Allowed

Sonchand Banjare v. State of Chhattisgarh and Ors.

Chhattisgarh HC22 Nov 2018WPS/3356/2007

Case brief

AI extract

What is this about?

The High Court allowed the writ petition and quashed the department's refusal to open a sealed cover containing DPC recommendations. The Court directed the authorities to open the cover immediately, noting the petitioner was found non-culpable of misconduct by the appellate authority.

What did the court decide?

To open the sealed cover containing DPC recommendations within four months, consider the petitioner for promotion, and recalculare retiral dues.

Sonchand Banjare Vs State of Chhattisgarh and Ors. — Service and Employment | Chhattisgarh HC (2018)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WRIT PETITION (S) NO. 3356 OF 2007

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Sonchand Banjare, S/o Late Shiv Prasad Banjare, aged about 56, address: Joint Collector, Rajnandgaon (CG)

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versus

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State of Chhattisgarh, through the Secretary, Department of General Administration, D.K.S. Bhawan, Mantralaya, Raipur (CG)

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State of Madhya Pradesh, through Department of General Administration, Vallabh Bhawan, Bhopal (M.P.)

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… Respondents

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• Dr. N.K. Shukla, Senior Advocate, assisted by Mr. Ashwin Panickar, Advocate, for the Petitioner.

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• Mr. D.K. Wankhede, Govt. Advocate, for Respondent No.1.

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Hon'ble Shri Justice P. Sam Koshy Order on Board

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22/11/2018

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1. Claim of the petitioner is for a direction to the respondents for opening of the sealed cover in respect of the recommendations made by the Departmental Promotion Committee (in short, 'DPC') set up in June, 1990.

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2. Facts relevant for the adjudication of the case are that the petitioner was appointed in the year 1987 on the post of Naib Tehsildar. In due course of time, he was promoted to the post of Tehsildar. In the course of discharging the duties of Tehsildar, the petitioner was subjected to a disciplinary proceeding wherein a departmental enquiry was initiated in the year 1993. During pendency of the departmental enquiry, the respondents constituted a DPC for promotion from the post of Tehsildar to Deputy Collector. The DPC was held on 2.4.1994. The petitioner since was in the zone of consideration but because of pendency of departmental enquiry, the recommendations of DPC were kept in a sealed cover.

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3. Subsequently, after the departmental enquiry was over, the petitioner was inflicted with a punishment of stoppage of two increments without

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cumulative effect and also for recovery of a loss caused of Rs.1230/-, vide order dated 28.10.1995.

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4. The petitioner immediately preferred an appeal against the said order of punishment before the State Government and the State Government vide Annexure P-3, dated 21.5.1997, found that the respondents have not been able prove or establish the misconduct which was alleged against the petitioner and thus set aside the order of punishment dated 28.10.1995. However, the authorities concerned ordered for recovery of an amount of Rs.1230/- from the petitioner on account of loss caused to the department.

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5. Thereafter, the petitioner made repeated representations to the department for opening the sealed cover but the department vide order dated 13.9.2006, Annexure P-5, rejected the representation of the petitioner holding that the sealed cover need not be opened in the light of the minor punishment that has been inflicted upon the petitioner vide order dated 21.5.1997.

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6. This has led the filing of the present writ petition.

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7. Learned counsel for the petitioner submits that order of the appellate authority would clearly reflect that the order of punishment passed by the Disciplinary Authority was set aside vide order dated 21.5.1997 and as such the order of punishment earlier imposed was not in existence and it has to be presumed that the petitioner stands exonerated from the charges levelled against him and he is therefore entitled for recommendations made by the DPC to be acted upon and thus prayed for appropriate directions in this regard.

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8. Learned State Counsel on the contrary referring to Annexure P-5 dated 13.9.2006 passed by the Under Secretary, General Administration Department, Government of Chhattisgarh and also the circular of the State Government that is Annexure R-1 dated 30.6.1994, submitted that since the

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appellate authority has passed an order of recovery and the order of recovery has to be presumed to be a minor punishment. Therefore, since the petitioner had been inflicted with a punishment, the question of opening of sealed cover does not arise and the petitioner's contention is unsustainable and deserves to be set aside.

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9. Given the said facts and circumstances, what is necessary to be considered, is the finding given by the appellate authority while deciding the appeal wherein in paragraph 4 the appellate authority in very categorical terms has held as under:-

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“4. laiw.kZ izdj.k ds v/;;u i'pkr~ dnkpj.k tSlk dksbZ rF; vkjksih ds fo:) izekf.kr ugha ik;k tkrk] fdUrq izfdz;kRed =qfV;ksa ds dkj.k 'kklu dks :i;s 1230@& eqnzkad 'kqYd dh gkfu gksuk izekf.kr gS] ftldh olwyh vkjksih ls dh tk ldrh gSA blds fy;s mls vkfFkZd :i ls nafMr fd;k tkuk mfpr ugha gSA ”

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10. The plain reading of the aforesaid finding of the appellate authority would clearly reflect that the appellate authority has been very categorical in holding that the department has not been able to establish any sort of misconduct which has been alleged against the petitioner. The appellate authority was also of the view that the petitioner also could not have been imposed with any fine by way of punishment for the alleged procedural lapse that has occurred on the part of the petitioner.

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11. Given the said fact and the finding of the appellate authority, the order of punishment dated 28.10.1995 gets wiped off as the same has been quashed by the appellate authority itself. Since the order of punishment itself gets wiped off, the position would stand as if there was no departmental enquiry proceeding initiated against the petitioner and under the circumstances the sealed cover ought to had been opened so far as the petitioner's case is concerned after the order was passed by the appellate authority.

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12. The finding given by the department vide Annexure P-5 dated 13.9.2006 is wholly unsustainable for the reason that neither has the appellate authority given a finding that the charges have been partly proved nor is there a case where the appeal has been partly allowed, rather, it is a case where the appellate authority has set aside the order of punishment in totality and has categorically held that the department has failed to prove the misconduct alleged against the petitioner.

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13. Given the said facts, the reason assigned for not opening the sealed cover is therefore held to be bad in law, arbitrary and unjust and the same therefore deserves to be set aside/quashed and it is ordered accordingly. The respondent no.1 shall forthwith open the sealed cover so far as the recommendations that were made in respect of the proceeding drawn by the DPC held on 2.4.1994, at the earliest, preferably within a period of four months from the date of receipt of certified copy of this order. In case the DPC has recommended for promotion of the petitioner, appropriate orders in this regard be passed and consequential benefits including monetary benefits, the retiral dues payable to the petitioner on his superannuation shall also accordingly be refixed and the benefits be extended.

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14. The writ petition stands allowed.

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/sharad/ Judge

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Sd/- (P. Sam Koshy)

Sonchand Banjare v. State of Chhattisgarh and Ors.

Case brief

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Sonchand Banjare v. State of Chhattisgarh and Ors.

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