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2014 DIGILAW 503 (JHR)

Mukesh Prasad Singh v. State of Jharkhand

2014-04-15

APARESH KUMAR SINGH

body2014
Judgment 1. Heard learned counsel for the parties. 2. The original order of punishment impugned by the petitioner is dated 25th February, 2011, Annexure7, issued under the signature of Engineer in Chief, Road Construction Department, Govt. of Jharkhand, respondent no. 4, , whereunder he has been inflicted with punishment of withholding of two annual increments with cumulative effect. Apart from that, the punishment order indicates that he would not be entitled to full salary apart from the subsistence allowance for the period under suspension. 3. The impugned appellate order is dated 11th February, 2013, Annexure8 issued under the signature of Deputy Secretary of the department conveying the decision of the Principal Secretary, Road Construction Department rejecting the petitioner's appeal and upholding the original punishment. 4. The petitioner was holding the post of Accounts Clerk in the Road Construction Department having its office at Deoghar from where he was transferred on administrative grounds vide an order dated 12th February, 2009, Annexure1 to Road Division, Chatra. Other four persons were also transferred by the same order including Sanjay Kumar Tiwari and Dinesh Prasad Bharti. The petitioner was relieved on 14th February, 2009 itself vide Annexure2, like the other person, Sanjay Kumar Tiwari to join at the transferred place. Later on, on 3rd October, 2009, the petitioner was placed under suspension by an order contained at Annexure4 issued by Engineer in Chief of the Road Construction Department on the ground that despite having been relieved from the earlier place of posting as per transfer order dated 12th February, 2009, he had not handed over the complete charge of the said office, as a result of which the work of the said office was affected. 5. Thereafter, the petitioner was proceeded against under departmental proceeding as per the office order no. 261 dated 23rd July, 2010 issued under the signature of respondent no. 4, inter alia, for the following charges; i.e., that the petitioner on being transferred on administrative grounds on 12th February, 2009, to Road Division, Chatra and on being relieved on 14th February, 2009, did not hand over the complete charge of his office of Accounts Clerk. The aforesaid act of the petitioner affected the work of the concerned section under the said office of Executive Engineer, Road Construction Division, Deoghar. The aforesaid act of the petitioner affected the work of the concerned section under the said office of Executive Engineer, Road Construction Division, Deoghar. 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 and thereby he had been found guilty of misconduct under Rule 3(i)(ii)(iii) of the Civil Services Discipline 1976 Rules. 6. According to the petitioner, an inquiry was conducted, the report of which was however not handed over to him. It is further submitted that the petitioner was made responsible for nonrenewal of Bank Guarantee said to have been kept in iron chest of which he allegedly did not hand over the charge. Learned counsel for the petitioner submitted that the said allegation was further inquired into from the Executive Engineer, Road Constriction Division by the respondent Department and was responded by him as well. Referring to the note sheet obtained under R.T.I relating to the decision making process leading to the impugned punishment, it has been submitted that the Executive Engineer had categorically given the reply that the petitioner and other person Sanjay Kumar Tiwari were not Incharge of the said iron chest, and that there were no charge of bank guarantee upon the said person. The said facts have been reflected in the note of the Deputy Secretary dated 15th February, 2011 as contained in the notings brought on record by way of supplementary affidavit. Despite the aforesaid facts, according to the petitioner, he has been imposed with the said punishment under the signature of Engineer in Chief of the Road Construction Department, though the said decision has been taken by the Secretary of the Department himself on 19th February, 2011, as is evident from the aforesaid notings. 7. It is submitted that the appellate order has been passed by the Principal Secretary who is the author of the original punishment itself as would appear from the appellate order dated 11th February, 2013, Annexure8 as well. 7. It is submitted that the appellate order has been passed by the Principal Secretary who is the author of the original punishment itself as would appear from the appellate order dated 11th February, 2013, Annexure8 as well. On these facts, learned counsel for the petitioner has assailed the impugned order on the following grounds: (i) that the impugned punishment is a major penalty as it imposes withholding of two increments with cumulative effect without following the procedure prescribed for imposing a major penalty which is not permissible in view of the judgments rendered in the case of Kulwant Singh Gill vs. State of Punjab reported in 1991 Suppl (1) SCC 504 and also relied upon in the case of Ramdeep Prasad Vishwakarma Vs. State of Jharkhand & others by this Court in a judgment reported in 2013 (3) JLJR 310 . No second show cause and enquiry report was served upon him before imposing the said punishment. (ii) It is further submitted that the petitioner has been denied the right to appeal provided under the provision of Rule 4 of 1935 Rules as both the decisions imposing original order of punishment and rejection of the appeal has been taken by the Principal Secretary of the Road Construction Department. These are in the teeth of the judgment on the issue rendered by Hon'ble Supreme Court in the case Surjit Ghosh vs. Chairman & Managing Director, United Commercial Bank and others reported in (1995) 2 SCC 474 . (iii) It is further submitted that the petitioner belongs to the subordinate service whose appointing authority is the Superintending Engineer while the order of punishment and the appellate order has been passed by the Principal Secretary of the department. (iv) It is further submitted that the petitioner was exonerated of the allegation relating to hand over of the charge of iron chest as apparently he had no such charge of iron chest. 8. Learned counsel for the petitioner in order to support the aforesaid grounds apart from relying upon the judgment as aforesaid has specifically cited the judgment rendered by this Court in the case of other employee, Sanjay Kumar Tiwari rendered in W.P.(S) No. 1478 of 2013 on 18th November, 2013 enclosed as Annexure S/2 to the supplementary affidavit. 8. Learned counsel for the petitioner in order to support the aforesaid grounds apart from relying upon the judgment as aforesaid has specifically cited the judgment rendered by this Court in the case of other employee, Sanjay Kumar Tiwari rendered in W.P.(S) No. 1478 of 2013 on 18th November, 2013 enclosed as Annexure S/2 to the supplementary affidavit. Learned counsel for the petitioner submits that therefore the impugned order which has been passed without service of inquiry report or second show cause notice and is in the nature of major penalty is inherently flawed for failing to follow the procedure prescribed for conduct of such punishment. Therefore, the impugned order needs to be quashed as has been done in the case of an identical placed employee Sanjay Kumar Tiwari who was also proceeded against for the same charge and was also transferred on administrative ground on the same date from the same office. 9. Learned counsel for the Respondent State is at a loss to distinguish the case of Sanjay Kumar Tiwari from that of the petitioner. Apparently the fact of the petitioner's case to that of Sanjay Kumar Tiwari are not only similar but almost identical, except to the extent that both were transferred to different places. The present petitioner was also proceeded for the same charge as would appear from the charge sheet dated 23rd July, 2010 like person Sanjay Kumar Tiwary, who was also proceeded against under chargesheet on the same date. It further appears that the inquiry proceeding ended in the other case in near exoneration of the other petitioner except with an observation that he had not submitted the charge of iron chest and certain documents which were kept in his custody. In the instant case, it has been submitted by the petitioner that the inquiry report itself was not furnished to him and no second show cause was either served upon him as is required under the law. Even in respect of the said allegation, the department verified the facts from the Executive Engineer concerned which is reflected in the note sheet of the Deputy Secretary dated 15th November, 2011. Even in respect of the said allegation, the department verified the facts from the Executive Engineer concerned which is reflected in the note sheet of the Deputy Secretary dated 15th November, 2011. Though the inferior authority had proposed a punishment of censure apart from the subsistence allowance only to be paid to both the employees as a matter of punishment, but from perusal of the noting, it is apparent that the Secretary of the department directed imposition of punishment of withholding of two increments with cumulative effect. He also directed that they would not be entitled for full salary for the period of suspension. The said decision is reflected from the notings dated 19th February, 2011 . It is also true that the appellate order, Annexure8 has been passed by the Principal Secretary who had taken the original decision of imposition of punishment though it was conveyed under the signature of the Engineer in Chief of the department. Therefore, in the aforesaid similar facts, this Court after discussing the case of the other person Sanjay Kumar Tiwari had quashed the impugned order of punishment after taking into account the judgments rendered in the case of Kulwant Singh Gill (Supra) as also in the case of Surjit Ghosh (Supra) rendered by Hon'ble Supreme Court on the points that withholding of two increments with cumulative effect is a major punishment and that if the authority itself has passed the original order of punishment, that denies the delinquent substantive right of appeal. For better appreciation, the relevant paragraphs of the judgment rendered in Sanjay Kumar Tiwary's case is also noticed hereinbelow : “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. 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. 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 Vrs. State of Punjab and also held by this Court in the case of Ramdeep Prasad Vishwakarma Vrs. State of Jharkhand & others(supra). 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. State of Jharkhand & others(supra). 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. 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 Vrs. 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. 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. 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 savour 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”. 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. The writ petition is allowed. 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. 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.” 10. Therefore, the present writ application also deserves to be allowed in the manner as has been allowed in the case of Sanjay Kumar Tiwari. Accordingly, the impugned oder of punishment dated 25.2.2011 and the appellate order dated 11.2.2013, Annexures: 7 & 8, are quashed. However it would be left open to the respondent authorities to proceed afresh after service of copy of inquiry report and second show cause notice upon the petitioner in the said departmental proceeding in accordance with law.