YOGIRAJ SHARMA Vs. STATE OF M P

JUDGEMENT

(1.) CHALLENGING the order-dated 10. 12. 2007 (Annexure p/1) passed by the State Government compulsorily retiring the petitioner in accordance to the provisions of Rule 42 (1) (b), of the MP Civil Services (Pension)Rules 1976 [hereinafter referred to as 'rules of 1976'], petitioner has filed this petition. It is the case of the petitioner that the aforesaid order has been passed in an arbitrary manner without following the requirements of evaluating the entire service record of the petitioner and the action is taken on extraneous considerations and is influenced by reports appearing in the media, which are adverse to the petitioner.

(2.) BRIEF facts of the case, are as under : petitioner claims to be a Post Graduate having obtained a Masters Degree in General Surgery in the year 1982 and it is stated that he joined the services of the respondent department as an Assistant Surgeon in pursuance to the order passed on 29. 5. 82. Subsequently, in November 1983, he was interviewed by the state Public Service Commission and declared as selected on a regular post of assistant Surgeon, after his name was placed at Serial No. 163 in the merit list. Copies of the letters evidencing the aforesaid fact is filed as Annexure P/3. It is stated by the petitioner that he had an unblemished career during his service; he has been awarded various national and international awards - details of which are indicated in the petition; no adverse entries were communicated to him at any point of time during his entire service career and he had been promoted from time to time and finally was holding the post of Director of Health Services, on which post he was promoted on 2. 12. 96 (Annexure P/9 ). It is the specific case of the petitioner that during his entire service, he has never been punished, no adverse confidential reports or entries in his service records ever communicated and for the last five years preceding the date on which action is taken against him, he had either earned A+ or A Gradings. That apart, indicating particulars of various meritorious awards conferred on the petitioner for his outstanding service, petitioner claims to have a very high reputation and it is stated that he has an unblemished service record. Various particulars in this regard are indicated by the petitioner in the petition, which pertains to the meritorious services of the petitioner, the national and international awards and achievements in his field of specialization and the fact about earning 'outstanding' and 'very good' CRs during his entire service starting from the year 1980. It is stated that petitioner's son one Shri Gaurav Sharma had passed his graduation in BE from Barkatullah University, Bhopal in the year 2004 and thereafter he was pursuing higher studies in the University of Western Sydney, australia. He successfully completed the aforesaid course in the year 2006 and was involved in multifarious business activities and has acquired considerable assets and properties by virtue of the business undertaken by him. It is stated that his son is living separately in his own house, being House No. A-70, Shakti Nagar, bhel, Bhopal, which house was gifted by Shri Gaurav's grandmother vide will dated 14. 4. 2000, available on record as Annexure P/16. It is stated that in pursuance to the aforesaid grant made by his grandmother, the house in question was transferred in the name of petitioner's son Shri Gaurav Sharma and in the records of the Electricity Board and various other authorities, the house is shown in the name of Shri Gaurav Sharma and proceedings for mutation in the records of Nazul and Municipal Corporation are also under process. It is stated that petitioner's son Shri Gaurav Sharma is submitting income tax returns separately and particulars of his income and tax returns have been indicated in this petition. It is further the case of the petitioner that he is staying in a Government house allotted to him being Quarter No. D-104/9, Shivaji Nagar, Bhopal and he is occupying the same by virtue of the allotment order-dated 2. 6. 2006 (Annexure p/19 ). Besides the son Gaurav Sharma, petitioner has one daughter who is suffering from incurable mental disorder. Petitioner's wife was also earning initially, but after ailment of his daughter, his wife has left the employment, but is managing her own business activities and is an income tax assessee for the last many years and by bringing on record assessment and other papers, it is stated that petitioner's wife and son Gaurav Sharma are submitting returns and are assessed to income tax separately. It is the case of the petitioner that the income tax authorities conducted certain search and seizure operation at the residence of petitioner's son situated at Shakti Nagar on 7. 9. 2007 in the morning, and it is alleged that in the said search a sum of Rs. 1. 13 crores in cash and foreign currency worth Rs. 4. 5 Lacs were recovered. Search and seizure were also conducted in various other premises belonging to the petitioner and his relatives by the income tax department and the enforcement directorate and proceedings have been initiated against the petitioner by the Revenue. Intimation about the aforesaid action by the authorities of the revenue department were made to the competent authority of the State Government telephonically and subsequently by a communication (Annexure R/2) issued to the Chief Secretary, State of Madhya Pradesh by the office of Director General of Income Tax, Bhopal. It is indicated in the aforesaid communication that on the basis of certain complaints received by the Directorate, investigation were started against the petitioner for possessing wealth without paying tax. It was indicated in this communication that preliminary investigations revealed that substantial money has been generated and the same is being shown as investment in companies and firms, in which petitioner's son and wife are partners and share-holders. On the basis of the evidence collected in the investigation, search operation was conducted in the residence of the petitioner Dr. Yogiraj Sharma. It is indicated in the report (Annexure R/2) that on being questioned, petitioner has informed that the income and the seizure made are the income of petitioner's son, petitioner has disclosed all the income of his family members and attributing the income to be that of his son, petitioner gave explanation. However, indicating that petitioner's son was a student till November 2006 and, therefore, his explanation seems to be unsatisfactory, the report (Annexure R/2) indicates that the facts are brought to the notice of the appropriate authority of the State Government for taking action as they may deem fit. This communication (Annexure R/2) further indicates that copy of the appraisal report shall be sent after the completion of the post search and investigations. It is the case of the petitioner that no raid was conducted in his house, the search and seizure was conducted in the house of his son, all the income received by petitioner, his son and his wife have been disclosed and there is nothing to be concealed. It is the case of the petitioner that after the aforesaid communication was received by the Department from the Income Tax Authorities vide Annexure p/20 dated 10. 9. 2007 i. e. . on the same day when the communication was received, petitioner was suspended from service. Petitioner has given various particulars in this petitioner and has also filed documents to show that petitioner and his family members have not concealed any income and has tried to justify the income and has taken the defence that he has not concealed income nor has he committed any default in payment of income tax and has tried to justify his action. However, vide charge-sheet (Annexure P/25) dated 7. 12. 2007, petitioner has been charged for having committed misconduct and departmental proceedings for possessing disproportionate assets and committing misconduct have been initiated against him under the provisions of Rule 14 of the M. P. Civil services (Classification, Control and Appeal) Rules 1966 and the conduct rules applicable to the petitioner. Petitioner was granted time to submit his reply and it as indicated that disciplinary action will be undertaken against him. It is the case of the petitioner that after issuing the charge-sheet on 7. 12. 2007 without conducting any enquiry into the allegations levelled in the charge-sheet, which is based on the information and communication received by the State Government from the Income tax Department within 3 days the impugned order has been passed compulsorily retiring the petitioner on the ground of public interest under Rule 42 (1) (b) of the rules of 1976. It is the case of the petitioner in the present case that the action taken for compulsorily retiring him is wholly unwarranted, unjustified, illegal and amounts to arbitrary exercise of power by the State Government. It is stated that the power has been exercised on extraneous consideration and petitioner is being punished for the alleged misconduct indicated in the charge-sheet (Annexure P/25) without giving him any opportunity of defence. It is the specific case of the petitioner that he has an unblemished service career and without considering his entire service record, action is taken to punish him in the garb of proceeding under Rule 42 (1) (b)in public interest, influenced by media reports and extraneous material without granting proper opportunity to explain his conduct in the matter.

(3.) SHRI N. S. Kale and Smt. Shobha Menon, learned Senior Advocates representing the petitioner, by taking me through the documents and other material available on record emphasized that this is a case Where the petitioner who has an unblemished service record of more than 26 years is punished on the basis of a solitary instance and action is taken against him on extraneous considerations without application of mind. It is emphasized by them that no public interest is involved, the entire action is influenced by media reports and is done in an arbitrary manner on the assumption that the imputations made by the Income Tax Department in the communication (Annexure R/2) is correct. Learned counsel emphasized that in the entire matter action is taken merely, on the basis of unconfirmed reports submitted by the Income Tax Department, which prima facie is incorrect. Learned counsel emphasized that the Income Tax authorities have proceeded under the assumption that the raid conducted by them at A-70, Shakti Nagar, BHEL, Bhopal is in the house of the petitioner, whereas by filing various documents, particularly the will (Annexure P/16), it is emphasized that the house belongs to petitioner's son Shri Gaurav Sharma and action is taken against the petitioner without conducting appropriate investigations and enquiry on the basis of presumptions and assumptions.