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2023 DIGILAW 446 (JHR)

State of Jharkhand v. Manoj Kumar, Son of Sri Surendra Prasad

2023-03-28

SUBHASH CHAND, SUJIT NARAYAN PRASAD

body2023
JUDGMENT : SUJIT NARAYAN PRASAD, J. The instant intra-court appeal, under Clause 10 of the Letters Patent, is directed against the order/judgment dated 30.06.2020 passed by learned Single Judge of this Court in W.P.(S) No.5331 of 2015 whereby and whereunder the order dated 01.08.2014 contained in Memo No.2656 by which punishment of censure has been imposed against the writ petitioner has been quashed and set aside by allowing the writ petition. 2. Brief facts of the case as per the pleadings made in the writ proceeding, which are required to be enumerated herein, read as under :- It is the case of the petitioner that at the relevant time he was posted as Assistant Registrar, Cooperative Society, Jamshedpur Circle, Jamshedpur. The petitioner was put under suspension and was posted at North Pargana Division, Dumka. The petitioner was served with the chargesheet in Form-A vide letter dated 26.07.2013. The petitioner was directed to show cause in the light of the charge as leveled against the petitioner in Form-A within a period of one week. It has been alleged against the petitioner that in spite of allotment, the arrears of one Brij Nandan Singh, retired Cooperative Extension Officer, Jamshedpur, was not paid. The said arrear was for the period prior to 15.11.2000 amounting to Rs.60,000/-. The petitioner submitted his show cause vide letter dated 08.08.2013 stating therein that for payment of the arrears of Sri Brij Nandan Singh for the period prior to 15.11.2000, allotment was received vide Allotment Order dated 19.02.2013 for a sum of Rs.74,332/- vide e-mail. He has further stated in the show cause that the petitioner received the information regarding allotment only on 05.04.2013 in the meeting with the Registrar, Cooperative Societies, Jharkhand and as soon as he received this information, he immediately surrendered the said amount to the Registrar, Cooperative Society, Jharkhand as it was not possible to withdraw the amount after 31st March, 2013 and a report regarding surrender of the amount was submitted vide letter dated 25.06.2013. Thereafter, vide impugned order dated 01.08.2014 the petitioner has been imposed with the punishment of censure against which writ petition being W.P.(S) No.5331 of 2015 has been filed on the ground that the order of censure has been passed without taking into consideration the response put forth by the writ petitioner, since, no reason has been assigned in the impugned order imposing punishment of censure, i.e., order dated 01.08.2014. Learned Single Judge, after taking into consideration the submission advanced on behalf of the writ petitioner and after going across the order passed by the authority concerned imposing punishment of censure, has found substance in the argument/ground agitated on behalf of the writ petitioner and has interfered with the order of punishment dated 01.08.2014 by quashing and setting it aside which is the subject matter of the instant appeal having been preferred by the State of Jharkhand. 3. Mr. Raunak Sahay, learned counsel for the State, has submitted that the learned Single Judge has not considered the fact in right perspective since the very requirement for imposing the minor punishment like censure has been followed by issuing show cause and in terms thereof, representation has also been submitted and the same after having been taken into consideration, as would appear from the impugned order dated 01.08.2014 wherein it has been reflected by the authority concerned that the reply has not been found to be satisfactory and, therefore, the said order of punishment of censure cannot be said to suffer from an error but the learned Single Judge has not appreciated the aforesaid fact and has quashed and set aside the order of punishment, therefore, the impugned order requires interference. 4. We have heard the learned counsel for the appellant State, perused the documents available on record as also the finding recorded by the learned Single Judge. 5. The issue which has been raised on behalf of the State appellant that the interference shown by the learned Single Judge in the impugned order of punishment of censure is not justified. The reason has been assigned for such ground that the requirement as stipulated under the Conduct Rules which mandates following the process for imposing minor punishment, has been observed since a show cause notice was issued and in terms thereof representation has also been filed which has been considered, as would appear from the impugned order dated 01.08.2014. 6. The reason has been assigned for such ground that the requirement as stipulated under the Conduct Rules which mandates following the process for imposing minor punishment, has been observed since a show cause notice was issued and in terms thereof representation has also been filed which has been considered, as would appear from the impugned order dated 01.08.2014. 6. This Court, in order to answer the aforesaid ground, deems it fit and proper to refer the provision of Rule 55-A of the Civil Services (Classification, Control and Appeal) Rules which reads hereunder as :- “55-A. Without prejudice to the provisions of rule 55, no order imposing the penalty specified in clauses (i), (ii) or (iv) of rule 49 (other than an order based on facts which led to his conviction in a Criminal Court or by a Court-Martial, or an order superseding him for promotion to a higher post on the ground of his unfitness for that post) on any Government servant to whom these rules are applicable shall be passed unless he has been given an adequate opportunity of making any representation that he may desire to make and such representation, if any, has been taken into consideration before the order is passed: Provided that the requirements of this rule may for sufficient reasons to be recorded in writing, be waived where there is difficulty in observing them and where they can be waived without injustice to the officer concerned.” 7. It is evident from the aforesaid provision that the minor punishment as per the list of punishment enshrined under the provision of Rule 49 of the Conduct Rules is required to be inflicted on the basis of the process laid down under the provision of Rule 55-A. The Rule provides that before imposing such punishment, minor in nature, a show cause notice is to be issued so as to provide an opportunity to file representation by the delinquent employee. It is also evident from the provision as contained under Rule 55 that the word “sufficient and adequate opportunity” has been referred therein. The meaning of “sufficient and adequate opportunity” reflects that the show cause notice is not merely a formality. The moment a show cause notice is issued and in terms thereof a representation has been filed, it is the bounden duty of the disciplinary authority who is to impose punishment minor in nature is to consider. The meaning of “sufficient and adequate opportunity” reflects that the show cause notice is not merely a formality. The moment a show cause notice is issued and in terms thereof a representation has been filed, it is the bounden duty of the disciplinary authority who is to impose punishment minor in nature is to consider. The consideration means the active application of mind as has been held by Hon’ble Apex Court in the case of Chairman, Life Insurance Corporation of India and Others v. A. Masilamani reported in (2013) 6 SCC 530 wherein at paragraph the Hon’ble Apex Court has held which reads hereunder as :- “19. The word “consider” is of great significance. The dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order. (Vide Indian Oil Corpn. Ltd. v. Santosh Kumar [ (2006) 11 SCC 147 ] and Bhikhubhai Vithlabhai Patel v. State of Gujarat [(2008) 4 SCC] ).” 8. This Court, having discussed the legal position and after reverting back to the impugned order dated 01.08.2014 has found therefrom that the authority who has passed the order of censure, has only referred therein that the response to the show cause has been found to be not satisfactory. The authority has not assigned any reason as to why it is not satisfactory. Therefore, no reason has been assigned by the authority concerned which led him to come to the conclusion that the response so submitted by the writ petitioner, on being called upon, is not satisfactory. The law is settled that non-speaking order amounts to violation of principle of natural justice as has been held by Hon’ble Apex Court in the case of The Siemens Engineering & Manufacturing Co. of India ltd. vs. The Union of India and Anr., reported in (1976) 2 SCC 981 pr.6, which reads hereunder as:- “6. The law is settled that non-speaking order amounts to violation of principle of natural justice as has been held by Hon’ble Apex Court in the case of The Siemens Engineering & Manufacturing Co. of India ltd. vs. The Union of India and Anr., reported in (1976) 2 SCC 981 pr.6, which reads hereunder as:- “6. Before we part with this appeal, we must express our regret at the manner in which the Assistant Collector, the Collector and the Government of India disposed of the proceedings before them. It is incontrovertible that the proceedings before the Assistant Collector arising from the notices demanding differential duty were quasi-judicial proceedings and so also were the proceedings in revision before the Collector and the Government of India. Indeed, this was not disputed by the learned Counsel appearing on behalf of the respondents. It is now settled law that where an authority makes an order in exercise of a quasi-judicial function, it must record its reasons in support of the order it makes. Every quasi-judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N.M. Desai v. Testeels Ltd. … ….” 9. This Court, on the basis of the legal position as discussed hereinabove and considering the reason assigned in the impugned order of punishment, is of the considered view that no reason having been assigned by the authority as to why the response so filed by the writ petitioner is not satisfactory. 10. The aforesaid consideration assumes importance since, it is evident from the material available on record that the aforesaid punishment of censure has also been directed to be entered in the service record of the petitioner. The moment reference of punishment of censure is recorded in the service record, the implication of censure will be otherwise. Therefore, in that circumstances also, while inflicting the punishment of censure or any punishment, minor in nature, it is the bounden duty of the disciplinary authority to assign reason. 11. This Court, having discussed and after going through the order passed by the learned Single Judge, is of the view that the learned Single Judge after taking into consideration the fact about non-consideration of the representation since has interfered with the impugned order, which according to our considered view, requires no interference. 12. Accordingly, the instant appeal fails and is dismissed.