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2013 DIGILAW 1240 (JHR)

Sanjay Kumar Tiwary v. State of Jharkhand

2013-11-18

APARESH KUMAR SINGH

body2013
ORDER 1. Heard counsel for the parties. 2. The petitioner is aggrieved by the order of punishment dated 25/26.2.2011 (Annexure-9) contained at memo no. 1113(S) whereby he has been imposed punishment of withholding of two annual increments with cumulative effect and non payment of full salary during the period of suspension. Petitioner is also aggrieved by the Appellate order dated 11.2.2013 contained in memo no. 1041(S) (Annexure-12) passed by the respondent no.2, Principal Secretary, Road Construction Department, Government of Jharkhand whereby his appeal against the order of punishment has been rejected. 3. According to the learned counsel for the petitioner the order of punishment has been communicated to him under the signature of Engineer-in-Chief, Road Construction Department, Government of Jharkhand Respondent No.4, though the decision to impose the punishment was taken by the Secretary of the department itself. Learned counsel for the petitioner submits that the petitioner was transferred vide order dated 12.2.2009 on administrative grounds from the post of Accounts Clerk, Road Division, Deoghar to National Highway Road Division, Hazaribag and was relieved on 14.2.2009 to report for joining at the transferred place of posting. However, it is alleged that the petitioner inspite of being relieved on 14.2.2009 did not hand over the charge of his earlier posting and, therefore, he was placed under suspension vide order dated 3.10.2009 issued by the respondent no.4. The charge-sheet was served upon him vide Annexure-4 dated 23.7.2010 issued under the signature of the Respondent no.4 inter-alia alleging that the petitioner had not handed over the complete charge of his earlier place of posting as a result of which the work of the Cash and Accounts Section were affected. Later on by deputing an Executive Magistrate under the orders of Deputy Commissioner, Deoghar an inventory of the relevant records under the charge of the petitioner were prepared. Such acts of the petitioner amounted to creation of obstruction in the discharge of official duty. Therefore, petitioner was found guilty of the misconduct under Rule 3(I)(II)(III) of the Civil Services Discipline Rules, 1976. Learned counsel for the petitioner submits that the Inquiry Officer, however took into account the petitioner's defence and observed in his conclusion that the petitioner was relieved by the Controlling Officer in haste on 14.2.2009, two days after the order of transfer dated 12.2.2009, therefore, complete charge could not be handed over by the petitioner. Learned counsel for the petitioner submits that the Inquiry Officer, however took into account the petitioner's defence and observed in his conclusion that the petitioner was relieved by the Controlling Officer in haste on 14.2.2009, two days after the order of transfer dated 12.2.2009, therefore, complete charge could not be handed over by the petitioner. It is however, submitted by learned counsel for the petitioner that the Inquiry Officer - Superintending Engineer of the Road Circle, Hazaribag made unwarranted comment relating to verification, genuineness and non-renewal of certain Bank Guarantee alleged to be in the charge of the petitioner at his earlier place of posting. Learned counsel for the petitioner submits that inquiry report was submitted on 20.8.2010 vide Annexure-5 to the Engineer-in-Chief, Road Construction Department by exonerating him of the only allegation relating to the handing over of the charge. However, the Inquiry Officer made wholly unwarranted comment upon the petitioner which is unconnected with the main charge. It is further submitted that in view of the inquiry report submitted by the Inquiry Officer, a letter dated 4.1.2011 was sent to the Executive Engineer, Road Construction Department, Road Division, Deoghar seeking specific answer to the query as to whether the bank guarantee contained in Iron chest was in-charge of the petitioner or not and also other co-related queries. The said query was responded by the Executive Engineer, Road Division, Deoghar respondent no. 6 vide letter dated 20.1.2011 in which it was categorically stated that the petitioner was not in charge of the Iron Chest and no bank guarantee was under his charge. The rest of the queries were also answered inter-alia with the same reply that they were unconnected with the petitioner. Learned counsel for the petitioner submitted that thereafter, no second show cause or copy of the inquiry report was served to him and eventually the order of punishment was communicated to him under the signature of Engineer-in-Chief, Road Construction Department. It is submitted that respondents have chosen to take a stand that the impugned order has been passed by the respondent no.4- Engineer-in-Chief himself. This fact, however is rendered incorrect as would appear from the notings obtained under Right to Information Act, 2005 by the petitioner vide Annexure-8 dated 1.10.2011. It is submitted that respondents have chosen to take a stand that the impugned order has been passed by the respondent no.4- Engineer-in-Chief himself. This fact, however is rendered incorrect as would appear from the notings obtained under Right to Information Act, 2005 by the petitioner vide Annexure-8 dated 1.10.2011. It is submitted that a perusal of the noting dated 19.2.2011 itself would show that the impugned order of punishment against the petitioner of withholding of two annual increments with cumulative effect and for payment of only subsistence allowance for the period of suspension was passed by the respondent no.2, the Principal Secretary, Road Construction Department, Government of Jharkhand, which has only been communicated to the petitioner by the Engineer-in-Chief. In such circumstances, petitioner being entitled to invoke the forum of appeal under Rule 4 of the 1935 Rules preferred an appeal before the Chief Secretary, Government of Jharkhand vide Annexure-10 dated 11.7.2011. However, the rejection of appeal was once again communicated to the petitioner by a cryptic order dated 11.2.2013 by the Deputy Secretary, Road Construction Department, Government of Jharkhand informing the petitioner that his appeal has been rejected by the Principal Secretary, Road Construction Department himself. Learned counsel for the petitioner submits that in the aforesaid facts and circumstances, the essential attributes of departmental proceeding has not been followed. Though the alleged misconduct was related to not handing over the charge at his earlier place of posting but the Inquiry Officer made certain unwarranted comment relating to alleged charge of bank guarantee said to be under the petitioner. It is submitted that the same was however clarified earlier by the Controlling Officer of the petitioner and were negated in the communication contained at Annexure-7 dated 20.1.2011. In the wake of aforesaid facts and circumstances, neither the second show cause has been served upon the petitioner nor the copy of inquiry report was served upon him. It is further submitted that impugned order of punishment was passed by the Secretary himself while the appointing Authority of the petitioner is Superintending Engineer as the petitioner belongs to Subordinate Services holding the post of Accounts Clerk. It is submitted that even the appeal preferred by the petitioner has been rejected by the same Authority who cannot sit over the decision taken by himself. Therefore, the petitioner has effectively been denied the remedy of appeal as well. 4. It is submitted that even the appeal preferred by the petitioner has been rejected by the same Authority who cannot sit over the decision taken by himself. Therefore, the petitioner has effectively been denied the remedy of appeal as well. 4. Learned counsel for the petitioner has relied upon various judgments rendered on the issues raised in the present writ application by the Hon'ble Supreme Court and this Court in the case of Kulwant Singh Gill vs. State of Punjab reported in 1991 Suppl.(1) SCC 504, relevant being Para 4. He also relied on the case of Ramdeep Prasad Vishwakarma vs. State of Jharkhand & others reported in 2013(3) JLJR 310 , relevant i.e. para-10, on the issue that withholding of two increments with cumulative effect is a major punishment. Learned counsel for the petitioner has further relied upon a judgment in the case of Surjit Ghosh vs. Chairman & Managing Director, United Commercial Bank and Others reported in (1995)2 SCC 474 , specifically para-6 on the issue that where right to appeal has been provided to the higher authority, employee concerned cannot be deprived of his substantive right and the order of punishment passed by the higher authority is liable to be set aside. He has further relied upon a judgment in the case of Lav Nigam vs. Chairman & Managing Director, I.T.I. Ltd. & another reported in (2006)9 SCC 440 , being para-10 on the issue that Disciplinary authority while differing with the inquiry report is bound to give notice setting out its tentative conclusion. Learned counsel for the petitioner has also relied upon judgment in the case of Managing Director, ECIL Hyderabad and other vs. B. Karunakar & other reported in (1993)4 SCC 727 , more specifically para 26 and in the case of Punjab National Bank & other vs. Kunj Behari Misra reported in (1998)7 SCC 84 , para-17 on the issue that copy of inquiry report and second show cause is necessary before passing order of major punishment. 5. The respondent-State however has justified the issuance of the impugned order. It is submitted by learned counsel for the respondents that the alleged misconduct for not handing over the charge of official records had created an obstruction in government work. Therefore, petitioner was placed under suspension and proceeded against under the charge sheet dated 23.7.2010. 5. The respondent-State however has justified the issuance of the impugned order. It is submitted by learned counsel for the respondents that the alleged misconduct for not handing over the charge of official records had created an obstruction in government work. Therefore, petitioner was placed under suspension and proceeded against under the charge sheet dated 23.7.2010. It is submitted that after submission of the inquiry report by the Superintending Engineer i.e. the Inquiry Officer, the impugned order of punishment has been passed by the Engineer- in-Chief of the department, who is the authority higher than Superintending Engineer, who was appointed as Inquiry Officer. This is permissible in law. It is again submitted that the petitioner has been imposed with a minor punishment, therefore, there was no requirement of serving the second show cause notice as necessary in full dress inquiry. It is further submitted that since the order of punishment was passed by the Engineer in Chief, the order of rejection of appeal was passed by the Principal Secretary of the department. Therefore, there is no infirmity in the impugned orders and the order of punishment has been rightly imposed upon the petitioner. 6. I have heard counsel for the parties and gone through the relevant materials on record including the impugned orders. It appears that the petitioner was proceeded against for the charge of not handing over the officials records under his charge on being relieved from earlier place of posting under Road Division, Deoghar on 14.2.2009. The order of transfer was dated 12.2.2009. The inquiry Officer in his report vide Annexure-5 has observed that the handing over of the charge by the petitioner was done in haste. However, from perusal of the said Inquiry report it appears that certain comments relating to verification / non renewal of Bank Guarantee alleged to be in the charge of the petitioner in his earlier place of posting has been made by the Inquiry Officer. A perusal of Annexure-6 i.e. query made in respect of such observation by the respondent- department from the Executive Engineer, Road Division, Deoghar as also the replies submitted vide Annexure-7 and 7/1 by the Executive Engineer shows that the petitioner was not having the charge of the Iron Chest in which certain Bank Guarantee was kept. The other queries were replied in similar manner and it is stated that that they are unrelated to the petitioner. The other queries were replied in similar manner and it is stated that that they are unrelated to the petitioner. On the other hand on perusal of the notings obtained under R.T.I(Annexure-8) dated 1.10.2011, it appears that the decision to impose the order of punishment of withholding two annual increments with cumulative effect as also nonpayment of full salary to the petitioner during the period of his suspension has been taken by the Secretary of the Department himself. In such circumstances, the order of punishment contained at Annexure-9 appears to be only communicated under the signature of the Engineer-in-chief of the department. Though the petitioner claims to have been appointed by the Superintending Engineer but the order of punishment appears to have been passed by the authority higher than the appointing Authority. However, the provisions of Rule 4 of the 1935 Rules enables the member of Subordinate Service to prefer an appeal before the Authority immediately superior to the Authority which passed an order of punishment under Rule 2 of the said 1935 Rule. The withholding of two annual increments with cumulative effect on the other hand cannot be said to be minor punishment as held by the Apex Court in the case of Kulwant Singh Gill vs. State of Punjab and also held by this Court in the case of Ramdeep Prasad Vishwakarma vs. State of Jharkhand & others (supra). 7. In such circumstances, there was a requirement of serving the copy of the inquiry report along with the second show cause stating the reason for differing with the observation made in the inquiry report before imposing the order of punishment. That does not seem to have been followed in the present case. The original order was passed by the Authority superior to the appointing Authority of the petitioner, in the present case the Principal Secretary of the Department himself. If the order of punishment had been passed by appointing authority or any other authority superior to him, petitioner would have effective remedy of appeal before the Appellate Authority i.e. Principal Secretary being head of the Office. However, in the present case the decision to impose punishment upon the petitioner has been taken by the Principal Secretary himself. If the order of punishment had been passed by appointing authority or any other authority superior to him, petitioner would have effective remedy of appeal before the Appellate Authority i.e. Principal Secretary being head of the Office. However, in the present case the decision to impose punishment upon the petitioner has been taken by the Principal Secretary himself. Therefore, petitioner has been denied remedy of appeal which cannot be countenanced in view of the judgment rendered by the Apex Court in the case of Surjit Ghosh vs. Chairman & Managing Director, United Commercial Bank and Others (supra). The opinion of the Apex Court contained at para 6 is being quoted herein under:- “Para-6:- The respondent-Bank in its submission contended that although it is true that the Deputy General Manager had acted as the disciplinary authority when he was in fact named under the Regulations as an appellate authority, no prejudice is caused to the appellant because the Deputy General Manager is higher in rank than the disciplinary authority, viz. the Divisional Manager/AGM (Personnel). According to the Bank, it should be held that when the order of punishment is passed by a higher authority, no appeal is available under the Regulations as it is not necessary to provide for the same. It was also contended that there is no right to appeal unless it is provided under the Rules or Regulations. Although the argument looks attractive at first sight, its weakness lies in the fact that it tries to place the Rules/Regulations which provide no appeal on par with the Rules/Regulations where appeal is provided. It is true that when an authority higher than the disciplinary authority itself imposes the punishment, the order of punishment suffers from no illegality when no appeal is provided to such authority. However, when an appeal is provided to the higher authority concerned against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment, the employee concerned is deprived of the remedy of appeal which is a substantive right given to him by the Rules/Regulations. An employee cannot be deprived of his substantive right. An employee cannot be deprived of his substantive right. What is further, when there is a provision of appeal against the order of the disciplinary authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the disciplinary authority in a given case, it results in discrimination against the employee concerned. This is particularly so when there are no guidelines in the Rules/Regulations as to when the higher authority or the appellate authority should exercise the powers of the disciplinary authority. The higher or appellate authority may choose to exercise the power of the disciplinary authority in some cases while not doing so in other cases. In such cases, the right of the employee depends upon the choice of the higher/appellate authority which patently results in discrimination between an employee and employee. Surely, such a situation cannot favour of legality. Hence we are of the view that the contention advanced on behalf of the respondent- Bank that when an appellate authority chooses to exercise the power of disciplinary authority, it should be held that there is no right of appeal provided under the Regulations cannot be accepted.” 8. In the aforesaid facts and circumstances, the decision making process has suffered at various levels as indicated herein above and the petitioner has been denied remedy of appeal as the original order of punishment as well as the appellate order affirming the same has been passed by the same authority i.e. Principal Secretary of the concerned department. In the aforesaid facts and circumstances, the impugned order of punishment dated 25/26.2.2011 and the appellate order dated 11.2.2013 are accordingly, quashed. 9. The writ petition is allowed. However, it would be left open to the respondent authorities to proceed afresh from the stage of service of second show cause notice along with copy of the Inquiry report to the petitioner in the said departmental proceeding, in accordance with law.