Jharkhand High Court
Paritosh Kumar vs State Of Jharkhand & Ors. on 15 July, 2016
Author: Pramath Patnaik
Bench: Pramath Patnaik
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W.P. (S) No. 784 of 2008
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In the matter of an application under Article 226 of the Constitution of India.
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Paritosh Kumar, S/o Late Bankey Garain, at present resident of House No.-39,
Road No.-3, Birsa Colony, Near Birsa Chowk, P.O.-Hatia, P.S.-Jagannathpur,
District-Ranchi (Jharkhand). ... Petitioner
-V e r s u s-
1. The State of Jharkhand through the Chief Secretary, Govt. of Jharkhand,
Ranchi.
2. The Secretary, Water Resources Department, Govt. of Jharkhand, Ranchi.
3. The State of Bihar through the Secretary, Water Resources Department,
Govt. of Bihar, Patna.
4. The Deputy Secretary to the Govt., Water Resources Department, Govt. of
Bihar, Patna.
5. The Deputy Secretary to the Govt., Water Resources Department, Govt. of
Jharkhand, Ranchi.
6. The Under Secretary to the Govt., Water Resources Department, Govt. of
Jharkhand, Ranchi.
7. Sri Mahavir Prasad, S/o Late B.P. Yadav, the then Secretary, Water
Resources Department, Govt. of Jharkhand, Ranchi at present resident of Hari
Om Tower, P.O. & P.S.-Lalpur, District-Ranchi (Jharkhand).
8. Sri Vinod Kumar Srivastava, S/o not known to the petitioner, Secretary
(Technical)-cum-Conducting Officer, Office of the Chief Engineer, Water
Resources Department, Govt. of Jharkhand, Ranchi, P.O.-Dhurwa, District-
Ranchi (Jharkhand).
9. Sri Ashok Kumar Jha, S/o not known to the petitioner, at present posted as
Joint Secretary (Management), Water Resources Department, Govt. of
Jharkhand, Ranchi, P.O.- Dhurwa, District-Ranchi (Jharkhand).
10. Sri D. N. Singh, S/o not known to the petitioner, Executive Engineer-cum-
Presenting Officer, Water Resources Department, Konar Canal Division,
Bagodar, P.O.-Bagodar, District-Giridih (Jharkhand) at present resident and
posted as Executive Engineer (Town Planner), M.A.D.A., Dhanbad, P.O.-
Dhanbad, District - Dhanbad (Jharkhand) ... Respondent.
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For the Petitioner : - Mr. Anjani Kumar Verma, Advocate.
For the Respondent-State of
Jharkhand: - Mr. Ashish Kumar Thakur, J.C to S.C. (L&C).
For the Respondent-State of Bihar : - Mr. Pankaj Kumar, J.C to G.A. (Bihar).
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P R E S E N T: -
HON'BLE MR. JUSTICE PRAMATH PATNAIK.
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By Court In the accompanied writ application, the petitioner has, inter alia,
prayed for quashing the entire departmental proceeding as well as Memo
No.1262, dated 30.05.2007 (Annexure-11/A to the writ application) issued
by the Deputy Secretary, Water Resources Department, Government of
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Jharkhand (Respondent No. 5) which has been concluded ex parte contrary
to the letter and spirit of the order dated 23.03.2006 (Annexure-5), passed in
C.W.J.C. No. 781 of 1997 (R) and for direction to the respondents to make
payment of cost.
2. Sans details, the facts as disclosed in the writ application, in a
nutshell, is that initially, while the petitioner was continuing as an Assistant
Engineer at Patna, vide Memo dated 05.08.1995, issued by the Respondent
No. 4, the petitioner was placed under suspension in contemplation of a
departmental proceeding on the allegation of dereliction in duty due to
which some P.C.C. Tiles and 500 Cubic feet Stone Metal were stolen from
the site of construction. Thereafter, the petitioner was served with Charge
Memo dated 19.08.1995 issued by the Respondent No. 4 as is evident from
Annexure-2 to the writ petition. In pursuance to the Charge Memo, the
Conducting Officer as well as the Presenting Officer were appointed to
conduct the enquiry. Against the order of suspension, the petitioner filed
C.W.J.C. No. 2810 of 1995 (R) before this Court and the same has been
disposed of vide order dated 19.09.1996 with a direction to the respondents
to complete the enquiry within three months and if the enquiry is not
completed within the said period, the suspension order passed against the
petitioner shall be revoked in service by the appropriate authority
(Annexure-3 to the writ application). Vide order dated 19.12.1996,
Respondent No. 4 imposed major punishment, such as stoppage of 3 annual
increments with cumulative effects apart from other punishments imposed
upon the petitioner (Annexure-4 to the writ application). Being aggrieved by
the said order, the petitioner filed C.W.J.C. No. 781 of 1997 (R) and this
Court vide order dated 23.03.2006 has been pleased to set aside the order of
punishment of stoppage of increments vide Memo dated 19.12.1996 and
remitted the matter to the Secretary, Water Resources Department,
Government of Jharkhand, Ranchi with the observations. The aforesaid
order of this Court dated 23.03.2006, passed in C.W.J.C. No. 781 of 1997
(R) was received in the office of the Respondent No. 2 on 05.04.2006 itself.
By order dated 11.05.2006, the petitioner was intimated the decision to
conduct a departmental proceeding against the petitioner and after receipt of
the memo dated 11.05.2006, the petitioner submitted representations on
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20.05.2006and 03.06.2006 before the Conducting officer to supply the Charge Memo with a view to get the departmental proceeding concluded within the time, as specified by the Court vide order dated 23.03.2006, passed in C.W.J.C. No. 781 of 1997 (R). Since the order dated 23.03.2006, passed by the Court was not complied, the petitioner has filed a contempt case bearing Cont. Case (C) No. 712 of 2006. The petitioner was served with Charge Memo vide letter dated 12.12.2006. Thereafter, the ex parte enquiry report dated 18.05.2007 was submitted before the disciplinary authority and the disciplinary authority imposed punishment upon the petitioner, which was issued vide memo dated 30.05.2007 and the petitioner was served with a copy of the show cause dated 14.06.2007. On the basis of the enquiry report, the impugned order of punishment dated 30.05.2007 (Annexure-11/A) has been passed. Being aggrieved and dissatisfied with the impugned order of punishment dated 30.05.2007, the petitioner left with no other efficacious, alternative and speedy remedy, has been constrained to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for mitigation of his grievances.
3. Heard Mr. Anjani Kumar Verma, learned counsel for the petitioner and Mr. Ashish Kumar Thakur, learned J.C to S.C. (L&C) for the respondent-State.
4. Learned counsel for the petitioner has vehemently submitted that the impugned order is illegal and arbitrary, as the same has been passed after expiry of six months, as stipulated by the Hon'ble Court, vide order dated 23.03.2006 (Annexure-5), passed in C.W.J.C. No. 781 of 1997 (R) and since the same has been passed against the settled principles of law laid down by the Hon'ble Apex Court, rendered in the case of The Managing Director, U.P. Warehousing Corporation and Another-versus-Vijay Narayan Vajpayee reported in AIR 1980 SC 840 as well as in the case of UCO Bank and Anr-Vrs.-Rajinder Lal Capoor reported in 2007 (4) JLJR 41 (SC).
Learned counsel for the petitioner submits that the impugned order of punishment has been passed without serving a fresh Charge Memo. During the course of hearing, learned counsel for the petitioner has drawn the attention of the Court to the reply to the counter affidavit, dated 22.09.2008, wherein, a decision of the Hon'ble Apex Court rendered in the 4 case of The Managing Director, U.P. Warehousing Corporation and Others-versus-Vijay Narayan Vajpayee reported in AIR 1980 SC 840 as well as in the case of UCO Bank and Ors.-Vrs.-Rajinder Lal Capoor reported in 2007 (4) JLJR 41 (SC), as stated hereinabove, in the prayer portion, has been referred to.
5. Per contra, a counter affidavit has been filed on behalf of the Respondent nos. 1, 2 and 4 to 6, repelling the contentions made in the writ application, wherein, it has been, inter alia, submitted that at the time of posting of the petitioner as Assistant Engineer in Konal Canal Division, Bagodar, there were several consecutive thefts of P.C.C. Tiles and stone metal from Achalagamo and Gundro Work Site, but in spite of information, he did not take proper steps causing loss to the Government. He was charged for dereliction of duty and causing loss to the Govt. amounting to serious misconduct. The Bihar Govt. on the findings of the conducting officer imposed the punishments of Censure, stoppage of three annual increments with cumulative effect, recovery of Rs.1,07,500/- @ Rs.500/- per month (which was revised as Rs.64000/-), payment of subsistence allowance only for the period of suspension and not to post the petitioner in Works sub- division during the entire service period. Being aggrieved by the said order, the petitioner filed C.W.J.C. No. 781 of 1997 (R) and this Court vide order dated 23.03.2006 has been pleased to set aside the order of punishment of stoppage of increments vide Memo dated 19.12.1996 and remitted the matter to the Secretary, Water Resources Department, Government of Jharkhand, Ranchi with the observations/directions made thereunder. In compliance of the order of the Court, aforesaid departmental proceeding was initiated against the Petitioner vide Resolution No. 1209 dated 11.05.2006. The petitioner did not co-operate in the departmental proceeding in spite of repeated request and ultimately the Conducting Officer concluded the proceeding and submitted his report on the basis of facts and the evidence available on records. On the finding of the Conducting Officer, the Govt. after careful consideration of the matter, imposed the punishments of Censure, stoppage of three annual increments with cumulative effect, recovery of Rs.64000/- per month from his pay and payment of subsistence allowance only to the period of suspension. In the meanwhile, the petitioner 5 also filed a contempt petition before the Hon'ble High Court for non- compliance of the Order dated 23.03.2006, which was dismissed by the Court on 29.06.2007 and now again he filed this writ application, which is not maintainable in the eye of law and liable to be dismissed.
6. Counter affidavit has also been filed on behalf of the Respondent nos. 3 and 4, Respondent-State of Bihar wherein, it has been, inter alia, stated that the matter relates to the Govt. of Jharkhand and therefore, it is the Govt. of Jharkhand who is the competent authority to decide the matter and the State of Bihar has limited role in this case.
5. Mr. Ashish Kumar Thakur, learned J.C to S.C. (L&C) for the Respondent-State of Jharkhand for the respondent-State has vociferously submitted that the departmental proceeding was initiated by the order of this Court but due to non-co-operation of the petitioner and refusal of submitting show-cause, the enquiry report was submitted ex-parte and due to non- cooperating attitude of the petitioner, the departmental proceeding was delayed and therefore, this writ petition is not maintainable in the eye of law and is liable to be dismissed.
6. After hearing the learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the petitioner has been able to demonstrate foundational facts and law to make out a case for interference due to the reasons stated hereinbelow : -
(i) It has been held in catena of decisions and the issue is now no more res integra that before passing an order directing that the pay and allowance for the period of suspension will be restricted to subsistence allowance already paid, the employee is entitled to an opportunity to show cause as to why clause (3) and (5) of Rule 97 of the Bihar (Now Jharkhand) Service Code should not be applied and in absence of that the said order is vitiated in law due to non-observance of the Rule/Principle of natural justice.
(ii) The Hon'ble Apex Court in the case of UCO Bank and Ors.-Vrs.-Rajinder Lal Capoor reported in 2007 (4) JLJR 41 (SC) held as under:
21."...............The departmental proceeding, it is trite law, 6 is not initiated merely by issuing of a show cause notice. It is initiated only when a charge-sheet is issued.................."
(iii) The impugned order of punishment has been passed without serving a fresh Charge Memo and thereby denied the opportunity to the petitioner to file his reply and as such the impugned order of punishment is vitiated in law due to non- observance of the Rule/Principle of natural justice.
The Hon'ble Apex Court in the case of Managing Director ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors. as reported in (1993) 4 SCC 727 held as under:
"The denial of supply of the copy, therefore, causes to the delinquent a grave prejudice and avoidable injustice which cannot be cured or mitigated in appeal or at a challenge under Article 226 of the Constitution or Section 19 of the Tribunal Act or other relevant provisions. Ex post facto opportunity does not efface the past impression formed by the disciplinary authority against the delinquent, however, professedly to be fair to be delinquent. The lurking suspicion always lingers in the mind of the delinquent that the disciplinary authority was not objective and he was treated unfairly. To alleviate such an impression and to prevent injustice or miscarriage of justice at the threshold, the disciplinary authority should supply the copy of the report, consider objectively the records, the evidence, the report and the explanation offered by the delinquent and make up his mind on proof of the charge or the nature of the penalty. The supply of the copy of the report is, thus, a since qua non for a valid, fair, just and proper procedure for the delinquent to defend himself effectively and efficaciously.
The proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. The principles of natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post-mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent 7 would be unfair procedure offending not only Article 14, 21 and 311 (2) of the Constitution, but also, the principles of natural justice."
(iv) Considering the charges proved, the punishment awarded appears to be harsh and shockingly disproportionate being violative of Articles 14, 16, 19 and 21 of the Constitution of India.
The Hon'ble Apex Court in the case of Lucknow Kshetriya Gramin Bank & Anr. Vs. Rajendra Singh as reported in (2013) 12 SCC 372 in the placitum held as under:
"However, the judicial review of the quantum of punishment is available with a very limited scope. The court would frown upon only when the penalty imposed appears to be so disproportionate to the nature of misconduct that it is shocking to the conscience of the court. Even in such a case when the punishment is set aside as shockingly disproportionate, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case."
7. On cumulative effect of the facts, reasons and judicial pronouncements, the impugned order dated 30.05.2007 (Annexure-11/A to the writ application) issued by the Deputy Secretary, Water Resources Department, Government of Jharkhand (Respondent No. 5) being not legally sustainable, is hereby quashed. The the Deputy Secretary, Water Resources Department, Government of Jharkhand (Respondent No. 5) is directed to pass appropriate order on the quantum of punishment within reasonable period, preferably within a period of eight weeks from the date of receipt/Communication of order.
8. Accordingly, writ petition stands disposed of.
(Pramath Patnaik, J.) Jharkhand High Court, Ranchi Dated - The 15th July, 2016 APK/N.A.F.R.