AI Structured Summary
Not yet generated for this judgment
Judgment
Petitioner has filed this petition under Article 226 of the Constitution of India challenging impugned order dated 20.09.2023 filed as Annexure P/1.
Impugned order is challenged on ground that de novo enquiry has been ordered and same cannot be done under Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966.
Counsel appearing for petitioner placed reliance on judgment of Apex Court passed in case of Union of India vs K.D. Pandey and another, reported in (2002) 10 SCC 471 and judgment passed by coordinate Bench in case of Prafulla Kumar vs State of M.P. and another, reported in 2009 (4) MPLJ 204. It is submitted that powers of appellate authority is limited and de novo enquiry cannot be ordered as has been held by Court in aforesaid cases. In view of same, impugned orders be quashed.
Counsel appearing for respondent No.1 supported the order passed by appellate authority and submitted that reputation of respondent Corporation was harmed due to malafide activities of petitioner. There is necessity to maintain positive image and reputation of Corporation. Enquiry report dated 18.10.2022 was served upon petitioner. Petitioner was given full opportunity of hearing. Thereafter, petitioner was dismissed from service vide order dated 09.06.2023. Appellate authority quashed the order passed by disciplinary authority and remanded the matter back due to non examination of key witnesses. Aforesaid action underscores MPIDC's commitment to rectify procedural shortcomings by correcting deficiencies. Evidence, which was not previously presented, have now come to light. In view of same, impugned order may not be interfered and writ petition be dismissed.
Heard the counsel for the parties.
Case of Union of India vs K.D. Pandey and another is filed by an employee of Railways and same was considered by Apex Court in light of Railway Servants (Discipline and Appeal) Rules, 1968. Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 was not in question, neither same was interpreted in aforesaid case.
Reliance is also placed on judgment passed in case of Prafulla Kumar vs State of M.P. and another. In said case, coordinate bench of this Court held that under Rule 15(1) or (2) of Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966, no power has been given to disciplinary authority to reject report of Enquiry Officer and order de novo enquiry. Under Rule 15(1), it can only direct for further enquiry, that too by recording reasons in writing. Disciplinary authority directed de novo enquiry, which was not permissible in terms of Rule 15(1) of Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966. In said case, petitioner was served with charge-sheet. Enquiry Officer submitted its report. Disciplinary authority rejected enquiry report and directed Enquiry Officer to conduct de novo enquiry. Facts of aforesaid case are not similar to that of present case. In said case, order has been passed by disciplinary authority and not by appellate authority. In present case, remand order has been passed by appellate authority.
Counsel appearing for petitioner has further relied upon judgment passed by Apex Court in case of K.R. Deb vs The Collector of Central Excise, Shillong, reported in 1971 (2) SCC 102 . In said case, provision of Central Civil Services (Classification, Control and Appeal) Rules, 1957 was examined. In said case, departmental enquiry report was produced before disciplinary authority. Charge of misappropriation was found to be proved and orders passed by appellate authority was not under consideration. Therefore, facts of said case are also not similar.
In present case, disciplinary authority dismissed petitioner from service vide order dated 09.06.2023 and thereafter, said order was under challenge before appellate authority. Appellate authority passed impugned order dated 20.09.2023, by which order passed by disciplinary authority was set aside and matter was remanded back to institute disciplinary proceedings by appointing a senior officer as Enquiry Officer. Aforesaid order passed by appellate authority is to be examined in accordance with Rules applicable.
Rules 15 and 27 of Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 are relevant, which are quoted as under :
"15 Action on the inquiry report.-
(1)The disciplinary authority if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14 as far as may be.
(2)The disciplinary authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own finding on such charge, if the evidence on record is sufficient for the purpose.
(3)If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in [x x x] Rule 10 should be imposed on the Government servants, it shall, notwithstanding anything contained in Rule 16, make an order imposing such penalty [but in doing so it shall record reasons in writing]:
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant.
27.Consideration of appeal. - [(1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of Rule 9 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly.]
(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:
Provided that-
(i)the Commission shall be consulted in all cases where such consultation is necessary;
(ii)if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (v) to (ix) of Rule 10 and an inquiry under Rule 14 has not already been held in the case, the appellate authority shall, subject to the provisions of Rule 19, itself hold such inquiry or direct that such inquiry be held in accordance with the provisions of Rule 14 and thereafter on consideration of the proceedings of such inquiry, make such orders as it may deem fit.
(iii)if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (v) to (ix) of Rule 10 and an inquiry under Rule 14 has already been held in the case the appellate authority shall, after giving the appellant a reasonable opportunity of making representation against the penalty proposed, make such order as it may deem fit].
(iv)no order imposing an enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity, as far as may be, in accordance with the provisions of Rule 16, of making a representation against such enhanced penalty."
Powers under Rule 15 is to be exercised while taking action on enquiry report by disciplinary authority. Disciplinary authority under Rule 15(1) has powers to remit the case to Enquiry Officer for further enquiry by giving reasons to be recorded in writing. Disciplinary authority may disagree with the findings of enquiry authority on recall of charge and record its own reason for such disagreement and its own findings on such charge, if evidence on record is sufficient for the purpose. Disciplinary authority may also on basis of said finding proceed to impose any of penalty and were required consultation with Public Service Commission to be done.
Case of Prafulla Kumar (supra) is not applicable in present case and findings given in respect of order passed by disciplinary authority and examination of Rule 15 was done by Court. In present case, order has been passed by appellate authority. Appellate authority exercises its power under Rule 27 of Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 but not under Rule 15. Appellate authority under Rule 27(2)(c) has power to - (i) confirm penalty, (ii) enhance penalty, (iii) reduce penalty and (iv) set aside penalty. Under Rule 27(2)(c)(ii), appellate authority has power to remit the case to the authority, which imposed penalty or to any other authority with such direction as it may deem fit in circumstances of the case. Power given to appellate authority is wider than disciplinary authority under Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966. Appellate authority may not only remit the case to disciplinary authority but it has also been given powers to remit the case to any other authority with such direction as it may deem fit in circumstances of the case. On exercising aforesaid power granted to appellate authority, case can be remanded back for de novo enquiry with direction to appoint new Enquiry Officer. Limitation put upon disciplinary authority for further enquiry is not mentioned under Rule 27. On the contrary, Rule 27 says that appellate authority can remit the case to any other authority and give such direction which it may deem fit in circumstances of the case. In view of same, it cannot be said that there is a bar on de novo enquiry, but before passing order of de novo enquiry appointing new Enquiry Officer, order is to be supported by reasons to be recorded in writing. On examining order dated 20.09.2023, it is found that appellate authority found that Enquiry Officer has not given detailed description how guilt is found to be proved. Charges are serious in nature and same is to be enquired in detail, therefore, order of disciplinary authority was set aside and matter was remanded back after taking into consideration the evidence, which is available on record in departmental enquiry.
It is made clear that there is no bar in Service Rules on de novo enquiry. De novo enquiry is permissible when there is serious procedural lapses like key witnesses are not examined and enquiry was not conducted in accordance with law. De novo enquiry will not be permissible simplicitor. If there is no serious lapses or procedural irregularities, then de novo enquiry is not permissible. Ample power has been granted to appellate authority under Rule 27(2)(c)(ii) of Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966. In view of same, no case is made out for interference.
Writ petition is dismissed.