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2009 DIGILAW 781 (JHR)

Nand Kishore Singh v. State of Jharkhand

2009-05-15

D.K.SINHA, GYAN SUDHA MISRA

body2009
Order This appeal has been preferred against the order dated 24.3.2009 passed by the learned Single Judge in W.P.(S) No. 2292/2002, by which the learned Single Judge had been pleased to dismiss the writ petition upholding the order passed by the Commissioner-cum-Secretary, Department of Labour, Employment and Training, Government of Bihar, Patna, by which it was ordered that the petitioner, appellant herein, will not be entitled to- receive the salary for the period ranging from 30.10.1999 to 8.12.1999, which was the period during which the appellant claimed to be in custody and it was further ordered that the said period will be treated as break in service and a further punishment of deduction of 10% of his pension with cumulative effect had been inflicted. 2. This order was passed after a departmental enquiry was held against the appellant in regard to three charges. The first and foremost charge, against the appellant was that the appellant, who had been discharging duties as Inspector of Factories, was alleged to have indulged in accepting a bribe of Rs. 23,050/- and the same was detected, when a raid was conducted in the factory premises. On account of this, a criminal case was lodged against the appellant by the competent authority and a vigilance case was also registered. However, the vigilance case was finally dropped as neither the informant, nor any witness in support of the prosecution version had turned up to support the case of the prosecution. Finally, the vigilance case was dropped against the appellant. 3. A departmental proceeding had also been initiated by the respondents in regard to the charge of bribery levelled against the appellant and a memo of charge was issued to him incorporating three charges. In substance, the first and foremost charge levelled against the appellant is that in course of the raid, a sum of Rs. 23,050/- was found in the drawer of the table on which the appellant was discharging duties and the same was inferred to be an amount accepted by the appellant as an amount towards bribery. In substance, the first and foremost charge levelled against the appellant is that in course of the raid, a sum of Rs. 23,050/- was found in the drawer of the table on which the appellant was discharging duties and the same was inferred to be an amount accepted by the appellant as an amount towards bribery. The second charge that was levelled against the appellant was of dereliction in discharging his official duty and he continued working and drawing his entire salary, in spite of there being an order of suspension and the third charge that was levelled against the appellant was that after issuance of an order of suspension, although his headquarters was fixed at Ranchi, he failed to report at the headquarters so fixed and continued discharging duties at Dhanbad, which he was legally not entitled to do. 4. Admittedly a show cause notice was issued to the appellant and after completion of the due legal formalities, the delinquent appellant participated in the departmental proceeding and finally he was acquitted of the charge• no. 1, by which he was alleged to have indulged in the offence of accepting an amount of Rs. 23,050/- by way of bribe. In so far as the second and third charge, which can be clubbed together, are concerned, they were found to have been proved, as it was held in the departmental enquiry that the appellant, in spite of there being an order of suspension, continued to discharge duties at Dhanbad and defied the order of reporting duty at Ranchi, even after the order of suspension was issued. Consequently, after conclusion of the enquiry, the appellant although was acquitted of the charge of acceptance of bribe, punishment was imposed on him by, holding therein that he will not be entitled to salary for the period from 30.10.1999 to 8.12.1999, that is the period in which he was in custody and it was further held to be treated as break in service. Over and above, punishment of deduction of 10% of his pension with cumulative effect was also inflicted on him. 5. Over and above, punishment of deduction of 10% of his pension with cumulative effect was also inflicted on him. 5. The delinquent appellant, feeling aggrieved with the aforesaid order of punishment referred to hereinbefore, filed a writ petition before the learned Single Judge, who, after hearing the counsel for the parties and on consideration of the enquiry report as also the order of punishment, was pleased to dismiss the writ petition, against which this appeal has been preferred. 6. Counsel for the appellant, assailing the order of punishment imposed on the appellant as also the order passed by the learned Single Judge, contended that the appellant having been acquitted of the charge of taking bribe, the order of punishment directing not to pay the salary for the period during which he was in custody and to treat the said period as break in service as also deduction of 10% of his pension with cumulative effect was extremely arbitrary, unjust and illegal. 7. Elaborating this part of his contention, counsel for the appellant, first of all, endeavoured to explain that once the appellant had been acquitted of the charge of bribery, he was entitled to the entire salary including the period during which he was out of service and in this context, he submitted that the appellant had been discharged even by the criminal court and therefore, the finding recorded in the departmental proceeding on the charge that he willingly discharged duties overlooking the order of suspension was not justified. 8. But on this count, it was difficult to accept the submission of the counsel for the appellant, as it could be noticed that the appellant, first of all, had not been discharged in the criminal/vigilance case, but the proceeding had been dropped as the informant had not turned up to support the prosecution version, nor any other witness had come forward to support the prosecution case. Be that as it may, the. fact remains that the appellant, in spite of there being an order of suspension, had continued to discharge duties on regular basis and over and above, the appellant defied the order of suspension and failed to report for duties at the head. quarters at Ranchi at which he had been directed to report. Be that as it may, the. fact remains that the appellant, in spite of there being an order of suspension, had continued to discharge duties on regular basis and over and above, the appellant defied the order of suspension and failed to report for duties at the head. quarters at Ranchi at which he had been directed to report. This charge, in the departmental proceeding, has also been proved and hence at this stage, it is not open for the appellant to assail the correctness of the finding recorded in the departmental proceeding, nor it has been assailed before us and rightly so as it was not open for him to assail the same once he participated in the proceeding and was granted full opportunity to counter the charges. Hence, during the departmental proceeding, the appellant although tried to defend himself, yet he failed to disprove that he willfully disobeyed by not reporting to the headquarters at Ranchi in spite of there being an order of suspension and further drawing full salary for the period was clearly not justified. 9. It is, no doubt, true that a delinquent employee, after having been acquitted of the principal charge in regard to his delinquency, may be entitled to receive the salary after his reinstatement. But in a catena of decisions on this aspect too well known to be quoted, clearly indicate that backwages or arrears of salary cannot be claimed as a matter of right under all circumstances. The order by which full or part of the salary is directed to be deducted or directed not to be paid, will depend upon the circumstance in which the salary was stopped and for this purpose, the Courts surely have to see whether there was any justification to stop the wages/salary for the period during which he had been discharging duties. 10. In the instant matter, it could not be proved by the appellant that he was unable to discharge duties during that period and even after discharge in criminal case, he had failed to report for duty at the headquarters at Ranchi during the period of his suspension, for which he had justification either before the Enquiry Officer or before this Court. Thus, the appellant failed to offer any valid or legal justification. Thus, the appellant failed to offer any valid or legal justification. Thus, the order passed by the competent authority replying the appellant's claim for payment of arrear salary for this period is obviously and clearly not tenable. Hence, we reject the contention of the counsel for the appellant on this count and affirm the view of the disciplinary authority as also the learned Single Judge that he will not be granted salary for this period. 11. The next question that needs to be addressed by this Court is In regard to the order regarding break in service and consequent deduction of 10% of his pension with cumulative effect. 12. We do not think it appropriate to enter into the question regarding break in service as the appellant has already superannuated and is no longer in service. Hence, the punishment of break in service is not going to affect the- appellant in any manner. 13. The final question, however, which still remains to be considered, is in regard to the order imposing punishment of deduction of 10% of the pension of the appellant with cumulative effect. 14. This order, prima facie, appears to be unjust and was also found to be untenable after hearing the counsel for the appellant at some length. The only charge that has been proved against the delinquent appellant was that he had failed to report for duty at the headquarters fixed at Ranchi for the period from 30.10.1999 to 8.12.1999 and for this period the appellant has already suffered deduction of salary. Except for this period, the appellant has duly discharged his duties and therefore, we fail to understand the legal efficacy of the order imposing punishment of deduction of 10% of the amount with cumulative effect from the pension amount of the appellant. Except for this period, the appellant has duly discharged his duties and therefore, we fail to understand the legal efficacy of the order imposing punishment of deduction of 10% of the amount with cumulative effect from the pension amount of the appellant. However, the question whether deduction of 10% of the pension with cumulative effect is justified or not is concerned, we are of the view that when the appellant was away from work for only 38 days, deduction of 10% of the amount with cumulative effect from the pension of the appellant is patently unjustified since the appellant has already been acquitted of the charge of bribery and the charge which has been proved is only to the effect that he had disobeyed the order of his superior officer by not reporting for duty at his headquarters at Ranchi and was discharging duties at his place of posting. It• is difficult to appreciate the reasons for imposition of punishment of deduction of 10% with cumulative effect from his pension, for once the charge of bribery was disproved, then deduction of 10% with cumulative effect from his pension will have to be treated as punishment disproportionate to the offence alleged to have been committed. 15. We have to bear in mind that the only charge that has been proved is with regard to defiance of the order of the superior officer directing the appellant to report for duty at his headquarters at Ranchi during the period of his suspension, nevertheless he discharged duties at his place of posting during the period of suspension and for this period, punishment has been imposed for not paying the salary to the appellant which has already been upheld by us also, as indicated hereinabove. Over and above, that punishment of deduction of 10% with cumulative effect from the pension of the appellant, in spite of the fact that he has been acquitted of the charge of bribery is not fit to be sustained. 16. Over and above, that punishment of deduction of 10% with cumulative effect from the pension of the appellant, in spite of the fact that he has been acquitted of the charge of bribery is not fit to be sustained. 16. We, therefore, quash and set aside the order of punishment passed by the Department of Labour, Employment & Training, Government of Bihar,' dated 13.3.2002, by which 10% of the pension with cumulative effect had been deducted since this order had been passed without taking into account that the appellant has already been acquitted of the charge of bribery and once he has been acquitted, major punishment of 10% deduction of pension with cumulative effect obviously appears to be disproportionate to the charge proved for the reasons indicated hereinbefore. Consequently, the appeal is partly allowed but in the circumstance, without any order as to costs.