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2016 DIGILAW 1659 (JHR)

Sambhoo Singh v. State of Jharkhand

2016-12-13

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. 1. In the instant writ application, the petitioner has sought for quashing the office order dated 24.05.2008 pertaining to imposition of punishment of censure, withholding of two annual increments with non cumulative effect and only subsistence allowance will be paid during the period of suspension; and the petitioner has further prayed for direction to the respondents to release the arrears of difference of salary for the period of suspension i.e. from 02.12.2006 till 24.12.2008 and the petitioner has further prayed for release of arrears of salary due since August, 2006 to 07.12.2006 along with penal interest @ 18% per annum. 2. The brief facts, as disclosed in the writ application, is that while the petitioner was posted as Junior Engineer, Road Construction Department, a show cause was issued to him under the signature of respondent no.3 as contained in letter dated 01.08.2006 asking him to submit his reply for the alleged irregularities committed by him as evident from Annexure-1 to the writ petition. Along with the show cause, a memorandum of charges has been served on the petitioner containing two allegations. The first allegation is that the petitioner is discharging his duties on his own volition without any Government order and the second allegation levelled against the petitioner is that he used to live in the Inspection Bunglow, Dhanbad without paying rent and electricity bill causing irregularities and pecuniary loss to the Government. The petitioner submitted his reply denying the allegations levelled against him. In this aspect the posting order of the petitioner as Junior Engineer, Dhanbad vide Annexure-3 and the order of the Deputy Development Commissioner, Dhanbad vide Annexure-4 and the order of the Executive Engineer, Road Division, Dhanbad vide Annexure-5 would go to show that the allegations levelled against the petitioner are absolutely incorrect. Without considering the show cause reply submitted by the petitioner, the respondent authorities decided to place the petitioner under suspension in contemplation of departmental proceeding in exercise of power conferred under Rule 3(a) (i) (a) of the Bihar and Orissa Subordinate Service (Discipline and Appeal) Rule 1935 as contained in Annexure-7. In the said order also it has been mentioned that the petitioner will be entitled to subsistence allowance under Rule 96 of the Service Code. In the said order also it has been mentioned that the petitioner will be entitled to subsistence allowance under Rule 96 of the Service Code. In pursuance to the departmental proceeding the enquiry officer was appointed and after conclusion of the enquiry, the enquiry officer submitted report and both the charges levelled against the petitioner have not been proved by the enquiry officer, which is apparent from the enquiry report dated 05.02.2007 vide Annexure-11 to the writ petition. Though the enquiry officer absolved the petitioner from the charges, the same was not accepted by the disciplinary authority and the enquiry officer was directed to conduct further enquiry and against the said decision the petitioner approached this Court vide W.P. (S) No.2034 of 2007 and the same was allowed vide order dated 12.02.2008 and direction for fresh enquiry was quashed by this Court and respondent authorities were directed to proceed with the matter in accordance with law as evident from Annexure-12 to the writ petition. Thereafter, the respondent authorities passed orders on 24.05.2008 imposing the aforementioned punishment as evident from Annexure-13 to the writ petition. 3. During pendency of the writ application, an interlocutory application being I.A. no.1507 of 2009 was filed by the petitioner, challenging the impugned order dated 01.04.2009 on the ground that respondents have passed the order to rectify the lacuna and second show cause notice issued on 14.10.2008 by staying order dated 24.05.2008 as per Annexure-14 to the writ application and the said interlocutory application has been treated as part of the writ application. 4. Learned counsel for the petitioner, during course of hearing has submitted that the impugned order dated 24.05.2008 is assailable on the ground that the same has been passed basing on the enquiry report which has clearly exonerated the petitioner from the charges but the impugned order has been passed in a very cavalier fashion without any justifiable ground; that the impugned order of punishment has been passed and reasons of disagreement with the enquiry officer has not been given, which has vitiated the entire proceeding. Learned counsel for the petitioner further submits that the entire departmental proceeding is fraught with procedural irregularities. 5. Learned counsel for the petitioner further submits that the entire departmental proceeding is fraught with procedural irregularities. 5. Controverting the averments made in the writ application, counter-affidavit has been filed by the respondents, wherein it has been submitted that the Junior Engineer like petitioner of Road Construction Department can only be posted by the order of the competent authority i.e. Engineer in Chief, Road Construction Department, Ranchi and the posting order by the D.D.C is not a valid order. Moreover, the petitioner was living illegally in Inspection Bunglow without any order and that too without any payment of rent and electricity bill and later on the Bunglow was allotted. 6. Learned counsel for the respondents has reiterated the submissions made in reply to the I.A No.1507 of 2009, wherein it has been submitted that the second show-cause notice was served on the petitioner on 11.10.2008, clearly mentioning reasons of difference and points of disagreement of the disciplinary authority from the opinion of the enquiry officer and the petitioner was reminded vide letter dated 29.12.2008 and 27.01.2009 to submit his reply to the second show cause as per Annexure-A series to the said counter affidavit. Since petitioner did not submit his reply to the second show cause, there is no reason to disciplinary authority to change the second show cause. After review of the matter punishment was finally awarded to the petitioner vide memo dated 01.04.2009 vide Annexure-16 to the interlocutory application. 7. After hearing learned counsel for the respective parties and giving my anxious consideration to the documents on record, I am of the considered view that the petitioner has been able to make out a case for interference, due to the following facts and reasons: (I) Admittedly, in the instant writ application, the allegations levelled against the petitioner have been duly enquired into by the enquiry officer and the charges have not been proved by the enquiry officer as reflected in the enquiry report vide Annexure-11 to the writ petition. But the disciplinary authority without giving reasons of disagreement with the finding of the enquiry officer has imposed punishment as contained in Annexure-13, without any cogent reasons, which cannot be legally sustained. But the disciplinary authority without giving reasons of disagreement with the finding of the enquiry officer has imposed punishment as contained in Annexure-13, without any cogent reasons, which cannot be legally sustained. The disciplinary authority instead of accepting/disagreeing with the findings of the enquiry officer and without giving second show cause notice and stating the reasons of disagreement, ordered for fresh enquiry which was challenged before this Court in W.P (S) no.2034 of 2007 and the direction for fresh enquiry was quashed by this Court vide order dated 12.02.2008. Thereafter, the impugned order dated 21.05.2008 vide Annexurer-13 has been passed. (II) In order to rectify the lacuna, during pendency of the writ application, second show-cause notice was issued on 11.10.2008 vide Annexure-15 of the to the I.A. no.1507 of 2009 and vide order dated 01.04.2009 the very same order as contained in Annexure-13 to the writ application has been passed. On perusal of the impugned order dated 01.04.2009 vide Annexure-16 to the I.A. No.1507 of 2009, it appears that the disciplinary authority in order to obviate the procedural irregularities, has tried its level best to rectify the same but the same cannot be acceptable/permissible on the ground that it is well settled that power of review is not an inherent power and it must be conferred by law either specifically or by necessary order. Therefore, the order which was fraught with procedural irregularity since its inception could not have been reviewed during pendency of the writ application so as to make it lawful. (III) Apart from procedural irregularities, the impugned order of punishment dated 21.05.2008 vide Annexure-13 and the order dated 01.04.2009 vide Annexure-16 to the I.A. No.1507 of 2009 are not legally sustainable, since the same is based on extraneous factors and the inadmissible materials which are not germane to the alleged charges. 8. (III) Apart from procedural irregularities, the impugned order of punishment dated 21.05.2008 vide Annexure-13 and the order dated 01.04.2009 vide Annexure-16 to the I.A. No.1507 of 2009 are not legally sustainable, since the same is based on extraneous factors and the inadmissible materials which are not germane to the alleged charges. 8. Viewed thus, the impugned order dated 21.05.2008 Annexure-13 to the writ application and order dated 01.04.2009 vide Annexure-16 to the I.A. No.1507 of 2009 are not legally sustainable and are quashed and set aside and the respondents are directed to extend all consequential service benefits flowing from the quashment of the impugned orders and the respondents are further directed to pass appropriate order under relevant rules of the service code as to how to treat the period of suspension in accordance with law, within a period of two months from the date of receipt of a copy of the order. 9. With the aforesaid direction, the writ petition stands disposed of. Petition disposed of.