Jharkhand High Court
Ajit Kumar Singh vs The State Of Jharkhand Through The ... on 29 August, 2018
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 1928 of 2017
-------
Ajit Kumar Singh, Son of Dr. Ram Janma Singh, at Present Resident of Sai Ashram Apartment, P.O.-Pundag, P.S.-Argora, Dist.-Ranchi, Permanent Address-Village Merhna, P.O.-Bel Champa, P.S. and District-Garhwa. ... Petitioner Versus
1. The State of Jharkhand through the Secretary, Agriculture/Horticulture, Government of Jharkhand, Department of Agriculture, Nepal House, P.O. & P.S.-Doranda, Dist.-Ranchi.
2. The Jharkhand State Agricultural Marketing Board, Itaki Road, P.O.-Hehal, P.S. Sukhdeo Nagar, Dist.-Ranchi through the Managing Direcot of the J.S.A.M, Board;
3. The Managing Director, Jharkhand State Agricultural Marketing Board, Itaki Road, P.O.-Hehal, P.S. Sukhdeo Nagar, Dist.-Ranchi.
4. The Agricultural Produce Market Committee, Ranchi, Pandra, P.O.-Hehal, P.S.-Sukhdeo Nagar, Dist.-Ranchi.
5. Smt. Puja Singhal, Wife of not known to the Petitioner, at Present M.D., J.S.A.M., Board.
6. Smt. Sunita Kumari Chouraisa, wife of not known to the Petitioner, at present Secretary to the M.D. of J.S.A.M., Board. Respondents- 5 and 6 are Resident of Jharkhand State Agricultural Marketing Board, Itaki Road, Ranchi P.O., P.S. & District- Ranchi.
7. The Enquiry Committee though its Chiarman Sri Rajesh Kumar Barwar, Dy. Secretary, Department of Agriculture, Animal Husbandry and Co-operative. Govt. of Jharkhand, Nepal House, P.O. & P.S.-Doranda, Dist.-Ranchi, Jharkhand.
8. Agricultural Produce Market Committee, Pakur, P.O., P.S. & District-Pakur.
... Respondents
-------
CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
-------
For the Petitioner : Mr. Vijoy Pratap Singh, Sr. Advocate Mrs. Rashmi Kumar, Advocate Miss Ragini Kumari, Advocate Mrs. Bandana Kumari Sinha, Advocate For the Respondents : Dr. Ashok Kumar Singh, Advocate
------
15/29.08.2018 The petitioner is aggrieved of Office order dated 06.03.2017 by which he has been placed under suspension. He also seeks to challenge charge-memo contained under Prapatra 'k' on the ground that it contains concocted/false allegations. And, for raising a plea on jurisdiction of the 2 Managing Director to pass an order of suspension, the petitioner seeks a declaration that the Managing Director is neither his appointing authority nor the disciplinary authority.
2. The petitioner who was initially appointed as Executive Trainee under the Bihar State Electronic Development Corporation was sent on deputation as Market Specialist to Bihar State Agricultural Marketing Board. In its meeting held on 02.09.1989 the Board of Directors of Bihar State Agricultural Marketing Board resolved to absorb the petitioner in regular service on the post of Market Specialist. An Office order on absorption of the petitioner has been issued on 14.03.1990. After bifurcation of the erstwhile State of Bihar, Notifications dated 27.01.2001 and 14.07.2001 were issued under which the Bihar Agricultural Produce Markets Act, 1960 and the Rules framed thereunder were adopted by the State of Jharkhand. The petitioner has pleaded that Section 17, 17-A and 18 empower the Market Committee to manage and control its affairs. In paragraph no. 26 of the writ petition, the petitioner asserts that in the hierarchy under the Jharkhand State Agricultural Marketing Board, the Director (Marketing) comes below the Director (Vigilance) and the Managing Director is at the top; Director (Marketing) is a member of the Board of Directors, however, Director (Vigilance) is not a member of the Board. On 14.03.2001 Jharkhand State Agricultural Marketing Board was constituted with 14 members besides its Chairman and vide its Resolution No. 10 dated 11.07.2014 it took a decision to promote the petitioner from the post of Market Specialist to Deputy Director (Marketing) and an Office order dated 04.09.2014 was issued promoting the petitioner on the said post. Subsequently, he was given additional charge of Director (Marketing) on 29.09.2014. The petitioner has further asserted that he was also directed to look after the work of Secretary, A.P.M.C and he was made in-charge of e-NAM (National Agriculture Market) System of e-Trading. By an order dated 17.01.2017, however, he was divested of the additional charge of Secretary, A.P.M.C.
3. Mr. Vijoy Pratap Singh, the learned Senior counsel for 3 the petitioner has raised three-fold contentions: (i) The Managing Director, Jharkhand State Agricultural Marketing Board has no powers to suspend the petitioner vide Office order dated 06.03.2017, (ii) the Managing Director, who is respondent no. 5 in the present proceeding and who is facing serious charges of irregularity, illegality and corruption, has issued Office order dated 06.03.2017 and the charge-memo contained under Prapatra 'k' with malafide intentions, and (iii) an order under Regulation 157(v) of the Service Regulation must precede on compliance of Regulation 158.
4. The learned Senior counsel for the petitioner has also questioned continuance the respondent no. 6 as the enquiry officer.
5. On challenge to legality of the charge-memo contained under Prapatra 'k', it is pertinent to record that normally challenge to charge-memo/charge-sheet is not entertained by the writ Court, at the threshold, unless it is found without jurisdiction or patently illegal. In Union of India & Anr. Vs. Kunisetty Satyanarayana" reported in (2006) 12 SCC 28, the Supreme Court has held thus:
"14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well-settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any 4 grievance.
15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.
16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."
6. The petitioner has questioned powers of the Managing Director to issue order of suspension and the charge-memo, however, at the same time it needs to be indicated that he seeks a declaration that the Managing Director is neither the appointing authority nor the disciplinary authority. His appointment letter has been issued by the Managing Director vide Annexures-17 & 18 and on his own saying he is holding a substantive post of Deputy Director. Therefore, it must be held that he is holding a post inferior to the post of the Managing Director. The suspension order and the charge-memo contained under Prapatra 'k', thus, cannot be said to be issued by an authority who has no jurisdiction to issue it. Moreover, the charge-memo has been approved by the Board on 25.07.2017. The petitioner has pleaded that the charges framed under Prapatra 'k' are founded on false allegations. In a writ proceeding this issue cannot be adjudicated. It is, thus, held that the charge-memo is neither illegal nor without jurisdiction.
7. Referring to certain orders passed by this Court in a Public Interest Litigation and the Supreme Court in Diary No(s) 23527 of 2017, the petitioner has endeavored to establish that the charge-memo under Prapatra 'k' and the order of suspension dated 06.03.2017 are actuated with malice, however, at the same time it has to be kept in mind that the petitioner has failed to aver and at least establish a chain of incidences which would establish that the respondent no. 5 was nursing a grudge 5 against him and as a result of which Office order dated 06.03.2017 and the charge-memo under Prapatra 'k' have been issued. Challenge to the charge-memo dated 06.03.2017 must, therefore, fail.
8. By now it is well-settled that a wrong labeling or mention of a wrong provision of law would not render an order illegal. Office order dated 06.03.2017 recites that the petitioner has been placed under suspension under Regulation 157(v) of the Service Regulations, but this cannot be overlooked that under Section 33-F of Jharkhand Agricultural Produce Markets Act, 2000, the Managing Director has general powers of superintendence over the employees of the Board and under Rule 153 the competent authority can suspend an employee who is facing an enquiry on charges of misconduct. It is thus found that the competent authority has powers to pass the order of suspension. Normally, an order of suspension is not treated as punishment nor it is stigmatic, however, an order of suspension can be challenged on three grounds namely, (i) it has been passed by an authority which has no jurisdiction, (ii) it has been passed in breach of the rules, or (iii) it is malafide.
9. On the facts revealed in the present proceeding and for the reasons indicated hereinabove, I find that order of suspension dated 06.03.2017 is neither without jurisdiction nor malafide. Now the question is whether this order has been passed contrary to Regulation 153 of the Service Regulations.
10. Regulation 153 reads as under :
"153. fuyEcu - (i) dnkpkj ds vkjksi okys fdlh deZpkjh dks l{ke izkf/kdkj fuyafcr dj ldsxk] ;fn mldks dÙkZO; ij jgus nsuk bl la?kBu ds fgr ds izfrdwy gks vFkok py jgh TkkWp vkSj dk;Zokgh ds fy, vfu'Vdj fl) gksusokyk ;k ck/kk Mkyusokyk lEHkkfor gksA l{ke izkf/kdkjh bl rjg fuyfEcr deZpkjh dk Lofoosd ls funs'k ns ldsxk dh og vius fuyEcu dh vof/k ij mlds ikl ;k fdlh vU; inkf/kdkjh ds ikl izfrfnu ;k ,sls vUrjkyksa ij tks og l{ke izkf/kdkjh vko';d le>s gkftjh fn;k djsAa l{ke izkf/kdkjh fuyafcr deZpkjh dks fdlh fofufnZ'V vof/k ds fy, dÙkZO; LFkku (LVs'ku) NksMus dh vuqKk ns ldsxk ;fn mldh jk; esa mDr vof/k esa TkkWp vkSj dk;Zokgh ds dze esa ml deZpkjh dh mifLFkfr visf{kr ugha gks; ijUrq ;fn mDr vof/k esa mls okil cqyk;k tk, rks og fu;r rkjh[k dks l{ke izkf/kdkjh ds le{k mifLFkr 6 gksxkA
(ii)Tkc dksbZ deZpkjh mifofu;e (i) ds micU/kkuqlkj fuyafcr fd;k tk, rc fuyEcu dh rkjh[k ls 60 fnuksa ds Hkhrj mlds fo:) dk;Zokgh 'kq:
dj nsuh gksxh vkSj mlij vkjksi i= rkehy dj nsuk gksxk, tcrd fd ;g vof/k v/;{k }kjk foLrkfjr djkdj bl ckr dh lqpuk deZpkjh dks 60 fnukas dh vof/k chrus ds igys gh ns u nh tk,A"
English Translation "153. Suspension :- (i) The competent authority may place an employee who has committed misconduct under suspension, if his continuance in office is against the interest of the organization or it is likely to interfere with or to be proved prejudicial to the pending enquiry or proceeding. The competent authority in his discretion may direct such employee put under suspension, to appear before him or any other officer, daily or on such intervals, during the period of suspension, as the competent authority may think expedient. The competent authority may permit the employee placed under suspension to leave the last place of duty (Station) for any prescribed period, if in his opinion, his presence for the said period, in the course of enquiry and proceeding is not required, but during the said period, if he is called upon, he shall make his presence before the competent authority on the date fixed.
(ii) When any employee is put under suspension as per provisions of sub Regulation (i), the proceeding shall have to be initiated within 60 days of date of suspension and charge-sheet shall have to be served upon him, unless information for extension, after approval from the Chairman, be given to the concerned employee before expiry of period of sixty days."
11. On a plain reading of Regulation 153 it appears that order passed under this Regulation must reflect either one of the three conditions incorporated thereunder. It provides that if continuance of the delinquent employee is prejudicial to the interest of the Board, or is likely to interfere with the ongoing enquiry, or may prejudice the enquiry, the competent authority may put the delinquent under suspension. Office order dated 7 06.03.2017 is completely silent on the aforesaid issues. Merely because charges framed against a delinquent are serious, it cannot be inferred in law that continuance of the delinquent on duty would be prejudicial to the interest of the organization or it is likely to interfere with or may prove prejudicial to the pending enquiry or the proceedings.
12. Dr. Ashok Kumar Singh, the learned counsel for the respondent-Marketing Board has, however, tried to contend that in view of serious charges framed against the petitioner no interference is required with the order of suspension dated 06.03.2017. I am not inclined to accept this contention for the reason that the conditions, under which an employee against whom a departmental proceeding has been initiated for committing misconduct can be placed under suspension, have been incorporated under Regulation 153 itself. Once it is found that conditions are incorporated under the Regulations which have statutory force, an order which does not fulfil those statutory conditions under Regulation 153 must invite interference of this Court. There is another reason why the order of suspension dated 06.03.2017 must be quashed and that is, an order of suspension must not continue for indefinite period. Not only that, the Office order dated 06.03.2017 is founded on a finding recorded by the Managing Director that during the enquiry the petitioner has been found guilty of irregularity committed by him and for this reason also the suspension order must go. [refer "Oryx Fisheries Private Limited Vs. Union of India and Others" reported on (2010) 13 SCC 427].
13. Ordered accordingly.
14. Prayer for change of the enquiry officer is declined for the reason that the petitioner has failed to prove any misconduct by the respondent no. 6 during the enquiry or any prejudice caused to him on account of improper conduct of the respondent no. 6 during the enquiry.
15. The petitioner shall cooperate with the enquiry and, but for just excuse, shall not seek adjournment.
16. The enquiry against the petitioner shall be concluded 8 within 90 days.
17. The writ petition stands partly allowed, in the aforesaid terms.
18. I.A No. 7479 of 2017 for restraining the respondents from taking coercive action against the petitioner stands dismissed.
(Shree Chandrashekhar, J.) Amit/