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2020 DIGILAW 1087 (JHR)

Sajit John Horo v. State of Jharkhand

2020-11-23

SANJAY KUMAR DWIVEDI

body2020
JUDGMENT : Heard Mr. Anil Kumar Sinha, the learned Senior counsel assisted by the Deepak Kumar Dubey, the learned vice counsel appearing for the petitioner and Mr. Rajiv Ranjan, the learned Advocate General assisted by Mr. Gaurav Abhishek, the learned AC to A.G. appearing for the respondent State. 2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard. 3. The petitioner has preferred this writ petition for quashing the order dated 21.07.2014 and the appellate order dated 03.05.2012 against the original order dated 03.02.2012 whereby the punishment has been inflicted upon the petitioner wherein for the unauthorized period i.e. 23.03.2001 to 02.04.2010, the period will not be treated for pensionary benefit and that period will be treated unpaid for salary and it will be treated as break-in-service. 4. The petitioner was appointed by the then Bihar Government in the Water Resources Department on the post of Assistant Engineer on 04.04.1989 and he joined on 19.04.1989. The petitioner worked with the Master Planning and Investigation Division, Giridih with effect from 19.04.1989 to 24.05.1993. The petitioner has been transferred from that department on 24.05.1993 to the district of Darbhanga in the State of Bihar and he joined on 25.05.1993 and worked there till 04.05.1996. The petitioner in the meantime was transferred from one place to another. The petitioner has made application for E.L for treatment of his father from 09.02.2001 to 20.03.2001 to the Superintending Engineer, Aurangabad which was forwarded by the Superintending Engineer to the Chief Engineer, Water Resources Department, Aurangabad. On 27.02.2001, the petitioner sent application to the Superintending Engineer, Aurangabad for not giving the additional charge as the petitioner has already submitted application for E.L from 19.02.2001 to 20.03.2001. The said E.L was not granted. This fact has been admitted in paragraph no.13 of the writ petition. On 19.03.2001, the order for taking charge in place of the petitioner was given to one Md. Parwez Ahmed and the petitioner has given the charge on 22.03.2001 to said Mr. Ahmed. The petitioner submitted a letter on 20.04.2001, the certificate to that effect has been brought on record as Annexure-6. The petitioner was in treatment since 20.04.2001 to 05.03.2006. On 19.03.2001, the order for taking charge in place of the petitioner was given to one Md. Parwez Ahmed and the petitioner has given the charge on 22.03.2001 to said Mr. Ahmed. The petitioner submitted a letter on 20.04.2001, the certificate to that effect has been brought on record as Annexure-6. The petitioner was in treatment since 20.04.2001 to 05.03.2006. In the meantime, the State of Bihar has been bifurcated and the State of Jharkhand came into existence and a tentative list was prepared on 19.07.2002, whereby the cadre of the petitioner has been allocated to the State of Jharkhand and the final list was prepared on 17.09.2004 wherein the name of the petitioner has also been allocated to the State of Jharkhand. One Ran Vijay Prakash has been sent to take charge in place of the petitioner. After the medical treatment, the petitioner joined at State of Jharkhand on 06.03.2006. Thereafter, the petitioner remained on duty in the State of Jharkhand. Certificate to that effect has been brought on the record as Annexure-11 and 11/1 to the writ petition. Thereafter, the enquiry was conducted with regard to the absence of the petitioner wherein it has been found that the petitioner has remained absent with effect from 23.03.2001 to 02.04.2010. The petitioner joined in the year 2011 only on the post in the State of Jharkhand. After the enquiry committee report, the disciplinary authority has considered the case of the petitioner and passed the impugned order whereby the punishment has been inflicted upon the petitioner by order dated 03.02.2012 and the petitioner filed appeal before the appellate authority and the appellate authority has rejected the claim of the petitioner by order dated 03.05.2012. Aggrieved with order dated 21.07.2014, the petitioner has preferred this writ petition. 5. Mr. Anil Kumar Sinha, the learned Senior counsel appearing on behalf of the petitioner assailed the impugned orders on the ground that there was discrepancy in the name of the petitioner in the cadre allocation list and that is why the petitioner was not allowed to join in the State of Jharkhand and to substantiate his argument, he referred to the order dated 08.03.2010 whereby the joining of the petitioner was not accepted. He further submits that in view of Rule 49 of the Civil Services (Classification, Control and Appeal) Rules, 1930, there is no punishment prescribed in the nature of the punishment which has been inflicted upon the petitioner. Rule 49 of the said Rules is quoted below: “49. The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon members of the services comprised in any of the classes (1) to (5) specified in rule 14, namely:- (i) Censure (ii) Withholding of increments or promotion including stoppage at an efficiency bar. (iii) Reduction to a lower post or time-scale, or to a lower stage in a time-scale. (iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders. (iv) A) Compulsory retirement] (v) Suspension (vi) Removal from the civil service of the Crown, which does not disqualify from future employment (vii) Dismissal from the civil service of the Crown, which ordinarily disqualifies from future employment.” To buttress his argument, he relied in the case of “Vijay Singh v. State of U.P.,” reported in (2012) 5 SCC 242 . Paragraph nos. 11 to 12 of the said judgment are quoted below : “11. Admittedly, the punishment imposed upon the appellant is not provided for under Rule 4 of the 1991 Rules. Integrity of a person can be withheld for sufficient reasons at the time of filling up the annual confidential report. However, if the statutory rules so prescribe, it can also be withheld as a punishment. The order passed by the disciplinary authority withholding the integrity certificate as a punishment for delinquency is without jurisdiction, not being provided under the 1991 Rules, since the same could not be termed as punishment under the Rules. The Rules do not empower the disciplinary authority to impose “any other” major or minor punishment. It is a settled proposition of law that punishment not prescribed under the Rules as a result of disciplinary proceedings cannot be awarded. 12. This Court in State of U.P. v. Madhav Prasad Sharma dealt with the aforesaid 1991 Rules and after quoting Rule 4 thereof held as under: (SCC p. 216, para 16) “16. We are not concerned about other rule. 12. This Court in State of U.P. v. Madhav Prasad Sharma dealt with the aforesaid 1991 Rules and after quoting Rule 4 thereof held as under: (SCC p. 216, para 16) “16. We are not concerned about other rule. The perusal of major and minor penalties prescribed in the above Rule makes it clear that ‘sanctioning leave without pay’ is not one of the punishments prescribed, though, and under what circumstances leave has been sanctioned without pay is a different aspect with which we are not concerned for the present. However, Rule 4 makes it clear that sanction of leave without pay is not one of the punishments prescribed. Disciplinary authority is competent to impose appropriate penalty from those provided in Rule 4 of the Rules which deals with the major penalties and minor penalties. Denial of salary on the ground of ‘no work no pay’ cannot be treated as a penalty in view of statutory provisions contained in Rule 4 defining the penalties in clear terms.” 6. He further submits that a coordinate Bench of this Court has also considered this aspect of the matter in W.P.(S) No.981 of 2013 which was disposed of on 17.12.2013. He submits that in view of well settled provision of law that when the punishment is not prescribed in the particular rule, the other punishment cannot be allowed to be imposed. He further submits that there is untoward situation in the family and that is why the petitioner has not been able to join. He submits that the absence of the petitioner was not willful. He submits that the petitioner has earlier tried to join, but the petitioner was not allowed to join and in that view of the matter the fault will not lie to the petitioner. He submits that the absence was not willful. To buttress his argument, he relied in the case of “Krushnakant B. Parmar v. Union of India” reported in (2012) 3 SCC 178 . Paragraph nos. 15 to 24 are quoted hereinbelow: “15. Rules 3(1)(ii) and 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964, relates to all time maintaining integrity, devotion to duty and to do nothing which is unbecoming of a government servant and reads as follows: “3. Paragraph nos. 15 to 24 are quoted hereinbelow: “15. Rules 3(1)(ii) and 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964, relates to all time maintaining integrity, devotion to duty and to do nothing which is unbecoming of a government servant and reads as follows: “3. General.—(1) Every government servant shall at all times— (i) maintain absolute integrity; (ii) maintain devotion to duty; and (iii) do nothing which is unbecoming of a government servant.” 16. In the case of the appellant referring to unauthorized absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behavior was unbecoming of a government servant. The question whether “unauthorized absence from duty” amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances. 17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant. 18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct. 19. In the present case the inquiry officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold that the absence was wilful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty. 20. The question relating to jurisdiction of the court in judicial review in a departmental proceeding fell for consideration before this Court in M.V. Bijlani v. Union of India1 wherein this Court held: (SCC p. 95, para 25) “25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. 7. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. 7. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.” 21. In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the inquiry officer or the appellate authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3-10-1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of telephone calls dated 29-9-1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the inquiry officer held the appellant guilty. 22. Mr P. Venkateswarlu, DCIO, Palanpur, who was the complainant and against whom the appellant alleged bias refused to appear before the inquiry officer in spite of service of summons. Two other witnesses, Shri Jivrani and Shri L.N. Thakkar made no statement against the appellant, and one of them stated that he had no knowledge about the absence of the appellant. Ignoring the aforesaid evidence, on the basis of surmises and conjectures, the inquiry officer held the charge proved. 23. Two other witnesses, Shri Jivrani and Shri L.N. Thakkar made no statement against the appellant, and one of them stated that he had no knowledge about the absence of the appellant. Ignoring the aforesaid evidence, on the basis of surmises and conjectures, the inquiry officer held the charge proved. 23. Though the aforesaid facts were noticed by the appellate authority but ignoring such facts giving reference of extraneous allegations which were not the part of the charge, it dismissed the appeal with the following uncalled for observation: “The appellant even avoided the basic training required for the job and asked JAD, Ahmedabad to send all the training papers for his training at IB Training School, Shivpuri (Madhya Pradesh) to his residence at Ahmedabad. ‘An untrained officer is of no worth to the department’.” 24. In the result, the appeal is allowed. The impugned orders of dismissal passed by the disciplinary authority, affirmed by the appellate authority; the Central Administrative Tribunal and the High Court are set aside. The appellant stands reinstated.” 8. He further relied in the case of “Kaushal Kumar Mishra v. The State of Jharkhand and Ors”’ [W.P.(S) No.2756 of 2013] decided by a co-ordinate Bench of this Court on 15.05.2014 and submits that the coordinate Bench of this Court has also come to the conclusion that if the absence is not willful, the punishment is not required to be passed. He further refers to the charge sheet and by way of referring the charge sheet he submits that in the charge sheet itself it has been admitted that the name of the petitioner was wrongly typed in the cadre allocation list and for correction the petitioner has also made request to the concerned authority. He further submits that charge sheet has been issued in view of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 and only on the basis of that punishment cannot be imposed wherein without giving any opportunity to the petitioner with regard to the pension the order has been passed for withholding the pension of the petitioner. He submits that in view of Rule 139 of the Pension Rules, the opportunity of hearing is required to be provided to the concerned employee so that the appropriate facts may be brought before the deciding authority. He submits that in view of Rule 139 of the Pension Rules, the opportunity of hearing is required to be provided to the concerned employee so that the appropriate facts may be brought before the deciding authority. He submits that the pension rule is not required to be considered at this stage as the charge sheet was issued under Rule 55 of Civil Services (Classification, Control and Appeal) Rules, 1930. He further submits that so far the enquiry proceeding is concerned, this is not in accordance with the parameters laid down in the rules he submits that in the departmental proceeding not even a single witness has been examined and only on discussing the facts, the enquiry officer has come to that conclusion. To buttress his argument, he relied in the case of”State of U.P. v. Saroj Kumra Sinha” reported in (2010) 2 SCC 772 [para- 28, 29 and 30]. On this ground, he submits that the impugned order cannot sustain in the eye of law. Paragraph nos.28, 29 and 30 of the said judgment are quoted below: “28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents. 29. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee. 30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. 30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.” 9. Per contra, Mr. Rajiv Ranjan, the learned Advocate General appearing on behalf of the respondent State, submits that it is an admitted that the petitioner was on unauthorized absence without any leave. He did not join in the State of Jharkhand as per the allocation. The petitioner has admitted in so many documents that his father was ill and that is why the petitioner has not joined. The petitioner has taken contrary ground of not joining on the post. The petitioner remained absent with effect from 23.03.2001 to 02.04.2010. He submits that in tentative list and the final list the petitioner was allocated the State of Jharkhand. There was direction to join at Jassidih but the petitioner did not join. The petitioner appeared in the year 2006 and joined and again remained absent. He submits that in judgment relied by Mr. Sinha, the learned Senior counsel in “State of U.P. v. Madhav Prasad Sharma” reported in (2011) 2 SCC 212 at paragraph no.16, which is quoted below: “16. We are not concerned about other rules. The perusal of major and minor penalties prescribed in the above Rule makes it clear that “sanctioning leave without pay” is not one of the punishments prescribed, though, and under what circumstances leave has been sanctioned without pay is a different aspect with which we are not concerned for the present. However, Rule 4 makes it clear that sanction of leave without pay is not one of the punishments prescribed. Disciplinary authority is competent to impose appropriate penalty from those provided in Rule 4 of the Rules which deals with the major penalties and minor penalties. Denial of salary on the ground of “no work no pay” cannot be treated as a penalty in view of statutory provisions contained in Rule 4 defining the penalties in clear terms. Disciplinary authority is competent to impose appropriate penalty from those provided in Rule 4 of the Rules which deals with the major penalties and minor penalties. Denial of salary on the ground of “no work no pay” cannot be treated as a penalty in view of statutory provisions contained in Rule 4 defining the penalties in clear terms. Rule 7 empowers the Government or any officer of the police to award the punishment mentioned in Rule 4. Rule 8 provides for punishment of dismissal and removal. Thus the punishment of dismissal from the service is the punishment which has been awarded to the respondent in accordance with Rules 4 and 8 of the Rules. There is no question of awarding two punishments in respect of one charge.” 10. The learned Senior counsel appearing for the petitioner submits that the Hon’ble Supreme Court in this case has considered this aspect of the matter that denial of salary on the ground of no-work-no-pay is treated as penalty under the statutory provision. He further refers to Rule 49 to 106 of the Pension Rules and submits that in view of the pension rules there are criteria as to how the leave shall be calculated for grant of pension. Interruption in service is also to be considered in view of Rule 103 of Pension Rules. He submits that the lenient view in the matter has been taken in to consideration by the Government as the petitioner was required to be punished under Rule 76 of the Civil Services (Classification, Control and Appeal) Rules, 1930, wherein the only punishment is dismissal from service, but the State Government has taken a lenient view and has not passed that order. He submits that there is no illegality in the impugned action and no relief can be granted to the petitioner. 11. The Court has given a thoughtful consideration to the submissions of the learned counsels appearing for the parties and has gone through the materials on the record. The charge sheet has been issued in view of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930. There is no doubt that there is discrepancy in the name of the petitioner in the cadre allocation list, however, the petitioner has also taken a contradictory ground with regard to his absence for such period. The charge sheet has been issued in view of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930. There is no doubt that there is discrepancy in the name of the petitioner in the cadre allocation list, however, the petitioner has also taken a contradictory ground with regard to his absence for such period. The action was sought to be taken on the basis of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930. It was incumbent upon the authority to proceed in accordance with that statute only. At this stage, invoking of pension rules was not warranted as in view of Rule 139 of the Pension Rule, opportunity was required to be provided to the delinquent to put forward his case. The conduct of the petitioner is also not appreciable in view of admitted position. On perusal of the enquiry report, it transpires that not even a single witness has been examined to prove the case. In the enquiry proceeding, the documents are need to be proved by way of adducing evidence which has not been done in the case in hand and in that view of the matter, the writ petition succeeds on the ground of departmental proceeding not made in accordance with law and the punishment order has been passed contradictory to the Rule 49 of the Civil Services (Classification, Control and Appeal) Rules, 1930 and on this ground the impugned orders dated 21.07.2014 and the appellate order dated 03.05.2012 are quashed. 12. The matter is being remitted back to the disciplinary authority for taking a decision afresh in the matter in the light of the above discussions. 13. With the above observations and direction, the writ petition is allowed and disposed of.