Shridhar Lal Ateria vs The State Of Madhya Pradesh & Ors.

This petition, under Article 226 of the Constitution of India, has been filed seeking the following reliefs:-

Learned counsel for the petitioner submits that initially, the petitioner was appointed on the post of Sub Engineer in the Water Resources Department w.e.f. 19.10.1989. In the year 2005-2006, under MNREGS, it was decided by the Government to de plantation of JATROPHA a plant which provides oilseed rich in oil content and which may produce bio-diesel as an alternative fuel. The budget for the said plantation work was sanctioned under the MNREGS and according to the direction of the Government, the plantation was done across the cannels under the Water Resources Department. The plantation of aforesaid JATROPHA did not yield positive results because of the geological conditions, conditions of soil and weather of M.P. After getting such feedback of failure of JATROPHA cultivation under the State Govt. issued an order dated 18.07.2012 putting a ban on new Jatropha cultivation to be sanctioned under the MNREGS and also mentioned a condition that if in a particular District, the cultivation of JATROPHA is necessary on the basis of specific reasons and technical opinion, the prior consent of the State Govt. shall be necessary. Thereafter, the M.P. State Employment Guarantee Council wrote a letter to the Commissioner Chambal Division on 14.09.2012 indicating some report of State Level enquiry and proposed the enquiry against the then Chief Executive Officer of Zila Panchayat, Accounts Officer and Project Officer of MNREGS. In the said letter it is also stated that without having the subject expert, how the Water Resources Department issued the technical sanctions and executed the work in question. After more than 8 years of the aforesaid work of JATROPHA cultivation, the departmental proceedings were initiated and the Commissioner Chambal Division, Morena issued the charge-sheet to the petitioner along-with four other Sub Engineers. Thereafter, petitioner has submitted reply to the aforesaid charge-sheet.

It is further submitted by learned counsel for the petitioner that on the sites of Chambal Cannel under the MNREGS in Water Resources Department Division Sheopur, separate proceeding has been initiated against 24 other officers vide order dated 07.04.2015. There are in all 37 persons alleged to be involved in the work of aforesaid JATROPHA plantation and as per the settled legal position, a joint and common enquiry should have been held against all persons for assessment of individual role for the irregularity alleged in the charge-sheet. Thereafter, petitioner had submitted an application and demanded the documents but that documents were not supplied to the petitioner. Thereafter, petitioner submitted his reply to the charge-sheet and denied all the allegations made against him. Thereafter, Enquiry Officer and Presenting Officer were appointed and the statements of witnesses have been recorded by the Enquiry Officer. None of the witnesses, alleged to conduct the enquiry regarding survival of JATROPHA plants. Thereafter, enquiry has been completed by the Enquiry Officer and the enquiry report was supplied to the petitioner. Petitioner submitted a detailed representation analyzing the entire evidence of enquiry and proved his case that charge against him is not proved. Thereafter, Disciplinary Authority has not considered the facts and grounds mentioned in reply/representation. Thereafter, by non-speaking and unreasoned impugned punishment order dated 18.01.2016, the punishment of withholding one increment and 10% recovery of alleged lost is directed to be recovered from the petitioner and one increment has been withheld without cumulative effect. It is further submitted that by impugned order dated 18.01.2016, the punishment has been imposed upon five delinquents including the petitioner and without considering the facts and grounds mentioned in the reply/representation of the each of delinquent. The impugned punishment order has been issued by Disciplinary Authority. Thereafter, petitioner preferred an appeal before Appellate Authority and Appellate Authority has also rejected the appeal of petitioner as well as four other persons by non-speaking and unreasoned order without considering the facts and grounds mentioned in the appeal memo. It is also submitted the alleged act does not fall within the definition of “misconduct,” as there is no element of mens rea attributable to the petitioner. The Enquiry Officer has failed to establish or record any finding demonstrating the existence of mens rea on the part of the petitioner. In the absence of such a finding, the essential ingredient of misconduct remains unproven. Consequently, when the alleged charge does not satisfy the legal definition of misconduct, no penalty or punishment can lawfully be imposed upon the petitioner.

By order dated 19.01.2018, on similar allegation, the disciplinary proceeding has been ended against 24 Sub Engineers and the Disciplinary authority as well as Appellate Authority has not considered the fact that the same allegation was made against 37 officers of the Department and enquiry contemplated against the similar situated 24 officers have been instituted by a separate order and a technical person i.e. Chief Engineer of the department has been made the enquiry officer, whereas in the present matter, the deputy Collector conducted the enquiry. They are not technical. Due to the aforesaid, the clean chit has been given to 24 similar situated Sub Engineers and as the Enquiry Officer is Deputy Collector and the Presenting Officer who were not from technical department. The charges were proved against the petitioner.

5 . Per contra, learned counsel for the respondent/State submits that sufficient opportunity of being heard has been provided to the petitioner. There is no infirmity in the orders under challenge and bare perusal of the fact that proper opportunity of hearing was afforded to the petitioner along with other co-delinquents and on finding, the charges proved in departmental enquiry and petitioner along-with other three sub engineers were found guilty of causing pecuniary losses to the department and rightly the recovery and punishment of awarding the minor punishment withholding one increment without cumulative effect has rightly been imposed upon the petitioner. It is further submitted that after following due process of law, the enquiry has been completed and after granting the sufficient opportunity of hearing the impugned punishment has been imposed upon the petitioner and the Appellate Authority has rightly rejected the appeal after considering the facts mentioned in the departmental enquiry.

Heard learned counsel for the parties and perused the record.

The petitioner was initially appointed as Sub Engineer in the Water Resources Department on 19.10.1989. During the year 2005–2006, under MNREGS, the Government sanctioned Jatropha plantation work for bio-diesel production, which was carried out along the canals of the Department. However, due to adverse soil, geological, and climatic conditions in Madhya Pradesh, the plantation did not succeed. Consequently, the State Government, by order dated 18.07.2012, imposed a ban on fresh Jatropha cultivation under MNREGS, requiring prior approval for any further such plantation. Thereafter, based on a State-level enquiry report, a proposal for enquiry was communicated on 14.09.2012. After more than eight years of the execution of the work, departmental proceedings were initiated, and the Commissioner, Chambal Division, Morena, issued a charge-sheet to the petitioner along with four other Sub Engineers, to which the petitioner duly submitted a reply.

The petitioner sought relevant documents, which were not supplied, and thereafter submitted a reply denying all allegations. An Enquiry Officer and Presenting Officer were appointed, and evidence was recorded; however, none of the witnesses conducted any enquiry regarding the survival of the Jatropha plants. Upon completion of the enquiry, the report was furnished to the petitioner, who submitted a detailed representation demonstrating that the charges were not proved. Without properly considering the petitioner’s reply, the Disciplinary Authority passed a non-speaking order dated 18.01.2016 imposing the punishment of withholding one increment (without cumulative effect) and directing 10% recovery of the alleged loss, similarly affecting five delinquents. The petitioner’s appeal was also dismissed by a non-speaking and unreasoned order. As no mens rea was established or proved, the alleged act does not constitute misconduct, and therefore, the impugned punishment is unsustainable in law.

On identical allegations, the disciplinary proceedings against 24 similarly situated Sub Engineers were dropped by order dated 19.01.2018. The authorities failed to consider that the same allegations were levelled against 37 officers, out of whom 24 were subjected to a separate enquiry conducted by the Chief Engineer, a technical expert, who granted them a clean chit. In contrast, the enquiry against the petitioner was conducted by a Deputy Collector, a non-technical officer, and the charges were held proved. This discriminatory approach renders the impugned action arbitrary and unsustainable.

Important part of the punishment order dated 18.01.2016 (Annexure P/2) passed by Disciplinary Authority reads as under:-

उपरोक्त परिपेक्ष्य में श्री ए. के. त्रिवेदी, श्री आर.एस.जाट, श्री के.एन. पाराशर, श्री एस.एल. अटेरिया (सभी तत्का. उपयंत्री) को पदीय दायित्वों के निर्वहन में लापरवाही बरतते हुये सम्यक कार्यवाही न करने के कारण उनके विरुद्ध म.प्र. सिविल सेवा (वर्गीकरण, नियंत्रण तथा अपील नियम 1966 के नियम 10 (चार) के अंतर्गत एक वेतनवृद्धि असंचयी प्रभाव से रोके जाने एवं उनके द्वारा व्यय की गई राशि क्रमशः रु. 10.537 लाख, रु. 21.197 लाख रु. 32.106 लाख रु. 20.676 लाख की 10 प्रतिशत राशि की वसूली (24 समान किश्तों में) कर उनके विरुद्ध प्रचलित यह अनुशासनिक प्रकरण समाप्त किये जाने का प्रशासनिक निर्णय लिया गया है।

अतः एतद द्वारा अपचारीगण श्री ए. के. त्रिवेदी, श्री आर.एस. जाट, श्री के. एन. पाराशर, श्री एस.एल. अटेरिया (सभी तत्का. उपयंत्री) को पदीय दायित्वों के निर्वहन में लापरवाही बरतते हुये सम्यक कार्यवाही न करने के कारण उनके विरुद्ध म.प्र. सिविल सेवा (वर्गीकरण, नियंत्रण तथा अपील) नियम 1966 के नियम 10 (चार) के अंतर्गत एक वेतनवृद्धि असंचयी प्रभाव से रोके जाने एवं उनके द्वारा व्यय की गई राशि क्रमशः रु. 10.537 लाख, रु. 21.197 लाख, रु. 32.106 लाख, एवं रु. 20.676 लाख की 10 प्रतिशत राशि की वसूली (24 समान किश्तों में) करने की शास्ति अधिरोपित कर उनके विरुद्ध प्रचलित यह अनुशासनिक प्रकरण समाप्त किया जाता है।

प्रकरण में शेष रहे अपचारी की डी.एस.गुसा, तत्का. उपयंत्री (वर्तमान में सहायक यंत्री) के सेवानिवृत्त हो जाने के फलस्वरूप उनके विरुद्ध पेंशन नियम के अंतर्गत कार्यवाही हेतु प्रकरण शासन को पृथक से भेजा जावेगा।"

From perusal of the punishment order dated 18.01.2016, it is clear that the Disciplinary Authority, while passing imposing the punishment order of a Government servant, is exercising quasi-judicial powers and even the quasi-judicial orders must be speaking orders. The Disciplinary authority must apply its mind to the entire facts and circumstances and record valid and justifiable reasons or grounds in support of its conclusion. On perusal of the punishment order, it does not appear to be a speaking one.

The relevant part of appeal rejection order dated 20.04.2016 (Annexure P/1) passed by Appellate Authority reads as under:-

From perusal of the appellate order dated 20.04.2016, it is clear that the Appellate Authority, while passing imposing the appellate order of a Government servant, is exercising quasi-judicial powers and even the quasi-judicial orders must be speaking orders. The Appellate authority must apply its mind to the entire facts and circumstances and record valid and justifiable reasons or grounds in support of its conclusion. On perusal of the appellate order, it does not appear to be a speaking one.

It is a settled position in law that when a discretion is vested in an authority to exercise a particular power, the same is required to be exercised with due diligence, and in reasonable and rational manner. The Hon'ble Supreme Court in catena of decisions has reiterated time and again the necessity and importance of giving reasons by the authority in support of its decision. It has been held that the face of an order passed by a quasi-judicial authority or even by an administrative authority affecting the rights of parties must speak. The affected party must know how his case or defence was considered before passing the prejudicial order.

The decision of the Hon'ble Supreme Court in the case of State of Punjab v/s. Bandip Singh and others reported in (2016) 1 SCC 724 is relevant to quote. In the said decision it had been held by the Hon'ble Supreme Court that every decision of an administrative or executive nature must be a composite and self-sustaining one, in that it should contain all the reasons which prevailed on the official taking the decision to arrive at his conclusion.

In the same judgment in paragraph 7, the Hon'ble Supreme Court clarifies that the Government does not have carte blanche to take any decision it chooses to; it cannot take a capricious, arbitrary or prejudiced decision. Its decision must be informed and impregnated with reasons. Paragraph 7 of the said decision is quoted as under:-

Also the decision of the Hon'ble Supreme Court in the case of Kranti Associates Pvt. Ltd. and another v/s Masood Ahmed Khan and others cited in (2010) 9 SCC 496 highlights this point. The Hon'ble Supreme Court in paragraph 15 opined that the face of an order passed by a quasi judicial authority or even an administrative authority affecting the rights of parties, must speak. It must not be like the inscrutable face of a sphinx. In paragraph 47 the Honb'le Supreme Court summarized its discussion. The relevant sub-paragraphs of the said summary are quoted as under:-

The Division Bench of this Court in the case of S.D. Bind Vs. Union of India and Others reported in 2015(1) M.P.L.J. 74 has held as under:

In view of the above discussion and the circumstances of the case, I am left with no choice but to set aside the punishment order dated 18.01.2016 (Annexure P/2) passed by the Disciplinary Authority and appeal rejection order dated 20.04.2016 (Annexure P/1).

Consequently, the respondents are directed to extend all consequential benefits to the petitioner within a period of three months from the date of receipt of the certified copy of this order. The respondents themselves have granted a clean chit to 24 similarly situated persons by order dated 19.01.2018. In view of the finding that the alleged act does not fall within the definition of misconduct, therefore, no liberty is granted to the respondents to take action against the petitioner.

With the aforesaid observations and directions, the present petition stands disposed of.