The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 3297 of 2021 ---- Mukteshwar Pandey, (Aged about 62 years) Son of Late Narayan Pandey, resident of Badam Bazar, Malviya Marg, Rajnikant Lane Near Bihari Durga Asthan, P.O Hazaribagh, P.S. Sadar, District- Hazaribagh. .......Petitioner Versus 1. State of Jharkhand through Additional Chief Secretary Forest Environment and Personal, Human Resources Development Department, Govt. Jharkhand, P.O. & P.S. Ranchi, District-Ranchi. 2. Principal Chief Conservator of Forest, Government of Jharkhand, P.O. & P.S. Doranda, District-Ranchi. 3. Additional Principal Chief Conservator of Forest, Government of Jharkhand, P.O. & P.S.-Doranda, District-Ranchi. 4. Regional Chief Conservator of Forest, Dumka Circle, P.O. & P.S. Dumka, District-Dumka. 5. Conservator of Forest, Dumka Circle, P.O. & P. S. Dumka, District- Dumka. 6. Forest Conservator, Santhal Pargana, Circle Deoghar, P.O. & P.S. Deoghar, District-Deoghar. .....Respondents CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN --- For the Petitioner For the Respondents
Legal Reasoning
--- : Mr. Rajiv Kumar, Advocate : Mr. Manish Kumar, Sr. SC-II --- C.A.V. on 25.09.2024 Pronounced on 06.12.2024 The instant writ application has been preferred by the petitioner for following reliefs:- i. For quashing of the order dated 17.02.2021 (Annexure-8) passed by the Respondent No.3 passed in purported compliance of the direction contained in the order dated 25.02.2020 passed by this Hon'ble Court in W.P.(S) No.4797 of 2012 but the core of the observation in para-7(viii) has been side tracked the manner in which the departmental enquiry was held. ii. For issuance of a direction upon the respondents concerned for releasing arrears of salary for the period he was not informed of place join as of posting after the transferred post was found to be not vacant as “no work no pay" does not apply in the instant case. iii. For quashing of the punishment of suspension without any whisper as to why the full salary would not be paid, being an administrative order without foundation much less hearing and finding as to what fault was committed by petitioner for not being paid full (less already paid) (suspension period from 03.03.2009 (March 2009) to 14.09.2009) salary though the law requires giving good and sufficient reasons vide Rule 2 (VI) of Bihar and Orissa Subordinate Services (Discipline and Appeal) Classification Rule 1935 Jharkhand). 2. The petitioner had earlier moved before this Court in W.P(S) No. 4797 of 2012 praying therein for quashing of the order dated 06.03.2012 whereby the respondent no.2 dismissed the Revision Application filed by the petitioner and affirmed the Appellate order dated 29.11.2010. 3. In the said writ application, the petitioner had further prayed for a direction upon the respondents to pay the arrears of salary with effect from 01.10.2006 to 16.12.2008 and from 01.03.2009 to 15.09.2009 for the suspension period on the basis of last pay certificate and all other payments. 4.
Decision
The said writ application was disposed of by the Co-ordinate Bench of this Court vide order dated 25.02.2020 and the Bench after quashing the impugned orders dated 06.03.2012 and 29.11.2010 had remitted the matter back to the respondent Appellate Authority for reconsideration of the case on the quantum of punishment. 5. Pursuant thereto; an order has been passed by the Appellate Authority in compliance of the High Court order (Annexure-8); wherein the Appellate Authority has reconsidered the punishment by withdrawing the stoppage of two annual increments and further sustaining few punishments. For brevity, paragraph no. 6 of the impugned order dated 17.02.2021 is extracted herein below:- “6. That in view of aforesaid details, the reasons assigned and in the light of order passed by the Hon'ble High Court in the W.P. (S) No. 4797 of 2012, the quantum of punishment for the petitioner is decided as below. 1. The period of absence from duty of the petitioner from 10.01.2007 to 20.11.2008 is to be treated as Leave Without Pay without any break in service. 2. The salary would be payable for the period from 21.11.2008 to 16.12.2008 by grant of admissible leave. 3. Only the Subsistence Allowance for the period of suspension will be admissible to the petitioner. 4. The punishment of stoppage of two annual increments on permanent basis is hereby cancelled and therefore withdrawn and it shall not be given effect to. The said order is issued in order to meet the ends of justice as well as for proper administration of the department.” 6. It has been submitted by learned counsel for the petitioner that this Court earlier quashed the order of punishment on the ground that since the Inquiry Officer has exonerated the petitioner; as per the settled proposition of law, the Disciplinary Authority was bound to issue a notice to this petitioner before issuing second show cause notice with regard to his opinion why is he 2 differing from the opinion of Inquiry Officer. He contended that in paragraph no.7 of the order passed in the earlier writ application, the Co-ordinate Bench of this Court has accepted the contention of the petitioner with regard to non- submission of second show-cause and finally quashed the impugned order of punishment. However, this time also the Respondent Authority has committed the same error by not issuing the second show-cause notice with regard to his difference of opinion with the Inquiry Officer giving reasons as to why he is differing with the Inquiry Report, as such the impugned order needs reconsideration. He further contended that when the main punishment w.r.t. stoppage of annual increments has been withdrawn; there was no reason to hold that the petitioner will only be entitled for the subsistence allowance. 7. Per Contra, it has been submitted by learned counsel for respondent that there is no error in the impugned order passed by the Appellate Authority, inasmuch as, pursuant to the direction of this Court when the case was remitted back to the Appellate Authority on the quantum of punishment; he has modified the impugned order by withdrawing the punishment of stoppage of two annual increments on permanent basis, as such no interference in required. 8. Having heard learned counsel for the parties and after going through the documents available on record including the order passed by this Court in W.P(S) No. 4797 of 2012, it appears that in the earlier round of litigation this Court has duly considered the argument of learned counsel for the petitioner and in paragraph no.7 of its judgment has accepted the entire contention. For brevity, paragraph no.7 of the earlier order is extracted herein below:- “7. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration for the following facts and reasons: i. Admittedly, the petitioner was exonerated from the charges by the Enquiry Officer, which were not proved during the course of enquiry. ii. It is settled principles of law that before parting with the Enquiry Report, it was incumbent upon the Disciplinary Authority to issue show cause notice to the petitioner as to on what ground it has differed from the said Enquiry Report and ask the petitioner to file reply thereof. iii. From the facts of the case and the documents brought on record, it appears that Disciplinary Authority erred in law, by neither issuing show cause notice to the petitioner nor assigning any cogent reasons for differing with the enquiry report. 3 iv. The issue fell for consideration before the Hon’ble Apex Court in case of The Hon'ble Supreme Court in the case of Punjab National Bank Vs. Kunj Behari Misra, reported in (1998) 7 SCC 84, wherein at paragraph no.19 it has been held that: 19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into 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 to persuade 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. v. The Hon'ble Supreme Court in the case of Ram Kishan Vs. Union of India, reported in (1995) 6 SCC 157, at paragraph no.10 has held thus: 10. The next question is whether the show-cause notice is valid in law. It is true, as rightly contended by the counsel for the appellant, that the show-cause notice does not indicate the reasons on the basis of which the disciplinary authority proposed to disagree with the conclusions reached by the inquiry officer. The purpose of the show-cause notice, in case of disagreement with the findings of the inquiry officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the inquiry officer for the reasons given in the inquiry report or he may offer additional reasons in support of the finding by the inquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show cause on the basis of which the findings of the inquiry 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 inquiry 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. But, on the facts in this case, the only charge which was found to have been accepted is that the appellant had used abusive language on the superior authority. Since the disciplinary authority has said that it has agreed partly to that charge, the provisional conclusion reached by the disciplinary authority in that behalf even in the show-cause notice, cannot be said to be vague. Therefore, we do not find any justification to hold that the show-cause notice is vitiated by an error of law, on the facts in this case. vi. Further, the Hon'ble Apex Court in case of M.V. Bijlani Vs. Union of India, reported in (2006) 5 SCC (L& S) 919, at paragraph No.25, has held thus: 25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with. vii. Further, the Hon'ble Supreme Court in the case of Punjab National Bank Vs. K.K. Verma, reported in (2010) 13 SCC 494, at paragraph Nos.32 &34 has held thus: 32. Thus the right to represent against the findings in the enquiry report to prove one’s innocence is distinct from the right to represent against the proposed penalty. It is only the second right to represent against the proposed penalty which is taken away by the 42nd Amendment. The right to represent against the 4 findings in the report is not disturbed in any way. In fact, any denial thereof will make the final order vulnerable. 34. It was then submitted that non-supply of enquiry report is inconsequential if the employee does not show as to how he is prejudiced thereby. Karunakar2, S.K. Singh v. Central Bank of India10 and Haryana Financial Corpn. v. Kailash Chandra Ahuja11 were relied upon in support. There cannot be any grievance with respect to the proposition. In the present case, however, we are concerned with a situation where the finding of the enquiry officer on a charge has been reversed by the disciplinary authority, which was not the case in any of the three cases. Besides, by not giving the enquiry report and the adverse order of the disciplinary authority, the respondent was denied the opportunity to represent before the finding of guilt was arrived at and thereby he was certainly prejudiced. viii. The aforesaid fact as well as legal aspects were not considered neither properly appreciated by the Appellate Authority as well as Disciplinary Authority. There are several lacunas in the Departmental Proceedings, which were also not considered either by the Disciplinary Authority or the Appellate Authority. ix. It is also well settled law that if the departmental proceedings itself is full of follies and where the due procedures have not been followed, such proceedings itself are fit to be quashed and set aside.” 9. However, the Bench finally after allowing the writ application has remitted the matter back to the Appellate Authority for reconsideration of the case of the petitioner on quantum of punishment. For brevity, paragraph no.8 of the order dated 25.02.2020 passed in W.P(S) No. 4797 of 2012 is extracted herein below:- “8. As a logical sequitur to the aforesaid reasons, the impugned orders dated 06.03.2012 and 29.11.2010 are liable to be quashed and set aside and are hereby quashed and set aside. Since the petitioner has duly participated in the enquiry proceeding and ample opportunity was given to him, but the factual aspect and the legal aspect were not properly appreciated by the authorities, it would be proper to remit the matter back to the respondent-Appellate Authority for reconsideration of the case of the on the quantum of punishment and as such, matter is remitted back to the Appellate Authority to take a fresh decision on the quantum of punishment, within a period of twelve weeks’ from the date of receipt of a copy of this order.” Emphasis Supplied Thus, it cannot be said that the Respondent authority has committed an error even in second round because in the second round after remand, the Disciplinary Authority was having no occasion to issue the second show- cause to the petitioner; rather it was the Appellate Authority who had to consider the entire matter in accordance with law and from perusal of the impugned order it is crystal clear that principles of natural justice has been duly followed. 10. From bare perusal of the impugned order dated 17.02.2021, it appears that the claim of the petitioner vis-a-vis the direction of this Court’s order rendered in the earlier writ application, the punishment of stoppage of two annual increments on permanent basis was cancelled and withdrawn. The 5 operative parts of the impugned order have already been extracted herein above. The grievance of the petitioner that when the original order of punishment has been set-aside and fresh order has been passed by withdrawing the punishment of stoppage of two annual increments then; there was no reason as to why the appellate authority had ordered that only subsistence allowance for the period of suspension will be admissible, inasmuch as, the original order has been modified. The contention of the petitioner that the observation of the respondent that principle of No Work, No Pay would be applicable in the case of this petitioner, is misconceived. 11. The contention of the petitioner is not sustainable in the eye of law for following reasons: (i) In the earlier round of litigation, the Co-ordinate Bench has remanded the case to the appellate authority with a specific direction to reconsider the case of the petitioner on the quantum of punishment and to take a fresh decision; thus; heavy reliance on Para-7 of the order passed in earlier round of litigation has no bearing in the instant case, inasmuch as; there was no occasion to again give a show-cause notice to the petitioner with regard to difference of opinion by the Inquiry Officer. (ii) The appellate authority has duly issued notice to the petitioner and after giving full opportunity of haring to him, passed the impugned order. (iii) The contention of the petitioner that the principal of No Work, No Pay shall not be admissible because the original order of punishment has been modified, is not sustainable and is misconceived; in view of the admitted fact that in the remand proceedings, the petitioner has not been exonerated from the charges; rather on the quantum of punishment, the respondent- authorities have withdrawn the punishment of stoppage of two annual increments. (iv) Further, from perusal of the impugned order dated 17.02.2021, it does not transpire that there is any perversity in the order and each and every aspect has been dealt in accordance with law 6 coupled with the direction passed by the Co-ordinate Bench of this Court in earlier round of litigation. 12. Accordingly, this Court does not find any reason to interfere with the impugned order (Annexure-8). Consequently, the instant writ petition stands dismissed. However, no cost. Jharkhand High Court Dated:06.12.2024 Vedanti/- AFR (Deepak Roshan, J.) 7