Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 2583 (JHR)

Banshi Dhar Prasad v. State of Jharkhand

2018-11-28

APARESH KUMAR SINGH, APARESH KUMAR SINGH

body2018
JUDGMENT : 1. Heard learned counsel for the petitioner and the State. 2. Punishment of Censure and withholding of three annual increment with cumulative effect vide order bearing Memo No. 4573 dated 16.10.2009 issued by the Respondent No. 3 is under challenge by the petitioner. Charge sheet is contained in office order no. 21 bearing Memo No. 317 dated 10.02.2009 at page-108 of the counter affidavit. 3. Petitioner was proceeded for the following charges: i. Petitioner, the then, Inspector, Weights and Measure, Bermo at Tenughat had appeared and deposed falsely as a witness without permission of the Government. ii. He had contravened the provisions of Standards of Weights and Measurement (Enforcement) Act, 1985 in the verification and sealing process. iii. He failed to realize Government revenue as per the Weights and Measurement (Enforcement) Rules, 1988/01, thereby caused loss to the State Exchequer. 4. Deputy Director, Agriculture cum Joint Controller, Weights and Measure, Ranchi was appointed as the Conducting officer and Assistant Director, Agriculture cum Deputy Controller, Weights and Measure, Hazaribagh as Presenting officer. Inquiry officer was directed to conclude the inquiry within 90 days. Inquiry was undertaken. Petitioner participated in the inquiry and submitted his defence. He was found guilty of the charges by the Inquiry officer, as per the report dated 02.05.2009 annexed as Annexure-A to the counter affidavit. On consideration of the inquiry report, the order of punishment was passed. Loss to the State Exchequer was also directed to be recovered from his salary which exercise was to be done by the Assistant Director, Agriculture cum Deputy Controller, Weights and Measure, Hazaribagh. The Disciplinary Authority/Director, Agriculture also held that he would not be entitled for salary beyond subsistence allowance. 5. Petitioner has contended that he was discharging his duty to the utmost satisfaction to his superior. One complaint case was filed by one Arjun Prasad Shrivastava, Manager of Jai Jawan Service Station being Complaint Case No. 10/2002 against one Birendra Kumar Sinha for the offences under sections 164, 166 and 389 of the Indian Penal Code in which petitioner was also named as a witness. Summons were issued upon him. He sought permission to appear before the learned court vide Annexure-2. He again filed an application on 10.04.2007 seeking permission for recording his evidence and also on 18.09.2007 (Annexures-3&4). According to him, Trial Court had issued summons directing him to appear on 27.03.2008. Summons were issued upon him. He sought permission to appear before the learned court vide Annexure-2. He again filed an application on 10.04.2007 seeking permission for recording his evidence and also on 18.09.2007 (Annexures-3&4). According to him, Trial Court had issued summons directing him to appear on 27.03.2008. He again made an application before the Assistant Director, Agriculture cum District Controller, Weights and Measurement Division, Gaya seeking permission on 04.02.2008 (Annexure-5). Summons were again issued on 28.08.2007 (Annexure-6) and again on 14.08.2008, where after he again sought permission on 09.09.2008 for adducing evidence. Another summon was issued on 24.09.2008. These are Annexure-7 series to the writ petition. 6. It is the case of the petitioner the he deposed before the competent court of criminal jurisdiction pursuant to such summons and have made several applications for seeking permission before the competent authority which were duly received. Petitioner was allocated to the Successor State of Jharkhand and released by the State of Bihar on 30.09.2007. His suspension was recommended by order of Respondent No. 3 on 16.01.2008. Petitioner was placed under suspension on 20.11.2008 without any opportunity of giving his reply to the show-cause letter dated 06.08.2008. He requested for revocation of his suspension on 05.12.2008 and to grant him proper posting vide Annexure-12. He was directed to join before the Respondent No. 3, as per order dated 19.12.2008 bearing Memo No. 3071. Petitioner contended that this action was taken on the complaint of the accused Birendra Kumar Sinha against whom he had deposed pursuant to the summons issued by the learned court and after repeatedly seeking permission to do so from the competent authority and that too after four years of such complaint. Petitioner has been victimized on the basis of the complaint made by the accused person. He had challenged the departmental proceedings in WPS No. 517/2009, but during its pendency, the order impugned dated 16.10.2009 was passed. Therefore, present writ petition has been filed challenging the same. Petitioner has taken a categorical ground that neither was the inquiry report furnished to him, nor a second show-cause notice given before issuance of the order of punishment, though it is a major punishment. Statements made to that effect in paragraphs-28 and 29 of the writ petition, have not been controverted by the Respondents in their counter affidavit, as per the statement made at para-16 of the counter affidavit. Statements made to that effect in paragraphs-28 and 29 of the writ petition, have not been controverted by the Respondents in their counter affidavit, as per the statement made at para-16 of the counter affidavit. What has been stated at para-16 of the counter affidavit is quoted hereunder: “16. That with regard to the statement made in para 28 and 29, it is stated and submitted that the petitioner has given his reply before the Conducting officer and on the basis of petitioner’s reply and evidence given by the proposing officer to the conducting officer, all the allegations leveled against the petitioner were found to proved by conducting officer. On the basis of the Enquiry report, the disciplinary authority passed the order vide order no. 134 memo no. 4573 dated 16.10.2009, whereby and where under the petitioner was punished with the punishment of censure, withholding of 3 annual increment with cumulative effects and recovery of loss of revenue from the salary of the petitioner. Thus the petitioner was punished with the minor punishment. Here the petitioner has tried to mislead the Hon’ble Court that the petitioner was punished with the major punishment with following the regular departmental proceeding. It is true that in case of major punishment, the duty of the disciplinary authority is to serve the copy of the enquiry report along with second show cause notice. But the punishment given by the disciplinary authority is minor in nature and hence there is no need of serving the copy of the enquiry report along with second show-cause notice to the petitioner. So the impugned order of punishment dated 16th October, 2009 is bonafide and in the interest of justice.” 7. Respondents have defended the impugned decision apparently on the ground that it was a minor punishment which did not require service of second show-cause notice along with the copy of the inquiry report. On merits, they have relied upon the contents of the inquiry report which found the charges proved against the petitioner. According to them, petitioner had not received the court’s summons for permission of the State Government for giving evidence. He gave false evidence in the court against the inspection report prepared by himself. 8. On merits, they have relied upon the contents of the inquiry report which found the charges proved against the petitioner. According to them, petitioner had not received the court’s summons for permission of the State Government for giving evidence. He gave false evidence in the court against the inspection report prepared by himself. 8. Learned counsel for the petitioner has placed Rule 49 of Civil Services (Classification, Control and Appeal) Rules, 1930 and also judgment rendered by the Apex Court in the case of Kulwant Singh Gill Versus State of Punjab [1991 Supp (1) SCC 504] relied upon in the case of Punjab State Electricity Board Now Punjab State Power Corporation Limited Versus Raj Kumar Goel [ (2014) 15 SCC 748 ]. He submits that punishment of withholding of increment with cumulative effect is a major penalty since there is permanent postponement of increment i.e. employee is reduced in his time scale of pay for period in question which is in perpetuity for remaining tenure of his service. Reliance is also placed in the case of Managing Director, ECIL, Hyderabad and others versus B. Karunakar and others [ (1993) 4 SCC 727 ]. He further submits that definite prejudice has been caused to the petitioner due to non-service of inquiry report and second show-cause notice. Petitioner has not been able to represent and defend himself to the proposed penalty as well. The impugned order therefore suffers in law and on facts. 9. Considered the submissions of learned counsel for the petitioner and the State. I have also taken into account the relevant material pleadings and documents borne from the record, as narrated in the foregoing paragraphs. This court is not require to go into the merits of the charges in the present challenge. The decision making process has suffered on account of non-service of inquiry report and second show-cause notice upon the petitioner, though the order impugned also effecting withholding of three annual increment with cumulative effect amounts to a major penalty in the light of the decision rendered by the Apex Court in the case of Kulwant Singh (Supra) as also followed in the case of Raj Kumar Goel (Supra). Specific averments made by the petitioner at paragraphs-28 and 29 of the writ petition do not stand controverted by the Respondent in their counter affidavit and more specifically in answer thereto at paragraph-16, quoted hereinabove, Respondent bear a misconception that the punishment is minor in nature. Punishment of censure, of course, is minor in nature, but the other punishment i.e. withholding of three annual increment with cumulative effect is definitely a major penalty. In absence of service of second show-cause notice and inquiry report, petitioner could not even get an opportunity to represent against the proposed penalty in the light of the findings contained in the inquiry report before the Disciplinary Authority. As such, non-service of the inquiry report and the second show-cause notice both have caused prejudice to the petitioner. Following the ratio laid down by the Apex Court in the case of Managing Director, ECIL, Hyderabad (Supra), the order impugned cannot be sustained in law as also on facts. It is accordingly set aside. However, liberty is granted to the competent authority/Disciplinary Authority to take a fresh decision in the matter from the stage of second show-cause notice after giving due opportunity to the petitioner by way of a second show-cause notice along with the inquiry report, in accordance with law. 10. Writ petition is allowed in the manner and to the extent indicated hereinabove.