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2021 DIGILAW 742 (JHR)

Ram Krishna Mishra v. State of Jharkhand

2021-09-13

DEEPAK ROSHAN

body2021
JUDGMENT : Heard through V.C. 2. Since common issue is involved in both these writ applications; both are heard together and being disposed of by this common order. 3. Writ application (W.P.(S) No. 1639 of 2013) has been preferred by the petitioner for following reliefs: (A) To quash/set aside order of punishment contained in memo no. 2168 dated 10/11/2009 whereby and whereunder the following punishments have been awarded to the petitioner:- (i) The petitioner would be entitled for nothing during the period of suspension except subsistence allowance. (ii) Recovery of a sum of Rs.1,13,146/-. (iii) Petitioner would not be entitled for posting as Drawing and Disbursing Officer. (iv) Stoppage of two increments with cumulative effect. (v) The punishment shall be entered into the service book. (B) For a direction commanding upon the respondents to pay the full salary of the petitioner during the period of his suspension, i.e., from 11/06/2007 to 10/11/2009 minus subsistence allowance. (C) For a direction commanding upon the respondents to refund the amount recovered from the petitioner to the tune of Rs.1,13,146/- which has been recovered from the salary of the petitioner during the pendency of the review/appeal of the petitioner. (D) For any other appropriate relief or reliefs to which the petitioner is found to be entitled in the facts and circumstances of this case. 4. Writ application (W.P.(S) No. 3499 of 2015) has been preferred by the petitioner for the following reliefs:- (i) To quash/set aside the penalty order contained in Notification No.1133 dated 8.8.2011 issued under the pen and signature of respondent no.2, whereby and whereunder, the petitioner has been inflicted with following punishments:- (a) Withholding of three increments with cumulative effect; (b) No work no pay for 99 days; (c) Censure with warning for further; (d) No payment except the subsistence allowance for the period of suspension. (ii) During the pendency of this writ petition, the respondents be directed to pay the admissible terminal benefits to the petitioner including the pension, gratuity, leave encashment and all other dues, admissible to the petitioner on account of his retirement on 30.09.2013 from the post of Staff Veterinary Officer, Medninagar, Palamau. (iii) To direct the respondents to decide the appeal of the petitioner dated 25.05.2012 against the penalty order contained in Notification no. (iii) To direct the respondents to decide the appeal of the petitioner dated 25.05.2012 against the penalty order contained in Notification no. 1133 dated 8.8.2011, which has not yet been disposed of, as informed to the petitioner under the Right to Information Act, by memo No. 15 dated 23.03.2013. (iv) To also direct the respondents to pay all three ACP/MACP to the petitioner, inasmuch as, the petitioner has rendered almost 34 years of service from the date of his appointment (30.5.1979) till the date of his retirement (30.9.2013) without any regular promotion. (v) For any other appropriate relief or reliefs for which the petitioner is found to be entitled to in the facts and circumstances of this case as also to do conscionable justice to the petitioner. 5. Mr. Manoj Tandon, learned counsel for the petitioner submits that both these cases suffers from procedural irregularity, inasmuch as, no enquiry report and/or second show cause notice was served to this petitioner before passing the impugned order in the respective departmental proceedings. As a matter of fact, the enquiry report was obtained by the petitioner under the Right to Information Act, 2005 after the punishment order was passed. He further submits that from perusal of the order of punishment in both these cases it would be evident that it is amongst major punishment; however, for the reason best known to the respondents, neither the enquiry report was served upon the petitioner nor any second show cause notice was issued; as such, there is gross violation of principles of natural justice. Learned counsel further referred the Judgment rendered in the case of M.P. State Agro Industries Development Corpn. Ltd. and Another Vs. Jahan Khan reported in (2007) 10 SCC 88 wherein it has been reiterated by the Hon’ble Apex Court that withholding of two increments with cumulative effect is a major punishment. The said principle of law was first held by the Hon’ble Apex Court in the case of Kulwant Singh Gill Vs. State of Punjab, reported in 1991 Supp. (1) SCC, 504. Relying upon the aforesaid judgments learned counsel contended that the law is now no more res integra, inasmuch as, withholding of two increments with cumulative effect has been held to be a major punishment and as such; serving of enquiry report and issuance of second show-cause notice before imposing punishment is mandatory; which is missing in both the cases. Relying upon the aforesaid judgments learned counsel contended that the law is now no more res integra, inasmuch as, withholding of two increments with cumulative effect has been held to be a major punishment and as such; serving of enquiry report and issuance of second show-cause notice before imposing punishment is mandatory; which is missing in both the cases. As such, the impugned order in both these writ applications deserves to be quashed and set aside on this score alone. 6. On merit, Mr. Tandon submits that in any case of absence from duty or unauthorized absence; the respondent will have to prove willful absence. In this regards he referred a judgment passed in the case of Krushnakant B. Parmar Versus Union of India and Another, reported in (2012) 3 SCC 178 . Relying upon the aforesaid submission and the judgments referred to hereinabove, he fairly submits that the petitioner has since retired on 30.09.2013 itself, as such the instant writ applications may be allowed and the respondents be directed to give the consequential benefits. 7. Mr. Gaurang Jajodia, appearing for the respondent- State (in W.P(S) No. 1639 of 2013) raised a preliminary objection that since an appeal is pending before the department; as such, the writ application is not maintainable. He further submits that as per the departmental manual; withholding of two increments with cumulative effect is a minor punishment and accordingly; no second show cause notice has been given to the petitioner. He further referred to paragraph 6 (m) of the counter-affidavit filed in W.P(S) No. 1639 of 2013 and submits that though the contention of the petitioner that no enquiry report was served to him and he was not given an opportunity to make representation against the enquiry report is correct; however, the Government has passed the impugned order after perusing the enquiry report. 8. Mr. Navneet Toppo, learned counsel appearing for the respondent-State in W.P.(S) No. 3499 of 2015 submits that when the charge itself is of unauthorized absence; it is deemed that it is a willful absence. However, he could not show any finding by the enquiry officer and/or by the disciplinary authority that there is any willful absence or any finding to that effect. It further appears that the Government has based its opinion for imposing punishment to the petitioner on the basis of enquiry report; however, the same was never served to him. However, he could not show any finding by the enquiry officer and/or by the disciplinary authority that there is any willful absence or any finding to that effect. It further appears that the Government has based its opinion for imposing punishment to the petitioner on the basis of enquiry report; however, the same was never served to him. Thus, it goes to show that non service of the enquiry report has seriously prejudiced this petitioner. 9. Having heard learned counsel for the parties and after going through documents available on record, admittedly; charge-sheet was issued in both these cases for unauthorized absence and thereafter, departmental proceeding was conducted and the petitioner duly participated in both the departmental proceedings. Thereafter, instead of issuing second show cause notice and/or serving enquiry report to the petitioner, impugned order has been passed in both the cases; wherein, amongst other punishments, one of the punishments was with regards to stoppage of two increments with cumulative effect. It further appears from record that though the petitioner had filed appeal on 07.12.2009 (Annexure-7 of W.P(S) No. 1639 of 2013), however, the appeal was kept pending for years together and finally this petitioner was forced to knock the door of this Court. 10. At this juncture, it is relevant to deal with the preliminary objection raised by the respondent State that the appeal is still pending. This contention of the respondent is not accepted by this Court for the sole reason that on the one hand; there is no order by this Court for not disposing the appeal and on the other hand, when the respondent-department sat over the matter for almost four years; only then the petitioner knocked the door of this Court; as such, raising such frivolous ground after almost eight years of retirement of this petitioner, is not appreciated by this Court. 11. Admittedly; no second show cause notice was issued to the petitioner in both these writ applications. The issue; “Whether stoppage of annual increments with cumulative effect is a minor punishment or a major punishment” is no longer res integra. The Hon’ble Apex Court has decided this issue in the case of Kulwant Singh Gill vs. State of Punjab [reported in 1991 Supp.(1) SCC 504] in the following words:- “Withholding of increments of pay simplicitor without any hedge over it certainly comes within the meaning of Rule 5(iv) of the Rules. The Hon’ble Apex Court has decided this issue in the case of Kulwant Singh Gill vs. State of Punjab [reported in 1991 Supp.(1) SCC 504] in the following words:- “Withholding of increments of pay simplicitor without any hedge over it certainly comes within the meaning of Rule 5(iv) of the Rules. But when penalty was imposed withholding two increments i.e. for two years with cumulative effect, it would indisputably mean that the two increments earned by the employee was cut off as a measure of penalty for ever in his upward march of earning higher scale of pay. In other words, the clock is put back to a lower stage in the time scale of pay and on expiry of two years the clock starts working from that stage afresh. The insidious effect of the impugned order, by necessary implication, is that the appellant employee is reduced in his time scale by two places and it is in perpetuity during the rest of the tenure of his service with a direction that two years’ increments would not be counted in his time scale of pay as a measure of penalty. The Supreme Court in later part has stated that the disciplinary authority is not empowered to impose penalty of withholding increments of pay with cumulative effect, except after holding inquiry and following the prescribed procedure. Non-observance thereof would render the order without jurisdiction or authority of law and per se void.” Similarly, in the case of M.P. State Agro Industries Development Corpn. Ltd. and Another (supra) the Hon’ble Apex Court has reiterated that the stoppage of increments with cumulative effect is a major penalty and the same cannot be imposed without following the procedure for awarding major penalties. 12. In view of the aforesaid settled position of law; this Court holds that since the punishment was major in nature; as such issuance of second show cause notice was necessary. 13. Now coming on the merits of the case it is seen that in the case of Krushnakant B. Parmar Versus Union of India and Another reported as (2012) 3 SCC 178 it has been held by the Hon’ble Apex Court that for sustaining any allegation of unauthorized absence, it must be proved that unauthorized absence was willful. Para-18 of the said judgment is quoted hereinbelow:- “18. Para-18 of the said judgment is quoted hereinbelow:- “18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in the absence of such finding, the absence will not amount to misconduct.” By going through the aforesaid judgment passed by the Hon’ble Apex Court it clearly transpires that for sustaining allegation of unauthorized absence the department has to prove that such unauthorized absence was willful and then only it will be considered as misconduct. In both these cases, the enquiry officer on appreciation of evidence; though held that the petitioner was un-authorized absent from duty but failed to hold that the absence was willful and even the disciplinary authority failed to hold the same. Thus, even on merits; both the impugned orders suffer from infirmity and have no legs to stand in the eye of law. 14. In view of the aforesaid findings, the impugned orders as contained in Memo No. 2168 dated 10.11.2009 and Memo No. 1133 dated 08.08.2011 are quashed and set aside. The respondents are directed to give all consequential benefits to this petitioner within a period of four months from the date of receipt/production of copy of this order; failing which the petitioner shall also be entitled for simple interest at the rate of 6% per annum from the date of entitlement till the date of actual payment. 15. With the aforesaid terms, both these writ applications stands allowed.