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2005 DIGILAW 261 (CAL)

UNION OF INDIA v. RAJ KUMAR JHA

2005-04-20

BHASKAR BHATTACHARYA, RAJENDRA NATH SINHA

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BHASKAR BHATTACHARYA, J. ( 1 ) THIS mandamus appeal is at the instance of union of India and is directed against the order passed by a learned Single judge of this Court dated 23rd April, 2003 in a writ application thereby setting aside the order of compulsory retirement imposed upon an employee and directing the employer to reconsider the question of punishment, although, the finding of guilt on the charge levelled against the employee was affirmed. ( 2 ) THE employer framed the following charges against the employee: article of Charge No. 1 "that No. 801390021 HC/gd R. K. Jha was detailed for 'b' shift on 5. 10. 2000 from 13. 00 hrs. to 21. 00 hrs. at HBP (L) for security duties with Arms. The said HC/gd scuffled with HC/gd S. N. Raju at about 21. 05 hrs while handing over the charge of the duty as a result Rifle 7. 62 mm (BA) Mark No. 2a registered No. 42780 issued to him got damaged which tantamount to gross misconduct, most indiscipline and dereliction of duty and thus unbecoming of a good member of the disciplined force like CISF. Hence the charge". Article of Charge No. II as per service documents of CISF No. 801390021 HC/gd R. K. Jha of CISF unit FBP Farakka it reveals that he is a habitual offender of indulging in various indiscipline following punishments under CISF Rules, 1969. i) OSL w. e. f. 13. 3. 85 to 10. 4. 85 and awarded the penalty of Censure vide group Commandant New Delhi USO Part-II No. 279/85 dated 22. 7. 85. ii) Misappropriation of Govt. money while working as Dry Canteen in-charge at ONGC Nazira and awarded the penalty of 'five days pay fine' vide final order No. V-15015/cisf/sds/min-97/398 dated 9-2-97. iii) Misbehaviour with senior arid awarded the punishment of'withholding of one increment for a period of one year without cumulative effect' vide final order No. V-15015/cisf/ioc (H)/disc/98/1295 dated 31/1-4-98. iv) Absent from duty post on 20. 12. 98 and awarded the penalty of 'four days pay fine' vide IOC (H) final order No. V-15015/ioc (H)/disc/35/rkj/99/510 dated 11-3-99. v) Left the duty post before completion of duty on 19. 2. 2000 at IOC (H)main gate and awarded the penalty of 'two days pay fine' vide final order No. V-15015/cisf/ioc (H)/disc/35/rkj/2000/1582 dated 19. 3. 2000. 12. 98 and awarded the penalty of 'four days pay fine' vide IOC (H) final order No. V-15015/ioc (H)/disc/35/rkj/99/510 dated 11-3-99. v) Left the duty post before completion of duty on 19. 2. 2000 at IOC (H)main gate and awarded the penalty of 'two days pay fine' vide final order No. V-15015/cisf/ioc (H)/disc/35/rkj/2000/1582 dated 19. 3. 2000. vi) Sent false and baseless allegation against administration and awarded the punishment of 'withholding of one increment for a period of one year without cumulative effect' vide IOC (H)/ final order No. V-15014/cisf/ IOC (H)/ Disc/35/rkj/2000/1583 dated 18. 3. 2000. " ( 3 ) THE disciplinary authority after completing the investigation and after giving opportunity of hearing to the employee found him guilty of the charges and inflicted a punishment of compulsory retirement. ( 4 ) BEING dissatisfied, the employee preferred an appeal before the appellate forum but the said punishment was upheld. ( 5 ) BEING dissatisfied with such order, the employee filed the aforesaid writ application which ultimately came up for hearing before the learned Single judge who although affirmed the finding of guilt recorded by the disciplinary authority as well as the appellate authority, yet, set aside the order of punishment and directed the authority to reconsider the question of punishment. The learned Judge further held that the employee should be reinstated in service and the authority should pay him 50 per cent of the arrear salary from the date of compulsory retirement till the date of reinstatement. ( 6 ) IT appears from the order passed by the learned Judge that the reason for setting aside the order of punishment was that according to him, the employer while considering punishment could not taken into consideration the past conducts of the employee for which he had already suffered punishment and according to him, the incidents of misconduct and the consequent punishment upon the petitioner in the past, should not have been incorporated in the chargesheet and thereby the entire issues had been "prejudged and premeditated to make the ground of compulsory retirement as punishment". ( 7 ) BEING dissatisfied, the Union of India, the employer, has preferred the present appeal. ( 7 ) BEING dissatisfied, the Union of India, the employer, has preferred the present appeal. As during the pendency of this appeal, there was no stay of operation of order impugned, the employer has reconsidered the matter in terms of the judgment given by the learned Single Judge and has passed fresh order of punishment by modifying the penalty of compulsory retirement from service to that of reduction of pay to the lowest stage in the time scale of pay of Rs. 3200-85-4900 for a period of five years with immediate effect. It has further directed that the employee will not earn increment of pay during the period of reduction and that on the expiry of the said period the reduction will have the effect of postponing his future increments of pay. ( 8 ) MR. Chattopadhyay, the learned Advocate appearing on behalf of appellant, has not only supported the initial order of punishment of compulsory retirement but also criticized that part of the order of the learned Single Judge by which it was directed that the employee should get 50 per cent of the arrear from the date of compulsory retirement till the date of reinstatement. Mr. Chattopadhyay further submits that the findings of the learned Single Judge that the employer cannot take into consideration past misconducts of employee is also not consistent with the decision of the Supreme Court and he, thus, prays for setting aside the order impugned. ( 9 ) MS. Sengupta, the learned Advocate appearing on behalf of the respondent-employee, however, has opposed the aforesaid contentions of Mr. Chattopadhyay and has submitted that according to the Service Rules there is no provision for starting disciplinary proceeding on the basis of past misconduct for which already punishment has been given. Ms. Sengupta supports the finding of the learned Single Judge that Charge No. 2 framed herein should not have been taken into consideration and even while imposing punishment, those facts could not be taken note of. Ms. Ms. Sengupta supports the finding of the learned Single Judge that Charge No. 2 framed herein should not have been taken into consideration and even while imposing punishment, those facts could not be taken note of. Ms. Sengupta contends that from the fact that the employer of its own has decided to reduce the punishment, it is apparent that earlier punishment of compulsory retirement was wrong and therefore, her client has unnecessarily been harassed and consequently, the order of the learned Single judge of awarding 50 per cent of the salary from the date of compulsory retirement to the date of reinstatement should not be interfered with. ( 10 ) AFTER hearing the learned Counsel for the parties and after going through the materials on record we find that the employer itself having reduced the punishment to that of reduction of scale, the order of compulsory punishment earlier passed is no longer enforceable and therefore, the said punishment cannot be reimposed. Once the employer on the basis of materials on record, itself has decided on reconsideration that the compulsory retirement was too harsh although there was no compulsion upon it not to reimpose the self-same punishment ,we are of the view that we should not permit the employer to contend that the punishment of compulsory retirement is the appropriate punishment. ( 11 ) AS regards direction for payment of 50 per cent of salary, we are of the opinion that once the finding of guilt on the Charge No. 1 has established and that has been also affirmed by this Court, but only the consequent punishment was set aside, in such a case, the employee should be deemed to have been under suspension till the final order of punishment is passed and as such, the employee should be entitled to get subsistence allowance permissible under the Service Rules till the date of passing of fresh order of punishment. We accordingly, modify the order of the learned Single Judge to that extent. ( 12 ) AS regards the finding of the learned Single Judge that past misconducts and the consequent punishments upon the employee cannot be considered while inflicting punishment on the fresh offence, we are unable to subscribe to the view taken by the learned Single Judge. We accordingly, modify the order of the learned Single Judge to that extent. ( 12 ) AS regards the finding of the learned Single Judge that past misconducts and the consequent punishments upon the employee cannot be considered while inflicting punishment on the fresh offence, we are unable to subscribe to the view taken by the learned Single Judge. As pointed out by the Supreme Court in the case of State of Mysore vs. K. Manche Gowda, reported in AIR 1964 SC 506 , it is permissible for an employer while giving punishment on the basis of fresh misconduct, to take into consideration the earlier punishments and earlier misconducts but the principles of natural justice and equity demand that those facts should be made known to the delinquent employee. Therefore, in our view, the employer in this case did not commit any illegality in framing Charge No. 2 incorporating the incidents of past misconduct and punishment imposed upon him as it proposed to take into consideration those facts while considering the question of punishment. By framing those additional charges, the employee has not been prejudiced in any way; on the other hand, it was for his benefit because if there was any wrong statement as regards earlier alleged punishment or misconduct, he could point out to the employer that those should not be taken into consideration. ( 13 ) WE, thus, find that framing of Charge No. 2 along with the present misconduct was quite justified and the same was made for giving adequate opportunity to the employee to make representation against those facts. ( 14 ) WE, thus, modify the order impugned to this extent that till the new punishment during the pendency of this appeal has been given by the employer, the employee should be entitled to get subsistence allowance payable under service Rules during the period of suspension from the earlier date of compulsory retirement till the date of passing of new order of punishment. ( 15 ) WE further make it clear that there was no mistake on the part of employer in framing Charge No. 2 and taking into consideration the past misconducts and consequent punishment imposed upon the petitioner while framing Charge No. 1. ( 15 ) WE further make it clear that there was no mistake on the part of employer in framing Charge No. 2 and taking into consideration the past misconducts and consequent punishment imposed upon the petitioner while framing Charge No. 1. ( 16 ) AS regards the subsequent punishment imposed upon the writ petitioner we make it clear that we have not gone into the propriety of the same as the 3ame is beyond the scope of writ application out of which the present appeal arises and if writ petitioner is dissatisfied with such order, he is free to approach the appropriate forum in accordance with law. ( 17 ) THE appeal is, thus, disposed of. In the facts and circumstances, there will be, however, no order as to costs. Appeal disposed of.