…. Sweta Kumar … v. 1. The State of Jharkhand 2. The Chief Secretary, State of Jharkhand, Ranchi 3
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P. (S). No. 2805 of 2016 …. Sweta Kumar ……Petitioner Versus 1. The State of Jharkhand 2. The Chief Secretary, State of Jharkhand, Ranchi 3. The Principal Secretary, School Education and Literacy Department, Government of Jharkhand ----- ..…Respondents CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD For the Petitioner : Mr. Abhijeet Kr. Singh, Advocate ----- For the State : Mr. Harsh Chandra. Advocate : Mr. Saif Ali Ansari, Advocate : Mr. Saurav Mahto, AC to GP-I ------ ORAL ORDER IN COURT 21/12.07.2024 This original W. P. (S). No. 2805 of 2016 has been filed on 20.05.2016 on behalf of the petitioner for grant of following reliefs:- (i) For quashing the Final Order of the Departmental Proceedings contained in Memo No. 794 dated 01.12.2015 (Annexure-5) and Corrigendum issued vide Memo No. 245 dated 30.03.2016 (Annexure-6) whereby and where under it has been observed that the petitioner will not get any salary except subsistence allowance for the period under suspension as the same amounts to imposing punishment upon the petitioner that too without any proper notice to him and further because the same is nothing but misuse of the disciplinary power and authority vested in the respondents. (ii) For quashing of the Inquiry Report dated 04.12.2013 (Annexure-3) as the same is not based on any inquiry or 1 evidence rather, the same is based on surmises and conjectures and as such, it is liable to be quashed by this Hon’ble Court. (iii) For direction upon respondents to pay the entire salary of the petitioner for the period of suspension with appropriate cost and interest as withholding the same is wholly arbitrary and violative of Article 14 and 21 of the Constitution of India. 2. However, during pendency of this writ petition, the respondent had passed an another order on 23.12.2016 which
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was also challenged by the petitioner by filing I. A. No. 146 of 2017 for challenging the said order dated 23.12.2016 by which direction for recovery from the retiral benefits of the petitioner was passed and further ordered that for the period 24.06.2011 to 30.04.2013, the petitioner would not be entitled to any salary and further subsistence allowance paid during this period would be recovered from the retiral dues of the petitioner. 3. Thereafter, the petitioner had filed amended writ petition dated 24.01.2017 with the following prayers:- (i) For quashing the Final Order of the Departmental Proceedings contained in Memo No. 794 dated 01.12.2015 (Annexure-5) and Corrigendum issued vide Memo No. 245 dated 30.03.2016 (Annexure-6) whereby and where under it has been observed that the petitioner will not get any salary except subsistence allowance for the period under suspension as the same amounts to imposing punishment upon the petitioner that too without any proper notice to him and further because the same is nothing but misuse of the disciplinary power and authority vested in the respondents. (ii) For quashing of the Inquiry Report dated 04.12.2013 2 (Annexure-3) as the same is not based on any inquiry or evidence rather, the same is based on surmises and conjectures and as such, it is liable to be quashed by this Hon’ble Court. (iii) For direction upon respondents to pay the entire salary of the petitioner for the period of suspension with appropriate cost and interest as withholding the same is wholly arbitrary and violative of Article 14 and 21 of the Constitution of India. (iv) For quashing the Memo No. 357 dated 23.12.2016 by which it has been ordered that the period 24.06.2011 to 30.04.2013 will be treated as waiting for posting and as the petitioner has not produced any document regarding marking of attendance and as such applying the principle of no work no pay, petitioner will not be entitled for any salary and further subsistence allowance paid during this period will be recovered from the retiral dues of the petitioner and the amendment was allowed vide order dated 17.01.2017 by Co-ordinate Bench of
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this Court (Hon’ble Mr. Justice Pramath Patnaik). Thereafter, the matter was adjourned and respondents were directed to file the counter affidavit. 4. It transpires that in the meantime, the original writ petitioner Khagendra Kumar had died on 22.08.2019 and Sweta Kumar i.e. the wife of the original writ petitioner was substituted vide order dated 24.08.2022 passed by the Co-ordinate Bench of this Court (Hon’ble Dr. Justice S. N. Pathak). 5. Learned counsel for the State has also filed counter affidavit on 06.03.2017 but no counter affidavit has been filed with regard to the amended writ petition. 3 6. Learned counsel for the petitioner has submitted that the impugned order dated 23.12.2016 as contained in Annexure-15 is illegal, arbitrary and not sustainable in the eye of law. It is submitted that while the petitioner was posted as Regional Deputy Director of Education, Hazaribagh for the period 04.07.2007 to 21.10.2008, one F.I.R was lodged bearing Vigilance Case No. 68/2010 in which the petitioner was taken into custody on 04.03.2011. Thereafter, the petitioner had filed B. A. No. 3570 of 2011 which was allowed by the High Court vide order dated 23.06.2011 and the petitioner was released on bail on 24.06.2011. Thereafter, he had reported before the Headquarter although, no paper has been submitted by the learned counsel for the petitioner. It is submitted that the Departmental Proceeding was initiated vide Memo No. 88 dated 27.04.2013 and Enquiry Report was submitted on 04.12.2013 against the petitioner. In the meantime, petitioner had filed Criminal Revision No. 839 of 2012 for discharging him from the charges leveled against him and which was allowed vide order dated 22.08.2013 by a Co-ordinate Bench of this Court (Hon’ble Mr. Justice R. R. Prasad) which is enclosed as Annexure-2. However, in the meantime, the petitioner participated in the Departmental Proceeding and Enquiry Report was submitted on 04.12.2013 without constituting the fact that the petitioner has been discharged by the High Court. Thereafter, the petitioner had also preferred W. P. (S) No. 3333 of 2015 which was disposed of on 02.09.2015 by the Co- ordinate Bench of this Court (Hon’ble Mr. Justice Aparesh Kumar Singh) with a direction to the respondents to take 4 decision within a reasonable period preferably within a period of 12 weeks from the date of receipt of the copy of this order. Thereafter, the department had passed the order dated 01.12.2015 as contained in Annexure-5 by which it was directed that salary for the period of suspension of the petitioner will be depend upon the outcome of the pending case. However, on representation, the department issued corrigendum order dated 30.03.2016 as contained in Annexure-6 by which it was observed that petitioner will get nothing except subsistence allowance during the period of suspension in place of “Result of Vigilance P.S Case no. 68/2010 dated 06.12.2010 related to arrears of salary etc. during the period of suspension of Sri. Kumar (i.e. Annexure-6). Thereafter, the petitioner was not given posting and only subsistence allowance was paid to him. Thereafter, the petitioner had filed a representation for regularization of his service and also for payment of his salary on 18.04.2013 and 08.05.2013 vide Annexure-10 and also on 18.06.2016 vide Annexure-11. Thereafter, the department had passed final order dated 23.12.2016 by which the department by observing that the petitioner had not marked his attendance for the period 24.06.2011 to 30.04.2013 and he was treated to be absent unauthorizedly and as such, in the light of no work no pay under Rule 60 of Jharkhand Service Rules, payment will be done. However, the said period will be counted for the purpose of pension. It was further observed that subsistence allowance paid during the period 24.06.2011 till 30.04.2013 will be recovered from his monthly salary/pensionary benefits. It is submitted that department had not taken any work from him 5 although, he was diverted to join his duty on 24.06.2011 and he has been victimized by the Department. 7. Learned counsel for the petitioner in support of his submission has relied upon the order dated 16.01.2013 passed in W.P.(S) No. 7531 of 2012 (Yamuna Giri Vs. State of Jharkhand) and also the order dated 20.11.2017 passed in W.P.(S) No. 6424 of 2017 (Renu Kumari Vs. State of Jharkhand and Others) by the Jharkhand High Court. It is submitted that the petitioner will be paid the entire salary for the period 24.06.2011 till 30.04.2013 and nothing shall be recovered and the part of the order dated 23.12.2016 by which recovery of the payment has been done and may also set aside. 8. On the other hand, learned counsel for the State has submitted that this writ petition is devoid of merit. It is submitted that there were latches on the part of the petitioner and several other persons and for which, Vigilance Case No. 68/2010 was instituted and the petitioner was also arrested. However, even after he was in jail, he had not joined his duty and marked his Attendance to the Headquarter. 9. Learned counsel for the respondents has referred paragraph-13 of the counter affidavit dated 06.03.2017 and submitted that as per letter no. 40 dated 07.01.2011 issued by the Secretary, Finance Department, the petitioner had marked his Attendance during the period of waiting for posting. It is also clarified in the said letter that if any employee/officer does not mark his Attendance for the waiting for posting period, it shall be treated as unauthorized absence. Learned counsel for the respondents has referred also the provisions of Circular 6 No: 40 dated 07.01.2011 as enclosed in Annexure-A to the counter affidavit dated 06.03.2017. It has further been submitted that even in the light of the letter of the Finance Department, the department had issued letter dated 21.10.2016 to the petitioner for unauthorized absence and the petitioner has submitted his explanation vide letter dated 25.10.2016 which has been marked as Exhibit-B and Exhibit-B/1 respectively to this counter affidavit. It is submitted that even the Additional Secretary had sent a letter to the Director, Secondary Education for enquiring about the marking of attendance for the period 24.06.2011 to 01.05.2013 (Annexure-C) and thus, it was found that the petitioner has not marked his attendance for the period 24.06.2011 to 01.05.2013 with the Directorate and hence, it was decided that subsistence allowance paid for the said period is recoverable from the monthly salary/post retiral benefits to the petitioner by passing the impugned order dated 23.12.2016 marked as Annexure-D which was also challenged by the petitioner as contained in Annexure-15 to the amended writ petition. It is submitted that due to latches on the part of the petitioner, the department cannot make payment and hence, this writ petition may be dismissed. It is submitted that the order of Criminal Revision No. 839 of 2012 is a matter of record. 10. Having heard both the sides, it appears that one F.I.R bearing Vigilance Case no. 68/2010 was instituted against several persons including the petitioner. Thereafter, the petitioner was taken into custody on 04.03.2011 and he was 7 released on 23.06.2011. Though, the petitioner had not filed any document showing his joining on 24.06.2011 reporting before the Headquarter but the record reveals that he had shown his presence on 24.06.2011, even the impugned order reveals that he had reported before the Headquarter/Department on 24.06.2011. 11. It transpires that after being released from the jail, the petitioner had filed application for joining, thereafter, a departmental proceeding was initiated vide Memo No. 88 dated 27.04.2013 and memo of charges issued against him as contained in Annexure-1. Thereafter, the petitioner had filed Criminal Revision No. 839 of 2012 which was allowed vide order dated 22.08.2013 passed by the Co-ordinate Bench of this Court (Hon’ble Mr. Justice R. R Prasad). However, the Departmental Proceeding remain pending and Enquiry Report was submitted vide order dated 04.12.2013 i.e. Annexure-3. 12. It appears that although, Enquiry Report was submitted on 04.12.2013 but second show-cause notice was also not issued after a long period which compelled the petitioner to file
Decision
W.P.(S) No. 3333 of 2015 which was disposed of on 02.09.2015 by the Co-ordinate Bench of this Court (Hon’ble Mr. Justice Aparesh Kumar Singh) with the following observations:- (i) Having considered the rival submissions of the parties and the facts pleaded as aforesaid, this Court is not satisfied that the proceeding require interference at this state when Inquiry Report has also been submitted. Having regard to the fact that the petitioner has also filed a reply to the second show-cause, Disciplinary Authority is expected to take the decision in 8 accordance with law on objective consideration of all relevant materials adduced during course of inquiry and the judgment relied upon by the petitioner. (ii) The writ petition is therefore disposed of without interfering in the impugned orders. It would not be out of context to observe that the Disciplinary Authority would take a decision within a reasonable time preferably within a period of twelve weeks from the date of receipt of a copy of this order. I.A. also stands disposed of. 13. It transpires initially vide order dated 01.12.2015, the Secretary to Government had passed the following punishment order as follows:- (i) Withholding of one annual increment with cumulative effect in the light of provisions of Rule 49 (2) of Civil Services (Classification, Control and Appeal) Rules 1930. (ii) The payment of arrears of salary for the period of suspension of the petitioner will be dependent upon the result of Vigilance P.S Case No. 68/2010. 14. It is evident that respondents had overlooked the fact that the original writ petitioner Khagendra Kumar (i.e the husband of the petitioner) had already been discharged by the Co-ordinate Bench of this Court vide order dated 22.08.2013 passed in Criminal Revision No. 839 of 2012. Hence, on being pointed out by the petitioner, the corrigendum vide memo no. 245 dated 30.03.2016 was issued by the Secretary to Government to the effect that nothing will be paid to the petitioner during the period of suspension except the subsistence allowance instead of “The payment of arrears of salary during 9 the period of suspension of the petitioner will be dependent upon the result of Vigilance P.S Case No. 68/2010”. 15. At this stage, it is relevant to mention here that vide notification dated 17.04.2013, the suspension of the petitioner was revoked with effect from 24.06.2011 i.e. with retrospective effect vide memo no. 85 dated 17.04.2013 issued under the signature of Joint Secretary, Human Resources Department, Government of Jharkhand with the direction that the payment of arrears of salary during the period of suspension will be depend upon the final result of Vigilance P.S Case no. 68/2010. 16. Although, this Court does not appreciate the conduct of the department for revoking the period of suspension of the petitioner for retrospective effect. However, this Court refrains itself from giving findings at this stage as the original writ petitioner had died. 17. It also appears that vide notification dated 30.04.2013, the petitioner posted as Regional Deputy Director of Education at Palamu vide Annexure-8 and the petitioner had joined on 02.05.2013 vide Annexure-9 by submitting his charge report. 18. It transpires that even the petitioner had filed representations on 18.04.2013 for regularization of his period which has resulted into issuance of notification dated 30.04.2013 (Annexure-7). 19. It appears that thereafter, the petitioner had filed representation on 08.06.2016 for regularization of his period of service as he remained in waiting for posting for the period 24.06.2011 till 01.05.2013. 20. Thereafter, vide letter dated 21.10.2016 (Annexure-12) 10 issued show-cause notice to the petitioner for not marking his attendance for the period 24.06.2011 to 30.04.2013 and for treating his said period as unauthorized absence on the principle of “no work no pay”. 21. The petitioner vide letter dated 25.06.2016 filed reply vide Annexure-13 and refuted the allegation of the department by pointing out that he has been victimized by the Department in order to shield its own mistake by the department and during the period from 24.06.2011 till 21.10.2016, no explanation was issued for remaining unauthorized absence. 22. It would further appear from the letter dated 27.10.2016 that even the Deputy Secretary had issued show-cause notice to then one Sri. Markus Kujur, Joint Secretary and one Upendra Kumar Sinha, then Assistant-cum-Section Officer for issuing notice giving proposal for revocation of suspension of petitioner with retrospective effect (Annexure-14). 23. Lastly, after issuing show-cause notice to the petitioner, the Additional Director, with the approval of Secretary had issued the punishment order by observing that the accused petitioner had not marked his attendance for the period 24.06.2011 till 30.04.2015 and hence, he may be treated as unauthorized absence and nothing will be paid on the principle of “no work no pay” under Rule 60 of the Service Code but the said period will be counted for the purpose of pension. The department further ordered that the payment made for the period 24.06.2011 till 17.04.2013 shall be recovered from his monthly service/pensionary benefits. 24. It is evident that the respondents had committed 11 illegality by passing the order dated 23.12.2016 as on the one hand, the department had not filed any letter or any attendance sheet to show that the original writ petitioner has not marked his attendance rather it is evident that when the original writ petitioner i.e. Khagendra Kumar had pointed out that he was discharged from the criminal case by this Jharkhand High Court in Criminal Revision No. 839 of 2012 on 22.08.2013 even he was issued notice for not marking his attendance. 25. It is further evident that after being released from jail, the petitioner had presented himself for duty on 24.06.2011 and even during said period no formal order of suspension was issued for keeping him under suspension even after being arrested. 26. It is well settled that once a person taken into custody, he deemed to be suspended but the formal order has to be withdrawn even after he was being released from jail as the petitioner was remained under suspension till 30.04.2013. It is evident that in order to shield his own mistake by the department, notice has been issued upon the petitioner for not marking his attendance. 27. It is evident that clear cut fault on the part of the department for neither issuing any formal order of suspension nor taking any work from the petitioner and for which, he cannot be penalized. 28. It has been held in the case of W. P. (S) No. 7531 of 2012 Yamuna Giri Vs. State of Jharkhand which are as follows:- (i) It is admitted position that the petitioner’s joining was accepted in the department on revocation of 12 suspension, but he was not given any posting. In the meanwhile by virtue of the provisions of Bihar Reorganization Act, 2000, the State of Jharkhand was carved out and the petitioner’s service was placed in the State of Jharkhand without any condtion or any clause. The petitioner was allowed to join without any demur. In view of the above, I find no justification for denying the petitioner’s salary of the period he was kept waiting for posting. The objection raised in the impugned letter is wholly unfounded, arbitrary and not supported by law. (ii) For the reasons aforesaid, this writ petition is allowed. The order issued by the Human Resources Development Department by letter no. 199 dated 10.07.2009 is quashed. The respondents are directed to pay the arrears of the petitioner’s salary for the period from 24.08.1999 to 07.02.2000 and from 07.02.2000 to 11.05.2001 within four weeks from the date of receipt/production of a copy of this order. 29. It has been held in the case of W. P. (S) No. 6424 of 2017 Renu Kumari Vs. State of Jharkhand and Others which is mentioned in Para-5, 6 and 7, which are as follows:- Para-5 Per contra, no counter affidavit has been filed by the respondents. Learned counsel for the respondents submit that the petitioner was not posted within the said period anywhere, and as such she is not entitled to get salary of the said period. However, the said period shall be counted for the purpose of fixation of her pension and other retiral dues. However, learned counsel fairly submits that he has no objection if this case be disposed of in the light of judgment passed in case of Yamuna Giri 13 Vs. State of Jharkhand and Others in W. P. (S) No. 7535 of 2012. Para-6 Be that as it may having gone through the rival submissions of the parties this Court is of the considered view that case of the petitioner needs consideration. It is admitted fact that the petitioner was allowed to join without any demur. In view of acceptance of joining without any objection or condition and also that the petitioner was kept waiting for no fault of hers, the salary for the said period cannot be denied to the petitioner. The similar issue fell for consideration before this Hon’ble Court in W. P.(S) No. 7531 of 2012, in Yamuna Giri Vs. State of Jharkhand and Ors., W.P.(S) No. 4319 of 2015 disposed of on 15.09.2015, W.P.(S) No. 3989 of 2915 disposed of on 06.10.2016 and W.P.(S) No. 5481 of 2015 disposed of on 25.11.2016 and the Hon’ble Court after considering the aforesaid aspects that the petitioner was not at fault and was kept waiting for posting for no fault of hers, salary for the said period cannot be denied to the petitioner. Para-7 As a cumulative effect of the aforesaid rules/guidelines/observations and judicial pronouncements, I hereby direct the respondents to regularize the services of the petitioner and to pay the arrears of salary for the period from 30.03.2012 to 15.02.2013 within four weeks from the date of receipt/production of a copy of this order. 30. In view of facts and circumstances and also in view of the order passed in the case of W. P. (S) No. 7531 of 2012 Yamuna Giri Vs. State of Jharkhand and W. P. (S) No. 6424 of 14 2017 Renu Kumari Vs. State of Jharkhand and Others, this Court finds that petitioner is also entitled for arrears of salary for the entire salary for the period 24.06.2011 to 30.04.2011. 31. Accordingly, the part of the order dated 23.12.2016 by which the Department has ordered to recover salary towards subsistence allowance for the period 24.06.2011 till 17.04.2013 is set aside and it is held that the petitioner is entitled for the salary for the period 30.04.2011 to 17.04.2013. The department is further directed to pay forthwith within four weeks to the wife of the original writ petitioner. 32. Thus, W. P. (S). No. 2805 of 2016 is allowed. Avinash/ (Sanjay Prasad, J.) 15