC 108 (State of Madhya Pradesh & Ors.
Shardul Singh) opined that under Article 311 of the Constitution, the imposition of punishment is a different facet, which protects an employee from imposition of certain punishments by an authority, who is inferior in rank than his Appointing Authority. The Apex Court poignantly made it clear that it does not mean that the charge sheet should also be issued by an authority, who is competent to impose a major penalty, which is covered under Article 311 of the Constitution. In the said case, the Apex Court held as under:- “Article 311 (1) does not in terms require that the authority empowered under that provision to dismiss or remove an official, should itself initiate or conduct the enquiry preceding the dismissal or removal of the officer or even that the enquiry should be done at its instance. But for the incorporation of Article 311 in the Constitution even in respect of matters provided therein rules could have been framed under Article 309.
The provisions of Article 311 confer additional rights on the Civil servants. It is not possible to agree with the High Court that the guarantee given under Article 311(1) includes within itself a further guarantee that the disciplinary proceedings resulting in dismissal or removal of a civil servant should also be initiated and conducted by the authorities mentioned in the Article. ” 8. A plain reading of Rule 14(2) of the CCA Rules, 1966 makes it clear that the charge sheet can be issued by the Disciplinary Authority. The definition of Disciplinary Authority is defined in Rule 2(d) of the CCA Rules, 1966, which reads as under:- “(d) “disciplinary authority” means the authority competent under these rules to impose on a Government servant any of the penalties specified in Rule 10;” 9. A bare perusal of this provision makes it clear that the Disciplinary Authority means an authority competent under these rules to impose any of the penalties specified in Rule 10.
Pausing here for a moment, it is clear like noonday that the rule makers have decided to use the expression “any of the penalties specified in Rule 10”. Thus, the authority who is competent to inflict minor punishment also becomes a “Disciplinary Authority” under the rules. Thus, the Commissioner becomes a “Disciplinary Authority” for the petitioner also because indisputably he is competent to impose minor WP. No. 2752/2018 punishments which are covered under Rule 10 of CCA Rules, 1966. Thus, being the ‘Disciplinary Authority’ he is competent to issue a charge sheet against the petitioner. The petitioner is confused about the aspects of initiation of enquiry and imposition of punishment. At the cost of repetition, since the Commissioner is a ‘Disciplinary Authority’ by conjoint reading of Rule 2(d) and Rule 12 of CCA Rules, 1966 he is very much competent to initiate departmental enquiry as per Rule 14. 10.
So far the second contention is concerned, the petitioner has erroneously placed reliance on the judgment of Supreme Court in the case of Zunjarrao (supra). In (2006) 5 SCC 680 (Union of India & Ors. vs. Duli Chand), the Apex Court opined as under:- “8. In 1999 another Bench of two Judges in Zunjarrao Bhikaji Nagarkar [(1999) 7 SCC 409] considered and referred to these earlier decisions. However, the Court appears to have reverted back to the earlier view of the matter where disciplinary action could be taken against an officer discharging judicial functions only where there was an element of culpability involved. Since in that particular case there was no evidence whatsoever that the employee had shown any favour to the assessee to whom refund had been made, it was held that the proceedings against him would not lie. In fact the Court set aside the disciplinary proceedings at the stage of the issuance of charge-sheet to the charged officer.
” [Emphasis Supplied] The allegations against the petitioner are factual in nature. The petitioner has already filed reply and participated in the disciplinary proceedings. The Inquiry Officer has already prepared his report. The charges against the petitioner are as under: ^^e/;izns’k flfoy lsok ¼oxhZdj. k] fu;a=. k rFkk vihy½ fu;e&1966 ds fu;e&14 ds mi fu;e ¼3½ ds varxZr fufnZ"V vuq’kklfud izkf/kdkjh }kjk Jh ,l0lh0 ijLrs] vij dysDVj] ¼fuyafcr½ cSgj] ftyk&ckyk? kkV ds fo:) fuEufyf[kr vkjksi vf/kjksfir fd;s tkrs gSa%& vkjksi dzekad&1 WP. No. 2752/2018 vkids }kjk vij dysDVj] cSgj] ftyk] ckyk? kkV ds in ij inLFk jgrs gq;s] vkids dk;Z {ks=karxZr l{ke vf/kdkjh dh vuqefr ds fcuk voS/k :i o`{k dVkbZ gksuk Ikk;k x;kA vkjksi dzekad&2 vkids }kjk vij dysDVj] cSgj] ftyk] ckyk? kkV ds in ij inLFk jgrs gq;s vkids dk;Z {ks= ds varxZr yxkrkj gks jgh o`{kksa dh voS/k dVkbZ jksdus ds fy;s vkids }kjk dksbZ dk;Zokgh ugha dh xbZA vkjksi dzekad&3 vkids }kjk vij dysDVj] cSgj] ftyk] ckyk?
kkV ds in ij inLFk jgrs gq;s vius dk;Zdky ds nkSjku o`{kksa dh voS/k :i ls dVkbZ ds izdj. kkas esa voS/k :i ls dkVh xbZ ydfM+;ksa dks jktlkr ugha fd;k x;kA vkjksi dzekad&4 vkids }kjk vij dysDVj] cSgj] ftyk] ckyk? kkV ds in ij inLFk jgrs gq;s vius dk;Zdky ds nkSjku fu;eksa dh tkucw>dj vuns[khdj "kM~;a=iwoZd lkaB&xkaB dj de ek=k esa vFkZn. M vkjksfir dj 'kklu dh jktLo gkfu igqapkbZ xbZ gSA vkjksi dzekad&5 vkids }kjk vij dysDVj] cSgj] ftyk] ckyk? kkV ds in ij inLFk jgrs gq;s vius dk;Zdky ds nkSjku vius in dk nq:i;ksx dj i{kdkjksa dks vuSfrd ykHk igqapk;k x;k gSA tSls jk0iz0 dz003@v&63@2014&15] ekStk f<iqj] e/;izns’k 'kklu fo:) ckykjke firk y[ku xksaM esa layXu vij dysDVj] cSgj ds i= dzekad 173] fnukad 26@6@2015 ,oa rglhynkj] ijlokMk ds i= dzekad D;w fnukad 21@6@2015 es Li"V gS fd HkwfeLokeh uSuorh ifr eksgu ds [kljk dzekad 75@1 ls voS/k o`{k dVkbZ dk dksbZ izdj. k ntZ dj dk;Zokgh ugha gksus dk ys[k fd;k x;k gSA vkjksi dzekad&6 vkids }kjk vij dysDVj] cSgj] ftyk] ckyk?
kkV ds in ij inLFk jgrs gq;s vius dk;Zdky ds nkSjku voS/k o`{k dVkbZ esa fu/kkZfjr WP. No. 2752/2018 fofgr izfdz;k dk ikyu ugha fd;k x;kA tSls oufoHkkx ls ewY;kadu fjiksVZ ugha fy;k x;k gSA vkjksi dzekad&7 vkids }kjk vij dysDVj] cSgj] ftyk] ckyk? kkV ds in ij inLFk jgrs gq;s vius dk;Zdky ds nkSjku] vij dysDVj ,oa fgrxzkgh dk la;qDr [kkrk [kksydj fof/k vuqlkj izfdz;k dk ikyu djkus ,oa vuqJo. k es vlQy jgsA ftu izdj. kksa esa la;qDr [kkrk [kksyk x;k rFkk jkf’k tek dh xbZA mu izdj. kksa es jkf’k tek djus ds i’pkr~ ,d&nks lIrkg dh vof/k ds Hkhrj gh tek jkf’k vkgfjr dj yh xbZA vkjksi dzekad&8 vkids }kjk vij dysDVj] cSgj] ftyk] ckyk? kkV ds in ij inLFk jgrs gq;s vius dk;Zdky ds nkSjku] e/;izns’k vkfne tutkfr;ksa dk laj{k. k ¼o`{kksa esa fgr½ vf/kfu;e dh /kkjk&9 ds varxZr fdlh Hkh izdj. k esa leqfpr dk;Zokgh ugha dh xbZA vkidk ;g d`R; e/;izns’k flfoy lsok ¼vkpj. k½ fu;e&1965 ds fu;e&3 ds varxZr ? kksj dnkpj. k dk |ksrd gSA bl izdkj vkius mDr d`R; dj] e/;izns’k flfoy lsok ¼oxhZdj. k] fu;a=.
k rFkk vihy½ fu;e&1966 ds fu;e&14 ds vUrxZr vius vkidks vuq’kklukRed dk;Zokgh dk nk;h cuk fy;k gSA vr,o vkidks ,rn~ }kjk lwfpr fd;k tkrk gS fd] mijksDr vkjksi ds laca/k esa ftudk foLr`r fooj. k layXu vfHkdFku i=d esa n’kkZ;k x;k gS] vkidk fof/k vuqlkj fopkj. k fd;k tk;sxkA** 11. A plain reading of charge-sheet shows that allegations of favouritism, dereliction of duty and negligence are alleged against the petitioner. In this case, there exist allegations against the petitioner which shows an element of culpability. Whether or not these charges are covered by any quasi judicial order passed by the petitioner needs to be gone into by the Inquiry Officer and Disciplinary Authority. At this stage, this Court is not obliged to enter into the factual arena of the matter. WP. No. 2752/2018 12. This Court in Ravi Shanker Shukla Vs. The State of Madhya Pradesh (W. P. No.
11549/2016) has opined as under: “In the opinion of this court, at this stage, the scope for interference against the charge sheet is limited. Correctness of the allegations cannot be gone into by a writ court at this stage. The charge-sheet and show- cause notice does not give any cause of action to the petitioner. If petitioner has justifiable defense, he can putforth his case during the departmental inquiry. In Union of India Vs. Upendra Singh -(1994) 3 SCC 353, the Apex Court held that the writ court cannot go into the correctness of the allegations mentioned in the charge-sheet. In Union of India Vs. Kunishetty Satyanarayana-(2006) 12 SCC 28, the Supreme Court held that show cause notice or charge-sheet does not give any cause of action to the delinquent employee. In Jagdish Baheti Vs. High Court of MP-2015(2) MPHT-382, the Division Bench of this Court held that scope of interference at the stage of charge-sheet is very limited. ” 13.
In the light of the aforesaid order, no ground for interference could be established at the stage of issuance of charge-sheet. 14. So far third point is concerned, suffice it to say that the said administrative instructions nowhere comes in the way of the Disciplinary Authority to initiate disciplinary proceeding against the petitioner. 15. This Court has no doubt that the Disciplinary Authority will supply copy of enquiry report to the petitioner in accordance with CCA Rules, 1966 and ask for his response. It will be open for the Disciplinary Authority to take decision as per Rule 15 of the CCA Rules on the said enquiry report. At this stage, no case is made out for interference against the impugned charge sheet. 16. The petition is dismissed. No cost. (SUJOY PAUL) JUDGE mohsin Digitally signed by MOHAMMED MOHSIN QURESHI Date: 2020. 01. 08 11:18:04 +05'30'
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