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2012 DIGILAW 1427 (JHR)

Gokul Chandra Mahto v. State of Jharkhand

2012-09-20

APARESH KUMAR SINGH

body2012
JUDGMENT Heard learned counsel for the parties. 2. The petitioner is aggrieved by the order of punishment as contained in Memo No. 715 dated 03.06.2008 passed by the Respondent No. 3, the District Superintendent of Education-cum-Sub-Divisional Education Officer, Bokaro whereby the punishment of withholding two annual increment with cumulative effect has been awarded and also it has been held that petitioner is not entitled for salary for the suspension period. 3. The case of the petitioner is that the petitioner was posted as In-charge Headmaster in Upgraded Middle School, Podudih, Chas at the relevant point of time and during the course of inspection, the school was found closed. Lapses were found on the part of the petitioner in making no efforts towards enrollment of students in school and thereby he was found to have committed dereliction in duty and disobedience to the orders of superior authorities in connection with scheme for “School Chale Abhiyan, 2006”. Accordingly, petitioner was put under suspension on 13.05.2006. He was served charge sheet under Form-Ka with the aforesaid allegation. The petitioner denied all such allegations made against him through reply which according to the petitioner is also annexed as Annexure-D to the supplementary counter affidavit. After elapse of more than ten month, the suspension of all 13 teachers including the petitioner was revoked(Annexure-4). However, it has been submitted on the part of the petitioner that the impugned order dated 03.06.2008 has been passed by the District Superintendent of Education-cum-Sub-Divisional Education Officer, Bokaro imposing the aforesaid punishment, on the basis of the enquiry report and upon review of the evidences by the department. The petitioner contends that no proper enquiry was held giving him reasonable opportunity to defend himself and no copy of the enquiry report or second show cause was served upon to enable him to file reply to the second show cause. It is submitted that by the impugned order a major punishment has been imposed in the nature of withholding of two increments with cumulative effect, which can be done only by a full dress enquiry proceeding as such punishment has everlasting effect not only till his retirement but even in consequential post retirement benefit. His scale of pay will be reduced by two increments for the rest of his service career. His scale of pay will be reduced by two increments for the rest of his service career. Learned counsel for the petitioner submits that withholding of two increments with cumulative effect has been held to be a major penalty in a judgment delivered by Hon'ble Supreme Court in a case of Kulwant Singh Gill Vs. State of Punjab reported in 1991 supp (1) SCC 504. 4. The respondents have appeared and filed their counter and supplementary counter affidavit wherein it has been reiterated that during the course of inspection by the inspection team, the school was found close on 24.04.2006 and the concerned teachers including the petitioner were put under suspension by Deputy Commissioner, Bokaro vide letter dated 27.04.2006 and charges in Form-K were served upon the petitioner vide Memo No. 1054 dated 15.05.2006, which is as follows:- (a) the school was found closed on 24.04.2006 (b) effective efforts were not done under the programme “School Chalen Hum” (c) slackness towards his duties (d) disobedience of order of higher authorities. 5. Subsequently, the suspension of the petitioner was revoked vide order dated 05.03.2007 and under Rule 8 sub rule 1(iii) of Disciplinary Action Rule,1994, the petitioner was awarded with punishment withholding two annual increments with cumulative effect as well as the payment of salary of suspension period will not be paid vide Memo No. 715 Bokaro dated 03.06.2008. 6. By way of supplementary counter affidavit, it has further been stated that punishment awarded to the petitioner is a minor punishment after observing all the rules of procedures and after considering the show cause reply of the petitioner dated 17.07.2006. 7. After hearing counsel for the parties and going through the impugned order and the relevant materials on records, it appears that the punishment in the nature of withholding two annual increments with cumulative effect has been awarded against the petitioner. From perusal of the impugned order, it appears that enquiry report was submitted by the Conducting Officer and evidences were also reviewed by the Department. However, the Disciplinary Authority in the impugned order does not disclose any reason while imposing the aforesaid punishment. From perusal of the impugned order, it appears that enquiry report was submitted by the Conducting Officer and evidences were also reviewed by the Department. However, the Disciplinary Authority in the impugned order does not disclose any reason while imposing the aforesaid punishment. However, from the punishment awarded as aforesaid and ratio laid down by the Hon'ble Supreme Court in a case of Kulwant Singh Gill (Supra), it is clear that the penalty imposing withholding of two increments with cumulative effect has insidious effect and the salary of the petitioner is reduced in his time scale by two places and it is in perpetuity during the rest of the tenure of his service. The relevant paragraph-4 of the judgment is quoted hereinabelow:- “4. Withholding of increments of pay simpliciter undoubtedly is a minor penalty within the meaning of Rule 5(iv). But sub-rule (v) postulates reduction to a lower stage in the time scale of pay for a specified period with further directions as to whether or not the government employee shall earn increments of pay duringtheperiodofsuchreductionsandwhetheronthe expiryofsuchperiodthereductionwillorwillnothave theeffectof postponingthefutureincrementsofhispay. It is an independent head of penalty and it could be imposedaspunishmentinanappropriatecase.Itisone ofthemajorpenalties.Theimpugnedorderofstoppage oftwoincrementswithcumulativeeffectwhetherwould fallwithinthemeaningofRule5(v)?IfitsofallsRules8 and 9 of the Rules require conducting of regular enquiry. The contention of Shri Nayar, learned counsel for the state is that withholding two increments with cumulative effect is only a minor penalty as it does not amounttoreductiontoalowerstageinthetimescaleof pay. We find it extremely difficult to countenance the contention.Withholdingofincrementsofpaysimpliciter without any hedge over it certainly comes within the meaning of Rule 5(iv) of the Rules. But when penalty was imposed withholding two increments i.e. for two yearswithcumulativeeffect,itwouldindisputablymean thatthetwoincrementsearnedbytheemployeewascut offasameasureofpenaltyforeverinhisupwardmarch ofearninghigherscaleofpay.Inotherwordstheclock isputbacktoalowerstageinthetimescaleofpayand onexpiryoftwoyearstheclockstartsworkingfromthat stageafresh.Theinsidiouseffectoftheimpugnedorder, bynecessaryimplication,isthattheappellantemployee is reduced in his time scale by two places and it is in perpetuity during the rest of the tenure of his service withadirectionthattwoyears'incrementswouldnotbe counted in this time scale of pay as a measure of penalty.Thewordsaretheskintothelanguagewhichif peeled off its true colour or its resultant effects would become apparent. When we broach the problem from this perspective the effect is an envisaged under Rule 5(v)oftheRules.ItisundoubtedthattheDivisionBench in Sarwan Singh V. State of Punjab, P. C. Jain, A.C.J. speaking for the Division Bench, while considering similar question, in paragraph 8 held that the stoppage of increments with cumulative effect, by no stretch of imagination falls within clause (v) of Rule 5 or in Rule 4.12 of Punjab Civil Services Rules. It was further held that under clause (v) of Rule 5 there has to be a reductionto alowerstage in thetimescale of paybythe competent authority as a measure of penalty and the period for which such a reduction is to be effective has to be stated and on restoration it has further to be specified whether the reduction shall operate to postponethefutureincrementsofhispay.Insuchcases withholdingoftheincrementswithoutcumulativeeffect does not at all arise. In case where the increments are withheld with or without cumulative effect the governmentemployeeisneverreducedtoalowerstage oftimescaleofpay.Accordinglyitwasheldthatclause (iv)ofRule5isapplicabletothefactsofthatcase.With respect we are unable to agree with the High Court. If the literal interpretation is adopted the learned Judges may be right to arrive at that conclusion. But if the effectiskeptatthebackofthemind,itwouldalwaysbe so, the result will be the conclusion as we have arrived at. If the reasoning of the High Court is given acceptance,itwouldempowerthedisciplinaryauthority to impose, under the grab of stoppage of increments, (sic stoppage) of earning future increments in the time scaleofpayevenpermanentlywithoutexpresslystating so.This preposterous consequence cannot be permitted to be permeated. Rule 5(iv) does not empower the disciplinary authority to impose penalty of withholding increments of pay with cumulative effect except after holdinginquiry and followingtheprescribedprocedure. Then the order would be without jurisdiction or authority of law, and it would be per se void. Considering fromhisanglewehave no hesitation tohold thattheimpugnedorder would come within the meaning of Rule 5(v) of the Rules; it is a major penalty and imposition of the impugned penalty without enquiry is per se illegal.” 8. It, therefore, appears that by the impugned order the respondents-Disciplinary Authorities have imposed a major punishment without following the procedure for imposing of such punishment in the nature of full dress enquiry. It is apparent from the averment made in para-14 of the supplementary counter affidavit filed by the respondents that in the similar circumstances in a case of Jain Lal Ram Vrs. State of Jharkhand being W.P.(S) No. 1145 of 2009, the matter has been remanded back to the Disciplinary Authority. Although, the respondents have taken a plea of alternative remedy, but since impugned order in the nature of major penalty has passed without following the procedure established by law denying proper opportunity to the petitioner to defend himself as required in a full dress enquiry and without service of the enquiry report including second show cause before imposing such punishment, the plea of alternative remedy is not sustainable. 9. 9. In the circumstances, the impugned order of punishment dated 03.06.2008 cannot be sustained in law. Moreover, the impugned order is a non speaking order passed in mechanical manner without showing reason for imposing of such penalty by the Disciplinary Authority. In totality of circumstances, the impugned order is quashed and the matter is remanded back to the Disciplinary Authority to proceed afresh in accordance with law by framing proper charges and giving proper opportunity to the petitioner as per the Rules. 10. This writ petition is allowed in the aforesaid terms.