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2013 DIGILAW 1111 (JHR)

Satyendra Kumar Pandey v. State of Jharkhand

2013-09-26

SHREE CHANDRASHEKHAR

body2013
ORDER 1. The petitioner has approached this Court challenging the penalty order dated 11.4.2007 and the appellate order dated 03.11.2012. 2. The brief facts of the case are that, the petitioner was appointed in the year, 1991 as Revenue Karamchari and while posted at Hussainabad Block, he was put under suspension w.e.f. 25th September, 2004. A Charge Memo dated 29th October, 2005 was served upon the petitioner in which five charges have been framed against the petitioner. An enquiry was conducted into the matter and the charges levelled against the petitioner were found proved. The Disciplinary Authority passed the penalty order dated 11.4.2007, whereby the following punishments have been awarded to the petitioner: (i) Punishment of censure; (ii) Stoppage of 3 annual increments with cumulative effects and (iii)No salary & allowances will be paid for the suspension period except subsistence allowances. 3. A counter-affidavit has been filed by the respondent nos.2 & 4 stating as under: 5. “That it is submitted that the Writ Petitioner is a Revenue Karamchari posted at Hussainabad Anchal of Palamu District. He was put under suspension w.e.f. 25.09.2004 to 13.10.2005 by the Respondent No. 2, Deputy Commissioner, Palamu for the following allegations leveled against him: (i) Absent from Headquarter without prior permission/leave; (ii) Not performing hid duty/responsibility properly; (iii) Demanding illegal gratification for mutation case; (iv) Not identifying family below poverty line; (v) Not performing duty in connection with preparing voter list as evident from the memo of charge contained in memo no. 613 dated 21.10.2005. ................................................................................ ................................................................................... 9. That it is submitted that the Deputy Commissioner, Palamu after through perusal of the enquiry report in detailed found that the following charges against the Petitioner found to be proved by the Enquiry Officer which were grave in nature and against the code of conduct of the Govt. Servant: (i) To remain absent from Headquarter without prior permission/leave to remain absent in weekly meeting and “Block day' (Prakhand Diwas) and for not submitting the pointwise explanation; (ii) To disobey the order and delay in handing over the charges; (iii) For not identifying family below poverty line and not to obey the order to inquire the burnt houses of village Ghoghra for giving relief to the affected villagers; (iv) For not performing duty in connection with voter list under Brief Revision 2005. 10. 10. That it is submitted that the Deputy Commissioner, Palamu in the light of said enquiry report awarded the following punishment and communicated to the Petitioner vide memo no. 245 Estt dated 11.04.2007: (i)Punishment of censure; (ii) Stoppage of 3 annual increments with cumulative effects; (iii) no salary & allowances will be paid for the suspension period except subsistence allowances. 11. That it is submitted that the Petitioner thereafter, preferred appeal against punishment awarded vide service appeal no. 1/2007 before the Commissioner, Palamu Division, Medininagar Respondent No. 3 who after hearing the Petitioner found no ground to interfere in the order dated 02/11/12 that while the learned lawyer of the Petitioner was making submissions, the Petitioner tried to disturb the proceedings of the Court of the Commissioner. His conduct also was found against code of conduct of the Government servant. The order passed by the Commissioner, Palamu Division, Respondent No. 3 was communicated to the Petitioner vide memo no. 41 dated 03/11/12. 12. That it is submitted that from the above it is apparent that all charges leveled against the petitioner except charge at Sl.3 found proved and keeping in view the charge of grave nature, the D.C. Respondent no. 2 has rightly awarded the punishment and the commissioner, Palamu Division Respondent no. 3 has rightly rejected the appeal of the Petitioner on 03/11/12.” 4. Heard learned counsel for the parties and perused the documents on record. 5. The learned counsel appearing for the petitioner has submitted that it is the specific case of the petitioner that neither the enquiry report was furnished to the petitioner nor the second show-cause notice was issued to the petitioner to put his defence and therefore, serious prejudice has been caused to the petitioner and thus, on this ground alone, this writ petition deserves to be allowed. He has further submitted that the Disciplinary Authority exceeded his jurisdiction in awarding major as well as minor penalty in one punishment order, which is not permissible in law. 6. As against the above, Mr. Ajit Kumar the learned counsel appearing for the respondents has submitted that it is specific case of the respondents that a copy of the enquiry report was shown to the petitioner and the petitioner has failed to establish prejudice caused to him and therefore, this writ petition is liable to be dismissed. 7. 6. As against the above, Mr. Ajit Kumar the learned counsel appearing for the respondents has submitted that it is specific case of the respondents that a copy of the enquiry report was shown to the petitioner and the petitioner has failed to establish prejudice caused to him and therefore, this writ petition is liable to be dismissed. 7. The learned counsel appearing for the petitioner has relied on judgments of the Hon'ble Supreme Court reported in (1993) 4 SCC 727 and 1990 (6)SLR 73. 8. In “ Managing Director, ECIL, Hyderabad and Others Vs. B. Karunakar and Others “ reported in (1993) 4 SCC 727 “, the Hon'ble Supreme Court has held as under: 29. “Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer’s report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee’s right to defend himself against the charges levelled against him. A denial of the enquiry officer’s report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice. 30. Hence the incidental questions raised above may be answered as follows: [i] Since the denial of the report of the enquiry officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject. [ii] The relevant portion of Article 311(2) of the Constitution is as follows: “(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.” Thus the article makes it obligatory to hold an inquiry before the employee is dismissed or removed or reduced in rank. The article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311(2) applies only to members of the civil services of the Union or an all-India service or a civil service of a State or to the holders of the civil posts under the Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded and when the enquiry officer is not the disciplinary authority the delinquent employee will have the right to receive the enquiry officer’s report notwithstanding the nature of the punishment. [iii] Since it is the right of the employee to have the report to defend himself effectively and he would not know in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the report or not, the report has to be furnished to him. [iv] In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the enquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan case should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the enquiry officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly. [v] The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an “unnatural expansion of natural justice” which in itself is antithetical to justice.” 9. Mr. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an “unnatural expansion of natural justice” which in itself is antithetical to justice.” 9. Mr. Ajit Kumar, the learned counsel appearing for the respondents contended that in the said judgment in paragraph 31, the Hon'ble Supreme Court has held that in cases in which a grievance has been raised that a copy of enquiry report has not been furnished to the delinquent employee, it would not automatically vitiate the departmental enquiry. The delinquent employee is required to plead and specifically prove the prejudice caused to him due to non-supply of the enquiry report. He has further submitted that in every such cases an order of penalty therefore, is not liable to be interfered with by the Court in exercise of jurisdiction under Article 226 of the Constitution of India. 10. On a perusal of documents on record, I find that the case pleaded on behalf of the respondents is that a copy of the enquiry report was shown to the petitioner. The charge levelled against the petitioner is serious and therefore, it cannot be said that even though the copy of the enquiry report was not furnished to the petitioner and a second show-cause notice was not issued to the petitioner, no prejudice has been caused to the petitioner. 11. Adverting to the contention raised on behalf of the learned counsel for the petitioner that the Disciplinary Authority has exceeded jurisdiction while awarding punishment of stoppage of three annual increments with cumulative effect and such a punishment would amount to imposition of major penalty, I find that in “Kulwant Singh Gill Vs. The State of Punjab” reported in 1990 (6) SLR 73, the Hon'ble Supreme Court has dealt with a similar situation thus, 4. “Withholding of increments of pay simplicter 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 during the period of such reductions and whether on the expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay. It is an independent head of penalty and it could be imposed as punishment in an appropriate case. It is one of the major penalties. The impugned order of stoppage of two increments with cumulative effect whether would fall within the meaning of Rule 5(v) ? If it is so falls Rules 8 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 amount to reduction to a lower stage in the time-scale of pay. We find it extremely difficult to countenance the contention. Withholding of increments of pay simpliciter 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 years with cumulative effect, it would indisputably means that the two increments earned by the employee was cut off as a measure of penalty for ever in his upward march of earning higher scale of pay. In other words the clock is put back to a lower stage in the time-scale of pay and on expiry of two years the clock starts working from that stage afresh. The insidious effect of the impugned order by necessary implication, is that the appellant employee is reduced in his time-scale by two places and it is in perpetuity during the rest of the tenure of his service with a direction that two years' increments would not be counted in his time-scale of pay as a measure of penalty. The words are the skin to the language which if pealed off its true colour or its resultant effects would become apparent. When we broach the problem from this perspective the effect is as envisaged under Rule 5(v) of the Rules. It is undoubted that the Division Bench in Sarwan Singh vs. State of Punjab & Ors. ILR 1985(2) P & H 193 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. ILR 1985(2) P & H 193 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 reduction to a lower stage in the time-scale of pay by the 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 postpone the future increments of his pay. In such cases withholding of the increments without cumulative effect does not at all arise. In case where the increments are withhold with or without cumulative effect the Government employee is never reduced to a lower stage of time scale of pay. Accordingly it was held that clause (iv) of Rule 5 is applicable to the facts of that case. 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 effect is kept at the back of the mind, it would always be so, the result will be the conclusion as we have arrived at. If the reasoning of the High Court is given acceptance, it would empower the disciplinary authority to impose, under the garb of stoppage of increments, of earning future increments in the time scale of pay even permanently with expressly stating so. This preposterous consequences cannot be permitted to be permitted. Rule 5(iv) does not empower the disciplinary authority to impose penalty of withholding increments of pay with cumulative effect except after holding inquiry and following the prescribed procedure. Then the order would be without jurisdiction or authority of law, and it would be per se void. Considering from this angle we have no hesitation to hold that the impugned order 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.” 12. Considering from this angle we have no hesitation to hold that the impugned order 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.” 12. I find that the learned counsel for the petitioner has rightly contended that the Recruitment Rules do not provide for imposition of stoppage of annual increments with cumulative effect and such a punishment would amount to major penalty and therefore, the disciplinary authority exceeded jurisdiction in awarding major penalty as well as minor penalty in one penalty order. 13. In “Union of India and another Vs. S.C. Parashar” reported in (2006) 3 SCC 167 , the Hon'ble Supreme Court while dealing with an identical situation has held thus; 12. “The penalty imposed upon the respondent is an amalgam of minor penalty and major penalty. The respondent has been inflicted with three penalties: (1) reduction to the minimum of the timescale of pay for a period of three years with cumulative effect; (2) loss of seniority; and (3) recovery of 25 % of the loss incurred by the Government to the tune of Rs. 74,341.89p. i.e. Rs. 18,585.47p. On account of damage to the Gypsy in 18 (eighteen) equal monthly instalments. Whereas reduction of timescale of pay with cumulative effect is a major penalty within the meaning of clause (v) of Rule 11 of the CCS Rules, loss of seniority and recovery of amount would come within the purview of minor penalty, as envisaged by clauses (iii) and (iii) (a) thereof. The disciplinary authority, therefore, in our opinion acted illegally and without jurisdiction in imposing both minor and major penalties by the same order. Such a course of action could not have been taken in law.” 14. In view of aforesaid, the penalty order as well as the appellate order are hereby quashed and the matter is remitted back to the Disciplinary Authority to decide the matter afresh after furnishing a copy of enquiry report and giving second show-cause notice to the petitioner. 15. The writ petition is disposed of in the aforesaid terms.