P N MISHRA Vs. STATE OF M P

JUDGEMENT

(1.) CHALLENGING the order of punishment dated 27-5-2000 passed by the Disciplinary Authority on 27-5-2000 imposing penalty of withholding 20% of the pension, so also aggrieved by non-payment of his gratuity, petitioner has filed this petition.

(2.) IN the year 1993, petitioner was holding the post of Dy. Collector in Distt. Teekamgarh. Commissioner, Sagar issued a charge-sheet to the petitioner on 27-8-93 vide Annexure A-2 alongwith statement of allegations An-nexurc A-3 with regard to misconduct committed by the petitioner in the matter of issuing 32 arms license to various persons in a unauthorised manner without proper procedure being followed in the matter of seeking a report from the police authorities, getting proper character verification done and without sanction of the competent authority and in contravention to Govt. circulars and rules. Petitioner submitted his reply to the aforesaid, Departmental Enquiry was conducted and on the basis of the report of the Enquiry Officer, show-cause notice was issued, petitioner submitted his reply to the same and thereafter by the impugned order as petitioner had retired during the period of enquiry, after consultation from the M. P. Public Service Commission, penalty has been imposed upon the petitioner. Shri R. D. Jain inviting my attention to Rule 14 (2) read with Rule 2 (d) of the M. P. Civil Services (Classification Control and Appeal) Rules, 1966 hereinafter referred to as the "disciplinary and Appeal Rules" argued that under the aforesaid rules, charge-sheet can be issued only by the Disciplinary Authority and Disciplinary Authority of the petitioner is the State Govt. as per Schedule to the "disciplinary and Appeal Rules", and, therefore, it is argued that action taken for initiating departmental enquiry by the Commissioner is not justified. Thereafter, referring to Rule 9 of the M. P. Civil Services Pension Rules, 1976. Shri Jain argued that no notice for proceeding under the aforesaid rules were issued to the petitioner. It was further submitted by Shri Jain that after retirement, penalty under Rule 9 can be imposed only if financial loss is caused to the Govt. In the present case, no financial loss is said to have been caused and, therefore, the provisions of Rule 9 are not applicable. It is further argued that Enquiry Officer was appointed vide Annexure A-4 by the Commissioner. Commissioner being not the Disciplinary Authority he is not empowered to appoint Enquiry Officer. Shri Jain further submitted that when the Enquiry Report was submitted, Commissioner had given his comments on the report and the action for imposing penalty has been taken on the basis of the comments of the Commissioner. However, the comments of the Commissioner have not been forwarded to the petitioner. Inviting my attention to the averments made in Paras 6. 4 and 6. 11 of the petition and also referring to the recommendations made initially for recovery of 5% from the pension of the petitioner, Shri Jain argued that the proposed penalty of 5% has been enhanced to 20% after consultation with the Pubic Service Commission and Public Service Commission has no authority to make such recommendation. Placing reliance on a judgment of this Court in the case of State Bank of India v. Arvind Kumar Shukla, 1998 (2) JLJ 103 so also a judgment of the Supreme Court in the case of Anil Padegaonkar v. Bharat Petroleum Corporation and others, 2004 (1) M. P. H. T. 297 = 2004 (2) MPLJ 15. Shri Jain argued that the punishment imposed and the action taken ignoring the statutory provisions is unsustainable.

(3.) SHRI Brijesh Sharma, learned Counsel for the respondents inviting my attention to the amendment made to the Schedule to the "disciplinary and Appeal Rules" with effect from 1983 vide Annexure R-3 submitted that the Divisional Commissioner having been delegated with the power and Disciplinary Authority was competent to impose the penalty as per the "disciplinary and Appeal Rules", contention of the petitioner with regard to issuance of charge-sheet and appointment of Enquiry Officer by incompetent person is said to be unsustainable. Thereafter, referring to the provisions of Rule 9 (1) and Rule 9 (2) (a) of the Pension Rules Shri Brijesh Sharma argued that once the Disciplinary proceedings commenced during the service period of an employee then, even after his retirement the enquiry continues under the provisions of Rule 9 by virtue of the statutory provisions and, therefore, the contention that no notice under Rule 9 of the Pension Rule is issued is unsustainable. Thereafter, referring to the findings of the Enquiry Officer, the show-cause notice issued and the order passed it was argued by Shri Sharma that action having been taken in accordance with law, no interference is called for. As far as loss of revenue to the Govt. is concerned, referring to the findings recorded with regard to Charge No. 3 as per report of the Enquiry Officer, Shri Sharma pointed out that it has been specifically held by the Enquiry Officer in its finding that while receiving applications for grant of arms license, petitioner has not taken care to get the fee deposited as per rules and as fees in 32 cases have not been deposited, it has caused peculiary loss to the Govt. Accordingly, it is argued that no case for interference is made out.