'SiiBin IN THE M.P.STATE AaaNISTRATIVE TRIBUNAL, BENCH AT RAIPUR (M.P..') B ET WE EN L^P^- )^^f°) APPLIC.WT VERSUS BESPCarBNTS A GAURI aiAMKER PATKAIK, AGE - tj2 YEARS SON OF SHRI ABHIi^.WYU PATOAIK POSTEDAS - CCN3TABLE (G.D.) AT PB5SB<T 1TORKING AS DRIVER AT ' CIVIL LINES, RAIPUR. • R/0 - KOTA BiARD N0.2, RAIPIJR. 1. STATE OF MADHYA PRADESi THRCUGH - THE SECRETARY MINISTRY OF HQ & PGLICE DEPT. VALLABH BHSWA'1, BHOPAL . 2. IN®ECTORGWERAL OF PCLICE . RAIPUP. ZCNE, RAIPUR (M.P.) 3. A. I. G. OF PCLICE (GENERAL BR.WCH ) SELECTICK, P.H.Q. M .P .BHQPAL. 4. SUPERINTENDaT OF POLICE RAIPUR, DIST.- RAIPUR(M.P.) DETAILS O? APPLICATICN ;\/ M"; EIT PETITJON (S) N0.3326/2005 Gauri Shanker Patnaik The State of Madhya Pradesh and others le Bench: Hon'ble Shri Manindra Mohan Shrivastava, J. Shri R. K. Kesharwani, counse! for the petitioner. Present:- Shri Arvind Dubey, P.L. for the State/respondents. ORAL ORDER (Passed on this 12th day ofMarch, 2010) Wlth She consent of learned counsel for the parties, the oetition is hei fi>na!ly. (2) By fhis petition, petilioner has called in question the iegaiity and vaiidity of order dated 27-06-1998 (Annexure A-1) passed bythe Superintendent of Police, Raipur, whereby recover/ was ordered. Petitioner was subjected to departmenta! action on certain allegations of misconduct and order v/as passed on 13-03-1996 (Annexure A-1) imposing penalty of withholding ofone increment as aiso recovery. This order was challenged in departmenta! appea! wherein vide order dated 21-06-1996 (Annexure A-2), the appeal v/as allowed and the order of punishment was set aside, remanding the case for fresh consideration. Thereafter, the disciplinary authority passed another order dated 31-07-1996 (Annexure A-3) whereby earlier penatty was restored. This was again chaliengsd before the concerned authority by filing of an appeal, on which, the appellate authority set aside the order of punishment vide its order dated 03-10- 1996 (Annexure A-4) and directed the disciplinary authorMy to ho!d enquity afresh as per rutes. Finally, the disciplinary authority passed order dated 23-05- 1998 (Annexure A-5), by which, penalty of withhoiding of one increment for a period of one year was.imposed. in that order, no order of recovery was made. However, iater on, the Superintendent of Police, Raipur passed another order dated 27-06-1998 (Annexure A-6), by which, referring to earlier non-existent orders, set aside by the appellate authority, recovery was directed. Aggrieved by ths said order, petitloner again approached higher authorities. (®c:^ >^>...'i<! -iascia v-< /' Q^- White the matter stood thus, the petitioner approached the Tribunat by Original Application No.445/19%. The said petition was finally disposed of vide order dated 11-01-2000 bythe Tribunal, directing the competent authority to decide petiSioner's appeal within a perfod of tv/o months after receipt of the order of the Tribuna!. However, as no order was passed by the competent authority within the time stipulated, present petition came to be filed on 21-07-2000. During the pendency of this petition, the respondent authorities passed an order dated 26-08-2000, by which, the appeal preferred by the petitioner has been dismissed 'Atiich has been placed on record as Annexure R- (4) Learned counse! for the petlSioner submits that order of recovery passed on 27-06-1998 (Annexure A-6) te illegal and in excess of the authority in as much as the very basis for the recovery was the order passed bythe disciplinary authority on 31-07-1996. TTie said order was later on set aside in appeal by the appeiiate authority vide order dated 03-10-1996 (Annexure A-4). As such, there was no lega! basis for issuina order of recovery. (5) On the other hand, tearned State counsel submits that the order passed by the Superintendent of Police, Raipur on 27-06-1998 is just and in accordance with iaw, as the petitioner was found guilty of causing pecuniary !oss due to his negligence. As such, the petitioner couid not deny his liabi!ity. (6) I have considered rival contentions made by learned counsel for the parties and perused the records. (7) !t is apparent that order passed by the disciplinary authority on 31-07- 1996 (Annexure A-3) by which penalty of withholding of one increment as also order of recovery was imposed was set aside by the appeliate authority vide its order dated 03-10-•'996 (Annexure A-4). After remand, fhe disciplinary authority passed another order dated 23-05-1998 (Annexure A-5) by which only penalty of withhoiding of one increment 'A'as imposed. This order did not contain any direction for recovery against the petitioner. TTie impugned recovery order dated 27-06-1898 (Annexure A-6) shows that on an assumption that earlier recovery vras ordered, directions were issued. The appeliate authority whiie dismissing ths appea! of the petitioner vide its order dated 26-08-2000 passed during the ,sf^a*ew^ ^&'-^^i^t-.^ ^ ''•':'^ s^'"' y-!' ^ 'r:"y ^'S.isR'!^1 pendency of the petition, has not taken into consideration this aspect. The appeilate authority committed serious illegality jn not taking into consideration that order dated 27-06-1998 was passed on incorrect assumption of fact that earHer an order of recovery was issued whereas last order of punishment only contained withholding of one increment. If at a!l, the appellate authority was of t.he opinion that the matter required re-consideration either it coutd have been remanded to the disciplinary authority or fresh notice could have been issued to the pefitioner. This having not been done by the appellate authority, orde.r of recovery can not be sustained under the !aw. The impugned order of recovery dated 27-06-1998 (Annexure A-6) as aiso order passed by the appeiiate authority dated 26-08-2000 (Annexure R-1) are hereby set aside. 8) Ths petition is ailowed. No orders as So cost. (8) Sd/- —»SSMWBUa