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2020 DIGILAW 1127 (JHR)

Usha Singh v. State of Jharkhand

2020-12-02

SANJAY KUMAR DWIVEDI

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JUDGMENT : Heard Mr. Rajendra Krishna, the learned counsel for the petitioner and Mrs. Darshana Poddar Mishra, the learned counsel for the respondent State. 1. 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. 2. The petitioner has preferred this writ petition for quashing the order dated 29.06.2017 contained in Annexure-15 whereby the petitioner has been punished. 3. The petitioner has been appointed on 10.10.1993 as Medical Officer and was posted at Giridih. The petitioner has been deputed at Primary Health Centre, Bermo. By notification dated 14.11.2000 the petitioner was suspended while she was working as Medical Officer at Divisional Hospital, Bermo on the ground that she was unauthorisedly absent from the duty and not taking care of the Government work. The suspension of the petitioner was revoked by order dated 24.02.2010 and the petitioner was directed to join at Headquarter. After revocation of suspension, the petitioner has joined on 25.02.2010 at Headquarter. The petitioner filed the representation for regularization of the period of suspension on the ground that no departmental proceeding has been initiated against her. The departmental proceeding was initiated by the order dated 17.08.2011 for the charges of gross negligence and indiscipline in Government duty and doing her private practice. In the departmental proceeding the petitioner appeared and participated. The petitioner proceeded on leave only from 01.06.2011 to 04.06.2011 and thereafter she went on filing leave petition for extending the leave up to 11.10.2011. The said applications are annexed as Annexure-8 series in the writ petition. The petitioner joined at Primary Health Centre, Nawadih at Bokaro on 27.09.2014. The Civil Surgeon cum Chief Medical Officer, Bokaro by letter dated 29.09.2014 has requested the Principal Secretary, Department of Health, Government of Jharkhand to grant approval regarding acceptance of joining of the petitioner. No instruction has been received from the Headquarter. The petitioner has submitted her joining in the office of the Principal Secretary, Department of Health on 27.01.2016. The charge sheet was issued on 18.04.2017 for unauthorized absence for the period from 01.06.2011 to 27.09.2014. The departmental proceeding was initiated thereafter the petitioner participated in the departmental proceeding. The enquiry report was submitted. The petitioner has submitted her joining in the office of the Principal Secretary, Department of Health on 27.01.2016. The charge sheet was issued on 18.04.2017 for unauthorized absence for the period from 01.06.2011 to 27.09.2014. The departmental proceeding was initiated thereafter the petitioner participated in the departmental proceeding. The enquiry report was submitted. The petitioner has been punished by the impugned order by which three increments has been withheld by way of non-cumulative effect, however, the days of absence has been regularized. 4. Mr. Rajendra Krishna, the learned counsel for the petitioner assailed the impugned order on the ground that in the enquiry report no evidence has been adduced and on that basis, the punishment order has been passed. He submits that in the enquiry report the charges against the petitioner has not been proved. Thus, the case of the petitioner is fit to be allowed. To buttress his arguments, he relied in the case of ‘Roop Singh Negi v. Punjab National Bank and Others’ reported in (2009) 2 SCC 570 . Paragraph no.23 of the said order is quoted herein below: “23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof” 5. Per contra, the Mrs. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof” 5. Per contra, the Mrs. Darshana Poddar Mishra, the learned counsel for the respondent State draws attention of this Court to Annexure-7 of the writ petition which is the application filed by the petitioners for availing the leave. She submits that by way of filing applications the petitioner has sought for extension of the leave. She submits that by each and every application the ailment has been changed. She submits that the petitioner was doing private practice and without authorized leave, she has remained absent. She submits that in the enquiry report there are evidences. She further submits that the lenient view has been taken in the case of the petitioner as only 3 increments have been withheld and that too non-cumulative effect. She further submits that it is well settled proposition of law that for minor punishment no detail enquiry is required. To buttress his argument, she relied in the case of ‘U.P. State Sugar Corpn. Ltd. v. Kamal Swaroop Tondon” reported in (2008) 2 SCC 41 . Paragraph nos. 32 and 40 of the said judgment is quoted hereinbelow: “32. The learned counsel for the appellant Corporation also referred to the Rules. Chapter IV titled “Fundamental Duties of Service”. Rule 31 expressly states that an employee of the Corporation would be “whole-time employee”. Chapter VIII (Rules 93 to 107) deals with “disciplinary proceedings”. Rule 93 is material and relevant part thereof reads thus: “93. The following penalties may, for good and sufficient reason and as hereinafter provides, be imposed on an employee— A. Minor Penalties (i) censure; (ii) withholding of annual increment(s), including stoppage of an efficiency bar/assessment stage with or without cumulative effect; (iii) recovery from pay or from such other amounts as may be due to the employee of the whole or part of any pecuniary loss caused to the Corporation by negligence or breach of orders on his part; B. Major Penalties (iv) reduction to a lower grade or post or to a lower stage in a timescale; (v) removal from service which does not disqualify from future employment; (vi) dismissal from service which ordinarily disqualifies from future employment.” (emphasis supplied) 40. Considering the facts and circumstances in their entirety, in our considered opinion, the High Court was wrong in holding that the proceedings were initiated after the respondent retired and there was no power, authority or jurisdiction with the Corporation to take any action against the writ petitioner and in setting aside the orders passed against him. In our judgment, proceedings could have been taken for the recovery of financial loss suffered by the Corporation due to negligence and carelessness attributable to the respondent employee. The impugned action, therefore, cannot be said to be illegal or without jurisdiction and the High Court was not right in quashing the proceedings as also the orders issued by the Corporation. The appeal, therefore, deserves to be allowed by setting aside the order of the High Court.” 6. She further submits that only withholding of increment with non-cumulative effect is minor punishment and for this she relied in the case of ‘Punjab State Electricity Board now Punjab State Power Corporation Limited v. Raj Kumar Goel’ reported in (2014) 15 SCC 748 . 7. Having heard the learned counsels appearing for the parties, the Court has perused the materials on record. Annexure-7 is the applications filed by the petitioner. Initially the petitioner went on leave for the period 01.06.2011 to 04.06.2011 and by way of further applications, she requested for extension of the leave and last application was filed on 11.10.2011. For each application the ailment has been stated to be different. Thereafter, no application for extension of leave was filed by the petitioner and finally the petitioner joined on 27.09.2014. In the departmental proceeding, the enquiry officer has considered the documents on the record and submissions of the petitioner as well as the Presenting Officer. Thereafter, the enquiry officer has submitted the report and came to the conclusion that the petitioner has remained unauthorisedly absent which indicates indiscipline for Government job of the petitioner. The doctors are doing a very nobel job and the doctors cannot be permitted to weaken their services. In the case in hand, the petitioner went on leave with effect from 01.06.2011 and till the end of 2011, she filed application for extension of leave and thereafter she has not obtained the leave and finally she joined on 27.09.2014. The doctors are doing a very nobel job and the doctors cannot be permitted to weaken their services. In the case in hand, the petitioner went on leave with effect from 01.06.2011 and till the end of 2011, she filed application for extension of leave and thereafter she has not obtained the leave and finally she joined on 27.09.2014. In the departmental proceeding, ample opportunity has been provided to the petitioner and a very minor punishment has been imposed upon the petitioner and in view of the case of ‘U.P. State Sugar Corporation’ supra, no prejudice is caused to the petitioner. So far as ‘Roop Singh Negi’ case supra relied by the learned counsel for the petitioner is concerned, no very harsh order has been passed, and in that case the petitioner was dismissed and major punishment has been passed and the Hon’ble Supreme Court in that view of the matter has considered the civil consequence aspect of the matter and passed the order. The case in hand is not of that nature and the ‘Roop Singh Negi’ case supra is not rescuing the petitioner. The Court finds that ample opportunity of hearing has been provided to the petitioner and a very minor punishment of withholding of three increments with non-cumulative effect has been passed. The case of the respondent is covered in view of the judgment rendered in case of ‘U.P. State Sugar Corporation’ supra, no relief can be extended to the petitioner. The writ petition [W.P.(S) No.3387 of 2018] is dismissed.