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Jharkhand High Court · body

2015 DIGILAW 762 (JHR)

Nirmal Kumar v. State of Jharkhand

2015-07-06

RONGON MUKHOPADHYAY

body2015
Order : In this writ application the petitioner has prayed for quashing the notification as contained in Memo No. 2338 dated 18.09.2007 issued by the respondent No. 2 whereby and whereunder an order of punishment pursuant to a departmental proceeding has been inflicted upon the petitioner. It has further been prayed therein for declaring the entire departmental proceeding initiated against the petitioner as illegal and without jurisdiction as also for a declaration that the impugned notification dated 18.09.2007 is also without jurisdiction. 2. The petitioner was initially appointed by the State Government on the post of Block Animal Husbandary Officer in the year 1968. During the course of his employment, the petitioner was transferred to various places and his last posting was as Regional Director, Animal Husbandary Department, Dumka. While the petitioner was posted as Regional Director, Animal Husbandary, Santhal Pargana at Dumka, a letter was issued to him by the respondent No. 2 dated 18.07.2002 whereby the petitioner was directed to give a show cause notice to all the Technical Assistants against whom there is no order of stay from the Court and after obtaining their show cause they were relieved or relegated from the previous post within one month. 3. The petitioner in terms of his letter dated 20.07.2002 directed the District Animal Husbandry Officer, Dumka, Godda and Sahebganj to obtain show cause reply but since the necessary action for obtaining the reply had not been taken, the matter was reported to the Respondent No. 2 by letter dated 05.10.2002. By virtue of the order as contained in Memo No. 2817 dated 31.10.2002 issued by the respondent No. 2, the petitioner was placed under suspension in contemplation of initiation of a departmental proceeding. Charge-sheet through Memo No. 130 dated 16.01.2003 was served upon the petitioner to which the petitioner had given a reply. The enquiry which was conducted found the petitioner guilty of the charge and the petitioner was submitted a show cause in relation to the proposed punishment. Subsequently, in terms of the notification as contained Memo No. 2338 dated 18.09.2007 passed by the respondent No. 2 the petitioner has been inflicted with a punishment that he shall get only 50% pension, he shall not get the benefit of Assured Career Progression prior to the retirement, promotion as also pay enhancement. Subsequently, in terms of the notification as contained Memo No. 2338 dated 18.09.2007 passed by the respondent No. 2 the petitioner has been inflicted with a punishment that he shall get only 50% pension, he shall not get the benefit of Assured Career Progression prior to the retirement, promotion as also pay enhancement. It was also ordered therein that save and except subsistence allowance, the petitioner was not entitled to any other emoluments during the period of suspension from 31.10.2002 to 31.07.2003. Aggrieved by the order of punishment as contained in Memo No. 2338 dated 18.09.2007 the petitioner has preferred the present writ application. 4. Heard Mr. M Sohail Anwar, learned Senior counsel appearing for the petitioner and Mr. Sunil Singh, learned J. C. to S. C. (Mines). 5. Mr. M. Sohail Anwar, learned Senior counsel appearing for the petitioner has submitted that the punishment inflicted upon the petitioner was pre-decided which would be evident from the show cause dated 05.08.2006 submitted to the petitioner. It has been submitted in the show cause that since the decision has already been taken by State Government with respect to the quantum of punishment, the basic purpose of issuing a show cause notice itself gets frustrated. Learned Senior counsel further submits that no enquiry report was submitted to the petitioner. It has further been submitted that even if it is assumed for the sake of argument that the show cause notice issued to the petitioner was to obtain his reply of the proposed punishment but the impugned notification as contained in Memo No. 2338 dated 18.09.2007 has itself travelled beyond the purview of the punishment as indicated in the show cause notice as the petitioner, apart from the said punishment, had been further inflicted with a punishment of withdrawal of 50% of the pension amount. 6. The learned Senior counsel for the petitioner has further submitted that all along the respondent has proceeded in the departmental proceeding with a preconceived notion of infliction of major punishment to the petitioner. It has also been submitted that even the punishment is excessive and not in commensuration with the charges levelled against the petitioner. 7. Mr. 6. The learned Senior counsel for the petitioner has further submitted that all along the respondent has proceeded in the departmental proceeding with a preconceived notion of infliction of major punishment to the petitioner. It has also been submitted that even the punishment is excessive and not in commensuration with the charges levelled against the petitioner. 7. Mr. Sunil Singh, learned J. C. to S. C. (Mines), on the other hand, has submitted that the petitioner had made available false information to the department that the Hon'ble Supreme Court has granted status quo to all the Technical Assistants of Dumka Range. Subsequently, the petitioner intimated the respondent No. 2 on 17.07.2002 that status quo was granted only in the case of 16 Technical Assistants of Sahibganj and in such circumstance the suppression of the petitioner with respect to the actual facts deserved the punishment inflicted upon him by the authority. It has further been submitted by the learned J. C. to S. C. (Mines) that inspite of the order of the Government the petitioner vide Letter No. 19 dated 28.01.2002 directed the Animal Husbandry Officer in the District of Dumka, Godda and Sahibganj not to issue show cause to the Technical Assistants and noncompliance of the order of the Government has resulted in payment of Rs. 50,00,000/-per month to 72 Technical Assistants from the Government exchequer. 8. The petitioner was charged with giving wrong information to the Government and not complying with the order of the Government which resulted in a huge amount of money having been paid from the State exchequer. The learned senior counsel for the petitioner has laid much stress in the show cause notice dated 05.08.2006 to substantiate his claim that the respondents had already decided the punishment to be inflicted. The show cause notice issued to the petitioner dated 05.08.2006 is by virtue of the fact that in the enquiry proceeding the charges levelled against the petitioner was found proved. After the completion of the enquiry if the charges are found to be proved, notice is issued to the delinquent employee if the Government proposed to inflict a major punishment and to show cause against such proposed punishment. A proposed punishment is based on the findings of the enquiry report and the gravity of charges. 9. After the completion of the enquiry if the charges are found to be proved, notice is issued to the delinquent employee if the Government proposed to inflict a major punishment and to show cause against such proposed punishment. A proposed punishment is based on the findings of the enquiry report and the gravity of charges. 9. Reading between the lines in the show cause notice dated 05.08.2006 one can come to a conclusion that the same was not a pre-decided punishment but a proposed punishment to be inflicted upon the petitioner on perusal of the cause shown if any. If the arguments of the learned senior counsel for the petitioner is accepted then in all cases the show cause notice containing the proposed punishment will be held to be pre-decided and on the basis of a preconceived notion. Moreover, on receipt of the enquiry report in a case in which the charges leveled were serious which entails serious consequences the order of punishment even if proposed is based on the gravity of charges as well as the findings of the enquiry report. In no circumstance, it can be assumed that the quantum of punishment as reflected in the show cause notice dated 05.08.2006 is pre-decided. Further if the show cause notice dated 05.08.2006 containing proposed punishment is read in consonance with the notification as contained in Memo No. 2338 dated 18.09.2007, it is manifest that so far as the punishment inflicted upon the petitioner, the petitioner being eligible only for 50% of his pension is apparently absent in the show cause notice dated 05.08.2006. The petitioner had given his reply only with respect to the proposed punishment but no opportunity of explaining the punishment with respect to the eligibility to only 50% of the pension had been given to the petitioner and in such circumstances, the said punishment which is in addition to the proposed punishment and is in violation of the principles of natural justice deserves to be interfered with. 10. Considering the totality of the facts and circumstances enumerated above, I am of the view that with respect to the punishment no. 10. Considering the totality of the facts and circumstances enumerated above, I am of the view that with respect to the punishment no. 1 as contained in notification dated 18.09.2007 which relates to withdrawing of 50% of the pension amount is beyond the purview of the proposed punishment as reflected in the show cause notice dated 05.08.2006 and in such circumstances the said punishment deserves to be quashed and set aside. 11. Accordingly, the notification as contained in Memo No. 2338 dated 18.09.2007 is quashed and set aside only with respect to the punishment no. 1 inflicted upon the petitioner. This Court is, however, is not inclined to entertain the other prayers made in the writ application which are hereby rejected. 12. This writ application is disposed of in terms aforesaid. 13. Pending I.A’s, if any, also stands disposed of.