KAMAL SINGH YADAV Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Original petitioner has filed this petition under Article 226 of Constitution of India seeking following reliefs :-

(2.) Learned counsel for the petitioner submits that the original petitioner on the date of retirement i.e. on 28/2/2011 was working as Superintending Engineer Gwalior with the respondent-Department in Gwalior. A charge-sheet dtd. 6/3/2012 was issued to the petitioner for a single charge regarding earth work done on three roads. The allegation against the petitioner was that payment of Rs.260531.00 is made without administrative and technical sanction for the road situated at Bilav to Kishore Singh Ka Pura. Thereafter, respondents have appointed enquiry officer. Enquiry was conducted by the enquiry officer. After completion of enquiry, enquiry officer submitted his report to the disciplinary authority and the disciplinary authority has issued a show cause notice to the original petitioner and the original petitioner has submitted reply to the aforesaid show cause notice. Learned counsel for the petitioner submits that thereafter punishment of withdrawal of 30 percent pension has been imposed vide order dtd. 10/10/2017. Learned counsel for the petitioner further submits that as per Rule (ii) (d) (2) of Rule 9 of M.P. Civil Services (Pension) Rules, 1976 (for brevity, 'Rules of 1976'), the departmental proceedings, if not instituted while the Government servant was in service shall not be instituted in respect of any event which took place more than four years before such institution. He further submits that alleged incident pertaining to the year dtd. 14/02/2007 and the original petitioner stood retired from service on 28/02/2011. He further submits that charge sheet dtd. 06/03/2012 was not issued by the Governor. He further submits that Hon'ble Governor has not delegated the powers to the council of Ministers or anybody else and accordingly, charge sheet dtd. 06/03/2012 was issued by the incompetent authority. He further submits that according to Rule 9 (2) of Rules of 1976 disciplinary action can be instituted only in respect of any alleged misconduct committed before four years of the departmental enquiry.

(3.) Per contra, learned Government Advocate submits that payment voucher was sanctioned during the tenure of the original petitioner on 19/09/2007. The work in question was pertaining to the road sanctioned under NABARD Scheme and one order dtd. 5/5/2007 was issued by the petitioner permitting certain deviations in three Sec. , subject to administrative sanction. He further submits that tenure of four years shall start from 26/02/2009 and not from 19/09/2007. He further submits that as per judgment of Apex Court in the case of State of M.P. vs. Dr. Yashwant Trimbak reported in AIR 1996 SC 765, the State works through its executive and the order of withholding of pension is an executive act, hence, can be made by the authority empowered under the rules of business framed under article 166 (2) of the Constitution. Personal signature of the Governor is not required to pass an order under Rule 9 of Rules of 1976. He supported the impugned order and prays for dismissal of the writ petition filed by the petitioner.