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2013 DIGILAW 746 (JHR)

Ramdeep Prasad Vishwakarma v. State of Jharkhand

2013-06-27

APARESH KUMAR SINGH

body2013
Judgment Aparesh Kumar Singh Heard counsel for the parties. 2. Initially, the petitioner had sought a direction upon the respondents to release the salary for the period of his suspension from 7th June 2000 to 15th May 2002 as according to the petitioner, his suspension should have been treated as revoked on completion of one month period as per order passed on 10th September 2001 in WPS No. 3263/01. However, during the pendency of the writ application, an order dated 04th February 2005 contained at Annexure-16 has been passed by the Director, Secondary Education, Government of Jharkhand, Ranchi imposing punishment which has been challenged by the writ petitioner by way of I.A. No. 1191/05 and the prayer to challenge the subsequent development taken place during the pendency of the writ application, has also been allowed by order dated 28th October 2009. By the said order of punishment, he has been inflicted with the punishment of withholding of two increments with cumulative effect and he would not be entitled to full salary for the period of suspension except his subsistence allowance. 3. Little background of the case is necessary to appreciate the case of the parties. The petitioner, a teacher, who joined on 18th September 1967 under the erstwhile Government of Bihar, was placed under suspension by the Director, Secondary Education, Government of Bihar vide Memo No.2131 dated 7th June 2000 (Annexure-1). Thereafter, he preferred a writ application being CWJC No. 2060/2000 (R) for revocation of his suspension order which was disposed of on 18th July 2000 with a direction to the Director, Secondary Education to dispose of the representation in accordance with law, within a period of four weeks, without interfering with the order of suspension. He again moved this Court in WPS No. 3263/2001 for revocation of the same suspension order as no action was taken by the respondents even after one year of the passing of the earlier order and no departmental proceeding had been initiated. In such circumstances, without interfering with the order of suspension, the case was remitted to the Director, Secondary Education with a liberty to the respondents to proceed with the departmental proceeding while serving copy of the charge sheet within a period of one month from the date of receipt / production of a copy of the order, failing which the order of suspension shall stand revoked on completion of one month period. 4. The petitioner thereafter pursued a contempt petition as the order was not being complied and neither was his suspension revoked, nor any departmental proceeding was initiated. Vide order dated 03rd May 2002 passed in Cont. Case (Civil)No. 28/2002, this Court observed that in view of the order passed in WPS No. 3263/01, charges were not framed and served in connection with the departmental inquiry of the petitioner within a period of one month of the order, the suspension would stand revoked automatically. Thereafter, the petitioner was permitted to join on 16th May 2002 as In-charge Headmaster of the Government High School, Pradhankhanta, in the district of Dhanbad where he was posted earlier. In such circumstances, he made a prayer for payment of salary for the period of his suspension from 7th June 2000 till 15th May 2002. However, since the respondents failed to respond to the petitioner's request despite several representations, present writ application was filed with the original relief as indicated in the first paragraph of this judgment. 5. In the counter affidavit filed to the original prayer by the respondent no. 3-District Education Officer, Dhanbad on 29th March 2004 it was indicated that the departmental proceeding has been initiated against the petitioner and therefore, he has not been paid salary for the period of suspension. The question of payment of salary would be decided after completion of the departmental proceeding. The order of punishment dated 04th February 2005 was passed thereafter annexed as Annexure-16 which was challenged and the same was allowed to be incorporated as an additional prayer by this Court. 6. It is the case of the petitioner that the impugned order of punishment has been passed in the nature of major punishment without holding a proper departmental inquiry and without giving him any opportunity to show-cause or defend himself. He submitted that the respondents had only issued a charge sheet on 7th June 2000 containing eight charges which is annexed as Annexure-B to the supplementary counter affidavit filed on behalf of the respondents. According to the petitioner, he filed a detailed show-cause to the same on 8th August 2000 which is annexed as Annexure-C to the supplementary counter affidavit. He submitted that the respondents had only issued a charge sheet on 7th June 2000 containing eight charges which is annexed as Annexure-B to the supplementary counter affidavit filed on behalf of the respondents. According to the petitioner, he filed a detailed show-cause to the same on 8th August 2000 which is annexed as Annexure-C to the supplementary counter affidavit. It is further submitted that the departmental proceeding thereafter never proceeded against the petitioner in a regular manner and perusal of the impugned order shows that the respondents had appointed two member committee and based upon the findings of the said committee, charges were held to be established against the petitioner. It is submitted that since the impugned order of punishment is in the nature of major punishment as two increments with cumulative effect have been withheld, the respondents should have conducted the departmental proceeding in a regular manner before imposing any such punishment. It is further submitted that no copy of the inquiry report has been served upon the petitioner, neither a copy of the findings of the two member committee has been served upon the petitioner despite several orders passed by this Court earlier. In such circumstances, the impugned order is vitiated and needs to be set aside. Counsel for the petitioner also submits that the charges relating to allowing fake candidates to join as teachers, is also repudiated by the letter issued by the District Education Officer dated 9th January 1999 which is contained at Annexure-18. 7. Learned counsel for the State however submits that the petitioner was being proceeded against for serious charges in a departmental proceeding for which charge sheet was issued on 7th June 2000 itself and the petitioner had also submitted his show-cause to the same. The respondent thereafter found that the forged teachers in connivance with the petitioner, had joined in the school without proper verification and the petitioner had made payments to the forged teachers causing loss to the State Exchequer to the tune of Rs.75,389/-. The show-cause and other relevant documents were examined in the Directorate and the petitioner was found guilty of the charges of causing loss to the State Exchequer as aforesaid and therefore, he was imposed with the impugned punishment by the department. The show-cause and other relevant documents were examined in the Directorate and the petitioner was found guilty of the charges of causing loss to the State Exchequer as aforesaid and therefore, he was imposed with the impugned punishment by the department. In such circumstances, the submission of the petitioner has no legs to stand and it is not tenable in law as well as on facts when he has been inflicted punishment in a departmental inquiry. Therefore, he is not entitled to full salary for the period of suspension. 8. Heard learned counsel for the parties and gone through the relevant materials on record. The petitioner being a teacher at the relevant point of time and posted as In-charge Headmaster, Government High School Pradhankhanta, Dhanbad, was placed under suspension on 7th June 2000. The petitioner twice moved the High Court, once in CWJC No. 2060/2000 (R) and subsequently in WPS No. 3263/2001 for revocation of his suspension. In the second writ petition, by order dated 10th September 2001, without interfering with the order of suspension, it was categorically observed that if the respondents choose to proceed with the departmental proceeding, they will serve copy of the charge sheet within a period of one month from the date of receipt / production of a copy of this order, failing which the order of suspension shall stand revoked on completion of one month period. It has been the case of the petitioner that no departmental proceeding was initiated earlier or even after passing of the said order. Thereafter, he had moved in contempt wherein it was once again held that the suspension order has been revoked automatically in case no charges were framed and served in connection with the departmental inquiry upon the petitioner within a period of one month from the date of the order passed in WPS No. 3263/01. However, from perusal of the record, it is apparent that the petitioner had been served with a charge sheet on 7th June 2000 and he has also filed a show-cause to the same on 8th August 2000 in order to defend himself from the alleged charges. 9. Therefore, the claim of the petitioner that the respondent should have granted him salary for the period of suspension, does not appear to be tenable on facts. 9. Therefore, the claim of the petitioner that the respondent should have granted him salary for the period of suspension, does not appear to be tenable on facts. However, it further appears that after service of the charge sheet and show-cause of the petitioner filed on 8th August 2000, respondents constituted a two Member Committee which gave its findings against the petitioner wherein the charges were treated to be established i.e. the petitioner was found to have allowed the forged teachers to submit joining and make payments in favour of them. However, from perusal of the supplementary counter affidavit filed on behalf of the respondents, it appears that at no stage the departmental proceeding was proceeded in a regular manner in respect of the charges which were served upon the petitioner. There is no material on record to show that any witness / documents were adduced during the course of the departmental inquiry where the petitioner was allowed to participate and defend himself and also to cross-examine any such witness. There is no material on record to suggest that any such inquiry report was served upon the petitioner or the petitioner was served with any second show-cause notice or any opportunity was given to the petitioner to defend himself against the inquiry report of the two Member Committee. It appears from the order sheet of the instant writ application that on 25th May 2010, an order was passed allowing the petitioner to approach the respondent Director, Secondary Education with a certified copy of that order who, in turn, was directed to ensure that the copy of the said report is dispatched to the petitioner by registered post. It further appears from the order dated 27th June 2011 that further three weeks time was allowed to the respondents to ensure that the said order is being complied with. Even by order dated 02nd April 2012 by way of last chance, the State respondents were allowed time to submit the two Member Committee report as referred to in the impugned order dated 04th February 2005 (Annexure-16). However, no such report of the two Member Committee has been brought on record till date. 10. From the aforesaid facts, it therefore appears that the respondents have proceeded to impose major punishment upon the petitioner in the nature of withholding of two increments with cumulative effect without conducting the departmental proceeding in a regular manner. However, no such report of the two Member Committee has been brought on record till date. 10. From the aforesaid facts, it therefore appears that the respondents have proceeded to impose major punishment upon the petitioner in the nature of withholding of two increments with cumulative effect without conducting the departmental proceeding in a regular manner. In such circumstances, the impugned order dated 04th February 2005 cannot be sustained in law and is accordingly quashed. 11. It is informed that the petitioner has already superannuated about 4-5 years back. Therefore, at this stage, it would be futile to remand the matter to proceed afresh against the petitioner since he has already retired However, since the Court has found that the petitioner had been issued the charge sheet way back on 7th June 2000 itself when he was placed under suspension, the claim of the petitioner for seeking salary for the period during suspension, does not appear to be sustainable on facts, as on earlier occasion, he had represented before the Court that no departmental proceeding has been initiated against him nor any charge sheet has been served upon him. In the aforesaid circumstances, the petitioner will not be allowed full salary for the said period of his suspension i.e. from 7th June 2000 to 15th May 2002 apart from subsistence allowance which he may have received. The writ petition is allowed to the extent indicated hereinabove.