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2017 DIGILAW 65 (JHR)

Bipin Bihari Mishra v. State of Jharkhand

2017-01-10

PRAMATH PATNAIK

body2017
ORDER : 1. Being aggrieved by the impugned order passed by the disciplinary authority i.e. Deputy Secretary, Road Construction Department, Ranchi, dated 01.10.2012 (Annexure-5), pertaining to imposition of punishment of withholding of one annual increment with cumulative effect and also the order of the appellate authority, dated 17.06.2013 (Annexure-6), affirming the order of the disciplinary authority, the petitioner has prayed for quashing the said orders. 2. The facts as disclosed in the writ application, in a nutshell is that the petitioner was appointed on the post of Assistant Engineer, Bihar Police Building Construction Corporation, Patna, Bihar. After bifurcation of the erstwhile State of Bihar, the petitioner was allocated the cadre of State of Jharkhand. The petitioner while continuing as an Executive Engineer, Building Division, Hazaribag along with the Assistant Engineer and the Junior Engineers, the Land Acquisition Officer, Hazaribag vide letter dated 07.09.2007 requested the petitioner to furnish the “Valuation Report” of the structures, which were to be acquired for the Garhi Dam Project by the Irrigation Department. On receipt of the said details, the petitioner instructed the Assistant Engineer to do the same and, in turn, the Junior Engineer is directed to make physical verification and submit the valuation report and after getting the valuation report, the petitioner forwarded the same to the Land Acquisition Officer, Hazaribag. It has been averred that in course of whole exercise of the Valuation process upto payment of compensation, no dispute was brought to the notice of the District Administration and before publication of the award, Additional Collector, Hazaribagh, has also conducted detailed enquiry in the matter, who was satisfied with the entire valuation process and thus, paved way for publication of the Award and accordingly, the entire compensation was paid. The Respondent No. 3 on receipt of a complaint from Mahila Jagriti Manch, Keredari, regarding irregularity committed in valuation process and on receipt thereof, the respondent no. 3 got a detailed enquiry made through the Executive Engineer, as evident from Annexure-2 to the writ petition. Thereafter, Article of charges have been framed against the petitioner vide Annexure-3/1 and the petitioner was asked to file show cause to the Article of charges and therefore, after filing of the show cause, the disciplinary proceeding was initiated against the petitioner on 21.12.2009 as per Annexure-3 to the writ petition. Thereafter, Article of charges have been framed against the petitioner vide Annexure-3/1 and the petitioner was asked to file show cause to the Article of charges and therefore, after filing of the show cause, the disciplinary proceeding was initiated against the petitioner on 21.12.2009 as per Annexure-3 to the writ petition. Thereafter, on 01.10.2012 (Annexure-5), the impugned order has been passed by the Deputy Secretary, Road Construction Department, Ranchi, imposing punishment of withholding of one annual increment with cumulative effect. Being aggrieved by the impugned order of the disciplinary authority, the petitioner preferred appeal before the appellate authority and the appellate authority vide order dated 17.06.2013 (Annexure-6) has been pleased to confirm the order passed by the disciplinary authority. Thereafter, the petitioner retired from service on attaining the age of superannuation on 31.01.2016. Being aggrieved by the aforesaid impugned orders, the writ petitioner, left with no other alternative or equally efficacious remedy, has been constrained to approach this Court invoking the extraordinary jurisdiction under Article 226 of the Constitution of India for redressal of his grievances. 3. Mr. Arpan Mishra, learned counsel for the petitioner has vehemently submitted that the impugned order dated 01.10.2012 (Annexure-5) is a non-speaking order and no reasons have been assigned while passing the impugned order and therefore, on that score, the impugned order is liable to be set aside. Learned counsel for the petitioner further submits that since the impugned order of punishment i.e. withholding of one annual increment with cumulative effect is a major punishment as has been held by the Hon'ble Apex Court as reported in 1991 supp. (1) SCC 504 in the case of Kulwant Singh Gill Vs. State of Punjab, second show cause notice prior to infliction of punishment ought to have been issued to the petitioner. In the instant case, no second show cause notice was issued prior to imposition of the punishment therefore, the impugned order is liable to be interfered with. Learned counsel further submits that since the petitioner has retired from services on attaining the age of superannuation on 31.01.2016, he is entitled for payment of arrears for the aforesaid period of withholding of increment. 4. Mr. Deepak Kumar Dubey, learned J.C to S.C.I, appearing for the respondents referring the submissions made in the counter-affidavit, has assiduously submitted that considering the gravity of charges, the punishment has been inflicted upon the petitioner. 4. Mr. Deepak Kumar Dubey, learned J.C to S.C.I, appearing for the respondents referring the submissions made in the counter-affidavit, has assiduously submitted that considering the gravity of charges, the punishment has been inflicted upon the petitioner. Learned counsel for the respondents has submitted that out of three charges, two charges have not been proved but the petitioner has been found partially guilty for one charge. However, considering the gravity of the proved charges, the impugned order of punishment has been inflicted upon the petitioner. Since the punishment inflicted vide impugned order does not come under the major punishment therefore, the second show cause notice was not required to be served upon the petitioner. Learned counsel for the respondents further submits that in case of imposition of minor penalty, it was not obligatory on the part of respondent to issue second show cause to be served upon the petitioner after conducting the departmental proceedings. 5. After hearing learned counsel for the respective parties and perusal of the documents on record and after giving anxious consideration, I am of the considered view that the impugned order of punishment inflicted upon the petitioner vide order dated 01.10.2012 (Annexure-5) passed by the disciplinary authority as well as the impugned order dated 17.06.2013 (Annexure-6) passed by the appellate authority are not legally sustainable, in view of the facts stated hereinbelow:- (i) On perusal of the impugned order dated 01.10.2012 (Annexure-5) passed by the disciplinary authority as well as the impugned order dated 17.06.2013 (Annexure-6) passed by the appellate authority, it is quite apparent that the said order do not contain the reasons and it is cryptic and non-speaking order which cannot be sustained in the eye of law and on that score, the impugned order of punishments are liable to be interfered with. (ii) The Hon'ble Apex Court in the case of Kulwant Singh Gill Vs. State of Punjab as reported in 1991 supp. (1) SCC 504 in paragraph 4 held as under:- “4. Withholding of increments of pay simpliciter undoubtedly is a minor penalty within the meaning of Rule 5(iv). (ii) The Hon'ble Apex Court in the case of Kulwant Singh Gill Vs. State of Punjab as reported in 1991 supp. (1) SCC 504 in paragraph 4 held as under:- “4. Withholding of increments of pay simpliciter undoubtedly is a minor penalty within the meaning of Rule 5(iv). But sub-rule (v) postulates reduction to a lower stage in the time scale of pay for a specified period with further directions as to whether or not the government employee shall earn increments of pay during the period of such reductions and whether on the expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay. It is an independent head of penalty and it could be imposed as punishment in an appropriate case. It is one of the major penalties. The impugned order of stoppage of two increments with cumulative effect whether would fall within the meaning of Rule 5(v)? If it so falls Rules 8 and 9 of the Rules require conducting of regular enquiry. The contention of Shri Nayar, learned counsel for the State is that withholding two increments with cumulative effect is only a minor penalty as it does not amount to reduction to a lower stage in the time scale of pay. We find it extremely difficult to countenance the contention. Withholding of increments of pay simpliciter without any hedge over it certainly comes within the meaning of Rule 5(iv) of the Rules. But when penalty was imposed withholding two increments i.e. for two years with cumulative effect, it would indisputably mean that the two increments earned by the employee was cut off as a measure of penalty for ever in his upward march of earning higher scale of pay. In other words the clock is put back to a lower stage in the time scale of pay and on expiry of two years the clock starts working from that stage afresh. The insidious effect of the impugned order, by necessary implication, is that the appellant employee is reduced in his time scale by two places and it is in perpetuity during the rest of the tenure of his service with a direction that two years’ increments would not be counted in his time scale of pay as a measure of penalty. The insidious effect of the impugned order, by necessary implication, is that the appellant employee is reduced in his time scale by two places and it is in perpetuity during the rest of the tenure of his service with a direction that two years’ increments would not be counted in his time scale of pay as a measure of penalty. The words are the skin to the language which if peeled off its true colour or its resultant effects would become apparent. When we broach the problem from this perspective the effect is as envisaged under Rule 5(v) of the Rules. It is undoubted that the Division Bench in Sarwan Singh v. State of Punjab, P.C. Jain, A.C.J. speaking for the Division Bench, while considering similar question, in paragraph 8 held that the stoppage of increments with cumulative effect, by no stretch of imagination falls within clause (v) of Rule 5 or in Rule 4.12 of Punjab Civil Services Rules. It was further held that under clause (v) of Rule 5 there has to be a reduction to a lower stage in the time scale of pay by the competent authority as a measure of penalty and the period for which such a reduction is to be effective has to be stated and on restoration it has further to be specified whether the reduction shall operate to postpone the future increments of his pay. In such cases withholding of the increments without cumulative effect does not at all arise. In case where the increments are withheld with or without cumulative effect the government employee is never reduced to a lower stage of time scale of pay. Accordingly it was held that clause (iv) of Rule 5 is applicable to the facts of that case. With respect we are unable to agree with the High Court. If the literal interpretation is adopted the learned Judges may be right to arrive at that conclusion. But if the effect is kept at the back of the mind, it would always be so, the result will be the conclusion as we have arrived at. If the reasoning of the High Court is given acceptance, it would empower the disciplinary authority to impose, under the garb of stoppage of increments, (sic stoppage) of earning future increments in the time scale of pay even permanently without expressly stating so. If the reasoning of the High Court is given acceptance, it would empower the disciplinary authority to impose, under the garb of stoppage of increments, (sic stoppage) of earning future increments in the time scale of pay even permanently without expressly stating so. This preposterous consequence cannot be permitted to be permeated. Rule 5(iv) does not empower the disciplinary authority to impose penalty of withholding increments of pay with cumulative effect except after holding inquiry and following the prescribed procedure. Then the order would be without jurisdiction or authority of law, and it would be per se void. Considering from this angle we have no hesitation to hold that the impugned order would come within the meaning of Rule 5(v) of the Rules; it is a major penalty and imposition of the impugned penalty without enquiry is per se illegal.” 6. Therefore, in that view of the matter the impugned order of punishment being a major punishment i.e. withholding of one annual increment with cumulative effect vide Annexures-5 and 6, but as it appears from the counter-affidavit filed by the respondents that the respondents are under mistaken notion that infliction of punishment of stoppage of withholding of one annual increment with cumulative effect is minor punishment. However, in view of the decisions of punishment rendered by the Hon'ble Apex Court in the case of Kulwant Singh Gill (Supra), the impugned orders being a major punishment, second show cause notice prior to infliction of punishment was sine-qua-non for compliance of principles of natural justice but the same having not been followed by the respondent authorities, impugned orders are not legally sustainable. 7. Viewed thus, the impugned order of punishment dated 01.10.2012 (Annexure-5) passed by the disciplinary authority as well as the impugned order dated 17.06.2013 passed by the appellate authority (Annexure-6) being not legally sustainable are, hereby, quashed and set aside and resultantly, the respondent authorities are directed to extend consequential monetary benefits to the petitioner within a period of 3 months from the date of receipt/production of the copy of this order in accordance with law. 8. Accordingly, the writ petition stands allowed. Petition allowed.