The High Court · 2023
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) LPA No. 339 of 2023 Manish Kumar Mishra aged about 41 years, s/o Hridayanand Mishra, r/o village Dhobahan, P.O Poswa, P.S Pawna, District Bhojpur, State- Bihar ... Appellant Versus 1. The State of Jharkhand through Principle Secretary, Home Department, officiating his office from Project Bhawan, P.O and P.S Dhurwa, District Ranchi. 2. The Commandant, Jharkhand Armed Forces, Hazaribagh, P.O. and P.S Hazaribagh, District Hazaribagh --------------- …... Respondents
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Appellant For the Respondents : Mr. Nagamani Tiwari, Advocate : Mr. Praduman Poddar, Advocate : Mr. Navneet Sahay, Advocate : Mr. Gaurav Kr. Pandey, Advocate : None --------------- 22nd December 2023 Per, Shree Chandrashekhar, J. Aggrieved by the writ Court’s order dated 18th April 2023, the delinquent police constable has approached this Court by filing the present Letters Patent Appeal. 2. W.P.(S) No.1698 of 2023 was filed by the appellant seeking quashing of the order contained in memo no. 20 dated 25th January 2023 issued by the Commandant, Jharkhand Armed Police-7, Hazaribagh. By this order, the following punishments are imposed upon the appellant : (i) Forfeiture of one annual increment which would be equivalent to two black marks and the same would not affect his future annual increments. (ii) No payment other than the payment received by him during the period of suspension i.e. from 31st October 2012 to 4th March 2013 (total 124 days) would be payable and the said period has been adjusted in half-earned leave. (iii) The period of dismissal from service w.e.f. 5th March 2013 to 2 LPA No. 339 of 2023 20th September 2022 would be considered as ‘No Work, No Pay’ for which no amount would be disbursed to him. Moreover, the said period would be adjusted as extraordinary leave. 3. The appellant was dismissed from service by an order contained in memo dated 05th March 2013. There were several allegations against the appellant which are narrated in the charge memo dated 10th November 2012; one of the charges was that he was a habitual drinker and would create nuisance after taking liquor. The order of punishment dated 05th March 2013 attained finality after the statutory appeal preferred by the delinquent police constable was dismissed on 16th August 2013. However, the writ Court by an order dated 05th August 2021 passed in W.P.(S) No. 3261 of 2014 remanded the matter to the departmental authority for deciding the quantum of punishment particularly taking note of the reply to the show-cause filed by the appellant. In the order dated 05th August 2021, this Court held as under: “6. Having heard learned counsel for the parties and after perusing the documents annexed with the respective affidavit and the averments made therein; it appears that the petitioner has been alleged for the charge that he used to leave duty place without permission and take alcohol with the villagers. The other allegation was that after taking liquor he used filthy language with the Superior Officer. This part of the charge has not been proved by the Inquiry Officer. However, the Disciplinary Authority without taking into consideration the reply to the show-cause notice pass the order of termination by holding that all the charges has been proved. It further transpires that the petitioner has taken specific stand that no medical examination has been conducted for holding the charge for taking liquor; however the same was not considered by the Disciplinary Authority. From the entire enquiry report/other relevant documents it appears that not even a single time the petitioner has been sent for medical examination; though the charge was general in nature that the petitioner frequently goes to the village and takes liquor with the villagers. 7. It has been held in catena of judgments that to punish a person on the ground that he was under the influence of alcohol in a work place; a proper test report of the level and amount of alcohol of blood and urine is necessary. Mere oral evidence to punish a person to the extent of termination has been condemned by the Court. In the instant case admittedly; one part of the charge has not been proved that he has misbehaved with the Superior Officer over telephone. So far as other part of the charge that the petitioner frequently uses to take drink with the villagers after leaving the work place; it is an admitted position that not even on a single occasion the petitioner has been sent for medical examination; what to say about the present charge. Thus, only on the basis of oral evidence of two Police Constables; the order of termination on the ground of taking liquor that too without any independent witness is too harsh and excessive. It further transpires that this ground which has been taken by the petitioner in his reply to the second show-cause notice has not been considered by the Disciplinary Authority. 8. In this view of the matter, the instant writ application is partly allowed. 3 LPA No. 339 of 2023 The impugned order of dismissal from service as contained in Memo No.115 dated 5.3.2013 as well as the appellate order as contained in Memo No.1315 dated 16.08.2013, are hereby, quashed and set aside. 9. The respondents are directed to reinstate the petitioner in service and pass a fresh order on the quantum of punishment after considering the reply to the show-cause filed by the petitioner and keeping in mind the discussion made hereinabove.” 4. The learned counsel for the appellant has endeavored to challenge the order dated 25th January 2023 passed by the Commandant, Jharkhand Armed Police-7 on the ground that long delay in disposal of
Decision
the writ petition violates a basic right of the aggrieved party and while so, denial of salary to the appellant for the period between 05th March 2013 to 20th September 2022 cannot be countenance in law. To lay support to his submission the learned counsel for the appellant has referred to the judgment in “Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and others” (2013) 10 SCC 324, wherein the Hon’ble Supreme Court held in paragraph no. 22 as under: “22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter's source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.” 5. In the first place, the proceedings in W.P.(S) No. 3261 of 2014 do not indicate what steps were taken by the appellant for expeditious disposal of the writ petition. The misconduct of the delinquent police constable stood proved and the writ Court did not interfere with the findings recorded by the departmental authority. On a glance at the order 4 LPA No. 339 of 2023 dated 5th August 2021 passed by the writ Court, it is quite clear that the punishment order was interfered only as regards quantum of punishment. In paragraph no. 8 of the order dated 5th August 2021, the writ Court made it very clear that the writ petition is partly allowed and, in paragraph no. 9, further clarified that the departmental authority shall pass a fresh order on the “quantum of punishment”. The observations of the writ Court in the order dated 5th August 2021 leave no manner of doubt that it was only the quantum of punishment awarded to the appellant which was bearing in the minds of the Court. 6. In the second round, the writ Court vide order dated 18th April 2023 dismissed W.P.(S) No.1698 of 2023 observing as under: “5. This Court does not find any infirmity in the first two punishments inflicted on the petitioner pursuant to order dated 05.08.2021 passed in W.P.(S) No. 3261 of 2014. 6. So far as the last punishment inflicted upon the petitioner is concerned, learned counsel for the petitioner submits that the principle of ‘No Work, No Pay’ followed by the respondent no. 2 is not in accordance with law as in fact, the petitioner was prevented from rendering his service during the intervening period and subsequently vide order dated 05.08.2021 passed in W.P.(S) No. 3261 of 2014, he was reinstated in service. 7. This Court is of the view that the respondent no. 2 while passing the order on the quantum of punishment particularly with respect to not providing the salary to the petitioner for the period from 05.03.2013 to 20.09.2022, has though erroneously noted the principle ‘No work, No pay’, however the fact remains that the charge of misconduct against the petitioner, particularly his frequent visit to nearby village and drinking with villagers during duty hours, was not interfered while remanding the matter to pass fresh order on the quantum of punishment. 8. In the case of J.K. Synthetics Ltd. Vs. K.P. Agrawal & Another reported in (2007) 2 SCC 433, the Hon’ble Supreme Court has held as under:- “19. But the cases referred to above, where back wages were awarded, related to termination/retrenchment which were held to be illegal and invalid for noncompliance with statutory requirements or related to cases where the Court found that the termination was motivated or amounted to victimisation. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental inquiry, and the court confirms the finding regarding misconduct, but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee. Where the power under Article 226 or Section 11-A of the Industrial Disputes Act (or any other similar provision) is exercised by any court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in the wrong or that the dismissal was illegal and invalid. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force. When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it 5 LPA No. 339 of 2023 can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions, etc.” 9. Thus, it is well settled that where reinstatement is a consequence of imposition of a lesser punishment, back wages do not follow as a natural or necessary consequence of such reinstatement. Award of back wages in such type of cases would amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. 10. In the case in hand, a Bench of this Court while passing the order dated 05.08.2021 in W.P.(S) No. 3261 of 2014, though passed the order of reinstatement of the petitioner, however specifically directed the respondents to pass fresh order on the quantum of punishment after considering the reply of the second show cause notice of the petitioner and accordingly, the impugned order on the quantum of punishment has rightly been passed by the respondent no. 2. 11. Hence, I see no reason to interfere with impugned order as contained in memo no. 20 dated 25.01.2013 issued by the respondent no. 2. The writ petition is accordingly dismissed.” 7. There is no finding recorded by the writ Court in W.P.(S) No. 3261 of 2014 that the punishment order passed against the appellant was illegal. Rule 97 of the Jharkhand Service Code, 2001 provides that in cases where the order of dismissal, removal, or suspension is set-aside and the delinquent government employee is reinstated, the authority competent to order the reinstatement shall make specific order (i) regarding the pay and allowances to be paid to the government servant for the period of his absence from duty and (ii) whether or not the said period shall be treated as a period spent on duty. Sub-rule (2) further clarifies that if the authority is of the opinion that that government servant has been fully exonerated or that his suspension was wholly unjustified, the government servant shall be given full pay and allowance to which he would be entitled. 8. Rule 97 of the Jharkhand Service Code, 2001 is extracted as 6 LPA No. 339 of 2023 under: to order the authority competent 97. (1) When a Government servant who has been dismissed, removed, or suspended, reinstated, the reinstatement shall consider and make specific order- (a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty, and (b) whether or not the said period shall be treated as a period spent on duty. (2) Where the authority mentioned in sub-rule (1), is of opinion that the Government servant has been fully exonerated, or in the case of suspension, that it was wholly unjustified, the Government servant shall be given full pay and allowance to which he would have been entitled has he not been dismissed, removed or suspended, as the case may be. (3) In other cases, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe: Provided that the payment of allowances under Clause (2) or Clause (3) shall be subject to all other conditions under which such allowance are admissible. (4) In a case falling under Clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes. (5) In a case falling under clause the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose: Provided that if the Government servant so desires such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant. 9. The very fact that the appellant was not exonerated in the departmental proceeding is a good ground for the competent authority to deny him salary and other allowances for the period during which he remained dismissed from service. This is only in the cases where a government employee is fully exonerated from the charges or where the Court records a specific finding that the order of dismissal/termination from service was illegal and it was the act of the employer which the employee discharging his duty, salary and other prevented allowances may be paid to the delinquent government employee. 10. Having regard to the aforementioned reasons, LPA No. 339 of 2023 is dismissed. (Shree Chandrashekhar, J.) (Anubha Rawat Choudhary, J.) Pankaj-/2