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Jharkhand High Court · body

2020 DIGILAW 218 (JHR)

Tej Narayan Prasad v. State of Jharkhand

2020-02-04

S.N.PATHAK

body2020
JUDGMENT : Heard the parties. 2. Petitioner has approached this Court with a prayer for quashing the memo No. 655 dated 31.03.2004, issued by District Superintendent of Education, Giridih, whereby the petitioner has been exonerated from departmental proceeding withholding one increment, on the basis of decision taken by the District Education Establishment Committee dated 22.12.2003. 3. As per the factual matrix, petitioner was appointed to the post of Assistant Teacher vide memo dated 06.04.1976 issued by the District Superintendent of Education, Giridih and petitioner gave his joining on 10.04.1976. After working for a long period, petitioner superannuated on 31.01.2013, from the post of Assistant Teacher in Upgraded Middle School, Basgohra, Dumri, Giridih. It is the case of the petitioner that during his service period, a criminal case i.e. Bagodar P.S. Case No. 154 of 2001 was lodged against him in which, the petitioner was arrested on 09.09.2001 and consequently, petitioner was put under suspension for the period between 09.09.2001 to 15.02.2002 and a departmental proceeding was also initiated against him. It is the specific case of the petitioner that the petitioner has been honorably acquitted in the said criminal case vide judgment dated. 30.04.2003 by the learned Fast Track Court No. IV, Giridih. After exoneration, the petitioner submitted representation before the District Superintendent of Education, Giridih on 12.07.2003, for exonerating him in the departmental proceeding on the basis of honorable acquittal in the criminal case. The respondents though exonerated the petitioner from the departmental proceeding but have imposed a punishment of stoppage of one increment of pay and the said decision was communicated to the petitioner vide impugned memo No. 655 dated 31.03.2004. Aggrieved by stoppage of one increment which amounts to major punishment, petitioner has knocked the door of this Court. 4. Mr. Prakash Chandra, learned counsel appearing for the petitioner submits that even a show-cause notice was not issued to the petitioner before inflicting punishment of stoppage of one increment. Learned counsel further submits that neither Establishment Committee nor the District Superintendent of Education has considered the honorable acquittal of petitioner in the criminal case before passing the impugned order. Learned counsel further argues that in complete violation of principle of natural justice, the impugned order has been issued. 5. Per contra, counter-affidavit has been filed. Mr. Learned counsel further submits that neither Establishment Committee nor the District Superintendent of Education has considered the honorable acquittal of petitioner in the criminal case before passing the impugned order. Learned counsel further argues that in complete violation of principle of natural justice, the impugned order has been issued. 5. Per contra, counter-affidavit has been filed. Mr. Ashish Kumar Singh, AC to learned GP-II very fairly submits that the impugned order has been passed on the basis of decision taken by the Establishment Committee which while passing the order of punishment of stoppage of one increment, has taken every aspects of the matter which was made available before the said Committee and as such, there is no illegality in the impugned order. 6. Be that as it may, on a consideration of the facts and circumstances of the case as also the submissions made across the bar, this Court is of the considered opinion that case of the petitioner needs consideration. On previous occasions, this Court passed an order for producing the entire records of the departmental proceeding along with memo of charges and list of witnesses with respect to the petitioner. Though affidavit to that effect has not been filed but the District Superintendent of Education is present in the Court today with entire records of the proceeding. It has been submitted by the District Superintendent of Education as well as learned counsel appearing for the respondent-State that upon examination of the records, it appears that petitioner was never issued any showcause. The Hon’ble Apex Court in case of Bhagwan Shukla Vs. Union of India & Ors., reported in (1994) 6 SCC 154 has held as under: “The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show-cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There has, thus, been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. Therefore, the impugned order by which the pay of the appellant fixed on his promotion as Guard-C from the post of Trains Clerk was sought to be reduced is not sustainable.” Further in case of Satwati Deswal Vs. Therefore, the impugned order by which the pay of the appellant fixed on his promotion as Guard-C from the post of Trains Clerk was sought to be reduced is not sustainable.” Further in case of Satwati Deswal Vs. State of Haryana & Ors., reported in (2010) 1 SCC 126 , the Hon’ble Apex Court has held as under: “8. Apart from that, on a cursory look of the statutory provision of the Constitution of the Parishad Working Committees, it would be clear that before imposing any major penalty against an employee, namely, an order of termination of service, an inquiry must be held in the manner specified in the statutory rules by which the disciplinary authority shall frame definite charges on the basis of allegations on which an inquiry shall be proposed and opportunity must be given to the employee to submit a written statement stating therein whether he/she desires to be heard in person and no order of termination also can be passed without the approval of the Managing Committee. On this count alone, therefore, the High Court was, in our view, in grave error in dismissing the writ petition of the writ petitioner. 9. Accordingly, the impugned judgment of the High Court is set aside and the order of termination passed against the appellant is quashed and the writ petition stands allowed. However, it would be open to the authorities, if so desire, to initiate disciplinary proceedings against the appellant for her termination from service and if such disciplinary proceedings are initiated, the authorities shall give proper opportunity of hearing and permit the parties to adduce evidence in support of their respective stands and after giving such opportunity, the disciplinary authorities thereafter shall give hearing to the appellant and then pass a final order on the question of termination of service of the appellant in compliance with the concerned statutory rules applicable to the appellant.” 7. Admittedly, a minor punishment has been inflicted and as such, a regular departmental proceeding is not warranted. Law is well settled that even in case of minor punishment, at least a show cause is required and the employee has to be given an opportunity to file reply. In the instant case the same has not been done by the respondents. Even on the charges on which punishment has been inflicted, the petitioner has been honorably acquitted by the learned Court below. In the instant case the same has not been done by the respondents. Even on the charges on which punishment has been inflicted, the petitioner has been honorably acquitted by the learned Court below. Order of punishment has been issued on the basis of criminal case and petitioner has subsequently been acquitted in the criminal case. Before coming to a finding of guilt and slapping the petitioner with minor punishment of withholding one increment, it was incumbent upon the respondents to issue a show-cause notice. However, nothing has been done in the instant case. It is a glaring example of gross illegality committed by the respondent-authorities. 8. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the impugned order dated 31.03.2004, issued by District Superintendent of Education, Giridih, is hereby quashed and set aside. Consequent upon the quashment of impugned order, the petitioner is entitled for all consequential benefits. 9. Resultantly, the writ petition stands allowed. 10. The respondents are permitted to keep the entire records of thedepartmental proceeding.