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2020 DIGILAW 1095 (JHR)

Bishwa Nath Prasad v. State of Jharkhand

2020-11-25

DEEPAK ROSHAN

body2020
JUDGMENT : Heard learned counsel for the parties through V.C. 2. The instant application has been preferred by the petitioner for quashing the order dated 15.07.2005 as contained in memo no.436(II) (Annexure-3), passed by the respondent no.3 whereby punishment of withholding of two annual increments with cumulative effect has been imposed upon the petitioner. It was further ordered that the petitioner will not get full salary during the period of suspension except the subsistence allowance which has already been paid. The petitioner has also challenged the appellate order dated 16.03.2006 (Annexure-5) passed by the respondent no.2, whereby the order of punishment has been sustained. 3. Mr. A. K. Sahani, learned counsel for the petitioner challenged the impugned order by submitting that now it is a settled law that withholding of two annual increments with cumulative effect is major punishment and for that the disciplinary authority was duty bound to issue the second show-cause notice before imposing the punishment. He further contended that in this case neither the second show-cause notice was served to the petitioner nor any enquiry report was handed over to him; as such, the impugned order deserves to be quashed and set aside on this score alone. He further referred to the impugned order (Annexure-3) and contended that no reason, whatsoever, has been supplied by the disciplinary authority in imposing the punishment though the petitioner had taken several grounds in his reply to the first show-cause notice, which is Annexure-6 to the supplementary affidavit dated 26.06.2015 filed by the petitioner; as such, the impugned order is also bad in law due to want of supply of reasons. He further referred the judgment passed by the Hon’ble Apex Court in the case Chairman, Life Insurance Corporation of India & Ors. Vs. A. Masilamani reported in (2013) 6 SCC 530 wherein at para-19 the Hon’ble Apex Court held as under:- “19. The word “consider” is of great significance. The dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order.” Relying upon the aforesaid judgment; Mr. Sahani, submits that the instant application should be allowed and the impugned orders should be quashed and set aside. 4. Mr. Mukesh Kumar Sinha, Sr. S.C.I appearing for the respondent-State reiterated its stands made in the counter affidavit, but could not able to demonstrate that any second show-cause notice was given to the petitioner before passing the impugned order. However, he submits that the ground of non-supply of enquiry report, if it has not caused prejudice to the petitioner, will not be beneficial for him. He further contended that the Appellate authority has passed a well reasoned order; as such, no prejudice has been caused to the petitioner. 5. Having heard learned counsel for the parties and after going through the documents available on record it transpires that the impugned order of punishment suffers from infirmity on the following grounds:- (i) By looking to the gravity of the punishment, it is clear that it is a major punishment for which second show-cause notice was required to be served to the petitioner along with enquiry report before imposing the punishment. (ii) From bare reading of the impugned order (Annexure-3) it transpires that no reason, whatsoever, has been assigned by the disciplinary authority. 6. Though in the instant case, the appellate order contains reasons. However, absence of reasons in the original order cannot be compensated by disclosure of reasons in the appellate order. Reference in this regard may be made to the decision passed in the case of ORYX Fisheries Private Ltd. V Union of India reported in (2010)13 SCC 427 . 7. In view of the aforesaid finding the instant writ application is allowed and the impugned order as contained in memo no.436(II) dated 15.07.2005 (Annexure-3), passed by the respondent no.3 and the appellate order dated 16.03.2006 (Annexure-5) passed by the respondent no.2, are hereby quashed and set aside. 8. 7. In view of the aforesaid finding the instant writ application is allowed and the impugned order as contained in memo no.436(II) dated 15.07.2005 (Annexure-3), passed by the respondent no.3 and the appellate order dated 16.03.2006 (Annexure-5) passed by the respondent no.2, are hereby quashed and set aside. 8. The respondents are at liberty to proceed in the matter from the stage of supply of the second show-cause notice and pass a fresh order. It is made clear that since the case is of the year 2006, fresh order must be passed after following the principle of natural justice within a period of five months from the date of receipt/production of a copy of this order, failing which the petitioner shall be entitled for all consequential benefits which was denied to him pursuant to the impugned order. 9. With the aforesaid observations and directions, the instant writ application stands allowed and disposed of.