Kumud Ranjan …. … v. 1. The State of Jharkhand 2. The Principal Secretary, Department of Home, Ranchi. 3
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 664 of 2014 Kumud Ranjan …. …. Petitioner Versus 1. The State of Jharkhand 2. The Principal Secretary, Department of Home, Ranchi. 3. The Inspector General of Police, Jharkhand Armed Police, Ranchi. 4. The Deputy Inspector General of Police, Jharkhand Armed Police, Ranchi. 5. Commandant of Jharkhand Armed Police-7, Hazaribagh. …. … Respondents ------ CORAM : HON’BLE DR. JUSTICE S.N. PATHAK ------ : : ----- For the Petitioner For the Respondents
Legal Reasoning
Mr. Mohan Kumar Dubey, Advocate Mr. Divyam, AC to SC-III 5/ 30.11.2023 Heard the parties. 2. The petitioner has approached this Court with a prayer for quashing of the order contained in Memo No. 274 dated 6.7.2013 passed by the respondent no.5, by which one increment for six months has been withheld which is equivalent to one Black Mark. Challenge has also been thrown to the appellate order contained in Memo No. 1789 dated 12.11.2013 affirming the punishment order. 3. While the petitioner was working as Constable in Jharkhand Armed Police-07, Hazaribag, he proceeded for leave on 23.3.2013 and he was supposed to join the duty on 30.03.2013, but he did not join the duty within time. It is specific case of the petitioner that due to some medical urgency because his brother met with a road accident, he could not join the duty within time, though he had sent an application to the authority on the compelling circumstances for extension of leave. However, after the petitioner joined the duty, he was proceeded departmentally under Rule 828 (C) of the Jharkhand Police Manual. After following the procedure, the enquiry report was submitted by the enquiry officer whereby the petitioner was fully exonerated from the charge of unauthorized leave. Thereafter, the disciplinary authority without assigning any reason for differing with the enquiry report has passed the punishment order as aforesaid, which has been affirmed by the appellate authority. Aggrieved thereby, the petitioner has knocked the door of this Court. 4. Mr. Mohan Kumar Dubey, learned counsel appearing for the petitioner strenuously urges that the impugned orders passed by the 2 disciplinary authority as well as appellate authority are not tenable in the eyes of law for the simple ground that the proceeding itself was initiated under Rule 828 (C) of the Police Manual, which is a summary proceeding whereas major penalty has been awarded. Learned counsel further assails the impugned order on the ground that the enquiry officer has fully exonerated the petitioner from the charge levelled against him, but the disciplinary authority without differing with the findings of the enquiry officer and giving the tentative reasons for disagreement has imposed the punishment, which is against the settled principles of law enumerated in the celebrated judgment in the case of Punjab National Bank Vs. Kunj Bihari Misra & Anr., reported in (1998) 7 SCC 84. Learned counsel further adds that though the disciplinary authority was empowered to differ with the enquiry report, but it was incumbent upon the disciplinary authority to issue second show cause notice and assign reasons for differing with the report of the enquiry officer and afford opportunity of hearing to the petitioner on such disagreement. In absence of the same, the impugned order of punishment is not tenable in the eyes of law and the same is fit to be quashed and set aside. This aspect of the matter has also not been appreciated by the appellate authority while affirming the punishment order passed by the disciplinary authority. 5. Mr. Divyam, learned counsel appearing for the respondents opposes the contention of learned counsel for the petitioner and submits that ample opportunity was given to the petitioner to defend his case. Even during the course of appeal, the petitioner did not raise those points which he has raised for the first time in course of argument in the Court. Learned counsel further submits that it was incumbent upon the enquiry officer to consider the relevant provisions of Rule 824 of the Jharkhand Police Manual. The enquiry report is perverse and therefore, rightly the disciplinary authority has differed with the enquiry report. However, since the proceeding itself was a summary proceeding, it is not requirement of law for issuance of second show cause notice. The disciplinary authority was duly empowered to inflict the punishment without issuance of second show cause notice in a summary proceeding. 6. Having considered the rival arguments of the learned counsel for the parties and upon perusal of the records, this Court is of the view that the case of the petitioner needs consideration for the following facts and reasons:- 3 (i) Admittedly, the proceeding was initiated under Rule 828 (c) of the Police Manual, which is a summary proceeding. When the respondents proceeded under Rule 828 (c), it was incumbent upon them to inflict the petitioner with a minor punishment, but contrary to the settled propositions of law as has been held by the Hon’ble Apex Court in the case of Kulwant Singh Gill Vs. State of Punjab & Ors., reported in 1991 Supple (1) SCC 504, major punishment has been inflicted upon the petitioner. Their Lordship in para-4 held as under:- “Withholding of increments of pay simpliciter undoubtedly is a minor penalty within the meaning of Rule 5(iv). But sub-rule (v) postulates reduction to a lower stage in the time-scale of pay for a specified period with further directions as to whether or not the Government employee shall earn increments of pay during the period of such reductions and whether on the expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay. It is an independent head of penalty and it could be imposed as punishment in an appropriate case. It is one of the major penalties. The impugned order of stoppage of two increments with cumulative effect whether would fall within the meaning of Rule 5(v)? If it so fails Rules 8 and 9 of the Rules require conducting of regular enquiry. The contention of Shri Nayar, learned counsel for the State is that withholding two increments with cumulative effect is only a minor penalty as it does not amount to reduction to a lower stage in the time-scale of pay. We find it extremely difficult to countenance the contention. Withholding of increments of pay simpliciter 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 timescale 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 words are the skin to the language which if pealed off its true colour or its resultant effects would become apparent. When we broach this perspective the effect is as envisaged under Rule 5(v) of the the problem from 4 Rules. It is undoubted that the Division Bench in Sarwan Singh v. State of Punjab & Ors., I.L.R. 1985 2 P & H. 193, P.C. Jain, A.C.J. speaking for the division bench, while considering similar question, in paragraph 8 held that the stoppage of increments with cumulative effect, by no stretch of imagination falls within clause (v) of Rule 5 or in rule 4.12 of Punjab Civil Services Rules. It was further held that under clause (v) of Rule 5 there has to be a reduction to a lower stage in the time-scale of pay by the competent authority as a measure of penalty and the period for which such a reduction is to be effective has to be stated and on restoration it has further to be specified whether the reduction shall operate to postpone the future increments of his pay. In such cases withholding of the increments without cumulative effect does not at all arise. In case where the increments are withhold with or without cumulative effect the Government employee is never reduced to a lower stage of time scale of pay. Accordingly it was held that clause (iv) of Rule 5 is applicable to the facts of that case. With respect we are unable to agree with the High Court. If the literal interpretation is adopted the learned Judges may be right to arrive at that conclusion. But if the effect is kept at the back of the mind, it would always be so, the result will be the conclusion as we have arrived at. If the reasoning of the High Court is given acceptance, it would empower the disciplinary authority to impose, under the garb of stoppage of increments, of earning future increments in the time scale of pay even permanently with expressly stating so. This preposterous consequence cannot be permitted to be permeated. Rule 5(IV) does not empower the disciplinary authority to impose penalty of withholding increments of pay with cumulative effect except after holding inquiry and following the prescribed procedure. Then the order would be without jurisdiction or authority of law, and it would be per se void. Considering from this angle we have no hesitation to hold that the impugned order would come within the meaning of Rule 5(v) of the Rules; it is a major penalty and imposition of the impugned penalty without enquiry is per se illegal.” (ii) However, when inflicting a major punishment, the process of law relating to departmental proceeding is adhered to. When the disciplinary authority decided to inflict a major punishment, it was more incumbent upon him to issue a second show cause notice along with the enquiry report, so that the petitioner may file reply to the enquiry report. (iii) In the present case, the enquiry officer has exonerated the petitioner from the charge. Therefore, it was more necessary to the disciplinary 5 authority, if he thinks fit to punish the petitioner with major penalty, to issue second show cause notice along with enquiry report and after giving its tentative reasons for such disagreement and afford the petitioner an opportunity to represent before it and then records its findings and punish the petitioner. In absence thereof, the punishment order is not tenable in the eyes of law. (iv) In this context, the Hon’ble Apex Court in the case of Ram Kishan Vs. Union of India, reported in (1995) 6 SCC 157 where the delinquent was proceeded on two charges and the enquiry officer found the first charge not proved and second one partly proved, the disciplinary authority disagreed with the conclusion reached by the enquiry officer and show cause was issued as to why both the charges should not be taken to have been proved, the Hon’ble Apex Court held that merely mentioning some reasons in the final order to disagree with the conclusions reached by the disciplinary authority, such final order cannot cure the defect. Their Lordships in para-10 held, which reads as under:- “10. The purpose of the show-cause notice, in case of disagreement with the findings of the enquiry officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the enquiry officer for the reasons given in the enquiry report or he may offer additional reasons in support of the finding by the enquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show-cause on the basis of which the findings of the enquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the enquiry officer. In the absence of any ground or reason in the show-cause notice it amounts to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the disciplinary authority cannot cure the defect.” (v) Further the Hon’ble Apex Court in the case of Punjab National Bank Vs. Kunj Bihar Misra & Anr., reported in (1998) 7 SCC 84 held in para-19 as under:- “19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into 6 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. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity 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.” to persuade (vi) In the case at hand, the departmental proceeding was initiated under a summary proceeding. The enquiry officer fully exonerated the petitioner from the charge. As per the requirement of law, if the disciplinary authority thinks it proper to inflict major punishment, issuance of second show cause is sine qua non. Neither the disciplinary authority issued second show cause notice differing with the findings of the enquiry officer nor afforded an opportunity to the petitioner to represent his case. Therefore, the order of the disciplinary authority suffers from infirmities. The appellate authority also while exercising its power has not considered the said aspect of the matter and has wrongly affirmed the order passed by the disciplinary authority. 7. As a sequitur to the aforesaid rules, regulations and judicial pronouncements, since the impugned order has been issued long back in the year 2013 itself, instead of remitting the matter back to the disciplinary authority, I hereby quash and set aside the order contained in Memo No. 274 dated 6.7.2013 passed by the disciplinary authority (respondent no.5) as well as order contained in Memo No. 1789 dated 12.11.2013 passed by the appellate authority (respondent No. 4). 8. This writ petition is, accordingly, allowed. R.Kr. (Dr. S. N. Pathak, J.)