Jharkhand High Court
Binay Kumar Mishra vs The State Of Jharkhand Through The ... on 21 May, 2020
Equivalent citations: AIRONLINE 2020 JHA 342
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 1855 of 2018
Binay Kumar Mishra, aged about 51 years, son of late Indradeo
Mishra, resident of New Babupura, Dumka, PO&PS-Dumka, District
Dumka (Jharkhand) ... ... Petitioner
Versus
1. The State of Jharkhand through the Commissioner, Santhal
Pargana Division, Dumka, PO,PS&District-Dumka
2. The Deputy Commissioner, Dumka, PO,PS&District-Dumka
3. The Block Development Officer, Saraihat, PO&PS-Saraiyahat,
District-Dumka ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioner : Mr. Kumar Harsh, Advocate For the State : Mr. Himanshu Kumar Mehta, AAG
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06/21.05.2020 Hearing of this Writ Petition has been convened and conducted through Video-Conferencing.
2. The petitioner, who has suffered multiple penalty in the departmental proceeding initiated against him on the allegation that he has written letters to superior authorities including the Chief Minister and the Governor, criticized the working of his superior authority and remained absent unauthorisedly, has approached this Court after his appeal preferred against the penalty order dated 02.02.2012 was dismissed by the appellate authority on 08.11.2017.
3. Briefly stated, the petitioner who was appointed on a Class-IV post in the Dumka Collectoriate was put under suspension vide order dated 03.01.2011 and a department proceeding was initiated against him by furnishing charge memo in Prapatra-K. The enquiring officer found the charges proved and a second show-cause notice was issued to him to which he has responded vide his reply dated 12.09.2011. In these facts, it is contended by Mr. Hemant Kumar Mehta, the learned Additional Advocate General that in course of the departmental proceeding norms of natural justice were followed and the petitioner was given adequate opportunity to defend himself. But, that is not so and I find several flaws in the departmental proceeding conducted against the petitioner.
24. The disciplinary authority has imposed the following punishments on the petitioner:
(a) forfeiture of 10 annual increments with cumulative effect;
(b) forfeiture of ACP/MACP and promotions, and
(c) denial of full salary and allowance during the period of suspension.
5. A bare glance at the penalty order at once attracts attention of the Court to the illegality in the penalty order dated 02.02.2012 by which multiple penalty - one of which is not provided under the Rules - have been inflicted upon the petitioner. The judgment of the Hon'ble Supreme Court in "Vijay Singh vs. State of U.P." reported in (2012) 5 SCC 242 is precisely on the point that the punishment which is not prescribed under the Rules cannot be inflicted upon the delinquent employee. In certain cases though it may be permissible to impose more than one penalty which may include recovery of loss suffered by the employer - a penalty which may not be provided under the Discipline and Conduct Rules. The reason is that the penalty of recovery of loss suffered to the employer may be incorporated in the Pension Rules and, therefore, it is permissible [refer, "Commr. of Rural Development vs. A.S. Jagannathan" reported in (1999) 2 SCC 313]. But, in no case a statutory right of an employee, such as, promotion and grant of ACP/MACP can be forfeited by way of penalty.
6. There appears to be another infirmity in the penalty order dated 02.02.2012 and that is the quantum of penalty no. 1. The disciplinary authority has inflicted penalty of forfeiture of 10 annual increments with cumulative effect. This is a major penalty and atleast I have not come across a case in which penalty of forfeiture of 10 annual increments with cumulative effect has been inflicted on a delinquent employee. The writ Court exercising powers under Article 226 of the Constitution of India does not sit in appeal over the judgment of the departmental authorities and normally the order of penalty passed in a duly constituted departmental enquiry is not interfered by the writ Court; the quantum of punishment is within the exclusive domain of the departmental authority, but the arbitrariness 3 in the punishment order can certainly be looked into. The infliction of forfeiture of 10 annual increments with cumulative effect appears to be quite arbitrary.
7. In the departmental enquiry three charges were framed against the petitioner;
(a) Against the order of transfer the petitioner has submitted representation to the Chief Secretary, Jharkhand and copy was forwarded to the Commissioner, S.P. Division, Dumka, the Hon'ble Chief Minister Jharkhand and the Hon'ble Governor, Jharkhand.
(b) He has commented on the working of the Deputy Commissioner, Dumka in his representation to the Chief Secretary, Jharkhand.
(c) He has remained absent from 14.05.2010 to 19.05.2010 and 21.6.2010 to 14.09.2010 without approval of leave from the competent authority and again from 25.11.2010 to 03.12.2010 he has remained absent from duty without any information.
8. The letters to the superior authorities which technically would constitute misconduct under the service rules were produced during the enquiry, but the petitioner has denied those letters and during the departmental proceeding his signature on those letters were not duly proved. The strict rules of evidence are generally not applied in a departmental enquiry but it is not sufficient to prove the charge saying that some officials have said that signature on the offending letters appears to be of the delinquent; no opportunity to cross-examine the witness was afforded to the petitioner. Mere ipse-dixit of the enquiring officer would not suffice, rather there must be cogent materials to hold the charge proved [see, "Narinder Mohan Arya vs. United India Insurance Co. Ltd." reported in (2006) 4 SCC 713]. On his absence from duty, the petitioner has taken a specific stand and produced medical certificates regarding illness of his son, wife and mother. These certificates have not been found fake, but strangely enough the enquiring officer has observed that the delinquent has got the medical certificates prepared to justify his absence from duty. Secondly, it is not denied by the respondents that 4 the petitioner had submitted application for leave and he had sent application by post seeking extension of leave. No finding has been recorded by the departmental authority that his absence from duty was willful and intentional [refer, "Krushnakant B. Parmar vs. Union of India" reported in (2012) 3 SCC 178]. In a departmental proceeding which culminates with exoneration or punishment the mitigating circumstances appearing in favour of the delinquent employee must be counted. The petitioner is working as a Peon and, therefore, his educational qualification can always be kept in mind. The disciplinary authority has turned a blind eye to the hypothesis and surmises on which the enquiry report is based and as if it was not enough the appellate authority has dismissed the appeal preferred by the petitioner by a one line order. Nothing more, except that howsoever brief it may be the appeal cannot be dismissed by a one line order, is required to be said about the appellate order dated 08.11.2017 and, therefore, it is set-aside. In the normal circumstances the matter should have been remitted to the appellate authority for a decision on merits, however, in view of the aforesaid discussions and, particularly, the illegality in the penalty order dated 02.02.2012 a remand order would not be proper. It would also not be so because 10 years have passed since the departmental proceeding was started.
9. In view of the aforesaid discussions, the penalty order dated 02.02.2012 passed by the disciplinary authority is quashed.
10. The writ petition stands allowed.
11. By way of clarification it is observed that the petitioner shall be entitled for all consequential benefits including the past increments, promotion etc. (Shree Chandrashekhar, J.) Tanuj/-