Ram Lakhan Gupta v. State Of M.P. And Other.

Sujoy Paul, J.:— The petitioner has challenged the show cause notice dated 23.11.2015 Annexure P/6 in this petition filed under Article 226 of the Constitution.

2. Learned counsel for the petitioner advanced singular contention. He submits that the show cause notice is issued by an officer who is not substantively holding the charge of Additional Commissioner. An officer working as Incharge Assistant Commissioner cannot perform the statutory duties under Madhya Pradesh Civil Services (Classification, Control & Appeal) Rules, 1966. In the nutshell, it is submitted that departmental enquiry can be initiated by an officer who is substantively/permanently holding the charge of the said post. An officer working on officiating basis cannot do the same. Reliance is placed on 2013 (4) MPHT 400 (K.K Gupta v. State of M.P).

3. Shri Kekre opposed the relief. He relied upon the return. However, in the return, a bald statement is made that Assistant Commissioner, Tribal Welfare, Shahdol is competent to pass the impugned order. Petitioner in para 5.8 to 5.10 has made specific pleadings that respondent No. 4 is only an Incharge Assistant Commissioner and he does not have power to initiate inquiry or issue notice dated 23.11.2015 For the reasons best known to the respondents, no parawise reply is filed.

4. In the opinion of this court, the respondents have not disputed the averment of the petition wherein it is mentioned that respondent No. 4 is an Incharge Assistant Commissioner. As per return, Assistant Commissioner is competent authority. Even if this stand of return is correct, an officer substantively holding the post of Assistant Commissioner alone can issue such show cause notice. This view is taken way back in 1973 JLJ 405 (Girija Shanker Shukla v. Sub-Divisional Officer, Harda). the same view is followed by this court in 2013 (4) MPHT 400 (Supra). In the light of aforesaid, the impugned notice cannot sustain judicial scrutiny because it is issued by an officer holding the charge on current charge basis. An Incharge officer cannot issue such notice. Resultantly, the notice dated 23.11.2015 (Annexure P/6) is set aside. Liberty is reserved to the respondents to proceed against the petitioner in accordance with law.

5. Petition is allowed to the extent indicated above.