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I.K.Goswami vs The State Of Madhya Pradesh on 19 February, 2018

THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
WRIT PETITION NO.14389 OF 2005 (S)

I.K. Goswami
Versus
State of M.P. and others

For the applicant : Mrs. Anjali Shrivastava, Advocate
For the respondents/ : Mr. A.P. Singh, Government Advocate
State

Present: Hon’ble Mr. Justice Vivek Rusia

ORDER

(22.02.2018)

Petitioner has filed the present petition against the
impugned order dated 08.09.2004 whereby he has been
removed from the service, thereafter, he preferred a review
application, which has been dismissed vide order dated
03.05.2005, hence, the petitioner is challenging both the
orders in this petition.

2. The petitioner was appointed as a Lower
Divisional Clerk on 16.08.1990 by way of compassionate
appointment. While working as a Assistant Grade-III in Tahsil
Timarni he was served with a notice dated 03.03.2004 issued
by the Collector, District Harda, levelling allegations that he
has not passed the Hindi typing examination and he came on
the duty in an intoxicated condition. Since the petitioner did
not submit any reply to the show-cause notice again a show-
cause notice dated 23.08.2004 was served upon him by the
Collector. The petitioner submitted a reply dated 01.09.2004
assuring that he will pass the Hindi typing examination within
one year and he will not come on duty after consuming the
liquor and will not misbehaved with the higher officers. On the
basis of the reply submitted by the petitioner vide order dated
08.09.2004 he was served with a punishment of removal from
service in public interest and denied the salary for the
unauthorized period of absence under the principles of ‘no
work no pay’. The petitioner filed a review petition before the
Commissioner, who has also dismissed the same vide order
dated 03.05.2005; hence, the present petition before this
Court.

3. Petitioner has assailed both the orders on the
ground that before imposing the major penalty of removal, the
procedure prescribed under Rules 10 and 14 of the M.P. Civil
Services (Classification, Control and Appeal) Rules, 1966
(hereinafter referred to as Rules of 1966″) have not been
followed before imposing major punishment. By issuing a
show-cause notice dated 03.03.2004 the respondents have
already made up their mind to terminate the services of the
petitioner, hence, impugned orders are liable to be set aside.

4. After notice the respondents filed the return by
submitting that the petitioner was a habitual absentee as well
as a habitual drunkard. Earlier he was punished with a minor
punishment of withholding of two increments with non-
cumulative effect for unauthorized absence vide order dated
24.05.2001, but thereafter he did not improve his conduct in
the office. Various complaints about the financial
embezzlement during Panchayat Elections were received
against him and vide order dated 28.11.2001 he was placed
under the suspension. A charge-sheet dated 20.12.2001 was
issued to him containing three charges. The enquiry report
dated 29.06.2002 was submitted in which all the charges
were found proved. The petitioner was served with an enquiry
report and he submitted his reply and assured that he will
improve his behaviour and habits in future. The petitioner
appeared before the Collector on 07.08.2002 and submitted
an affidavit that he will not repeat such misconduct and
misbehaviour in future. The petitioner has also faced the
criminal case instituted against him by his wife under Section
498-A of IPC. He was asked to deposit the monthly alimony of
Rs.500/- as well as lump-sum amount of Rs.12,000/- under
Section 125 of Cr.P.C. The disciplinary authority took a lenient
view and imposed the penalty of withholding of two
increments with cumulative effect but subject to his future
good conduct vide order dated 08.07.2003. Despite that the
petitioner did not show any improvement and again started
coming in a drunken condition and also misbehaved with the
higher officers; therefore, the respondents had no option but
to termination his services after issuing a show-cause notice.
He has also not passed the typing examination as required
under the Rules, therefore, he is not liable to be continued in
service and rightly been terminated by the respondents. Both
the authorities have considered the case in totality, hence, no
interference is called for. The continuance of the petitioner in
the service was not in the public interest, hence, prayed for
dismissal of the writ petition.

5. I have heard learned counsel for the parties.

6. Learned counsel for the petitioner submitted that
the respondents in their return has admitted that before
passing the order of termination no opportunity of hearing or
full fledged enquiry was conducted; therefore, the impugned
order is liable to be set aside in violation of Rules 10 and 14 of
the Rules of 1966.

7. Per contra, learned Government Advocate for the
respondents submitted that the department has already
shown leniency against the petitioner twice but he was not
ready to improve his conduct; therefore, the authority had no
option but to remove him from the service.

8. The petitioner was appointed on a compassionate
ground. In the appointment order there was a specific
condition that he will have to pass the Hindi typing
examination from the Shorthand and Typing Board, Madhya
Pradesh within a period of one year from the date of
appointment. Undisputedly, during the employment the
petitioner did not pass the typing examination and obtained
the certificate. In entire petition the petitioner has conveniently
suppressed earlier two orders of punishment passed by the
respondents by which he was punished for the same and
repeated misconduct. A charge-sheet dated 20.12.2001 was
issued that he is a habitual absentee and misbehaved with
the co-workers in an intoxicated condition. Vide order dated
25.04.2001 the petitioner was served with a punishment of
stoppage of two increments with non-cumulative effect. One
Smt. Malti Mishra, Tahsildar made a written complaint against
the conduct of the petitioner on 09.11.2001 and requested that
in his place some experienced clerk be appointed. Vide order
dated 28.11.2001 the petitioner was placed under
suspension.

9. The allegation of financial irregularities was were
made against him. The enquiry officer submitted a report
dated 29.06.2002 in which all the charges were found proved.
The petitioner submitted an affidavit dated 07.08.2002 that he
will not repeat the misconduct and he will not demand the
dowry from his wife. The contents of the affidavit are
reproduced herein below: –

^^1 ;gfd ‘kiFk x`ghrk lR; izfrKk djrk gS
fd eSa dHkh Hkh ‘kjkc ,oa fdlh Hkh izdkj dk
uâ™k€ s dk lsou ugha d:axkA
2 ;gfd ‘kiFk x`ghrk dHkh Hkh viuh ifRu ls
ngst vkfn dh ekax ugha djsxkA
3 ;gfd ‘kiFk x`ghrk ;g Hkh vfHkopu nsrk
gS fd eSa dk;kZy; esa dHkh Hkh fdlh Hkh
vf/kdkjh ,oa deZpkfj;ksa ls nqO;ogkj ugha
d:axkA rFkk eSa viuk dk;Z le; le; ij
vkdkj d:axkA rFkk dHkh Hkh Hkfo”; esa ‘kjkc
ugha ihÅaxkA^^

10. Vide order dated 08.07.2003 he was punished
with the stoppage of two increments with cumulative effect
with the warning that if he do not improve his conduct in
future, his services would be terminated without affording any
opportunity of hearing.

11. The petitioner has not disclosed aforesaid two
punishment in the writ petition and directly filed the copy of
notices dated 03.03.2004 and 23.08.2004. Petitioner
submitted reply to the aforesaid show-cause notice in which
also he assured that he will obtain the Hindi typing certificate
within one year and in future he will not come in the drunken
condition and will not misbehaved with the employees and the
officers. The operative part of the reply is reproduced as
under:-

^^izkFkhZ ,d o”kZ dh vof/k esa fgUnh eqnz ys[ku
ijh{kk mRrh.kZ djus dk vk’™o€ klu nsrk gSA
eSa ,slk vk’™
o€ klu nsrk gSw fd Hkfo”; esa dHkh Hkh
dk;kZy; esa efnjk iku dk lsou ugha d:axk
vkSj u gh dHkh Hkh fdlh deZpkjh ,oa vf/kdkjh
ls dksbZ vHknzrk ugha d:axkA

egksn; ls djc) fuosnu gS fd esjh leLr
qfV;ksa dks ekQ djrs gq,s eqs lsok esa dk;Z
djus dk volj iznku djs rFkk d`i;k esjh
inLFkkiuk rglhy dk;kZy; fVejuh ls gVkdj
vU; dk;kZy; esa djus dh d`ik djsA eSa Hkfo”;
esa dHkh Hkh f’™
k€ dk;r dk volj ugha nwaxkA^^

12. Therefore, he did not dispute the charges levelled
against him in the third show-cause notice. From the
aforesaid material available on the record it is clear and
established that the petitioner did not improve his conduct.
Twice he was shown the leniency by the Department and
despite that the charges were proved against him and he did
not show any improvement. By reply to the charge-sheet he
has admitted all the charges and did not plead for enquiry.
Since the petitioner did not deny the charges; therefore,
question of conducting any enquiry does not arise. Rule-14
Sub Rule (1) of the Rules of 1966 says that no order imposing
any of the penalty specified in Clause-5 to 9 of Rule-10 shall
be made except after an enquiry held as far as may be in the
manner provided in this Rule and in Rule-15. Rule-14 Sub-
Rule (1) of the Rules of 1966 mandates enquiry to be
conducted as far as may be in a manner provided in this Rule.
Sub-Rule (3) of Rule-15 provides that where it is proposed to
hold an enquiry against the Government servant under this
Rule and Rule 15 the disciplinary authority shall issue a
charge-sheet. Since the present petitioner did not deny the
charges; therefore, there was no scope to hold any enquiry
against him. While imposing the punishment of stoppage of
two increments vide order dated 08.07.2003 it was observed
that in future if the misconduct is committed, his services
would be terminated without conducting enquiry or without
affording any opportunity of hearing. While passing the order
dated 08.07.2003 the detailed enquiry was conducted and full
opportunity of hearing was afforded to the petitioner. The
respondents took a lenient view and impose punishment of
stoppage of two increments and further directed to observe
his conduct. The third show-cause notice was issued on a
same misconduct during observance period. Since there was
no new charges in the impugned show cause notice;
therefore, fresh enquiry was not required specially when the
petitioner did not deny the charges.

13. Even otherwise as per the terms and conditions of
the appointment order the petitioner was required to pass the
Hindi typing examination within one year. The condition of
passing of the examination was mandatory and the same has
not been relaxed and even cannot be relaxed under the
Rules. Admittedly, the petitioner has not passed the Hindi
typing examination; therefore, on this ground also no enquiry
was required to be conducted and the disciplinary authority as
well as the Appellate Authority has rightly passed the order of
punishment. No interference is called for.

Petition stands dismissed.

(VIVEK RUSIA)
JUDGE
taj.

Digitally signed by
TAJAMMUL HUSSAIN KHAN
Date: 2018.02.24 19:25:57
+05’30’

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