Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 75 (JHR)

Sanjeev Sharan v. State of Jharkhand

2018-01-10

ANIL KUMAR CHOUDHARY

body2018
JUDGMENT : ANIL KUMAR CHOUDHARY, J. 1. Heard Mr. Saurabh Shekhar, learned counsel appearing for the petitioner, and Mr. Rahul Kamlesh, learned J.C. to S.C.-II, appearing for the State. 2. This writ application has been filed by the petitioner with a prayer to quash the circular as contained in Memo No. 2599 dated 25.5.2006, issued under the signature of the respondent No. 3, whereby and whereunder the petitioner has been imposed the following punishments: (a). Censure, (b). Three annual increments has been withheld with cumulative effect, (c). The punishment of censure will be entered in the character roll of the petitioner for the year 2004-2005. The petitioner has also prayed before this Court to direct the respondents to release the entire arrears of difference of salary which has been withheld in pursuance of the circular dated 25.5.2006. 3. The facts, involved in this case in nutshell, are that the petitioner was posted as Sub Divisional Officer, Ramgarh. He was transferred from the post of Sub Divisional Officer, Ramgarh to the post of Under Secretary, Transport and Civil Aviation Department, Jharkhand. Since the petitioner was also appointed as Returning Officer for Barkagaon and Ramgarh constituency of legislative assembly by virtue of his posting as Sub Divisional Officer, Ramgarh, he thought it proper to seek instruction from the Election Commission of India but as there was no approval of the Election Commission of India mentioned against the name of the petitioner in the letter dated 3.12.2004 by which the petitioner was communicated his transfer, the petitioner challenged the order of his transfer by preferring the writ application bearing W.P.(S) No. 6777 of 2004. In the said writ application, this Court on 4.1.2005 directed the State to seek instruction and file counter affidavit and fixed the date as 6.1.2005 and further passed an interim order for maintaining status quo as existing on 4.1.2005. Since the petitioner moved this Court on 21.12.2004 'and this Court passed an interim order on 4.1.2005 so the petitioner continued to function as Sub Divisional Officer, Ramgarh. Finally, vide order dated 7.1.2005, said writ application was dismissed and the petitioner and respondent No. 4 of that writ application were directed to join their respective place of posting as per the transfer order forthwith. The petitioner without waiting for the certified copy of the said order handed over the charge of the post of Sub Divisional Officer, Ramgarh on 7.1.2005. The petitioner without waiting for the certified copy of the said order handed over the charge of the post of Sub Divisional Officer, Ramgarh on 7.1.2005. Vide circular dated 18.5.2005 issued under the signature of respondent No. 3 the petitioner was apprised that the department has decided to initiate a departmental proceeding against him and accordingly, the petitioner was served with the memorandum of charges alleging therein four charges. The petitioner participated in the inquiry and submitted his reply. In the-inquiry, the charges were found to be proved and vide circular dated 25.5.2006, issued under the signature of respondent No. 3, the petitioner was communicated that he has been imposed with 3 punishments as has been mentioned above. 4. It is contended by the petitioner that the punishment of withholding three annual increment with cumulative effect is a major punishment and as such the disciplinary authority was supposed to follow the direction of departmental procedure but that has not been followed as neither the petitioner has been served with the copy of the inquiry report nor he has been served copy of second show cause which was taken into consideration by the disciplinary authority while awarding punishment. It was also contended by the petitioner that he has greatly been prejudiced as he has been deprived from making the representation against the finding given against him in the inquiry report, it is also contended by the petitioner that there is non-application of mind of the disciplinary authority as while proposing the punishment, respondent No. 2 proposed two punishments namely, punishment of censure, withholding of 3 annual increment with cumulative effect but after approval from the departmental Minister/Hon'ble Chief Minister the third punishment i.e. punishment of censure to be entered in the character roll for the year 2004-05 has also been imposed against the petitioner. It is also contented by the petitioner that the entire departmental proceeding has been initiated against the petitioner only due to the reason that the petitioner has come before this Court invoking jurisdiction of this Court for enforcement of his fundamental right. 5. It is also contented by the petitioner that the entire departmental proceeding has been initiated against the petitioner only due to the reason that the petitioner has come before this Court invoking jurisdiction of this Court for enforcement of his fundamental right. 5. In the counter affidavit filed on behalf of the respondents, the respondents have not categorically disputed that the inquiry report was not supplied to the petitioner but have only pleaded that the ground for non-service of the copy of the inquiry report will not come in the way of the order of final punishment and thereby by implication admitted that the enquiry report was not supplied to the petitioner. So far as the contention of the petitioner regarding the fact that he has not been served with second show cause notice even though ultimately major punishment has been imposed is concerned in paragraph-16 of the counter affidavit the respondents have not categorically denied that the second show cause notice was not served on the petitioner rather they have taken plea that due procedure of the departmental proceeding has been followed, meaning thereby they also by default admitted that the second show cause notice was not served upon the petitioner before awarding punishment. 6. Mr. Saurabh Shekhar, learned counsel for the petitioner, submits that it is settled principle of law that the punishment of withholding increment with cumulative effect will amount to a major penalty. In support of his contention learned counsel has relied upon the judgment of Hon'ble Supreme Court of India in the case of Punjab SEB v. Raj Kumar Goel, (2014) 15 SCC 748 , at page 750 paragraph - 9, wherein the Hon'ble Court has held as under:- "...... The courts below have opined that though it is mentioned in the order of punishment that there is stoppage of five increments without cumulative effect which is a minor punishment yet the manner of implementation converts it to a major punishment. There can be no cavil over the proposition that when a punishment of stoppage of an increment with cumulative effect is imposed, it is a major punishment. There can be no cavil over the proposition that when a punishment of stoppage of an increment with cumulative effect is imposed, it is a major punishment. In this regard, we may refer with profit to the decision in Kulwant Singh Gill v. Stare of Punjab wherein it has been held that withholding of increments of pay simpliciter without any hedge over it certainly would be a minor punishment but withholding of increments with cumulative effect, the consequences being quite hazardous to the employee, it would come in the compartment of major punishment". (Emphasis given by me) 7. Learned counsel further submits that it is settled principle of law that the delinquent employee is entitled to a copy of the enquiry report even if the statutory rules do not permit the furnishing of the report or are silent on the subject. In this regard, learned counsel has relied upon the judgment of Hon'ble Supreme Court passed in the case of Managing Director, ECIL, Hyderabad and others Vs. B. Karunakar and others reported in (1993) 4 SCC 727 , wherein in paragraph-30, the Hon'ble Supreme Court while answering the question formulated in the case at page-740 that "(i) whether the report should-be furnished to the employee even when the statutory rules laying down the procedure for holding the disciplinary inquiry are silent on the subject or are against it?", has answered the question at page 756 as under:- "[i] Since the denial of the report of the enquiry officer is denial of reasonable opportunity and a breach of the principles of natural justice, it follows that statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject." Learned counsel further submitted that the punishment awarded to the petitioner being illegal, mala fide and in violation of the principle of natural justice is fit to be set aside by this Court. 8. 8. Learned counsel for the respondents, on the other hand, submits that there is no quarrel with the proposition that withholding increments with cumulative effects amounts to major punishment but failure to supply the enquiry report would not automatically result in quashing or setting aside of the order of punishment or the order being declared null and void. To buttress his submission the learned counsel for the respondents relied upon the judgment of the Hon'ble Supreme Court passed in the case of Uttarakhand Transport Corporation (earlier knows as U.P.S.R.T.C.) & Ors. Vs. Sukhveer Singh in Civil Appeal No. 18448 of 2017 decided on 10th November, 2017. In that case the Hon'ble Court relying upon paragraph-44 of the judgment in the case of Haryana Financial Corpn. v. Kailash Chandra Ahuja, (2008) 9 SCC 31 , wherein it was held as under: "44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show "prejudice". Unless he is able to show that non-supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down." (Emphasis given by me) In the facts and circumstances of that case, where there was no pleading in the writ application regarding any prejudice caused to the delinquent: employee by non-supply of the enquiry report prior to issuance of the show cause notice, the Hon'ble Supreme Court set aside the judgment of the Division bench of the High Court which ordered for reinstatement of the delinquent employee. The learned counsel for the respondent further submits that imposing the punishment without giving second show-cause notice would not vitiate the entire proceeding but at best it can be said that from the stage of second show cause, the proceeding is not in consonance with law? 9. The learned counsel for the respondent further submits that imposing the punishment without giving second show-cause notice would not vitiate the entire proceeding but at best it can be said that from the stage of second show cause, the proceeding is not in consonance with law? 9. It is settled principle of law that the punishment of withholding annual increment with cumulative effect is a major penalty as has been held by Hon'ble Supreme Court passed in the case of Kulwant Singh Gill v. State of Punjab reported in 1991 (Supp 1) SCC 504 wherein in parayraph-4, the Hon'ble Supreme Court has held as under:- "4..........The contention of Shri Nayar, learned counsel for the State is that with holding 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 chat 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 chat 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........." (Emphasis given by me) It is also settled principle of law that the requirement of second show-cause notice and copy of the inquiry report to be served upon the delinquent employee before imposition of such a major penalty, has been read to be integral part of the decision making process by the Hon'ble Supreme Court in the case of Union of India and others vs. Md. Ramzan Khan (1991) 1 SCC 588 , as also has been held by a coordinate bench of this court in W.P. (S) No. 4169 of 2013 (Rajendra Kishore V. The State of Jharkhand & others decided on 03.04.2014). 10. From the settled principle of law, as discussed above, it is evident that even though statutory rule laying down the procedure for holding the disciplinary inquiry do not permit the furnishing of the inquiry report of the disciplinary authority, still supply of report of the inquiry officer to the delinquent employee is part and parcel of natural justice and must be furnished to the delinquent: employee, of course failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show that non-supply of report of the inquiry officer has resulted in prejudice to him or in miscarriage of justice and in the absence of pleading and proof of the same, an order of punishment cannot be held to be vitiated. It is also a requirement of law that second show-cause notice must be served upon the delinquent employee before imposition of a major penalty. 11. It is also a requirement of law that second show-cause notice must be served upon the delinquent employee before imposition of a major penalty. 11. So far as the contention of the learned counsel for the respondents regarding the pleading and proof of prejudice suffered by the delinquent employee is concerned, in the case of Uttarakhand Transport Corporation (supra), the writ application does not contain any pleading regarding any prejudice caused to the delinquent employee by non-supply of the inquiry report but the fact of the instant case is different since in the writ application it has been categorically pleaded by the petitioner that he has greatly been prejudiced as he has been deprived from making representation inter alia, because of non-supply of the inquiry report. Moreover unlike the facts of Uttarakhand Transport Corporation (supra) in this case the petitioner besides being not supplied with the copy of the enquiry report was also not served with any show cause notice before imposition of the punishment. So after giving anxious consideration to the submission made at the bar and going through the record, this Court is of the considered opinion that in the present case the disciplinary authority had stepped into the final stage of awarding the punishment without complying the requirement of law of supplying the copy of the enquiry report to the petitioner and giving opportunity to him to satisfy that the finding of the enquiry officer is not correct and by not asking show cause from the petitioner in respect of the proposed punishment, which has caused prejudice to the petitioner. Therefore, the decision making process has suffered in the absence of service of second show-cause notice along with a copy of the enquiry report which could have enabled the Disciplinary Authority who was not the Enquiry Officer to consider the representation of the petitioner as to why the proposed punishment be not imposed upon him, before the impugned order has actually been passed. In exercise of powers of judicial review, this Court is not required to decide the correctness of the decision taken; rather it is supposed to examine as to whether the decision making process has been followed in accordance with law after due compliance of the principles of natural justice. 12. In exercise of powers of judicial review, this Court is not required to decide the correctness of the decision taken; rather it is supposed to examine as to whether the decision making process has been followed in accordance with law after due compliance of the principles of natural justice. 12. From the aforesaid discussions made herein-above, this Court finds that the decision making process was vitiated in the absence of service of second show cause notice and copy of the inquiry report upon the petitioner before passing the impugned order of punishment. The impugned order of punishment contained in Memo Mo. 2599 elated 25.5.2006 therefore cannot be sustained in the eye of law and is accordingly quashed. Respondents are however at liberty to proceed afresh from the stage of second show-cause notice after serving the same on the petitioner along with a copy of the inquiry report under the same departmental proceeding for arriving at a fresh decision in the matter. The writ petition is accordingly allowed in the aforesaid terms. Let it be made clear that the observations made herein-above, shall not be treated as comment upon the merits of the case of the parties. There shall be no order as to the costs.