Sunil Kumar, aged about 54 years, Son of Nathuni Ram, Resident of Kurmi Tola v. 1. The State of Jharkhand. 2. The Commissioner, Palamau Division, P.O. and PS Medininagar
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A No. 460 of 2024 ----- Sunil Kumar, aged about 54 years, Son of Nathuni Ram, Resident of Kurmi Tola, P.O.- Japla, P.S. Hussainabad, District –Palamau, Jharkhand … … … Appellant Versus 1. The State of Jharkhand. 2. The Commissioner, Palamau Division, P.O. and PS Medininagar, District- Palamau, Jharkhand. 3. Dy. Commissioner, Palamau, P.O. and P.S. Medininagar, District- Palamau, Jharkhand. 4. D.S.E., Palamau, P.O. and P.S. Medininagar, District Palamau, Jharkhand. 5. D.E.O., Palamau, P.O. and P.S. Medininagar, District- Palamau, Jharkhand. 6. Area Education Officer, Hussainabad Area, P.O., P.S. and District- Palamau, Jharkhand. … … … Respondents ------- CORAM: HON’BLE THE ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE ARUN KUMAR RAI ------- For the Petitioner For the Respondents :Mr. Saurav Arun, Advocate : Ms.Ayushi, Advocate :Mr Ravi Prakash Mishra, AC to AAG-II Order No.02/Dated: 10th September, 2024 ------ 1. The appeal is under clause 10 of Letters Patent Appeal is directed against the order/judgment dated 04.07.2024 passed W.P.(S) No. 3016 of 2022, whereby and whereunder, the learned Single Judge has refused to interfered with the letter dated 19.3.2019 by which it was held that the petitioner shall not be entitled for salary other than subsistence allowance for the period of suspension. Page 1 2. The brief facts of the case, as per the pleading made in the writ petition, which is required to be enumerated which reads as under: - The appellant/writ petitioner is posted as Head Master cum-Drawing and Disbursing Officer in Govt. Urdu Middle School, Hussainabad. During his tenure he was charged with the allegation of irregularities in to Gyan Setu Program and irregularity in mid-day meal etc. and was put under suspension on 20.11.2018 by the D.C., Palamau and the Enquiry Officer for departmental proceeding has been appointed. The appellant/writ petitioner was charge sheeted for the following charges (i) on 31.10.2018 the Gyan Setu Programme was not conducted. (ii) The attendance of the students has not been marked after 1.40 P.M.; (iii) Irregularity in Mid-day Meal; (iv) Misuse of the post of Principal (v) Minimum presence of students. Page 2 The appellant/writ petitioner filed a detail reply on 25.01.2019 to the charge sheet denying the charges levelled against him and stated that on 04.10.2018 the Gyan Setu Programme has been inaugurated and up to 31.10.2018 the book was distributed among the students and from 1st of November, 2018 Gyan Setu Programme has been started in terms of Departmental Order. It is the case of the appellant/writ petitioner that after filing of by the appellant/writ petitioner, no second show cause has been served to him and the punishment order has been imposed upon him on 19.03.2019 which is utter violation of the principal of natural justice and further enquiry report was also not supplied to the writ petitioner/appellant even after participation in the enquiry.
Decision
Against the punishment order, the writ petitioner/appellant preferred an appeal before Commissioner, Palamau but the same was rejected on 30.03.2022. 3. Being aggrieved with the aforesaid appellate order, a writ petition being W.P.(S) No. 3016/2022 has been filed by the writ petitioner/appellant which was dismissed in terms of order dated 04.07.2024 by the learned Single Judge by refusing to interfere with Page 3 the order dated 19.3.2019 by which it was held that the petitioner shall not be entitled for salary other than subsistence allowance for the period of suspension. Hence the present intra Court appeal. 4. It is evident from the factual aspect that the appellant/writ petitioner while working as Headmaster was put under suspension in contemplation of departmental proceeding. The departmental proceeding had been initiated in which the punishment of censure has been imposed. 5. The order of suspension has been revoked on conclusion of the departmental proceeding which culminated into the punishment of censure, but while passing the order of censure, the authority has also taken decision denying the salary for the period of suspension by passing an order that the appellant/writ petitioner will not be entitled for anything save and except the subsistence allowance. 6. The part of the aforesaid order has been challenged by the appellant/writ petitioner by filing the writ petition being W.P. (S) No. 3016 of 2022. 7. The ground has been taken that the order of suspension has been passed under the provision of conduct rule, but the part of the order whereby and whereunder, the salary has been denied and cannot be said to be passed under the provision of conduct rule. Page 4 8. Further ground has been taken before the learned Writ Court that punishment of disentitling the petitioner for full salary for the period of suspension is not a punishment prescribed under Jharkhand Govt. Servants (Classification, Control & Appeal) Rules, 2016 and it is not open for the respondents to pass such order and further as per Rule 97 of the Jharkhand Service Code, the petitioner is entitled for the full salary. 9. The learned Writ Court has not agreed with the aforesaid ground rather has gone into the fact that appellant/writ petitioner since has been punished on conclusion of the departmental proceeding and, as such, he will only be entitled for subsistence allowance. 10. The same has been challenged by filing the instant appeal. Argument on behalf of learned counsel for the petitioner: 11. Mr. Saurav Arun, learned counsel appearing for the appellant/writ petitioner has reiterated the said grounds: - (i) The contention has been raised that the learned Single Judge has not taken into consideration the impugned order that the majority punishment imposed without full Fledged Departmental Enquiry. The learned Single Judge Page 5 has not taken note that one similarly situated person for same set of charge has been exonerated. (ii) Further, the learned Single Judge has also not taken into consideration that no second show cause has been issued to the petitioner which is against the mandate of the settled position of law that once departmental proceeding initiated then entire procedure of departmental proceeding is bound to be followed. (iii) Further it is contended that the learned writ Court has also not taken into consideration that the petitioner service being a teacher comes under the Bihar taken over elementary school Rule 1993 and not under Rule 2016. (iv) It has been submitted that the aforesaid issue has not been considered, since, there is no finding to that effect rather, learned Single Judge has gone into the issue of the conduct rule which having no bearing with the implication of Rule 97 of the service Code which pertains to the salary for the period of suspension and therefore, the impugned order suffers from an error and as such the same may be quashed and set aside. Argument on behalf of learned counsel for the State: Page 6 12. Mr. Ravi Prakash Mishra, learned AC to AAG-II appearing for the State while defending the impugned order has submitted that since the appellant/writ petitioner has been punished after conclusion of the departmental proceeding and as such, he is not entitled for salary of the suspension period save and except the subsistence allowance which is admissible to the appellant/writ petitioner in view of the provision of Rule 97 of the Service Code. 13. It has been submitted that the learned Single Judge has taken into consideration the aforesaid aspect of the matter and hence, the order passed by the learned Single Judge cannot be said to be suffer from an error. Analysis 14. This Court has heard learned counsel for the parties and gone across the factual aspect as also the findings recorded by the learned Single Judge in the impugned order. 15. The issue which requires consideration as to whether on conclusion of the departmental proceeding, if the delinquent employee has been punished with the punishment, other than Page 7 the enshrined in the list of punishment can be imposed to the extent of withholding the salary for the period of suspension. 16. This Court in order to answer the aforesaid issue needs to refer herein the basic fundamental of the conduct rule wherein, it is the settled position of law that the proceeding, if initiated under the conduct rule, the punishment is to be inflicted upon on or the other delinquent employee on the basis of the punishment enshrined in the list of punishment. If the punishment other than the enshrined punishment is inflicted then, such punishment will be said to be suffer from jurisdictional error. 17. The law is well settled that if any punishment is imposed contrary to the list of punishment, the same will be said to be without jurisdiction. Reference in this regard be made to the judgment rendered by the Hon’ble Apex Court in Vijay Singh Vs. State of Uttar Pradesh and Others reported in (2012) 5 SCC 242 wherein in a case leading to imposing punishment was not found to be under the statutory rules so prescribed and as such held to be without jurisdiction, as would appear from paragraph 11 to 15 and 23, which reads hereunder as :- “11. Admittedly, the punishment imposed upon the appellant is not provided for under Rule 4 of Rules 1991. Integrity of a person can be 9 withheld for sufficient reasons at the time of filling up the Page 8 Annual Confidential Report. However, if the statutory rules so prescribe it can also be withheld as a punishment. The order passed by the Disciplinary Authority withholding the integrity certificate as a punishment for delinquency is without jurisdiction, not being provided under the Rules 1991, since the same could not be termed as punishment under the Rules. The Rules do not empower the Disciplinary Authority to impose “any other” major or minor punishment. It is a settled proposition of law that punishment not prescribed under the rules, as a result of disciplinary proceedings cannot be awarded. 12. This Court in State of U.P. & Ors. v. Madhav Prasad Sharma, [(2011) 2 SCC 212], dealt with the aforesaid 1991 Rules and after quoting Rule 4 thereof held as under: “16. We are not concerned about other rule. The perusal of major and minor penalties prescribed in the above Rule makes it clear that sanctioning leave without pay is not one of the punishments prescribed, though, and under what circumstances leave has been sanctioned without pay is a different aspect with which we are not concerned for the present. However, Rule 4 makes it clear that sanction of leave without pay is not one of the punishments prescribed. Disciplinary authority is competent to impose appropriate penalty from those provided in Rule 4 of the Rules which deals with the major penalties and minor penalties. Denial of salary on the ground of “no work no pay” cannot be treated as a penalty in view of statutory provisions contained in Rule 4 defining the penalties in clear terms.” (Emphasis added) 13. The Authority has to act or purport to act in pursuance or execution or intended execution of the Statute or Statutory Rules. 14. The issue involved herein is required to be examined from another angle also. Holding departmental proceedings and recording a finding of guilt against any delinquent and imposing the punishment for the same is a quasi-judicial function and not administrative one. Page 9 15. Imposing the punishment for a proved delinquency is regulated and controlled by the statutory rules. Therefore, while performing the quasi-judicial functions, the authority is not permitted to ignore the statutory rules under which punishment is to be imposed. The disciplinary authority is bound to give strict adherence to the said rules. Thus, the order of punishment being outside the purview of the statutory rules is a nullity and cannot be enforced against the appellant. 23. Thus, in view of the above, the punishment order is not maintainable in the eyes of law. In the result, appeal succeeds and is allowed. The impugned order dated 8.7.2010 withholding integrity certificate for the year 2010 and all subsequent orders in this regard are quashed. Respondents are directed to consider the case of the appellant for all consequential benefits including promotion etc., if any, afresh taking into consideration the service record of the appellant in accordance with law.” 18. Admittedly, this Court after going through the list of punishment as provided under Rule 49 of the old conduct rule i.e., Civil Services Classification, Control of the Rule, 1930 or the subsequent rule of the year 2016 as under Rule 14, no such punishment has been enshrined said to denied the salary for period of suspension. The said punishment is not available in the list of punishment as under Civil Services Classification Appeal and Control Rules, 1930 as would be evident from Rule 49 of the same as per the list of punishment contained therein. 19. Herein the issue has been raised on behalf of the appellant that the part of the order which was passed on conclusion of the Page 10 departmental proceeding is denial of the salary for the period of suspension. 20. The question therefore is that when the denial of salary for the period of suspension is not in the list of punishment then how can there be a denial of salary for the period of suspension. The order of suspension is to be passed in view of the provision of Rule 96 of the Jharkhand Service Code. 21. The question of consideration of the salary for the period of suspension has been dealt under the provision of Rule 97 sub- rule 2 of the Jharkhand Service Code, wherein it has been provided, for ready reference the same is being referred hereunder as :- “97 (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. 22. The question of denial of salary for the suspension period cannot be by way of passing an order simplicitor, rather, an opportunity is to be provided to the delinquent employee that as to why salary for the period of suspension be not withheld, Page 11 that is the requirement of Rule 97(2) of the Jharkhand Service Code as has been decided by the Patna High Court in the case of Shri Mahabir Prasad v. The State of Bihar & Others [1988 PLJR 82], wherein it has been held that disentitling the delinquent employee from salary for the suspension period, save and except his subsistence allowance, can only be passed after issuance of show cause notice to the delinquent employee. For ready reference, paragraph 3 of the aforesaid judgment is reproduced hereunder: - “3. Mr. Tarkeshwar Dayal, learned Counsel appearing for the petitioner did not challenge the validity of the order of censure. Learned counsel however, submitted that the order of the State Government that the period of suspension would be treated as on duty for the purposes of pension and gratuity but the petitioner would not get anything more than the subsistence allowance already received by him during the period of suspension is invalid, because the petitioner was not given an opportunity to be heard before the said order was passed. In support of this contention, learned counsel relied upon a decision of the Supreme Court in M. Gopalkdsana Naida v. The State of Madhya Pradesh (AIR 1968 Supreme Court 240). There is substance in the contention of learned counsel. The facts of the Supreme Court case were, more or less, similar in the sense that the delinquent officer had been suspended pending the Departmental enquiry. The enquiring officer found the officer not guilty, but the Government disagreed with that finding and served a notice to show cause why he should not be dismissed. Subsequently, the Government held that the charges against the officer were not proved beyond reasonable doubt. It also held that the suspension and the Departmental Page 12 enquiry “were not wholly unjustified”. The order further directed, inter alia, that the entire period of absence from duty should be treated as period spent on duty under Fundamental Rule 54 (5) for purposes of pension only, but that he should not be allowed any pay beyond what he had actually received or what was allowed to him by way of subsistence allowance during the period of his suspension. The Supreme Court held that Fundamental Rule 54 contemplates a duty to act in accordance with the basic concept of justice and fairplay. The authority has to afford a reasonable opportunity to the officer concerned to show cause why clauses (3) and (5) should not be applied. In that case the order was held to be invalid as no reasonable opportunity to the officer to show cause was given. Rule 97 of the Bihar Service Code, 1952, is in pari materia with rule 54 of the Fundamental Rules. The petitioner, therefore, ought to have been given an opportunity to show cause why clauses (3) and (5) of Rule 97 should not be applied in his case. As that had not been done, the application is allowed and the impugned portion of the order contained in Annexure 1 which reads “The period of suspension be treated as on duty for the purposes of pension and gratuity but he will not get anything more beyond the subsistence grant already received by him during the period of suspension” is struck down as invalid. It would be open to the competent authority to consider the question de novo, after giving the petitioner a reasonable opportunity to show cause against the action proposed against him. There will be no order as to costs.” 23. Subsequently, the Hon’ble Apex Court has also considered the same very issue in the case of State of Jharkhand and Anr. vs. Amresh Narayan Singh, (2020) 14 SCC 411 wherein at paragraph-7, it has been held which reads as under: - “7. Sub-rule (1) of Rule 97 indicates that where a government servant is suspended, the authority competent to order the reinstatement has to consider and make a specific order regarding Page 13 the pay and allowances for the period of absence from duty and on whether the period shall be treated as a period spent on duty. Sub-rule (2) indicates that where the authority concludes that the suspension was “wholly unjustified”, the government servant shall be given full pay and allowances as if the order of suspension had not been passed. The High Court misconstrued the provisions of Rule 97 in coming to the conclusion that full pay and allowances must necessarily follow as a consequence of the suspension being revoked. This construction is contrary to the plain terms of Rule 97 as extracted above. The disciplinary proceedings have been held in abeyance pending the conclusion of the criminal trial. It is only after the conclusion of the departmental inquiry that the competent authority will have to decide, in terms of Rule 97, how the period of suspension should be treated and whether it is liable to be treated as a period spent on duty. A decision will be taken on the pay and allowances which should be allowed. The directions which were issued by the High Court at this stage were hence contrary to Rule 97.” 24. Adverting to the factual aspect of the present case herein also it is the admitted position while passing the order of denial of salary for the period of suspension as no such opportunity has been given to the appellant/writ petitioner and also there is no opinion or finding said to be recorded by the disciplinary authority as would be evident from the part of the order impugned. 25. This Court has discussed the factual aspect and coming to the order passed by the learned Single Judge has found therefrom although the reference of the provision of Rule 97 of the Page 14 Jharkhand Service code has been made, but the learned Single Judge only on the ground that the charge has been found to be proved which culminated into the order of punishment and, as such, the learned Single Judge has come to the conclusion that the appellant/writ petitioner is not entitled for full salary. 26. But, while doing so the learned Single Judge has not appreciated the instinct requirement which was to be followed by the authority for the purpose of coming to the opinion with the fact finding in the present case. 27. Further, the issue of the requirement of natural justice has not been taken into consideration, since, denial of salary is the vital statutory right and when the same is being taken away, the principle of natural justice is to be followed which is also denied. 28. Accordingly, the impugned order needs to be interfered with and, as such the same is quashed and set aside. 29. In consequence thereof, the instant Letters Patent Appeal Stands allowed. 30. In the result, the writ petition stands allowed and the part of the order dated 04.07.2024 which pertains to denial of salary for the period of suspension is also quashed and set aside. Page 15 31. The D.S.E., Palamau i.e. Respondent No.4 is directed to ensure disbursement of salary for the aforesaid period to be paid in favour of the appellant/writ petitioner within the period of two months from the date of receipt of copy of the order. 32. Accordingly, the instant appeal stands disposed of. (Sujit Narayan Prasad, ACJ.) (Arun Kumar Rai, J.) Suman/Abhishek- A.F.R. Page 16