Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 57 (JHR)

State of Jharkhand v. Kumar Kunal, son of S. N. Pandey

2019-01-08

ANIRUDDHA BOSE, ANIRUDDHA BOSE, RATNAKER BHENGRA, RATNAKER BHENGRA

body2019
JUDGMENT : Aniruddha Bose, J. Heard the learned counsel for the parties. 2. The State and its Officers are the appellants before us in this proceeding questioning the legality of the judgment delivered by the learned First Court quashing the suspension order of the respondents-writ petitioners. That order of suspension was issued on 7th October, 2016. The consequential order requiring the writ petitioners to hand over charge has also been quashed by the learned First Court. 3. The writ petitioners were all appointed on different dates between the years 2003 and 2008 by the Jharkhand State AIDS Control Society (JSACS). Admitted position is that their appointment at that stage were contractual. Such appointment however have been extended every year since then and the last formal extension was made on 26th April, 2016. Such extension was, however, for a year. 4. There was inquiry into the appointment of the writ petitioners on the allegation of there being irregularities. That inquiry was commenced on 25th October, 2016. Prior to the inquiry, however, the aforesaid orders of suspension and handing over of charge were issued. Before the learned First Court, at the time of hearing, the inquiry report was relied upon by the State. That report was made on 29th March, 2017. It was the case of the State before the learned First Court, a stand which has also been taken before us at the time of hearing of this appeal, that final decision has not yet been taken on the basis of such inquiry report. Learned First Court in the judgment under appeal, inter-alia, held: “14. In the first place, it needs to be recorded that the enquiry report dated 29.03.2017 would indicate that no conclusive finding on the alleged illegality committed in appointment of the petitioners has been recorded by the departmental committee. The complaints which were received in the Chief Minister’s Secretariat written by Swaraj Foundation, Koderma and one Ravi Shankar Prasad refer to continuation of Sudeep Sanyal on the post of Statistical Officer, a post which according to the complainants was abolished. There is no complaint on illegality or irregularity in appointment of any of the petitioners except, the said Sudeep Sanyal. Under MoU & Contract Service Agreement executed between JSACS and the petitioners, termination of the service agreement can be under Clause H on the ground of improper conduct by the appointee. There is no complaint on illegality or irregularity in appointment of any of the petitioners except, the said Sudeep Sanyal. Under MoU & Contract Service Agreement executed between JSACS and the petitioners, termination of the service agreement can be under Clause H on the ground of improper conduct by the appointee. Service conditions of the petitioners entitle them for 10 days’ medical leave, 30 days’ earned leave, travelling and dearness allowance and maternity leave in case of female appointee as per the Rules of Jharkhand Government. Under Clause 4 of Finance Department letter dated 05.07.2002, conduct rules applicable to the Government employees have been made applicable to the contractual employees. Admittedly, no regular departmental proceeding has been initiated against the petitioners, for no charge-memo has been served to them; only a show-cause notice was issued on 07.10.2016. In the above facts the enquiry report dated 29.03.2017, at best, can be a preliminary fact finding report, which may form foundation for initiating a regular departmental enquiry against the petitioners. Filing of voluminous records running into more than 1700 pages, prima facie, establishes that a decision on the alleged illegality/irregularity in appointment of the petitioners cannot be inferred lightly. It is a matter of record that the petitioners were placed under suspension on 07.10.2016 without a show-cause notice and payment of honorarium to them was stopped. In any case suspension of the petitioners cannot be continued any further, particularly in view of the aforesaid facts and the enquiry report dated 29.03.2017. 15. In view of the aforesaid discussions, the impugned orders of suspension contained in Annexure-5 series, all dated 07.10.2016 are quashed. Consequently, the impugned order contained in letter dated 07.10.2016 vide Annexure-7 stands quashed. The petitioners shall be assigned their duties, within two weeks and they shall be paid salary/honorarium for the period 01.08.2016 to 06.10.2016, as well as, for the current period. A decision on payment of salary/honorarium for the period from 07.10.2016 shall be taken by the competent authority.” 5. It is the submission of Mr. Vikash Kumar, learned Advocate for the State, that the observations made in the aforesaid paragraphs by the learned First Court, in substance, conclude that as if the respondents-writ petitioners were the permanent employees. The reasoning of the learned First Court that no regular departmental inquiry was held has been referred to before us by Mr. Vikash Kumar, learned Advocate for the State, that the observations made in the aforesaid paragraphs by the learned First Court, in substance, conclude that as if the respondents-writ petitioners were the permanent employees. The reasoning of the learned First Court that no regular departmental inquiry was held has been referred to before us by Mr. Vikash Kumar and his submission on this count is that such regular departmental inquiry is necessary only for permanent employees of the State and the conduct rules of the State do not contemplate such departmental inquiry for contractual appointees. 6. We have already observed that final decision on the inquiry report, which has been referred to by the learned First Court as a preliminary inquiry report, is yet to be taken. In such circumstances, we shall refrain ourselves from making any comment with regard to the manner in which the inquiry has been proceeded. We also do not think the observations of the learned First Court conclude that the writ petitioners-respondents are having the status of regular employees of the State. There is no finding to that effect in the judgment under appeal. 7. Now, the question arises as to whether we shall interfere with the judgment of the learned First Court, quashing the order of suspension. The writ petitioners had remained suspended for the period between 7th October, 2016 till the suspension order was quashed by the learned First Court on 10th April, 2018. The period of suspension thus was of about one and half years. 8. On behalf of the State, it is submitted that during the interim period the contract tenure was over in April, 2017. But that question is not in lis so far as this appeal is concerned. We do not find any observation of the learned First Court about the effect of lapse of tenure of the contract. On the decision of the learned First Court in quashing the order of suspension ratio of the decision of the Hon’ble Supreme Court in the case of Ajay Kumar Choudhary Vs. Union of India through its Secretary and another { (2015) 7 SCC 291 } is applicable. It has been held in this decision that suspension for an indeterminate period, if not based on sound reasoning, contemporaneously available on record, would render it punitive in nature. Union of India through its Secretary and another { (2015) 7 SCC 291 } is applicable. It has been held in this decision that suspension for an indeterminate period, if not based on sound reasoning, contemporaneously available on record, would render it punitive in nature. We have referred to the length of time the writ petitioners remained under suspension and, therefore, in view of the ratio laid down by Hon’ble the Supreme Court in the case of Ajay Kumar Choudhary (supra), we do not want to interfere with the order of the learned First Court so far as quashing of the order of suspension is concerned. 9. As regards the nature of appointments of the writ petitioners in the subject posts, we direct the concerned authority to take a decision within a period of six weeks from the date of communication of this order upon giving opportunity of hearing to the writ petitioners. We do not make any observation on the point of continuity of employment of the writ petitioners as that question is not before us in this proceeding and was not the subject matter of dispute in the writ petition also. Though in ground no. VIII of the memorandum of appeal that point has been raised, in the writ petition itself only the two orders were under substantive challenge. That question has not been determined by the learned First Court and it does not appear that the learned First Court was addressed on that point. But it shall be open for the writ petitioners to press that point before the appropriate authority, who had appointed them, at the time of hearing or final decision, if necessary. The respondents-writ petitioners shall be entitled to make a fresh representation on that count within a period of four weeks. 10. This appeal stands disposed of in the above terms. Connected application (I.A. No. 4263 of 2018) shall also stand disposed of, as we have disposed of the main appeal. 11. There shall be no order as to costs.