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Jharkhand High Court · body

2021 DIGILAW 1088 (JHR)

Md. Abul Qasim v. State of Jharkhand

2021-12-21

S.N.PATHAK

body2021
JUDGMENT : S.N. PATHAK, J. 1. Heard the parties. 2. Petitioner has approached this Court for quashing part of order dated 30.05.2020 (Annexure-6), passed by respondent No. 3, the District Superintendent of Education, Giridih, whereby, two increment of salary of the petitioner was ordered to be withheld retrospectively from 2008 and it was decided to adjust difference amount consequent thereto from the retiral benefits of the petitioner. Petitioner has further prayed for direction upon the respondent to pay all consequential benefits as per fixation of his pension. 3. The facts of the case lies in a narrow compass. The petitioner was appointed to the post of Assistant Teacher on 10.02.1981 in primary School Manjhne Gawan. On 24.08.2006, when a surprise inspection was conducted by respondent No. 3, the petitioner was on leave but the respondent under misconception of facts, passed an order of suspension vide its order dated 06.09.2006 considering the petitioner on unauthorized leave. Thereafter, an enquiry was set-up against the petitioner and the Enquiry Officer, after conducting the Enquiry, submitted his report on 03.01.2008, finding the petitioner innocent and the allegation was found to be incorrect. Upon receipt of the enquiry report, the order of suspension passed against the petitioner was revoked but while doing so, two increments of salary had been withheld by the respondent No. 3 vide its order dated 19.06.2008. Thereafter, on the representation of the petitioner, the respondent vide its order dated 30.12.2013, granted the benefits of the two increments which has been withheld by the respondents vide order dated 19.06.2008. On attaining the age of superannuation, the petitioner retired on 31.12.2019. It is the specific case of the petitioner that after his retirement, the respondents vide its order dated 30.05.2020, arbitrarily and illegally passed the order of recovery and recovered an amount of Rs. 2,00,000/- from the retiral dues of the petitioner. Aggrieved by the aforesaid illegal and arbitrary action of the respondents, the petitioner has knocked the door of this Court. 4. Mr. Arwind Kumar, learned counsel appearing for the petitioner strenuously urges that the impugned order passed by respondent No. 3 is contrary to law and against the established principle of service jurisprudence. Learned counsel further submits that the respondents themselves have revoked the order of withholding of two increments and as such, no recovery is permissible from the retiral dues of the petitioner. Learned counsel further submits that the respondents themselves have revoked the order of withholding of two increments and as such, no recovery is permissible from the retiral dues of the petitioner. Learned counsel further argues that the action of the respondents is against the mandate of Article 14 of the Constitution of India and as such, the impugned order is fit to be quashed and set aside. 5. Per contra counter-affidavit has been filed. Learned counsel appearing for the respondent-State vehemently opposes the contention of learned counsel for the petitioner and argues that two increment of petitioner has been withheld from the retrospective effect as per decision of District Education Establishment Committee meeting dated 14.01.2008 vide memo no. 1036 dated 19.06.2008. Moreover, it has never been recalled by the Competent Authority i.e. District Education Establishment Committee, Giridih. Learned counsel further argues that upon the representations of the petitioner, respondents put-up the matter of the petitioner before the District Education Establishment Committee’s meeting dated 13.01.2017, in which it was decided that since the suspension of the petitioner was revoked, with condition to withhold the two increments from cumulative effect, hence, the same authority cannot reconsider the matter. 6. Learned counsel further argues that vide order dated 14.06.2021, this Court has directed the Director, Secondary Education to file a specific affidavit within a period of three weeks on the following issues: 1. If the petitioner was exonerated by the Enquiry Officer, whether without assigning reasons, the increments of the petitioner can be turned down by the District Establishment Committee. 2. When the District Superintendent of Education after enquiry, found that the petitioner has been exonerated and has passed the order for extending the benefits, where the same can be turned down on the ground that District Superintendent of Education is not having jurisdiction to pass such order. 3. If an illegal order has been passed by the District Superintendent of Education without having jurisdiction, whether any action has been taken against him/her. 4. Whether the State be allowed to take the benefit of its own fault and the poor teacher after superannuation be allowed to suffer. 7. In response to which, the Director, Primary Education has filed supplementary counter-affidavit dated 30.09.2021. 4. Whether the State be allowed to take the benefit of its own fault and the poor teacher after superannuation be allowed to suffer. 7. In response to which, the Director, Primary Education has filed supplementary counter-affidavit dated 30.09.2021. With respect to the first query made by this Court, it is stated that the District Establishment Committee has power to impose punishment and the action of the Committee is well within its right to turn down the increments of the petitioner. With respect to the second query it is stated that the District Superintendent of Education, Giridih vide his letter dated 18.09.2021 has informed that the letter of extending benefits to the petitioner has not been issued from the office of the concerned District Superintendent of Education and hence, the letter relied upon by the petitioner is fake and manufactured. With respect to the third query, it is stated that from perusal of the letter dated 18.09.2021, it is evident that no such letter has been issued from the office of the D.S.E. Giridih and hence, no action against the said authority has been taken. With respect to the fourth query, it is stated that the District Establishment Committee has imposed punishment on petitioner which was well within its powers and hence, the petitioner has not suffered any loss due to the fault of the State. The petitioner after imposition of the punishment has moved for a review of the decision before the District Establishment Committee which was also turned down by the said Committee. Learned counsel submits that the petitioner without exhausting the legal remedy of Departmental Appeal before the Commissioner, has directly approached this Court. Learned counsel further argues that the entire writ petition is misconceived and the petitioner does not deserve any relief from this Hon’ble Court. 8. Be that as it may, having heard the rival submissions of the parties and upon perusal of the documents brought on record, this Court is of the considered view that the case of the petitioner needs consideration for the following facts and reasons: (I) Petitioner has been fully exonerated by Enquiry Officer. (II) The Disciplinary Authority was free to differ with the enquiry report assigning cogent reasons and after issuance of 2nd show-cause notice, could have passed the punishment order on the petitioner. (II) The Disciplinary Authority was free to differ with the enquiry report assigning cogent reasons and after issuance of 2nd show-cause notice, could have passed the punishment order on the petitioner. However, in absence of any cogent reason and in absence of 2nd show-cause notice, the order of punishment itself is not tenable in the eyes of law, the impugned order is fit to be quashed and set aside. 9. The law is well settled and the aforesaid issue is now no more res integra. The Hon’ble Apex Court in case of Managing Director, ECIL and Others vs. B. Karunakar and Others, (1993) 4 SCC 727 has held that: “26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer’s findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it.” Further, the Hon’ble Apex Court in case of Punjab National Bank and Others vs. Kunj Behari Misra, (1998) 7 SCC 84 , has held that: “Whenever the disciplinary authority disagrees with the enquiring authority on any article of charge then before it records its findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry office containing its findings will have to be conveyed and the delinquent office will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer. Further in Paras-17 and 19 of the judgment passed in case Punjab National Bank and Others vs. Kunj Behari Misra (supra), the Hon’ble Apex Court has held that: 17. These observations are clearly in tune with the observations in Bimal Kumar Pandit case8 quoted earlier and would be applicable at the first stage itself. Further in Paras-17 and 19 of the judgment passed in case Punjab National Bank and Others vs. Kunj Behari Misra (supra), the Hon’ble Apex Court has held that: 17. These observations are clearly in tune with the observations in Bimal Kumar Pandit case8 quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the enquiry officer had given an adverse finding, as per Karunakar case4 the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority. ................. ................. 19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.” 10. From perusal of the records it appears that vide memo no. 1036 dated 19.06.2008, an order was passed revoking the suspension order of the petitioner and for stoppage of two increments with cumulative effect. However, the said order was withdrawn vide memo no. 3273 dated 30.12.2013, by the District Superintendent of Education, Giridih. Inspite of the same, after retirement of the petitioner in 2019, the respondents have come-out with a case that as the same was not approved by the District Establishment Committee, the order dated 30.12.2013 is not valid in the eyes of law and accordingly, passed the order of recovery from the earned leave of the petitioner, which is impressible in the eyes of law. 11. The Hon’ble Apex Court in case of State of Punjab and Others vs. Rafiq Masih (White Washer) and Others, (2015) 4 SCC 334 , has held as under: “18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, sumarise the following few situations, wherein recoveries by the employers, would be impermissible in law: (i) Recovery from employees belonging to Class-III and Class-IV service (or Group ‘C’ and Group ‘D’ service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.” 12. The other contention of learned counsel for the respondents is that since the petitioner has not availed the legal remedy of departmental appeal before the Commissioner and has directly approached this Court and as such, the writ petition is fit to be turned down on this score itself. This contention of respondents is also not acceptable to this Court, as it is the discretion of the Court to entertain the writ petition or not. 13. The Hon’ble Apex Court in case of Whirpool Corporation vs. Registrar of Trade Marks, Mumbai and Others, (1998) 8 SCC 1 , the Hon’ble Apex Court has laid down certain conditions, when a Court can entertain a writ application, even if there is alternative remedy of appeal is available. The said conditions are reproduced herein-below: “(i) where the Writ Petition has been filed for the enforcement of any of the Fundamental rights. (ii) where there has been a violation of the principle of natural justice. (iii) where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.” Similar view has been expressed by the Hon’ble Apex Court in the judgment passed in case of Harbanslal Sahnia vs. Indian Oil Corp. Ltd. (2003) 2 SCC 107 , Anderson Wright and Co. vs. Amar Nath Roy, (2005) 6 SCC 489 and Sanjana M. Wig. vs. Hindustan Petroleum Corp. Ltd. (2005) 8 SCC 242 . 14. Ltd. (2003) 2 SCC 107 , Anderson Wright and Co. vs. Amar Nath Roy, (2005) 6 SCC 489 and Sanjana M. Wig. vs. Hindustan Petroleum Corp. Ltd. (2005) 8 SCC 242 . 14. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the part of impugned order dated 30.05.2020 (Annexure-6) so far it relates to recovery from the earned leave is concerned, is hereby quashed and set aside. 15. Since the petitioner has already retired and after his retirement, the respondents have passed order for recovery of the difference amount from the retiral benefits of the petitioner, I hereby direct the respondents to refund the entire amount, if the same has already been recovered and if not recovered, the same shall not be recovered from retiral benefits i.e. earned leave of the petitioner. 16. Resultantly, the writ petition stands allowed. 17. No order as to cost.