Jharkhand High Court
Pradeep Kumar Rakshit vs District Administration on 30 November, 2016
Author: Pramath Patnaik
Bench: Pramath Patnaik
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 6113 of 2012
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Pradeep Kumar Rakshit, son of late Somnath Rakshit, resident of Village :
Kundhit, P.O. : Kundhit, P.S. : Kundhit, Dist : Jamtara. ... Petitioner
-V e r s u s-
1. State of Jharkhand.
2. Deputy Commissioner, Jamtara, P.O., P.S. : & Dist : Jamtara.
3. District Panchayati Raj Officer, Jamtara, P.O., P.S. : & Dist : Jamtara.
4. Circle Officer, Nala, P.O. & P.S. : Nala, Dist : Jamtara... Respondents
...
CORAM: - HON'BLE MR. JUSTICE PRAMATH PATNAIK.
...
For the Petitioner : - Mr. Rishikesh Giri, Advocate.
For the Respondent-State: - M/s. Anup Kr. Agrawal
and Anuj Burman, J.C. to S.C. V.
...
C.A.V. On: -02.08.2016 Delivered On: - 30/11/2016
...
Per Pramath Patnaik, J.:
1. In the accompanied writ application, the petitioner has inter
alia, prayed for issuance of an appropriate writ in the nature of
'Certiorari' for quashing the impugned order dated 05.07.2012
(Annexure-9), passed by the Deputy Commissioner, Jamtara, by
which petitioner's next five increments have been forfeited with
cumulative effect and he will not be entitled for any benefits of
A.C.P. and M.A.C.P. and further for issuance of an appropriate
direction commanding upon the Respondents to immediately pay the
salary and arrears of salary of the petitioner.
2. Sans details, the facts, as disclosed in the writ application, are
that the petitioner was appointed on 23rd October, 1991 as an
Assistant in Block Office, Narayanpur. It has been further averred
that subsequently in 1997, he was transferred to Jamtara division and
thereafter, the petitioner was transferred in Head Quarters. Further in
the year 2003, the petitioner was transferred to Circle Office, Nala.
Further in 2007, he was transferred in Block Development Officer's
Office in Narayanpur and subsequently once again on 22nd July,
2009, he was transferred to Circle Office, Nala. When the petitioner
was working at Circle Office, Nala, an Office order dated
15.03.2011vide Memo No. 94 was passed and the petitioner was suspended from the services and by the same Memo, it was ordered 2 to supply 'Prapatra Ka' to the petitioner. The 'Prapatra Ka' contains the charges leveled against the petitioner in which the petitioner was charged that there is a probability of financial irregularities may be due to the petitioner. Further allegation was made of negligence in performance of duty, disobedience of order and charges relating to retired/dead Chowkidar and the District Panchayati Raj Officer was made Enquiry Officer. The Disciplinary Authority wrote a letter addressing the Respondent No. 4 to provide his opinion regarding show cause reply filed by the petitioner. The petitioner filed a detailed reply on 14.11.2011 categorically denying all the charges leveled against him alongwith the requisite documents. The Respondent No. 4 vide letter dated 11.10.2011 forwarded his opinion to the Enquiry Officer i.e. Respondent No. 3 in which he mentioned that the allegations made against the petitioner are true. Sans considering the detailed show cause reply filed by the petitioner and after perusing the documents and considering the evidences, the Enquiry Officer gave his opinion and found the petitioner guilty of the charges. The petitioner made representations before the Respondent No. 2 on 09.09.2011 and further on 24.04.2012. The Enquiry Officer addressed to Respondent No. 4 to forward his view regarding the charges leveled against the petitioner and the same was forwarded vide letter dated 11.10.2011. Vide Memo No. 120 dated 05.05.2012, the petitioner was asked to file second show cause reply within the period of three days else, it will be presumed that the petitioner do not want to say anything and a decision will be taken against the petitioner. The petitioner filed his second show cause reply alongwith requisite documents on 14.05.2012 clearly denying the charges leveled against him. During the pendency of the writ application being W.P. (S) No. 3631 of 2012, an order was passed by the Respondent No. 2 vacating the suspension order as well as passed the order of punishment of forfeiture of immediate five increments with cumulative effect and he will not be entitled for any benefit of A.C.P. as well as M.A.C.P. The Nazir of the Circle Office deals with the Financial Matters and all the files is under the hand of the Nazir and not under the hand of a Clerk (the petitioner), so the 3 allegation leveled against the petitioner are false and frivolous. Even though the order of suspension has been vacated, no salary is being paid to the petitioner till date. The petitioner has not yet been paid the remaining salary during the period of suspension and the current salary. The petitioner is not liable to be punished for the work performed by the other employees and he has been made scapegoat only to save the senior officials. The petitioner has earlier moved before this Court by filing W.P. (S) No. 3631 of 2012, challenging the order of suspension of the petitioner and this Court has dismissed the aforesaid writ petition with liberty to the petitioner to file a fresh writ application, challenging the order of punishment, which has been passed during pendency of the said writ application.
Left with no other efficacious, alternative and speedy remedy, the petitioner has been constrained to approach this Court invoking the extraordinary jurisdiction under article 226 of the Constitution of India for redressal of their grievances.
3. Heard Mr. Rishikesh Giri, learned counsel for the petitioner and M/s. Anup Kr. Agrawal and Anuj Burman, learned J.Cs. to S.C.V appearing for the respondent-State.
4. Learned counsel for the petitioner has vehemently submitted that the respondents have not taken care of the show cause reply filed by the petitioner before passing the order of suspension. Learned counsel for the petitioner further submits that the punishment inflicted upon the petitioner is harsh, disproportionate and excessive to the gravity of the alleged charge. Learned counsel for the petitioner further submits that the action of the Respondents in passing the impugned order is discriminatory and has been done with mala fide intention and the impugned order is not at all sustainable in the eyes of law. Learned counsel for the petitioner further submits that the petitioner is entitled for arrears of salary during the period of suspension and salary from the date of vacation of suspension period. Learned counsel for the petitioner further submits that the charges leveled against the petitioner are vague and perverse and in no way, it is linked with the petitioner. Learned counsel for the petitioner further submits that the impugned order is 4 illegal and against the provisions of law and the action of the respondents is in complete violation of Article 14 and 16 of the Constitution of India and the same amounts to colorable exercise of power.
5. Controverting the statements of the petitioner in the writ application, counter affidavit has been filed on behalf of the respondent nos. 2 and 4, wherein, it has been, inter alia, submitted that the petitioner is at present working as Head Clerk-cum- Accountant in the Circle Office, Nala and as per Clause 113, 332 and 333 of the Bihar Board's Miscellaneous Rules, 1953, the accountant is authorized and responsible for checking the Nazarat Accounts. It is apparent from Annexure-9 of the writ petition that the petitioner will not get any salary during the period of suspension and it has been mentioned in Annexure-9 to the writ petition that the petitioner shall rectify the irregularities within 1 month from the date of the order passed by the Deputy Commissioner, Jamtara and till then he will not get any salary. Subsequent to passing of Annexure-9, the petitioner has not approached the Deputy Commissioner, Jamtara or the Circle Officer, Nala for rectification of his irregularities and no any kind of job has been taken from the petitioner. The suspension of the petitioner was vacated conditionally but the petitioner has not followed the terms and conditions of order vacating his suspension and he has moved before this Court. Subsequently, the Deputy Commissioner, Jamtara has ordered for the payment of salary of the petitioner vide letter no. 05 dated 09.01.2013.
6. Learned counsel for the respondent-State reiterates the submissions made in the counter affidavit. Learned counsel for the respondent-State has vociferously submitted that no procedural irregularity has been committed by the respondents-authorities Learned counsel for the respondent-State further submits that the charges are different and it cannot be said that there was double jeopardy. Learned counsel for the respondent-State by referring to the counter affidavit submits that the instant writ petition is devoid of any merits not even on facts but also in the eyes of law and therefore, it is a fit case to be dismissed in limine by this Court.
57. After hearing the learned counsel for the respective parties and on perusal of the records, I am of the considered view that the petitioner has been able to make out a case for interference due to the following facts and reasons : -
(i) 02nd punishment for the same cause of action amounts to double jeopardy
(ii). Similarly situated person, namely, Ajit Kr. Roy has been inflicted lesser punishment in comparison to the petitioner even though the charges are similar.
The Hon'ble Apex Court in case of State of Uttar Pradesh and Others Vs. Raj Pal Singh reported in (2010 )5 SCC 783 has been pleased to hold in paragraph 6, which is quoted hereinbelow:
"6. It is undoubtedly open for the disciplinary authority to deal with the delinquency and once charges are established to award appropriate punishment. But when the charges are same and identical in relation to one and the same incident, then to deal with the delinquents differently in the award of punishment, would be discriminatory. In this view of the matter, we see no infirmity with the impugned order requiring our interference under Article 136 of the Constitution."
(iii). The punishment inflicted upon the petitioner is harsh, disproportionate and excessive to the gravity of the alleged charge.
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 6 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."
8. On cumulative effect of the facts, reasons and judicial pronouncements and as a logical sequitor, the impugned order of punishment of forfeiture of petitioner's next five increments with cumulative effect, dated 05.07.2012 (Annexure-9), passed by the Deputy Commissioner, Jamtara (respondent no. 2) being not legally sustainable is hereby quashed and set aside. The Deputy Commissioner, Jamtara (respondent no. 2) is directed to consider the matter afresh and pass appropriate order in accordance with law on the quantum of punishment within a period of three months from the date of receipt/communication of the order.
9. With the aforesaid direction, the writ petition stands allowed.
(Pramath Patnaik, J.) APK