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2020 DIGILAW 879 (JHR)

Nisha Sinha v. State of Jharkhand

2020-09-11

DEEPAK ROSHAN

body2020
JUDGMENT : Heard learned counsel for the parties through V.C. 2. At the outset, it is pertinent to mention here that during pendency of this writ application, the original petitioner-Sudhir Kumar Sinha died on 14.09.2017 and thereafter, his widow-Nisha Sinha has been substituted pursuant to the order dated 08.08.2019 passed in interlocutory application being I.A. No.8598 of 2017. 3. The instant application has been preferred by the original-petitioner for following reliefs:- (i) For quashing the order as contained in Memo No.8204 (S) dated 14.11.2014, issued under the signature of Under Secretary, Road Construction Department, Govt. of Jharkhand, Ranchi whereby petitioner has been inflicted punishment of stoppage of 10% of pension on permanent basis and in respect of suspension period except subsistence allowance nothing would be paid for the suspension period but suspension period shall not be treated as a break in service; (ii) For issuance of a writ or a writ of or in the nature of a writ of mandamus to withdraw/cancel/rescind the aforesaid Memo dated 14.11.2014 and not to give effect to or to act in pursuance of or in furtherance of aforesaid impugned order; (iii) For issuance of writ of mandamus directing upon the respondents concerned to produce the entire records of file of department proceeding of petitioner before this Hon’ble Court; (iv) For any other appropriate writ/writs be issued, order/orders be passed and direction/directions be made as Your Lordship may deem fit and proper in the fact and circumstances of the case. 4. The facts as disclosed in the instant writ application transpires that the original writ petitioner had earlier moved before this Court by way of filing W.P.(S) No.3172 of 2013 and the same was disposed of in terms of order dated 18.01.2014 passed by a Co-ordinate Bench of this Court. Relevant paras 8 & 9 are reproduced herein below:- “8. A bare perusal of penalties provided under Rule 49 of Civil Services (Classification Control and Appeal), Rules would indicate that no penalty for deduction from the pension has been provided under Rule 49 Civil Services (Classification Control and Appeal), Rules. It is an admitted case that the respondents did not proceed against the petitioner under the Jharkhand Pension Rules and therefore, the penalty of withholding 10% pension on permanent basis could not have been imposed on the petitioner. It is an admitted case that the respondents did not proceed against the petitioner under the Jharkhand Pension Rules and therefore, the penalty of withholding 10% pension on permanent basis could not have been imposed on the petitioner. Though, multiple penalties can be imposed on a delinquent employee but, such penalty must be provided under the Rules. 9. In view of the aforesaid, the present writ petition is allowed. However, it would be open to the respondent-authority to issue show-cause notice to the petitioner and pass appropriate order in the matter.” 5. Pursuant to the said order, the petitioner was asked to show-cause under the provision of 43 (b) of Bihar Pension Rules. Subsequent to that the petitioner filed a detailed reply as mentioned in Annexure-15 to the instant writ application. From bare perusal of the said reply to the show-cause notice, it transpires that the original petitioner had given reply on each and every charge whereby under charge no.1; he had taken specific stands that the bitumen receipt invoice was to be inspected and verified by the Executive Engineer and it was not the duty of the petitioner, who was just a Junior Engineer. He further took a stand against the said charge that in the earlier writ application in counter affidavit filed by the State, it was specifically mentioned that the petitioner was not permitted to verify the fake bitumen invoice submitted by the contractor. For other two charges also, the petitioner had given reply. After perusal of the reply filed by the original-petitioner, the disciplinary authority has imposed the order of punishment as contained in Annexxure-17 to the writ petition. 6. From bare perusal of the impugned order, it would transpire that the disciplinary authority has not taken into consideration the reply of the petitioner towards charge no.1 that he was not accountable to verify the receipt and it was only the Executive Engineer who has empowered and accountable to verify the bitumen receipt. The disciplinary authority has only considered one reply which was under charge no.2. In this view of the matter, apparently the impugned order suffers from infirmity because it is settled proposition of law that the disciplinary authority has to consider each and every grounds of the delinquent by giving specific reasons. 7. During course of arguments, learned counsel for the petitioner submits that the impugned order suffers from several infirmities. In this view of the matter, apparently the impugned order suffers from infirmity because it is settled proposition of law that the disciplinary authority has to consider each and every grounds of the delinquent by giving specific reasons. 7. During course of arguments, learned counsel for the petitioner submits that the impugned order suffers from several infirmities. However, this Court is not giving finding on other issues since there is apparent error in the impugned order to the effect that the reply given by the petitioner has not been considered. 8. Learned counsel for the respondent-State could not justify the impugned order so far as this part is concerned. However, he submits that the punishment is only deduction of 10% pension and there is no procedural error in the entire proceeding, which has been followed after the decision of this Court. 9. Having heard learned counsel for the parties and after going through the materials available on record; the impugned order suffers from infirmity for the sole reason that each and every point raised by the original-petitioner in his reply to the show-cause notice given to him after the proceeding initiated under 43(b) has not been replied. It goes without saying that now it is settled proposition of law that disciplinary authority as well as appellate authority has to give reasons for imposing the penalty. 10. In view of the aforesaid facts and circumstances of the case the impugned order as contained in Memo No.8204(S) dated 14.11.2014, issued under the signature of Under Secretary, Road Construction Department, Govt. of Jharkhand, Ranchi, annexed as Annexure-17 to the writ petition is hereby quashed and set aside and the matter is remitted back to the respondent no.2 to pass a fresh order considering each and every contention raised by the original-petitioner in his reply to the 43(b) notice. It goes without saying that the order shall be passed on the basis of reply already filed by the original petitioner and the records available with the respondent no.2. It is made clear that the fresh order must be passed within a period of three months from the date of receipt of a copy of this order, failing which the substituted petitioner will be entitled for the benefit which has been stopped due to the impugned order. 11. With the aforesaid observation and direction, the instant writ application is allowed and disposed of.