Research › Search › Judgment

Jharkhand High Court · body

2012 DIGILAW 97 (JHR)

Rajendra Kumar v. Union of India

2012-01-18

PRASHANT KUMAR

body2012
In this writ application petitioner prays for quashing Annexure-2,3,4 and 5, whereby petitioner has been departmentally punished. 2. It appears that while the petitioner was posted as constable in CISF at B.S.P. Bhilai, he was served with charge sheet vide memorandum no. 136 dated 19.2.1995. Thereafter, petitioner filed his show cause and then enquiry conducted. It appears that enquiry officer exonerated petitioner from charge no. 1 , however, he has been held guilty for charge no. 2 i.e. misbehaving with his superior authority. It appears that disciplinary authority inflicted following punishment upon petitioner:- 'Reduction of pay by one stage I.e. from Rs. 920/-to Rs. 900/-in the pay scale of Rs. 825-15-900-EB-20-1200 for a period of one year with effect from the date of issue of this order. It is further ordered that during the reduction he will not earn his increment and after expiry of the reduction period it will not have the effect of postponing his future increments.' 3. Against the said punishment order, petitioner filed an appeal before the appellate authority ( Resp. No. 3). It appears that respondent no. 3 while hearing the appeal had issued notice to the petitioner for enhancement of punishment. Petitioner filed his reply in compliance of aforesaid notice, thereafter the appellate authority awarded following punishment:- “Reduction of his pay from the present stage to his initial basic pay with immediate effect for a period of one year with further directions that during the period of reduction he will not earn increments of pay and on expiry of this period it will not have the effect of postponing his future increments.” 4. Against the order of appellate authority, petitioner filed a mercy appeal before the Resp. No. 2, who dismissed the same by saying that the punishment awarded by DIG, Bhilai ( Resp. No. 3) is commensurate with the gravity of misconduct committed by petitioner. However, it appears that Resp. No. 3 by issuance of Annexure-5 dated 19.8.2003 amended the punishment in the following way:- “Reduction of his pay from the present stage to his initial basic pay with immediate effect for a period of one year with further direction that during the period of reduction, he will not earn increment of pay and on expiry of this period, it will have the effect of postponing his future increment of pay.” 5. It is submitted by Sri M.K. Liak, learned counsel for the petitioner that Resp. No. 3 has committed serious illegality by enhancing the punishment while hearing the appeal. He submits that the petitioner has not been given adequate opportunity of being heard before enhancement of punishment. He further submits that moreover after passing of order( Annexure-3) the appellate authority has become functous officio, thus he has no jurisdiction to amend the aforesaid order of punishment after seven years, that too, without giving any opportunity of being heard to the petitioner. Accordingly, it is submitted that the impugned orders cannot be sustained. 6. On the other hand, Mr. Mokhtar Khan, learned Assistant Solicitor General, submits that this Court has no territorial jurisdiction to entertain present writ application. He submits that all the orders passed at Bhilai, thus cause of action arose within the territorial jurisdiction of Chatishgarh High Court. Accordingly, he submits that on this very ground, present writ application is liable to be dismissed. He further submits that prior to passing of Annexure-3, petitioner was given opportunity to file reply by the appellate authority and petitioner did file his show cause, thus it does not lie in the mouth of petitioner to say that before enhancement of punishment, he has not been heard. So far amendment of punishment order is concerned, it is submitted that due to some technical reason, aforesaid order of punishment could not be implemented, which necessitated its amendment. Accordingly, it is submitted that there is no illegality in Annexure-5. 7. Having heard the submissions, I have gone through the record of the case. From perusal of Annexure-3 , I find that before enhancement of punishment, respondent no. 3 had given show cause notice to the petitioner and petitioner has also filed his reply to the said show cause notice. It appears that the appellate authority after considering aforesaid show cause of the petitioner had passed the order of enhancement . Under the said circumstance, I find no illegality in Annexure-3. 8. As noticed above, Annexure-3 had been amended on 19th August 2003. It is needless to say that the appellate authority passed Annexure-3 on 21.3.1996. Thus, Annexure-5 was passed after more than seven years. It is also relevant to mention that against the order of appellate authority, petitioner had filed a mercy petition before Resp. No. 2 and Resp. 8. As noticed above, Annexure-3 had been amended on 19th August 2003. It is needless to say that the appellate authority passed Annexure-3 on 21.3.1996. Thus, Annexure-5 was passed after more than seven years. It is also relevant to mention that against the order of appellate authority, petitioner had filed a mercy petition before Resp. No. 2 and Resp. No. 2 vide his order dated 27.11.1996 rejected the mercy petition by saying that DIG, Bhilai has awarded punishment which is commensurate with the gravity of misconduct committed by petitioner. Therefore, in my view, order of respondent no. 3 had merged in the order of Resp. No. 2, who agreed with the punishment awarded to the petitioner by Annexure-3. Under the said circumstance, it is not open for respondent no. 3 to amend its earlier order. 9. Contention of Sri Khan that due to some typographical mistake Annexure-3 had been rectified by Annexure-5, does not inspire confidence. Because while issuing show cause to the petitioner proposed enhance punishment was incorporated in the notice, which is similar to the punishment inflicted upon the petitioner by appellate authority ( Resp. No. 3). 10. It further appears that if amendment is allowed, then it will change the punishment substantially, because as per earlier punishment petitioner will not get increment only for one year, but by amendment even after the expiry of one year petitioner will not get increment in future i.e. he will remain on same pay scale till superannuation. Under the said circumstance, it can not be said that by aforesaid amendment, Resp. No. 3 had only rectified typographical mistake. Since aforesaid amendment had civil consequence, therefore , in my view, same can not be done without affording opportunity of hearing to the petitioner. Under the said circumstance, I find that Annexure-5 is arbitrary, whimsical and violative of principles of natural justice. 11. Now coming to the point of jurisdiction raised by Mr. Khan, it is worth mentioning that at the time of filing of present writ application petitioner was posted at Bokaro Steel Plant, Bokaro within the territorial jurisdiction of this Court. It also appears that Annexure-5 has been served upon the petitioner at Bokaro. Under the said circumstance, part of the cause of action arose at Bokaro, therefore, this Court has ample power to entertain this writ application. Accordingly, I find that the aforesaid contention of Mr. It also appears that Annexure-5 has been served upon the petitioner at Bokaro. Under the said circumstance, part of the cause of action arose at Bokaro, therefore, this Court has ample power to entertain this writ application. Accordingly, I find that the aforesaid contention of Mr. Khan have no leg to stand. 12. In view of the discussion made above, I partly allow this writ application and quash Annexure-5. However, I am not disturbing the punishment awarded to petitioner by Annexure-3, which was confirmed by Annexure-4.