The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 4345 of 2013 Umesh Prasad Sharma … … … Petitioner V E R S U S 1. Jharkhand State Electricity Board, Ranchi through its Chairman. 2. The Secretary, Jharkhand State Electricity Board, Ranchi 3. Joint Secretary, Jharkhand State Electricity Board, Ranchi 4. Director of Personnel, Jharkhand State Electricity Board, Ranchi 5. General Manager – cum – Chief Engineer, Transmission Zone – II, Dumka Camp Office, Near Dabargram, P.O. and P.S. – Deoghar, District – Deoghar, a Unit of Jharkhand State Electricity Board, Ranchi 6. Electrical Superintending Engineer, Transmission Circle, Dumka, at and P.O. – Maharo, P.S. – Jama, District – Dumka, a Unit of Jharkhand State Electricity Board, Ranchi 7. Electrical Executive Engineer, Transmission Division, Lalmatia, Godda, Jharkhand State Electricity Board, Ranchi … … … Respondents CORAM : HON'BLE DR JUSTICE S.N. PATHAK For the Petitioner For the Respondents Mr. Ashok Kumar Jha, Advocate Mr. O.P. Tiwari, Advocate 04/31.01.2023 Heard. Petitioner has approached this Court with a prayer for quashing the order dated 05.02.2009 (Annexure-4), passed by respondent no. 4 by which three annual increments has been withheld and decision has been taken not to pay anything to the petitioner for the periods 01.11.2006 to 05.02.2009 when he was under suspension. Petitioner has further sought for a direction upon the respondents for payment of salary for the periods from 01.11.2006 to 05.02.2009 when he was under suspension and to grant regular annual increments. Case of the petitioner lies in narrow compass. Petitioner was appointed and joined as an Assistant Operator on 24.07.1984 in the erstwhile Bihar State Electricity Board and thereafter worked in different Units of the Board without any complaint from any corner. Petitioner was transferred under the Transmission Zone-I, Ranchi vide Memo no. 433, Dated 01.04.2000 of the Joint Secretary, Bihar State Electricity Board, Patna. On joining his post in the Transmission Zone, Ranchi, he was posted RC/ 2 as Assistant Operator, Transmission Sub-division, Dhalbhumgarh under the Transmission Division, Jamshedpur and he joined as such on 24.05.2000. On 01.11.2006, petitioner was deployed in the Grid Sub-station,
Legal Reasoning
Dhalbhumgarh in the first shift. At about 1:50 p.m., petitioner was informed by his co-worker that few persons were standing near his residence situated besides the Power Station and as such, after obtaining consent of the co- worker, he left his duty place and went to his residence. Thereafter, petitioner was arrested by the Police in connection with P.S. Case No. 60/06, dated 01.11.2006 and was placed under suspension. Thereafter, he was released on bail on 07.03.2007 and reported for duties before the controlling authority but his joining was not accepted and the matter was reported to the higher authority. The General Manager-cum-Chief Engineer, Transmission Zone, Jamshedpur accepted his joining with effect from 09.05.2007 subject to condition that further action in this context will be taken on receipt of instruction from the Board. However, the said joining was not approved by the authority of Jharkhand State Electricity Board. Withdrawing the suspension order issued against him vide order no. 56, dated 07.11.2006, petitioner was again placed under suspension under Rule 100 of the Service Code vide Office Order No. 6682, dated 08.05.2007, issued under the signature of Joint Secretary to Board. Show-cause notice was also issued to the petitioner directing him to explain as to why action should not be taken against him for misconduct under Clause 29B of the Certified Standing Order of the Board and working contrary to Sub-Rule 3 of the Government Servant Conduct Rules, 1976 and was directed to reply the same within ten days. Petitioner submitted his reply denying allegation levelled against him with a prayer to revoke the order of suspension issued against him, but no heed was paid. It is further case of the petitioner that he was acquitted and discharged from the liability of bail bonds in connection with Special Case No. 8/2006, arising out of Dhalbhumgarh P.S. Case No. 60/06, dated 01.11.2006, vide Judgment dated 08.05.2008, passed by 1st Additional Sessions Judge, Jamshedpur. Thereafter, petitioner submitted detailed representation before the Joint Secretary to Board on 17.06.2006 praying therein to exonerate him from the charges and further to revoke his suspension and allow him to join RC/ 3 the duties. However, the Director Personnel of the Board, without following procedures of disciplinary action laid down in the Standing Orders and without hearing the petitioner in person, inflicted the punishment of withholding three increments of the petitioner besides the order of transfer of petitioner to Transmission Sub-division, Lalmatia and denial of all the benefits for the period of suspension except counting the period for pensionary benefits vide office order no. 258, dated 05.02.2009. Being aggrieved with the impugned order, petitioner filed his representation dated 31.03.2009 before the Secretary to Board to revoke the order of punishment inflicted against him contrary to statutory rules and in violation of Clause 30 of the Certified Standing order of the Board. However, the said representation was not considered and petitioner was informed by the Joint Secretary to Board vide his letter no. 162, dated 06.01.2010 that petitioner may submit his appeal before the Chairman to Board against the punishment order dated 05.02.2009. Thereafter, petitioner filed an appeal before the Chairman of Board on 13.03.2010 stating therein that punishment inflicted to him vide office order no. 258, dated 05.02.2009 are not consistent with the statutory rules and further prayed to revoke the order of punishment, but the same has not been considered. Petitioner was thereafter promoted to the post of Assistant Controller pursuant to order of General Manager – cum – Chief Engineer, Transmission Zone, Dumka, Deoghar vide office order no. 15, dated 23.03.2010 and petitioner accordingly joined the post of Assistant Controller at Transmission Sub-division, Lalmatia in compliance to order no. 23.03.2010. It is case of the petitioner that on his promotion from the post of Assistant Operator to the post of Assistant Controller, he was entitled for pay fixation benefits under the Board’s rule but no such pay fixation benefits has been allowed to him as yet and his pay is being drawn at the same stage in the same time scale which was being paid to him as an Assistant Operator before his suspension. Aggrieved by the action of the respondents, petitioner has knocked door of this Court.
Legal Reasoning
Mr. Ashok Kumar Jha, learned counsel appearing for the petitioner vociferously argues that the order dated 05.02.2009 (Annexure-4), passed by respondent no. 4 is not tenable in the eyes of law. Learned counsel further RC/ 4 submits that the respondent authorities before inflicting major punishment, have not considered and have not followed the Standing Orders of the Department i.e. Standing Order No. 209/98/247, Dated 21.11.1998 as well as the Standing Order No. 4/E1-107/77/630/EB, Dated 11.09.2001. Learned counsel further submits that it was incumbent upon the respondent authorities to adhere with the Standing Order before inflicting any major punishment. Learned counsel further argues that withholding of three increments with non-cumulative effect is a major punishment and for that regular departmental proceeding should have been conducted and as such in absence of regular departmental proceeding, the impugned order is not tenable in the eyes of law. Learned counsel further argues that since petitioner has been acquitted in a criminal case, he is entitled for full salary for the period he remained under suspension. Per contra, counter affidavit has been filed. Mr. O.P. Tiwari, learned counsel representing the respondents, opposing contention of learned counsel for the petitioner, emphatically argues that law is well settled that when the department do not intend proceeding for regular departmental proceeding, it do not intent to inflict major punishment. If after issuance of show-cause the department is fully satisfied that there is no need to initiate regular proceeding, the punishment order can be inflicted which is minor in nature. In the instant case, a minor punishment has been inflicted. Learned counsel further argues that admittedly petitioner was acquitted in the criminal case but the charges against him were that he had deserted the office without any application of leave and without information to the competent authority. Learned counsel further submits that petitioner himself has admitted in the show-cause reply that he deserted the office without any application or communication. Learned counsel submits that there is complete dereliction of duty on part of the petitioner and as such, the punishment awarded to the petitioner is justified and no interference is warranted in the instant writ petition. Learned counsel further argues that merely because petitioner was acquitted in a criminal case, he is not absolved from the charges of dereliction of duty. Learned counsel further submits that a lenient view has been taken by the RC/ 5 Department and petitioner has been granted subsistence allowance as he is not entitled for full salary for the period in view of dereliction in duty. Having heard counsel for the parties, this Court is of the considered view that no interference is warranted in the instant writ petition for the following facts and reasons: (i) Admittedly petitioner though acquitted in the criminal case but he was not absolved of the charges of dereliction of duties for which he was awarded minor punishment. (ii) The Standing Order placed by the petitioner is not at all applicable in the case of the petitioner since no regular departmental proceeding was ever initiated. (iii) In a case where minor punishment is awarded by the department, there is no need of any departmental proceeding. The issue has already been set at rest in the case of D.H.B.V.N.L. Vidyut Nagar v. Yashvir Singh Gulia reported in (2013) 11 SCC 173. Para-13, 15 and 16 of the said Judgment reads as under: “13. The procedure for inflicting minor penalties is provided in Regulation 8, which reads as follows: “8.Procedure for inflicting minor penalties.—(a) Without prejudice to the provisions of Regulation 7, an order for inflicting minor penalty shall not be passed on an employee unless he has been given a show-cause notice thereof and a reasonable opportunity of making representation there against. If he requests for access to relevant record, it may be allowed and opportunity of personal hearing, be also given. Request for personal hearing, may be rejected by the punishing authority by passing a speaking order. (b) Provided that this condition shall not apply in a case where an order based on facts, has led to his conviction in a criminal court or an order has been passed superseding him for promotion to a higher post on the grounds of his unfitness for that post on account of the existence of unsatisfactory record.” … … … … 15. The above referred Regulations, especially Regulation 7(8) clearly indicates that the competent authority has got the power to dispense with the procedure for holding a departmental inquiry, even though it had contemplated major penalty RC/ 6 proceedings on being satisfied with the reply submitted by the delinquent officer. In such a case, it can always follow the procedure for imposing minor penalty. Minor penalty, as per the Regulation, can be inflicted without holding any departmental inquiry, by giving only a show-cause notice and a reasonable opportunity to make a representation to the show- cause notice. Personal hearing can also be afforded and also can be dispensed with by a speaking order. 16. We are of the view that the procedure referred to hereinbefore has been followed by the Board. The delinquent officer was given an opportunity to submit his reply to the show- cause notice which was considered and the Board took a conscious decision to impose only a minor penalty i.e. barring one increment without cumulative effect, for which no full- fledged departmental inquiry is contemplated. The learned District Judge as well as the High Court, in our view, have committed a grave error in interfering with the punishment imposed by the Board which, in our view, is perfectly legal, to hereinbefore. going by Consequently, the appeal is allowed and the judgment of the learned District Judge as well as that of the High Court [Dakshin Haryana Bijli Vitran Nigam Ltd. v. Yashvir Singh Gulia, RSA No. 3094 of 2011, order dated 24-7-2012 (P&H)] is set aside.” the Regulations referred Since petitioner was not absolved of the charges, he is not entitled for full salary for the period of suspension. The respondents have already considered that the period undergone suspension shall be counted for pensionary benefits. No interference is warranted. Consequently, the writ petition stands dismissed. (Dr. S.N. Pathak, J.) RC/