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Jharkhand High Court · body

2019 DIGILAW 1794 (JHR)

Md. Nasim Ather v. Tenughat Vidyut Nigam Ltd.

2019-10-22

S.N.PATHAK

body2019
ORDER : 1. Heard the parties. 2. Petitioner has approached this Court with a prayer for quashing the office Order No. 235/17-19 dated 12.9.2017 (Annexure-6), whereby the respondent No. 2, while revoking the order of suspension, has debarred the petitioners from getting salary of the period of suspension. 3. The factual exposition as has been delineated in the writ petition is that petitioner No. 1, whose date of birth is 5.8.1974, has joined the post of Operator under the Tenughat Thermal Power Station, Lalpania and in the year 2001, he successfully completed the AMIE Course. Thereafter, on 29.10.2008, he was promoted to the post of Assistant Executive Engineer (Operation). Similarly, the petitioner No. 2 was initially engaged as Control Penal Engineer on contract basis in the year 2002. Thereafter, on 19.10.2012, he joined the permanent post of Unit Control Engineer (Electrical) and further promoted to the post of Assistant Executive Engineer in Operation Grade-D. On 11.12.2015, the petitioner No. 1 was transferred to the post of Shift Incharge Engineer and Executive Engineer Incharge, Group-A. It is the further case of the petitioners that by Office order dated 16.11.2016, the respondent No. 2 placed the petitioners under suspension with immediate effect, on the allegation that the Operational Engineers on duty are responsible for checking of the DG and, DC Support Systems and they did not discharge their responsibilities diligently. Thereafter, on 22.11.2016, the petitioner No. 1 submitted his clarification in respect of the Office Order dated 16.11.2016 before the respondent No. 2. Thereafter, on 25.8.2017, a Team consisting of three Electric Superintending Engineers of different Departments, held an enquiry and submitted its enquiry report to the effect that the Operational Team tried its level-best to handle the emergency but failed due to technical problems and electrical maintenance team was in fault. Subsequently, by letter dated 5.9.2017, the respondent No. 2 asked the petitioners to submit their view on the report of the Committee and in response to which, the petitioner No. 1 submitted his view point on the enquiry report stating that the fault was on the part of the Maintenance Team and not on the part of the Operational Team. In his response, he also requested for revocation of suspension order. In his response, he also requested for revocation of suspension order. However, the respondent No. 2 by its impugned order dated 12.9.2017, imposed a punishment of withholding of salary of the petitioners for the period of suspension and while revoking the suspension, imposed a punishment of 'Warning' against the petitioners. In reply to the impugned order, petitioner No. 1 submitted a representation/memo of appeal dated 10.10.2017 before the respondent No. 1, requesting therein to pay full salary of the suspension period and to exonerate him from the punishment of warning. Thereafter, on 10.2.2018, petitioner No. 1 also made a representation before the respondent No. 1 for payment of salary on the basis of 7th Pay Revision. However, when the respondents did not pay any need to their said requests, they have been constrained to knock the door of this Hon'ble Court for redressal of their grievances. 4. Learned counsel appearing for the petitioner submits that the impugned order is absolutely, illegal, unjust and passed without application of mind. The impugned order is also vitiated on account of non-consideration of the enquiry report inasmuch, in absence for any valid reason for disagreeing with the enquiry report, the impugned order cannot be sustained in the eyes of law. Learned counsel further submits that impugned order is also not sustainable in the eyes of law due to noncompliance of principles of natural justice and the action of the respondents in withholding the salary of the petitioners and imposing warning in absence of any proved misconduct is not only arbitrary but also tainted with mala-fide. Learned counsel further submits that action on the part of the respondents in withholding promotion of the petitioners in the garb of the impugned order is not only illegal but is purely victimization. 5. Per contra, counter-affidavit has been filed. Learned counsel appearing for the respondents vehemently opposes the contention of the learned counsel for the petitioner. Learned counsel submits that due to the lethargic approach of the petitioners and other employees, who were responsible for maintaining the power units, the respondents have suffered huge financial loss on account of non-repairing of the damaged unit and loss of production of power units from 7.11.2016 to 6.6.2017. Further, due to the negligence of the concerned Engineers, the State of Jharkhand has also suffered financial loss. Further, due to the negligence of the concerned Engineers, the State of Jharkhand has also suffered financial loss. Hence, vide order date 16.11.2016, all the employees, who were responsible for the said loss, were suspended w.e.f. 6.11.2016, with a direction to submit their clarification within seven days, as to why not a disciplinary action be initiated against them for their willful negligence in performing their duties and responsibilities. Thereafter, a Three Man Committee was constituted to enquire the matter and after receipt of the enquiry report, both the petitioners and other two Officers were debarred from getting full salary during the period of suspension and they were directed to be vigilant and prompt in handling such emergency situation in future, which is a minor punishment and as such, the impugned order dated 12.9.2019 does not warrant any interference by this Court. 6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered opinion that the cases of the petitioner need consideration. From very perusal of the enquiry report, it appears that the fault was on the part of the Maintenance Team and not on the part of the Operational Team, meaning thereby, petitioners were not held guilty of charges and while revoking the suspension, a punishment of warning was imposed against the petitioner. Though the petitioners were directed to be vigilant and prompt in handling such emergency situation in future, but such punishment could not debar the petitioners from getting full salary of the period of suspension. Since the disciplinary authority has revoked the suspension of the petitioners, it was incumbent upon it to issue show-cause to the petitioners to reply as to why not a punishment be imposed upon them. In absence of such show-cause and reasons assigned and in absence of any punishment under CCS Rules, the office order dated 12.9.2017, debarring the petitioners from getting full salary of the period of their suspension, is not tenable in the eyes of law and hence, it is quashed and set aside. Petitioners are entitled for full salary of the period of suspension by adjusting subsistence allowance and as such, the respondents are directed to pay the same to the petitioners within a period of four weeks from the date of receipt/production of a copy of this order. 7. Petitioners are entitled for full salary of the period of suspension by adjusting subsistence allowance and as such, the respondents are directed to pay the same to the petitioners within a period of four weeks from the date of receipt/production of a copy of this order. 7. With the aforesaid observations and directions, the writ petition is allowed to that extent.