DEVI DAYAL JHA Vs. STATE OF M P

JUDGEMENT

(1.) With the consent of learned Counsel for the parties the matter is heard finally. In this petition, the petitioner has assailed the validity of the order dated 7-11-2009 by which the appeal preferred by the petitioner against the order of dismissal has been rejected. The petitioner inter alia also seeks a direction to accord him all consequential benefits.

(2.) The facts, leading to filing of the writ petition, briefly stated, are that the petitioner was appointed on the post of Patwari on 18-7-1961 by the Collector and was posted in Patwari Circle Pali, Tehsil Jatara, District Tikamgarh. By order dated 19-9-1990, the petitioner was placed under suspension by the Sub-Divisional Officer. The petitioner assailed the validity of the aforesaid order in original application before the erstwhile M.P. Administrative Tribunal, Jabalpur (in short "the Tribunal"). The Tribunal vide order dated 26-12-1990, inter alia held that in view of the automatic revocation of suspension as provided under Rule 9 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (in short "the 1966 Rules") the respondents may permit the petitioner to join his duties or show cause. In compliance of the aforesaid order, the petitioner submitted his joining on 7-1-1991. Thereafter, a Departmental Enquiry was instituted against the petitioner and vide order-dated 2-1-1991 the penalty of dismissal was imposed on the petitioner by the Sub-Divisional Officer. Against the aforesaid order, the petitioner filed an appeal under Rule 23 of the 1966 Rules. The petitioner also challenged the validity of the order of dismissal in original application, namely, O.A. No. 928/1992 before the Tribunal. On abolition of the Tribunal, the aforesaid original application was transferred to the High Court and was registered as W.P. No. 7382/2003. The writ petition was disposed of by a Bench of this Court by order dated 18-9-2007 with the direction to the petitioner to prefer an appeal before the Appellate Authority and the Appellate Authority was directed to consider the quantum of punishment and decide the appeal within a period of three months. In compliance of the aforesaid order, the Appellate Authority vide order dated 7-11-2009, dismissed the appeal preferred by the petitioner.

(3.) Learned Counsel for the petitioner while inviting the attention of this Court to Section 104 of the M.P. Land Revenue Code, 1959 (in short "the Code") submitted that the Collector is the Appointing Authority of the petitioner and, therefore, the Sub-Divisional Officer has no authority in law to pass the impugned order. It is further submitted that the impugned order passed by the Sub-Divisional Officer in the capacity of Disciplinary Authority is per se without jurisdiction and ah initio void. However, the aforesaid aspect of the matter has not been properly considered by the Appellate Authority. In support of his submissions, learned Counsel for the petitioner has placed reliance on the decision in Vinod Kumar Khare Vs. State of M.P. and others, 2008 4 MPLJ 44, as well as the order dated 10-1-2005 passed in W.P. No. 7785/2003.