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2016 DIGILAW 869 (JHR)

Nirmal Kumar v. State of Jharkhand

2016-05-19

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. Aggrieved by the impugned order dated 10.12.2009, issued under the signature of the Deputy Secretary to the Government, Department of Health, Medical Education & Family Welfare, Jharkhand pertaining to punishment of censure as well as withholding of three increments with cumulative effect and the order dated 09.04.2010, issued under the signature of the Deputy Secretary to the Government, Department of Health, Medical Education & Family Welfare, Jharkhand rejecting the prayer of the petitioner for reviewing the order dated 10.12.2009 and after quashing of the aforesaid order for grant of consequential benefits thereof. 2. Sans details, the facts as averred in the writ application, is that, after completion of MBBS, the petitioner was selected by the Bihar Public Service Commission to the post of Civil Assistant Surgeon and posted at Bishrampur Primary Health Centre, Palamau. The petitioner was posted as Resident Medical Officer, teaching in RIMS during 1982 to 1985. In the year 1989, the petitioner went on deputation to Libya. Thereafter, the petitioner joined as Assistant Professor, MGM College, Jamshedpur in the year 1991 and went to UK for higher training in the year 1992. Thereafter, the petitioner sent representation, as sanction leave was about to expire on 14.11.1993 and after completion of Part-II Examination of M.R.C.P. at U.K., the petitioner returned to India in the year 1996. On 05.08.1996 the petitioner gave his joining and on 04.11.1996, the petitioner was placed under suspension and charge sheet was issued upon the petitioner on 21.11.1996. The Enquiry Officer was appointed and the petitioner submitted his explanation on 16.12.1996. The Enquiry Officer in the enquiry report exonerated the petitioner and recommended for sympathetic consideration vide Annexure-12 to the writ application. Thereafter, on 15.04.1998, punishment of (i) stoppage of three increments with cumulative effect, (ii) Break in service between 14.11.1993 to 05.08.1996 and (iii) salary withheld for the period 05.08.1996 has been inflicted against the petitioner vide Annexure-13 to the writ application. Thereafter, the petitioner filed an appeal before the Health Commissioner on 15.04.1998. Thereafter, on 15.04.1998, punishment of (i) stoppage of three increments with cumulative effect, (ii) Break in service between 14.11.1993 to 05.08.1996 and (iii) salary withheld for the period 05.08.1996 has been inflicted against the petitioner vide Annexure-13 to the writ application. Thereafter, the petitioner filed an appeal before the Health Commissioner on 15.04.1998. Since no order was passed on the appeal of the petitioner, being constrained, he filed a writ petition, W.P. (S) No. 6119 of 2002, which was disposed of vide order dated 25.03.2003 (Annexure-15) with a direction to the Appellate Authority to dispose of the appeal within a period of eight weeks and thereafter, the order of punishment has been upheld by the Appellate Authority vide order dated 03.11.2006 (Annexure-16). Thereafter, a writ petition, W.P. (S) No. 4966 of 2007 was filed by the petitioner, which was disposed of vide order dated 24.06.2008 by setting aside the order dated 03.11.2006 with a direction to the Secretary, Department of Health to take a fresh decision. Thereafter, vide order dated 10.12.2009, the Appellate Authority modified the order of punishment (i)Period of 14.11.1993 to 05.08.1996 regularized as extraordinary leave, (ii) Punishment of censor (iii) Punishment of withholding three increments with cumulative effect vide Annexure-19 to the writ application. Thereafter, the petitioner filed a review application, which was rejected vide order dated 09.04.2010 vide Annexure 21 to the writ application. 3. Heard Mr. Indrajit Sinha, learned counsel for the petitioner and Mr.Himanshu Kumar Mehta, learned A.A.G. appearing for the respondents-State. 4. Mr. Indrajit Sinha, learned counsel for the petitioner during course of hearing has vehemently submitted that the impugned order dated 10.12.2009 is a non-speaking and non-reasoned order, since the contentions raised by the petitioner in his various representations, especially in the representation dated 19.07.2009 have not been considered. Learned counsel further submits that the order of punishment which includes punishment of withholding of three increments with cumulative effect is shockingly disproportionate, particularly in view of the fact that the petitioner has not committed any misconduct. Learned counsel further submits that the order of punishment which includes punishment of withholding of three increments with cumulative effect is shockingly disproportionate, particularly in view of the fact that the petitioner has not committed any misconduct. During course of hearing, learned counsel for the petitioner has referred to the decisions reported in (2013) 7 SCC 251 , S.P. Malhotra-versus-Punjab National Bank and others, wherein, the Hon'ble Apex Court has been pleased to inter alia, hold that the disciplinary authority is bound to record reasons for disagreeing with the findings of the enquiry officer and to supply a copy thereof to the delinquent and non-furnishing of the copy of the recorded reasons for disagreement from the enquiry officer prejudices delinquent and hence, consequent order of punishment stands vitiated. 4. Mr. Himanshu Kumar Mehta, learned A.A.G. appearing for the respondents-State has reiterated the submissions made in the counter affidavit. Learned counsel for the respondent-State submits that the petitioner, an Associate Professor of Medicine, MGM College, Jamshedpur was granted Ex-India leave for two years by the State of Bihar for higher studies and he proceeded on Ex-India leave. He did not return to India after two years and claims to have sent applications for extension of leave. He finally did his MRCP on 21.06.1996 and returned to India and joined Health Department on 05.08.1996. Thereafter, the petitioner was put under suspension for overstaying abroad for almost three years and for violating Government orders and departmental proceeding was started. After disposal of the writ application, W.P. (S) No. 6119 of 2002, reasoned order was passed, maintaining the order passed by the State of Bihar vide Notification dated 15.04.1998. The same was reconsidered and a lenient view was taken vide order dated 10.12.2009 granting extraordinary leave for the period of overstaying and censor for overstaying and debarring him of three annual increments. Therefore, the Government has decided to do away with the earlier order of break in service and period has already been regularized and all the reliefs cannot be granted in order to enforce discipline in the members of the cadre. 5. Therefore, the Government has decided to do away with the earlier order of break in service and period has already been regularized and all the reliefs cannot be granted in order to enforce discipline in the members of the cadre. 5. After hearing the learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the petitioner has been able to demonstrate foundational facts and law to make out a case for interference due to the reasons stated hereinbelow : - (i) Admittedly, on perusal of the enquiry report, it reveals that the Enquiry Officer in the enquiry report has recommended for complete exoneration from the charges and also recommended for sympathetic consideration for treating the suspension period as duty period, as is evident from Annexure-12 to the writ application but the disciplinary authority without issuing show cause on the disagreement with the report of the enquiry officer, imposed punishments, which has been modified by the order of the appellate authority dated 10.12.2009 (Annexure-19 to the writ petition). The order dated 10.12.2009 is also contradictory and destructive since the period 14.11.1993 to 05.08.1996 has been treated to be a period sanctioned as an extraordinary leave, then the petitioner should not have been punished for the said period on the ground of misconduct. Moreover, the imposition of punishment of stoppage of three increments with cumulative effect is shockingly disproportionate on the ground that the petitioner has not committed any misconduct, therefore, taking into account, the allegations of charge and the punishment imposed by the disciplinary authority as well as the appellate authority, it appears that the impugned order of punishment is disproportionate to the alleged charges. (ii) The Hon’ble Apex Court in the case of Lucknow Kshetriya Gramin Bank & Anr. Vs. Rajendra Singh as reported in (2013) 12 SCC 372 in the placitum held as under: “However, the judicial review of the quantum of punishment is available with a very limited scope. The court would frown upon only when the penalty imposed appears to be so disproportionate to the nature of misconduct that it is shocking to the conscience of the court. The court would frown upon only when the penalty imposed appears to be so disproportionate to the nature of misconduct that it is shocking to the conscience of the court. Even in such a case when the punishment is set aside as shockingly disproportionate, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case. 6. In view of the reasons stated in the foregoing paragraphs and as a logical sequetor to the said reasons, the impugned order dated 10.12.2009, issued under the signature of the Deputy Secretary to the Government, Department of Health, Medical Education & Family Welfare, Jharkhand and the order dated 9.4.2010 of reviewing order dated 10.12.2009 the appellate authority are hereby quashed and set aside. The matter is remitted to the appellate authority to pass orders afresh on the quantum of punishment within a period of 16 weeks. 7. This writ petition stands disposed of accordingly.