STATE OF MP Vs. ALOK NIGAM

JUDGEMENT

(1.) Being dissatisfied with the order dated 18 -3 -1999 passed by the Madhya Pradesh Administrative Tribunal (in short 'the Tribunal ') in M. A. No. 133/ 96 whereby it has reviewed its order passed in O.A. No. 538/94, the State of Madhya Pradesh and its functionaries have visited this court for issue of a writ of certiorari for quashment of the same.

(2.) THE facts as are discernible from the order passed in the original Application and review application and the pleadings putforth by the parties are that the respondent No. 1 (hereinafter referred to as 'the applicant) was working as the Assistant Superintendent in the office of the Directorate Health Services, Bhopal. A disciplinary proceeding was initiated against him on a singular charge. The Director in -charge of Health Services imposed the punishment of withholding of three increments with cumulative effect vide order dated 16 -3 -1992, Annexure P -1 The said order was challenged in appeal before the State Government and the appellate authority found the appellant guilty of charge but converted the punishment into a minor one i.e. stoppage of increments without cumulative effect. The said order was given effect to. While the matter stood thus, the Director of Health Services by order dated 11 -5 -1994, Annexure P -5, reviewed the order dated 16 -3 -92, passed by the Director in -charge of Health Services as well as the order dated 16 -2 -94 whereby the order of the State Government was given effect to. He recalled both the orders on the ground that the original order of punishment was passed by the authority who had no jurisdiction to pass such order. After passing of the aforesaid order the applicant was promoted by order dated 11 -5 -1994 to the post of Superintendent in the Directorate of Health Services. In the mean - time the order recalling the punishment which was passed by the Director, Health Services was rectified by the Director himself on 7 -10 -1994. Because of this correction the promotion which was conferred on the applicant was withdrawn and he was reverted to his original post.

(3.) QUESTIONING the defensibility of the aforesaid order it is submitted by Mr. S.K. Yadav, learned Government Advocate that the Tribunal has fallen into gross error in exercise of power of review inasmuch as it has really dealt with the score of facts in detail though the concept of review does not so envisage. It is his submission that the order of punishment passed by the Director in charge of the Health Services merged with that of the appellate authority and when that order was conceded to by the applicant having not called in question before the Tribunal the Director who was the original authority/disciplinary authority could not have acted as if sitting in appeal over the appellate authority 's order and as the same has been done the Tribunal has wholly erred in its ratiocination while expressing the opinion that the doctrine of merger holding that the original order was ab initio void and, therefore, the order passed in appeal was also void ab initio. In support of the aforesaid contentions Mr. Yadav commended us to the decision rendered in the case of S.S. Rathore v. State of Madhya Pradesh. AIR 1990 SC 10: 1990 Lab IC 398) and Shiv Chander Kapoor v. Amar Bose, (1990) 1SCC 234 :(AIR 1990 SC 325).