Partly allowed

G.C. Napit v. State of M.P. and Ors.

Chhattisgarh HC13 Jan 2017WPS/210/2005

Case brief

AI extract

What is this about?

Petitioner challenged penalty arising from a second departmental enquiry on overlapping misconduct allegations, arguing double jeopardy. Court quashed second enquiry order allowing fresh proceedings on unique charge only.

What did the court decide?

Second charge sheet, departmental enquiry, and consequent penalty order dated 3.6.1988 quashed. Respondents allowed liberty to hold proceedings on unique third charge and refund salary deductions.

G.C. Napit Vs State of M.P. and Ors. — Pension and Retirement Benefits | Chhattisgarh HC (2017)

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		BEFORE THE MM Petitioners	)HYA PRM)ESH ^DMINIST^nvIL._®.IBWMy,J^M.PXJK P.A.No.'S^S-^" ©f_1989 G<C^ Napit<, aged 42 years sozi ©f Shri Kanhaiyalal^ Sub<»-Enc?iBeer:^ R^iral Engineering Serviees^ Pa^iehayat A^am Gramisi Tilcas Vitoba^ BloGk uaalpux^ Distt» Sargyja^ M.P,
	• S('	RespondeBtss	Vs» 1, The ssfcate of M<P« through the Seeretars^ Karal Devel©pmentDeptt^ G©vt<»©fIMeP^^ Bhopal^ MoP^
			2;^ C^nmissioBer a^d Chairman^ Eestern Tribal Devel©@raeatAuthority» Bxlaspur^ M.Pa 1
			3» CQTRraissioner,, Bilaspur Division^ Bilaspur, M.P. -:1
l<fc; ^L.^..-.	———		4^ Collecter^ Sarguja^ M<»P<» DETAILS OF THE APPLICATION

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AFR

HIGH COURT OF CHHATTISGARH. BILASPUR

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WPSNo.2l6of2005

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G.C. Napit

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Petitioner

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Versus

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StateOfM.P.&Ors.

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-— Respondents For Petitioner Ms. Pritha Ghosat, Advocate For Respondent-State Shri R.K. Gupta, Dy.A.G.

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S.B. Hon'ble Shri»JU^tGeWanindra Mohan Shrivastava

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:'i-l^@rdejRI:;Gro®16ard

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13/01/2017

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Heard.

¶19

This petition has been filed by the petitioner assailing correctness and validity of order dated 3rd June, 1988 passed by respondent No.2 imposing a penalty of withholding five increments with cumulative effect as atso recovery of Rs.2,14,382/-.

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The factual matrix of the case giving rise to present dispute and relevant for decision of controversy involved in the petition are as below:-

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The petitioner while working as Sub Engineer in Rural Engineering Services, Department of Panchayat and Gramin Vikas of the then Government of Madhya Pradesh was alleged to have committed misconduct which led to his suspension and also issuance of charge sheet on 26.6.1985 by the Collector In this charge sheet, as many as four charges of misconduct were levelled against the petitioner. During the pendency ofthis enquiry, instituted upon charge sheet dated 26.6.1985, another charge sheet was issued on 8.10.1986 by the Commissioner and the petitioner raised grievance that he could not be

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subjected to two enquiries under two different charge sheets in respect of the same or similar allegation of misconduct. In the first enquiry, no final order was passed by the Collector, but in the second enquiry, the matter proceeded. The petitioner did not participate in the second enquiry raising all this protest and objection to the maintajnability, which eventually resulted in passing of final order of imposition of penalty dated 3.6.1988 (Annexure A-21) by the Commissioner.

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The pet^^^ order by which the penalty has beeri imposed on him vide impugned orderdate|^^ In addition, the case^ petitioner has been thatonce his suspension o^ revoked, the petitioner is entitled to Rp^ant|D^%||t^fy in respect of perioci||ron| 21.3.1986 to 30.6.1988 and also for<piymNW|||liiryfrom June, 1988 onwards.

¶26

Learned counsel for the piti|oS^ in the first charge sheet dated 26.6.1985 issued by the <|cll|©c )fila part of charge No.2, charge No.3 and J:^?JJ)i( M% 1,1 charge No.4 were the saR®j|s£M.^No. 1 & 2 of the second charge sheet dated 8.10.1986 issued]'lby||||i|@m The petitioner cannot be subjected to two departmiiIi|5g|®§gB&sby two different authorities in respect of the same allegations of miiconduct/ ti further argued that upon delegation of power of disciplinary action vide circular dated 11.3.1983 (AnnexureA-12), both the Collector as well as the Commissioner were the disciplinary authority though power of imposition of major penalty rested only with the Commissioner. Once the Collector had issued the charge sheet, second charge sheet could not be issued by the Commissioner and the only course open in accordance with Law was that if upon conclusion of first enquiry, the Collectorwas of the opinion that the matter required imposition of major penalty, the records could be transmitted to the Commissioner to pass appropriate order imposing a major penalty. However, it is contended, while the first enquiry was pending,one more charge was added and a second charge sheet was issued by the Commissioner which continued despite protest, resutting in imposition of major penalty. On the aspect of salary also, submission is that upon revocation of suspension order, the petitioner was entitled for payment of salary in respect of the period of suspension.

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On the other hand, learned counsel for the State submits that the allegation that the entire charges contained in the second charge sheet were the same as the charges of misconduct levelled against the petitioner in the first charge sheet, is

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not fully correct. He submits that in so far as charge No.1 & 2 of the second charge sheet is concerned, it may have some overlapping with the charges of first charge sheet, but the third charge under the second charge sheet had nothing to do with any of the charges levelled against the petitioner under first charge sheet. He submits that it was only a technical ground urged by the petitioner. As the Commissioner also happened to be the disciplinary authority, he issued the charge sheet and the earlier charge sheet and enquiry was not brought to its logical cGinc|usi|||an^^^ charge sheet, opportunity was given t^^^^^^ the petitiirl^ nqt avail. The Commissioner had thejurisdiction and competence to pass minoR^ major penalty. Therefore, in these circumstajQG©^theorderpassed by thiiG^gmmissioner does jTiot suffer from any ille@^J^j^n|&|^ei;native, it is submittei|||rat even if it is held that charge No. 1 1t|2|@g.ffi©|s^|Dndcharge sheet already formed part of charges under the first cfia||^^^tt|an illegal part is severable from the legal part of enquiry on the thira fJarSg,r|o that extent, appropriate order may be passed allowing the resR||i|ali||M|pass separate order of penalty only in respect ofthird charge ipffhe seg@ndfen^ ij;il,.-.....,]ij%^^ i,

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I have considered the rival fffirriiig®^^ made by learned counsel for the parties andperused the records.

¶32

It is not in dispute that a charge sheet was issued to the petitioner on 26.6.1985 by the Collector. Delegation of power vide circular dated 11.3.1983 (Annexure A-12) relied upon by the petitioner and not disputed by respondent, clearly goes to show that in respect of the petitioner, both Collector and the Commissioner were designated as disciplinary authority though, the competence of the Collector was confined only to imposition of minor penalty and the power to impose major penalty rested only with the Commissioner. That means, the Collector as well as the Commissioner, both were competent to initiate departmental enquiry and in the eventually, the Collector, after holding enquiry considered that a major penalty was required to be imposed on the gravity of misconduct, he was required to send the matter to the Commissioner which alone could impose major penalty.

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Charge No.2, Charge No.3 and charge No.4 of the first charge sheet dated 26th June, 1985, relevant for adjudication of controversy are extracted hereinbelow:

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"3Tp^ ^TTfcf^ 2 : 3TTT^ OTK ^ ^ TTm Tt:cn^T -ll^l^ll^l

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cbbl^ b^^ll,; •jrh ^l^. i4l2^^ ^.. .|±^- i4 i^ l±i3 h>^>l-Mlft ^hU£ <^J. ^. -^h> ^ .VI^IK £ 1 ^ l^ 115^ N^ i^ .(i^p* ^K J?^e ^M^ ^ \ lii^ J^k ^fc ^l^l^jK' &nt5> l-M^y ^hiK; i^-l^ [^^^ JJ^ t^ ^l^l^i^ h ^?lcb m^)Jikl^£i£^ll 2^ ^ lh-<^J J<^1± ^lt?ti ^l^ £^ ^1^^ ^i J^ ^M<^ k^ ^hiK 1 -I [ML iti^ J^k ^i (fc^ ^JS li&JA U^JIS. ^ ^3 M& ^U^tki^Lt& 1 ^ ihx^j im^£i& £^ ^ i±i^£ie ^ijs t^ ^cOlhx^/hlh M^ls ^4& ^ II? ^J J^-k t-4']n4t 1<^ ^t?!^ hlji h^ IM^ Ji£l^JlkLSl^£^hLK 1 .^ J^lt lil^ ^t^{l^jl^} ^^{H^£l£} ^^{^iSIP^jrrki^£l£^te^S^^} j?b|b->. £^ In^kkj ^bk ll-ll^ ^yinlh Jsh. ^yteili ^ ^ !oh ^l^h 'IM^ '^M^* 'JMhl^nh '£J^l ^Lfc^ 'gll^JLli^Js ' 'Mrkb^ '}£isli±6^. 'l^ct3^j|j,t^^> 'l^l^l^y kUl J^ J^ Mbtt ^hli£ -: e ^lhf NMIS

¶36

1 i. iti^). ^y^y ^^i^j^ IQoy ^hi& ^MJ£^{^^} 12^ kUll^ 't^._l|^^^^U^ ^cy ^^ih-.Tt j22i hJi± ^ ^ ^|B|is|{|^S|..,, 'fr

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(^. ^<^j 9) - / ogzei- '^ tnilBaJBIfiS

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(j^ ^c^j e) -/0006'^. (J^ j^c^J f) -/OOOZI.-^ p (^L j^^i^ - / ooo^ ^ 'y^

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-: .i iMi^;l|^j$£m£^^ J^u^ 1+^1 ^ ^ h^.^ ^K ^ ih-^j im^£i& &^ ^^cbll|^Wy|<|]|i^ iM|i|J|%J£ | cb^h ^t 2^ '^ Ih-^J ^k i±<Mj2^&. .^2. ^(}P l±i^hllS 1 ^ IMJL l?lcb |j>?y ^^ S 1^^. 1± ?lr?h 1±U1 1 ^ itZll ll?y ^^ ^ls ^l^ >^ pl^T^ .^^ pt^?lr 2lh C ^i^P jMb. ^ (jsl^lp ^ ^. >.'h|P10 itsi^ A^hS. Mtt ^ .1^1 PIP ^. \ ^e -/00261.'^ J^PL J^V^ ^ IslPIP ^^ti 1 Ls Ublt Ih'cy ^>^^ ^. 98-17861- ^ ^ In^y Isll^lD J^ pl^h ite^.^{^^l*'^^lrS-MtlP^rPfe} ^ ^ -t7-

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c^- -f^rr 3 c^ \3^'y-i f^qT t t |

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3TT^RUT f^ram 1966 c^- -f^rr 3 c^ \3^'y-i f^qT t t | <3TR^T cb^l'4? 4 :- CT^ f^RT ^Tu^ ^FK ^ ^FT cppfr tg WFT R-TfcF) c^ ^.1,17,861 /- y^ '^Tf^T ffRT <^t f^TT t ^Tc^ 3To:I1cTT ^FPTc[ q-^|<4d 5^FTTN ^ "^ 3TTq^ ^.57,500/- ^TRm \rrftr f^RT t | 3TN^ ^^cbl ^ft cpt^ f^^|6| f^TT t 3ft? ^T €1 ^Tf^T f^KT ^9^/^FR^ .^^li^llll-iy^ •f^lolJtl |:^I^^ ^} 3Tq^ qRT ^? c^ ^W ^ 11 ^^Wi Wiiii TTsRiflpTT f irf^? ^^cbl 'c^[ ^^4^^1 c|r? GTq^ft c^^T[i|--|||T^^^^^,^^^^^^^^ ^ ll^c|^|<L| '^cTcF? ^I^XIStFm 1966 c^ ^izm 3 cp)T 1f::|i^^ f^ZTT

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Charge No.1, charge No.%|i^sg|gJJ9 charge sheet dated 8.10.1986 are also reproduced hereinbelow: | fi JTO | l]

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"1. /fw|T^^Ji||J|18|>'|^ ^T 2,14,382/- ^). ^ ^ll^chl^ ^^ :NBilBS8fiiilia q7^ WTrot^pr ~^f\ -cfr^ t | ^FT ffcCT? GTT^r,^^^^ ^llNHc^^l •?Tf^T c^ TTif^ c^- ^ft ^ srmr t i

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^ 81-82 Tt l.^T.SnY.ftft. ^Ml-11-vl4d TTFT ^Tf ^ ^T dldlsj f^PT^T 1^ ^srf^ -^TraT ^cFf P|^U[ (-^)CF^) ^N^T ^ ^" C^ 6||C|^ <^- ych\iu| TK 0^4 ^FTf^ IR cfTt cKPTT f^T^ ^ ^.25750 ^] 'yRTPT ^gc[H yf^dl fW, ^TsTf^ ^ra- r^ ^TFfflT?r c^T^{-Sf^} ^^-1^{•^f} ^3TT t | ^FT TTc^ 3Tfq^ ^TRH c^^fRgT ^? ^ll^c^<L| ^Tf^T cCT ^Ll^l^t c|^PTT l'

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If the aforesaid charges of charge sheet dated26.6.1985 on one hand and charges No. 1 & 2 of charge sheet dated 8.10.1986 both are compared by reading the charges and the statement of allegations, it is clear that a part of charges No. 2 & 3 ofthe first charge sheet are substantially one and the same as contained in charge No.2 of the second charge sheet, whereas charge No.4 of the first charge sheet is substantially same as charge No.1 of the second

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charge sheet. True it is that as far as third charge under second charge sheet is concerned, it was not part of the first charge sheet, nevertheless, majority of the allegation against the petitioner under second charge sheet were one and the same as the allegation contained in the first charge sheet.

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lO.Facts on records reveal that in the first enquiry initiatedby the Collector by issuing charge sheet dated 26.6.1985, the enquiry was proceeded and report was submitted and then it ^ to the Commissioner. In the enquiry report prepared % charge sheet, the petitioner was expherafed 6f all the charges. However, the C<|mh|issionerdid not accept the sa^ the enquiry was remitted back for holdingl||n^ enquiry. But lihereafter, nothing happeyigdoiffteMfi^t^nquiry. Even before||it,,pn 8.10.1986,

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^^^^^^^^^^ ^ second charge she||:wasligs|^K(t)y the Commissioner in which first and second charges were atR||i||3g|||2|)jf first charge sheet. This enquiry was proceeded and impugned1|N|p|St|^BQlty was passed. The penalty imposed on petitioner is cumulative effeW^|A|n|jact of proof of charge No. 1 , 2&3 under second charge sheet. ,,-fis^x^y1-.,

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Once the petitioner was iilHifiggglBgcled with on certain charges by issuance of charge sheet dated 26:6:1985, it was not permissible for any of the respondents to issue another charge sheet in respect of those very allegations. An employee who has been subjected to departmental enquiry on certain charges of misconduct cannot be subjected to more than one enquiry on the same charges. The disciplinary authority has the competence to hold enquiry, further enquiry only in the enquiry instituted upon issuance of a charge sheet and any other authority higher or subordinate would not have any jurisdiction to institute a fresh departmental enquiry by issuing a charge sheet in respect of those very allegation which forms subject matter offirst charge sheet.

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The power to act as disciplinary authority and impose penalty have been conferred under the statutory Rules, known as MP/CG Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as uthe Rules of 1966"). The Collector or the Commissioner get authority to institute and conduct a departmental enquiry and impose penalty only underthese Rules and not outside the purview of the Rules. In these Rules, the disciplinary authority is empowered and authorized to institute departmental enquiry by'issuing a charge sheet and pass an order following the procedure prescribed in the Rules 14,15,16, 17 & 18 ofthe Rules of 1966. In so far as imposition of minor penalty

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is concerned, for that, summary enquiry procedure has been prescribed under Rule 16 of the Rules of 1966. However, major penalty cannot be imposed without following the procedure prescribed in Rule 14 ofthe Rules of 1966. Rule 14, though authorizes the disciplinary authority to hold an inquiry against a delinquent employee by issuing him charge sheet, obtaining his reply and collecting oral and documentary evidence by the prosecution and the delinquent employee, in the scheme of the Rules, there is no provision which authorizes the disciplinary authprity o||an| |)then^ institute ariother departmental enquiry by issujn^^ sheet m those very charges for which cj'iarge sheet has alreadybeen issued andlen|w% The only ppwer c^ under RulesJ4.|s to hold furtherenquir|^^^ in Rule ~'':^. J115::,^in following manner^c^%|^]|||,,^ ! ! ii:S

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"(15). Actiqh|l||||||ra||iry report.- (1) The disciplinary authority if telaiQOVi^Bf the inquiring authority may, for reasons to bef,reGOttl|djby it in writing, remit the case to the inquiring|a®1SJiig%^ inquiry and report and the inquiring Bu|ttoQp^i^^^ proceed to hold the further inquiry aic^offifmg:'to the provisions of rule 14 as for as may be.

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(2)^{Thedisciplinaryauthorityshall,ifitdisagreeswiththe} findings ofthe inquiring authority on any article of charge, records its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.

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(3) If the disciplinary authority having regard to its finding on all or any ofthe articles ofcharge is ofthe opinion that rule any of the'penalties specified in 10 should be imposed on the Government servant, it shall, notwithstanding any thing contained in rule 16, make an order imposing such penalty "but in doing so it shall record reasons in writing;"

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Provided that in every case where it is necessary to consult the Commission, the record ofthe inquiry shall be forwarded by the disciplinary authority to the Commission

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for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant."

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12.Thus, though the Rule provides further inquiry to be made, the authorities are bereft of any power to institute another enquiry on charges which were already subject matter of a previous charge sheet in a pending enquiry.

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Aforesaid rul|s ha|e |e|| frai|||cl|k||B^^^ in view that if such a power is admitted in the ^^^ of disciplinary authority W the^^^^^ there shall be no en^^ enquiry and the disciplinary au^dWis^ keep on issuing sC;|"iarge sheets in respecUrfs^|e^charges and there may ^j|n be a situation 1/vhere^{therearemoreiJt||nf?c|i^||S|^} authorities, ea6i 6f them may initiate his own deparWW^^^M^\n respect of the same charges. It is unknown to service juris|jj|||@|||||&perefore, in view of above consideration, this Court has no hesitatiarf||iU|jcff^^^ of second enquiry by issuing charge sheet dated|K|^|igii||y the Commissioner in so far as first and f/^i^AA,.,.,'IH'i. second charges are cQncern@CiENa|ll^ under the Law for •y^w w wi ^ reasons that first andsecilBgSBB®S3iffthesecondcharge sheet were already subject matter of enquiry uhcler charge No. 2, 3, & 4 of the first charge sheet.

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13..True it is that both the Collector and the Commissioner have been designated as disciplinary authority, it did not give authority to the Commissioner to institute departmental enquiry by a fresh charge sheet in respect of those charges for which departmental enquiry was already instituted and pending before the Collector. Only in an eventuality when the Collector proposed major penalty upon conclusion of enquiry, the records were required to be submitted before the Commissioner to exercise his power of disciplinary authority to impose punishment of major penalty.

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14.The manner in which second enquiry has been instituted and held cannot be sustained in Law.

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15.Though learnedcounsel for the State urged this Court to sever the charge No.1 and 2 from charge No. 3 and uphold the enquiry in so far as charge No.3 is concerned, 1 am not inclined to accept this submission. Firstly, the petitioner was proceeded ex-parte in the second enquiry despite his protest, which, for reasons stated hereinabove, is found to be fully justified that he cannot be

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subject to two enquiries in respect of same charges. Therefore, if 1 uphold the second enquiry in respect of charge No.3, it would allow an illegal order to be sustained in an ex-parte enquiry where the petitioner did not lead any evidence or cross-examine prosecution evidence or impeach the credibility or the prosecution case by exercising the rightof defence. In the interest ofjustice, it would be proper to quash not only the impugned order of penalty, but entire second enquiry proceedings though with liberty to the State to institute separate proceedings in so far as th|d|o|| |||h| s^cond charge sheet is concerned. '^w

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16.1n so far^^a^ claim for payment of i|ir|alary in respect of the period from 21.3.1986 to 30.6.1988 is concerned, l am ri iri©linedto accept the si|k)mission made by le^r®(A^€ irilarf(Qrthe petitioner that|ie effect of order dated 27.6.1988 was tc^!;aY|)J<^?iig|pBriS|on w.e.f. 21.3.1986. This submission is based On terms and corj<||j||%i^|^|r dated 27.6.1988. The order nowhere shows that suspension oMRliS;©aW8Uerwas revoked w.e.f. 21.3.1986. On the i] 1rf Irll 1.1 Tl contrary, it only reads that flT|;]l|{|ir(|as been made ineffective with immediate effect, that means from tfeilBiej-W of order i.e. 27.6.1988. Therefore, the claim of salary in rest>ee(|»:|l||;^e,[|3|ifrom the date the petitioner remained under suspension is liabletbby^

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There is another allegation made in the petition that even though petitioner's suspension order was revoked, he has not been paid salary from 30th June, 1988. The respondents have made categoric averments in the return supported by a statement ofsalary (Annexure R-XIV) which shows that from the month July, 1988 onwards the salary has been paid^{thoughwithcertain} deduction till the interim order was passed by this Court and thereafter the salary has been paid to the petitioner without making any deduction in view of stay of recovery.

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17,In the result, this petition is partly allowed. The second charge sheet dated 8.10.1988, departmental e-nquir/ on the said charge sheet and consequent order of penalty dated 3.6.1988 is held illegal and ineffective in Law and are hereby quashed. However, the respondents are at liberty to take the earlier enquiry instituted upon charge sheet dated 26.6.1985 to its logical conclusion by following the procedure prescribed under the Law keeping in view that now the petitioner has retired from service. The respondents will also have liberty to take disciplinary proceedings, if permissible underthe Law, in respect ofcharge No.3 of charge Sheet dated 8.10.1988 in the light of the fact that now the petitioner

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stands retired. Deduction from salary, if any, made till the interim order was passed by the Court, shatl atso be refunded to the petitioner.

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No order as to costs.

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Sd/Manindra Mohan Shrivastava Jude

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Praveen'

G.C. Napit v. State of M.P. and Ors.

Case brief

What is this about?

What did the court decide?

G.C. Napit v. State of M.P. and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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