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2019 DIGILAW 857 (JHR)

Md. Abu Bakar v. State of Jharkhand

2019-04-11

RAJESH KUMAR

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JUDGMENT : RAJESH KUMAR, J. 1. Heard learned counsels for the parties. 2. The present writ petition has been filed for quashing the order of punishment passed by the original authority dated 24.01.2008 and the appellate authority dated 21.07.2008, whereby the petitioner had been given punishment of stoppage of one increment for six months which is equivalent to black mark and further with stipulation that it will effect to next annual increment also. 3. As per the pleading, petitioner had been appointed as Constable under the respondents in the year 1979. Subsequently, petitioner had been posted as Constable at Special Branch, Ranchi in Technical Cell on 10.08.2007. 4. Petitioner had proceeded for ten days sanctioned leave w.e.f. 10.08.2007. The petitioner overstayed and finally joined on 10.09.2007. For such overstayed, a show cause notice had been issued to the petitioner on 15.10.2007. Petitioner had replied the said show cause on 02.11.2007. After considering the reply, order of punishment had been passed vide Memo No. 276 dated 24.01.2008. 5. Being aggrieved, petitioner had preferred an appeal and the appellate authority had also approved the order of punishment passed by the original authority vide its order dated 21.07.2008. 6. Plea had been taken by the petitioner that the punishment imposed upon him is a major punishment as per the Jharkhand Police Manual and the procedure for the minor punishment has been adopted and as such, order of punishment is unauthorized and ultra virus. 7. Further plea had been taken that the defense taken by him had neither been considered by the original authority nor by the appellate authority. On this ground also, the order of punishment is contrary to the principle of natural justice which is inbuilt in the rule and as such bad on that score also. 8. A counter affidavit has been filed by the State, wherein stand has been taken that it is admitted position that the petitioner has overstayed and as such respondents were justified in initiation of the proceeding and further issuance of the show cause and after considering the reply, impugned order had been passed. 9. Heard learned counsels for the parties. 10. The laws operating in the field are Sections 826, 828 (a) (b) (c) and 835 of the Jharkhand Police Manual are quoted herein-under:- 826. Discrimination necessary in awarding punishments ........................................................ ........................................................ 9. Heard learned counsels for the parties. 10. The laws operating in the field are Sections 826, 828 (a) (b) (c) and 835 of the Jharkhand Police Manual are quoted herein-under:- 826. Discrimination necessary in awarding punishments ........................................................ ........................................................ Before issuing orders of minor punishment, it is necessary to apprise the delinquent of the substance of the charges against him and he should be given adequate opportunity for defence. Alter this has been ensured, the punishment can be awarded. However in the case of major punishments (See Rule 828) formal proceedings in P.M. Form No. 178 will have to be drawn up. 828. Infliction of major punishments:- (a) Of the punishments permitted by Rule 824, the items in serials (a) to (f) of that Rule shall be regarded as major punishments, and shall be inflicted by an officer not below the rank of Superintendent. (b) Without prejudice to the provision of the Public Servants Enquiries Act, 1850, no order of dismissal, removal, compulsory retirement or reduction shall be passed on any police officer (other than an order based on facts which have led to his conviction in a criminal Court) unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself (See Appendix 49). (c) In case in which, forfeiture of increment is proposed to be an adequate punishment, this may be inflicted without formal enquiry in the form of a proceeding but every such matter shall state clearly: first, the charges against the defaulter; then his answers to each charge, one by one and lastly, the finding upon each charge of the officer inflicting the punishment. In such cases, the Superintendent need not hold the enquiry himself, nor shall the delinquent have the - right to appear before him, but he has the right to appear before the officer deputed to record the evidence and to take his defence and such officer, who shall not be below the rank of inspector, shall come to a clear finding on each charge and shall submit the record with his recommendations to the Superintendent for orders. 835. Effect of black marks - A reduction or forfeiture or withholding of increment for a specific offence shall carry the following black mark value:- A reduction, etc. up to six months 1 black mark A reduction, etc. 835. Effect of black marks - A reduction or forfeiture or withholding of increment for a specific offence shall carry the following black mark value:- A reduction, etc. up to six months 1 black mark A reduction, etc. up to twelve months 2 black marks A reduction, etc. for longer than twelve months 3 black marks Whatever be the number of black marks in any one act of delinquency, it shall still count as one major punishment. 11. Learned counsel for the petitioner has relied upon the judgment passed by the Apex Court in the case of Kulwant Singh Gill vs. State of Punjab, 1991 Supp (1) SCC 504. Relevant para-4 is quoted herein-under:- 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 fails 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. 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 words are the skin to the language which if pealed 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 vs. State of Punjab and Others, ILR (1985) 2 P&H 193, 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 withhold 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. In case where the increments are withhold 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, of earning future increments in the time scale of pay even permanently with 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. 12. Thus, from perusal of Rule, it is evident that stoppage of increment for less than six months is a minor punishment and for this, the procedure has been prescribed in Rule 828 Sub-Clause (c). As per the said rule, after giving a show cause notice and after considering the defense taken by the petitioner, order of punishment can be passed, which can be stoppage of increment for less than six months. Once the stoppage of increment is for six months or more, then Rule 835 specifies that it will be equivalent to one black mark. Black mark has been declared as a major punishment, which is evident from combined reading of Section 824 and 828. For major punishment, it has been prescribed in the Rule itself (Rule 826) that department has to proceed in a regular manner as prescribed by going for a departmental enquiry after appointing the Enquiry Officer, second show cause etc. 13. Black mark has been declared as a major punishment, which is evident from combined reading of Section 824 and 828. For major punishment, it has been prescribed in the Rule itself (Rule 826) that department has to proceed in a regular manner as prescribed by going for a departmental enquiry after appointing the Enquiry Officer, second show cause etc. 13. Thus, the law is clear that stoppage of increment for six months and more is a major punishment and for this, procedure prescribed for major punishment has to be adopted. 14. Coming to the fact of the present case, it is admitted position that as per Rule, punishment given to the petitioner is a major punishment and the procedure has been adopted for minor punishment. Thus, departmental authority has proceeded in violation of the Rules itself by adopting unauthorized process. 15. It is settled principle of law that if principle of natural justice is inbuilt in the rule itself then it becomes mandatory and violation of rule, it will make the decision untenable. 16. In view of above discussion, as per the rule position and as per the judicial pronouncement by the Apex Court, impugned order dated 24.01.2008 and appellate order dated 21.07.2008 being contrary to the rules (supra) are, hereby, quashed. 17. Petitioner is entitle for the consequential benefits. 18. With above observation and directions, the present writ petition stands allowed.