Jharkhand High Court
Anjali Mishra vs The Coal Mines Provident Fund ... on 17 October, 2024
Author: S. N. Pathak
Bench: S.N. Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 461 of 2024
Anjali Mishra .... .... Petitioner
Versus
1. The Coal Mines Provident Fund Organization, having its
headquarter at Dhanbad through its Commissioner.
2. The Commissioner, Coal Mines Provident Fund Organization,
having its headquarter at Dhanbad.
3. The Chairman, Appellate Authority, Board of Trustee, Coal Mines
Provident Fund Organization, Govt. of India, Ministry of Coal,
New Delhi. .... ... Respondents
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CORAM : HON'BLE DR. JUSTICE S.N. PATHAK
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For the Petitioner : Mr. Mahesh Tewari, Advocate For the Respondents : Mr. Prashant Kumar Singh, Advocate
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5/ 17.10.2024 The petitioner has approached this Court for quashing of the order dated 11.07.2023 passed by the respondent no. 2, whereby, punishment of reduction of pay in three stages in the time scale of pay for a period of three years with effect from 17.12.2020 under the provisions of Rule 31 (iv) of Coal Mines Provident Fund (Staff and Conditions of Service) Regulation, 1964 has been imposed, with further direction that the petitioner will not earn increments during the period of reduction and on expiry of this period, the reduction will have the effect of postponing his future increments i.e. withholding of three increments with cumulative effect has also been imposed. The petitioner has also prayed for a direction to decide the appeal preferred on 15.9.2023 challenging the punishment order dated 11.07.2023.
2. At the very outset, learned counsel appearing for the petitioner submits that the very initiation of departmental proceeding under the provisions of CCS (CCA) Rules, 1965 is bad in law as the petitioner is the employees of Coal Mines Provident Fund and his service conditions are governed by the field of Coal Mines Provident Fund (Staff and Conditions of Service) Regulation, 1964. Learned counsel further submits that though the punishment has been awarded to the petitioner under the Coal Mines Provident Fund (Staff and Conditions of Service) Regulation, 1964, but such punishment is not prescribed under the said 1 Regulation, 1964. Learned counsel places heavy reliance upon the decision of the Hon'ble Apex Court in the case of Vijay Singh Vs. State of Uttar Pradesh & Ors., reported in (2012) 5 SCC 242, wherein Their Lordships have observed as follows:-
"Undoubtedly, in a civilized society governed by the Rule of Law, the punishment not prescribed under the statutory rules cannot be imposed. Principle enshrined in criminal jurisprudence to this effect is prescribed in the legal maxim nulla poena sine lege which means that a person should not be made to suffer penalty except for a clear breach of existing law."
3. Learned counsel also submits that this Court in a similar matter in the case of Devashish Das Vs. Union of India & Ors, decided in W.P.(S) No. 1558 of 2011 held that proceeding under CCS (CCA) Rules, 1965 is not applicable to the employees of CMPF, rather, they are guided by provisions of CMPF (Staff and Conditions of Service) Regulations, 1964. Further, the said view has been affirmed by the Division Bench of this Court in L.P.A. No. 221 of 2020.
4. Learned counsel further submits that exactly similar issue fell for consideration before this Court in W.P.(S). No. 4131 of 2021 (Ajay Kumar Sinha Vs. The Union of India & Ors.) and after considering the aforesaid aspects of the matter, this Court has been pleased to quash and set aside the punishment order as well as appellate order, with liberty to the respondents to proceed against the petitioner in view of Coal Mines Provident Fund (Staff and Conditions of Service) Regulation, 1964, if they so wish. Therefore, learned counsel submits that the present writ petition may also be decided in view of the observations and directions given as that of similarly situated persons.
5. Learned counsel appearing for the respondents also admits the position that exactly same and similar issue has been decided by this Court in W.P.(S) No. 4131 of 2021 and hence, the present writ petition may be decided in terms of the order passed therein.
6. Having heard the fair submissions of the parties and upon perusal of the records of the case, this Court is of the considered view that the case of the petitioner needs consideration in view of the fact that the petitioner is an employee of CMPF and is guided by CMPF (Staff and 2 Conditions of Service) Regulation, 1964 and not by CCS (CCA) Rules, 1965 under which the proceeding was initiated against the petitioner and as such, the entire proceeding conducted under the CCS (CCA) Rules, 1965 is not tenable in the eyes of law.
7. Similar issue fell for consideration before this Court in the case of Devashish Das Vs. Union of India & Ors. (W.P.S. No. 1558 of 2011) wherein it was held that the proceeding under CCS (CCA) Rules, 1965 is not applicable to the employees of CMPF rather, they are guided by provisions of CMPF (Staff and Conditions of Service) Regulations, 1964. Further, this Court in case of Chandan Kumar & Ors. Vs. the CMPF & Ors. (W.P.S. No. 678 of 2019) has reiterated the same view which was affirmed by the Division Bench of this Hon'ble Court in LPA No. 221 of 2020, wherein the Hon'ble Division Bench has held as under:-
21. The appellants have tried to justify the memorandum dated 14.09.2018 that the disciplinary proceeding has been initiated under the Regulation, 1964 but it is only in conjunction with the provision of Rule 14 and 18 of the Central Civil Service (Classification Control and Appeal) Rules, 1965 and hence there is no illegality.
22. But we are not in agreement with the said submission reason being that when there is complete conduct Rule by way of Regulation, 1964 laying down the procedure, the disciplinary authority has been defined along with the conferment of power to deal with the minor or major punishment with the procedure as quoted hereinabove, why the disciplinary proceeding will be initiated by taking aid of the another provision which is applicable to the Central Govt. Employees.
23. There is no bar that the same cannot be done but the same is to be done in pursuance to the provision as provided under the Regulation 4 wherein the Commissioner has been conferred with the power that if the provision as contained under Regulation 1964 is incomplete or insufficient then the Commissioner can take aid of the corresponding provision applicable to the Central Government Employees. But subject to approval by the Central Government. But, there is no approval of the Central Government, since, no ground has taken as would be evident from the impugned memorandum dated 14.09.2018 wherein, there is only reference of the provisions of Rule 14 and 18 of the Rule, 1965 along with the provision of Regulation, 1964.
Therefore, this Court is of the view that when the Regulation, 1964 provides a provision under Regulation 4. The exercise of power to take aid of the another provision can well be taken only in pursuance to the provision as contained in Regulation 4. This 3 is on the basis of the principle that if any provision has been made in the statute either by way of Act or Rule or Regulation, the decision/thing is to be strictly in accordance with the law. Reference in this regard to be made to the judgment rendered in the case of Babu Verghese vs. Bar Council of Kerala (1999) 3 SCC 422 which reads as under:
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xxxx xxxx xxx xxx."
8. Recently, this Court exactly in a same and similar matter in W.P.(S) No. 4131 of 2011 (Ajay Kumar Sinha Vs. The Union of India & Ors.) decided on 02.11.2023 held that since the respondents have their own Regulation i.e. Coal Mines Provident Fund (Staff and Conditions of Service) Regulation, 1964, they are precluded from adopting a different Rules for initiation of departmental proceeding and thereafter, the impugned punishment order as well as appellate order has been quashed and set aside, with liberty to the respondents to proceed in view of their own Regulation.
9. In the facts of this case, the impugned punishment order dated 11.07.2023 is hereby quashed and set aside. However, liberty is reserved with the respondents to proceed against the petitioners in view of Coal Mines Provident Fund (Staff and Conditions of Service) Regulation, 1964, if they so wish.
10. With the aforesaid observations and directions, this writ petition stands allowed.
(Dr. S. N. Pathak, J.) R.Kr.
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