Jharkhand High Court
Raj Kishore Prasad vs State Of Jharkhand & Ors on 8 December, 2017
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
WP(S) 4076 of 2009
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.4076 of 2009
Raj Kishore Prasad Son of Late Yamuna Prasad, resident of C
typeQuarter, Irrigation Campus, P.O. and P.S. Mahagama,
District- Godda, presently posted as Executive Engineer,
Irrigation Division, Godda, Camp- Mahagama, Water Resources
Department.
.... .... .... Petitioner
Versus
1. The State of Jharkhand.
2. Secretary, Water Resources Department, Nepal House,
Govt. of Jharkhand, Ranchi.
3. Under Secretary, Water Resources Department, Nepal
House, Govt. of Jharkhand, Ranchi.
4. Engineer in-chief, Water Resources Department, Nepal
House, Govt. of Jharkhand, Ranchi.
5. Superintending Engineer, Waterways Circle, Dumka.
.... .... .... Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
For the Petitioner : Mr. Bhanu Kumar, Advocate
For the Respondents : Mr. Rahul Kamlesh, J.C. to S.C II.
09/08.12.2017Heard the learned counsel for the petitioner and learned counsel for the respondents.
2. This writ petition has been filed invoking the jurisdiction of this court under Article 226 of the Constitution of India with a prayer for quashing the impugned order contained in Memo No.2155 dated 17.06.2009 issued by the respondent No.3 by which the following punishments have been inflicted upon the petitioner:-
(i) Censure for the year 2005-06.
(ii) Stoppage of 3 annual increments with cumulative effect.
(iii) Stoppage of promotion for 5 years.
3. The brief facts of this case involved in this writ application is that the petitioner joined as Assistant Engineer under Water Resources Department, Patna in Monitoring Division-12 on 31st January, 1979 and since the year 2002 he is discharging the duties of Executive Engineer. Consequent upon the reorganization of States of Bihar and Jharkhand under the provisions of Bihar Re- organization Act, 2000, the final allocation of the cadre of the 1 WP(S) 4076 of 2009 petitioner was done under the newly created State of Jharkhand. While the petitioner was posted as Executive Engineer, Irrigation Division, Dumka and In-charge, Irrigation Division, Godda Camp- Mahagama, certain allegations relating to gross irregularity, corruption and acts of indiscipline were leveled against the petitioner and a Departmental proceeding was initiated against him vide Resolution as contained in Memo No.4650 dated 17.12.2005 issued under the signature of the Respondent No.3.
4. The following charges were framed against the petitioner:-
(i) While the petitioner was posted under irrigation Division, Dumka and was in-charge of Irrigation Division, Godda, the petitioner did not get the work executed of Narayanpur-
Sangrampur-Vikrampur embankment as per the specifications and prescribed cross section;
(ii) The petitioner did not obey the order of Engineer In-Chief, Water Resources Department, Jharkhand in erecting Bamboo Screen for safety of the embankment;
(iii) The petitioner upon his transfer from Irrigation Division, Godda, Camp- Mahagama, did not hand over his charge only with intention for making payment of bills to the Agency and for also issuing cheques.
5. After conclusion of the enquiry the Enquiry Officer gave a clear cut finding with regard to charge No.(i) that due to delay in land acquisition process as also due to paucity of time and impending rainy season, the embankment could not be constructed as per the specifications. In respect of charge No.(ii), the Enquiry Officer made a finding in the report that there was no laxity or delay on part of the petitioner in erection of bamboo screens and the order with regard to erecting bamboo screens has been complied and obeyed by the petitioner. In respect of charge No.(iii), the report of Enquiry Officer stated that the petitioner had made payment of bill relating to current bills only as per execution of work and therefore, no financial irregularity was committed by the petitioner. It was also observed by the Enquiry Officer that the petitioner made over charge 2 WP(S) 4076 of 2009 on 08.07.2005 itself to his substitute officer and there is breach of embankment after expiry of one monsoon season and after one year at a few places that was due to excessive rain and can be placed in the category of natural calamity.
6. Even though none of the charges were proved against the petitioner still the disciplinary authority differing and disagreeing with the findings of the Enquiry Officer awarded a major punishment to the petitioner as already mentioned above without serving any show-cause notice upon the petitioner.
7. In the counter-affidavit, the respondents have admitted that the Enquiry Officer submitted his report wherein the Enquiry Officer recommended for exoneration. But it is categorical stand of the respondent that the punishments awarded to the petitioner are all minor punishments. Hence, there is no requirement of serving second show-cause notice upon the petitioner before awarding such a minor punishments.
8. The learned counsel for the petitioner, Mr. Bhanu Kumar submitted that it is a settled principle of law that the punishment of withholding increments with cumulative effect will amount to a major penalty. In support of his contention the Learned Counsel relied upon the judgment of Hon'ble Supreme Court passed in the case of Kulwant Singh Gill versus State of Punjab And Haryana reported in 1990 (O) AIJEL-SC 15051 which is equivalent to 1991 (Supp1) SCC 504 wherein in paragraph 4, the Hon'ble Supreme Court has held as under:-
"4. ...............But when penalty was imposed withholding two increments i.e. for two years with cumulative effect, it would indisputably mean that the two increments earned by the employee was cut off as a measure of penalty for ever in his upward march of earning higher scale of pay. In other words the clock is put back to a lower stage in the time scale of pay and on expiry of two years the clock starts working from that stage afresh. The insidious effect of the impugned order, by necessary implication, is that the appellant employee is reduced in his time scale by two places and it is in perpetuity during the rest of the tenure of his service with a direction that two years' increments would not be counted in his time scale of pay as a measure of penalty. The words are the skin to the language which if peeled off its true colour or its resultant effects would become apparent. ......"
9. Learned counsel for the petitioner further submitted that 3 WP(S) 4076 of 2009 whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings and to substantiate his contention relied upon the judgment of Hon'ble Supreme Court in the case of Punjab National Bank Versus Kunj Behari Misra reported in AIR 1998 SC 2713 paragraph 19 of which reads as under:-
"19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7 (2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file representation before the disciplinary authority records its findings on the charges framed against the officer." (Emphasis given by me)
10. It is further submitted by the learned counsel for the petitioner that the disciplinary authority has not recorded any reason for his disagreement with the findings of the enquiry officer nor given any opportunity to the petitioner to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. Hence, learned counsel for the petitioner submits that the punishment is against constitutional provision and arbitrary as well as malafide, thus the impugned order be set aside.
11. Learned counsel for the respondents on the other hand submitted that there is no quarrel with the proposition that withholding increments with cumulative effects amounts to a major penalty. He further submits that imposing the punishment without 4 WP(S) 4076 of 2009 giving the second show-cause notice would not vitiate the entire proceeding but at best it can be said that from the stage of second show cause the proceeding is not inconsonance with law.
12. Law is well settled that inflicting punishment of withholding the increment with cumulative effect is a major penalty. It will be relevant to refer to the judgment of the Hon'ble Supreme Court of India in the case of Punjab SEB v. Raj Kumar Goel, (2014) 15 SCC 748, at page 750 paragraph - 9, wherein the Hon'ble Court relying upon the case of Kulwant Singh Gill versus State of Punjab And Haryana(supra) has held as under :-
"...... The courts below have opined that though it is mentioned in the order of punishment that there is stoppage of five increments without cumulative effect which is a minor punishment yet the manner of implementation converts it to a major punishment. There can be no cavil over the proposition that when a punishment of stoppage of an increment with cumulative effect is imposed, it is a major punishment. In this regard, we may refer with profit to the decision in Kulwant Singh Gill v. State of Punjab wherein it has been held that withholding of increments of pay simpliciter without any hedge over it certainly would be a minor punishment but withholding of increments with cumulative effect, the consequences being quite hazardous to the employee, it would come in the compartment of major punishment". (Emphasis given by me)
13. So far as the issue relating to the procedure to be adopted when the disciplinary authority differs from the findings of the enquiry officer is concerned the Hon'ble Supreme Court, in the case of Yoginath D. Bagde Vs. State of Maharashtra and another, reported in (1999) 7 SCC 739, relying upon the case of Punjab National Bank Versus Kunj Behari Misra (supra) held in paragraph - 37 as under:-
"37. The contention apparently appears to be sound but a little attention would reveal that it sound like the reverberations from an empty vessel. What is ignored by the learned counsel is that a final decision with regard to the charges levelled against the appellant had already been taken by the Disciplinary Committee without providing any opportunity of hearing to him. After having taken the decision, the members of the Disciplinary Committee merely issued a notice to the appellant to show 5 WP(S) 4076 of 2009 cause against the major punishment of dismissal mentioned in Rule 5 of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. This procedure was contrary to the law laid down by this Court in the case of Punjab National Bank in which it had been categorically provided, following earlier decisions, that if the disciplinary authority does not agree with the findings of the enquiry officer that the charges are not proved, it has to provide, at the stage an opportunity of hearing to the delinquent so that there may still be some room left for convincing the disciplinary authority that the findings already recorded by the enquiry officer were just and proper. Post-decisional opportunity of hearing, though available in certain cases, will be of no avail, at least, in the circumstances of the present case."(Emphasis given by me).
14. From the principles of law as discussed above it is evident that in case, the disciplinary authority disagrees with the findings of the enquiry officer, he has to record tentative reasons and communicate the same to the delinquent employee giving opportunity to him to satisfy that the findings recorded by the enquiry officer is just and proper. At this stage, the disciplinary authority cannot record a conclusive finding even after assigning the reasons and in case, he does so and gives opportunity to the delinquent employee, to show cause only against the proposed punishment, the same shall vitiate the order of punishment as in such a situation, the disciplinary authority had recorded the finding of guilt in disagreement with the conclusion of the enquiry officer without giving opportunity to the delinquent employee. In my considered opinion mere recording of reasons of disagreement does not satisfy the requirement of principle of natural justice but the principle of natural justice demands that before recording the finding of guilt in disagreement with the opinion of the enquiry officer, opportunity must be given to the delinquent employee. Here, in the present case, the disciplinary authority had stepped into the final stage of awarding the punishment without complying the requirement of law of giving opportunity to the petitioner to satisfy that the finding of the enquiry officer is correct or asking show cause against the proposed punishment.
15. Considering the facts of the case in the light of the principles of law as discussed above, necessarily leads to the conclusion that the disciplinary 6 WP(S) 4076 of 2009 authority has issued the impugned order of punishment contained in Memo No.2155 dated 17.06.2009 in breach of principle of natural justice and that itself, vitiates the said order, as even though the disciplinary authority disagreed with the enquiry report yet without giving opportunity to the petitioner to satisfy that the finding of the enquiry officer is correct or asking show cause against the proposed punishment, passed the impugned order of punishment. The disciplinary authority, if so advised, after indicating the reasons for disagreement, give notice to the petitioner giving opportunity to the petitioner to satisfy that the finding of the enquiry officer is correct and asking show cause against the proposed punishment, may pass order in accordance with law.
16. In the result, impugned order of punishment contained in Memo No.2155 dated 17.06.2009 is quashed and the writ application is allowed with the aforesaid observation. There shall be no order of costs.
(Anil Kumar Choudhary, J.) NAFR/Animesh 7