Bokaro, Jharkhand v. 1. The State of Jharkhand through its Chief Secretary, having its office at Project
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 4555 of 2018 --- Anil Chandra Das, aged about 59 years, S/o Late Shashi Bhushan Das, residing at Quarter No. 3102, Sector XII/B, Bokaro Steel City, P.O. and ...Petitioner P.S.-Sector 12, District:- Bokaro, Jharkhand Versus 1. The State of Jharkhand through its Chief Secretary, having its office at Project Bhawan, Dhurwa, P.O. & P.S. Dhurwa, District- Ranchi. 2. The Secretary in Chief, Finance Department, Government of Jharkhand, having office at Project Bhawan, Dhurwa, P.O. & P.S. Dhurwa, District- Ranchi. 3. Deputy Secretary, Finance Department, Government of Jharkhand, having office at Project Bhawan, Dhurwa, P.O. & P.S. Dhurwa, District- Ranchi. 4. Chief Controller of Accounts, Finance (Audit) Department, Government of Jharkhand having office at Project Bhawan, Dhurwa, P.O. & P.S. Dhurwa, District- Ranchi. 5. Joint Secretary, Finance(Audit) Department, Government of Jharkhand having office at Project Bhawan, Dhurwa, P.O. & P.S. Dhurwa, District- ...Respondents Ranchi. ---
Legal Reasoning
CORAM: Hon’ble Mr. Justice Deepak Roshan --- : Ms. Khalida Haya Rashmi, Advocate : Mr. Ravi Kerketta, Advocate For the Petitioner For the Respondents --- 06/12.04.2024 The instant writ application has been preferred by the petitioner praying therein for quashing the order dated 15.01.2015 (Annexure-8) passed by the respondent no.4; whereby the petitioner was found liable in the departmental proceeding and as a consequence, one pay increment has been stopped with cumulative effect. The petitioner has further challenged the appellate order dated 31.07.2015(Annexure-10) passed by the respondent no.2; whereby the respondent no.2 has upheld the order of punishment. 2. Brief facts of the case are that the petitioner was appointed on the post of Senior Auditor Grade II on 02.07.1986. Thereafter, he was temporarily promoted to the post of Senior Auditor Grade I with effect from 04.09.1992 vide order dated 06.11.1995. On 31.10.2012, the petitioner has been discharged from the post of In-charge of Deputy Controller, Finance Department, Santhal Pargana Division, Deoghar and started working as Senior Auditor Grade II. In the year 2013, vide order dated 08.07.2013, a charge- sheet was issued against the petitioner and an inquiry was set up for the 2. departmental proceeding against him and one Inquiry Officer was appointed. Following charges have been imputed upon the petitioner in the charge-sheet which is mentioned herein below:- “(a) In spite of repeated directions of the Incharge, Deputy Controller of Accounts, to sign the audit reports pending in the Santhal Pargana Division, Deoghar the petitioner has not signed the said documents which resulted in delay in issuance of the audit report. (b) Petitioner has not attended the meetings conducted for review of Audit report on 10th day of every month regularly for many months. i. Finance report no 61/06-07, 77/06-07, 78/06-07, 08/07-08, 09/07- ii. 08 and 49/10-11 is still pending. that audit reports were sent to the headquarters without signature and when the same were returned to the sub divisional office it was again sent without signature and at the end having no other option it was received at the headquarter without signatures which resulted in delay in governmental work.” Pursuant thereto, the petitioner submitted his explanation on 06.03.2014 with respect to letter dated 08.07.2013. The petitioner fully participated in the departmental proceeding and on 15.01.2015, the Disciplinary Authority passed an order against the petitioner holding him guilty for the charges levelled against him and passed an order of withholding one increment with cumulative effect against the petitioner. Subsequently, petitioner preferred an appeal before the Secretary in Chief, Finance Department, who has also dismissed the appeal and upheld the order of Disciplinary Authority. 3. Ms. Khalida Haya Rashmi, learned counsel for the petitioner submits that though the order of punishment stipulates reduction of one increment with cumulative effect; however, no second show cause notice has been given before passing the impugned order. She further submits that the inquiry report has not been served to the petitioner as such impugned orders may be set aside. She further submits that the petitioner has already retired from service in the year 2019. 4. Mr. Ravi Kerketta, learned counsel for the respondents submits that the petitioner was handed over the copy of charge-sheet in the prescribed form ‘K’ and Sri Avinash Kumar Singh was appointed as the Inquiry Officer, who after providing adequate opportunity to the petitioner, held the petitioner guilty for the charges levelled against him. So far as inquiry report is concerned, the petitioner duly participated in the entire inquiry proceedings. 3. Further, it has not been alleged by the petitioner that serious prejudice has been caused to him for non-submission of inquiry report by the Department. 5. Having heard learned counsel for the parties and after going through the documents available on record and the averments made in the respective affidavits, it is evident that admittedly; no second show cause notice was issued/served to the petitioner. The specific case of the petitioner is that he has neither been served the Inquiry Report nor the second show cause notice; and in absence of that his case has been seriously prejudiced, inasmuch as, he could not rebut the findings of Inquiry officer and the law is well settled that if a punishment is major punishment, service of second show-cause is a condition precedent. It further transpires that the specific stand of the petitioner regarding non-service of ‘Inquiry Report’ made in para- 19 to 22 has not been denied by the respondents. Even vide order dated 11.01.24 the State was directed to file supplementary counter affidavit in order to rebut the claim of the petitioner that second show cause notice and/or enquiry report has not been served to the petitioner; the State has tried to justify the action of non- serving of inquiry report but they are silent about non service of second show cause. Thus, it is presumed that second show cause notice has not been served to the petitioner. Even the impugned order does not speak even a single word regarding non-service of second show cause notice before awarding punishment. 6. Now, the issue of serving second show cause in major punishment is no more res integra. In this regard, reference may be made to the decision rendered in the case of Punjab State Electricity Board Now Punjab State Power Corporation Limited Versus Raj Kumar Goel reported in (2014) 15 SCC 748, wherein the Hon’ble Apex Court has held that withholding of increment with cumulative effect is a major penalty because the effect of stoppage of increment with cumulative effect is that the employee is reduced in his time scale of pay for the period in question and it is in perpetuity during the rest of the tenure of his service. Thus, the action of the respondents in not issuing second show cause notice is against the settled principles of law. 4. 7. In view of the settled position of law and the admitted position in this case, this writ application is allowed and the impugned order dated 15.01.2015 (Annexure-8) passed by the Chief Controller of Accounts, Finance (Audit) Department and the order dated 31.07.2015 (Annexure-10) passed by Secretary in Chief, are hereby, quashed and set aside on the ground of procedural irregularity. 8. Normally, in the case of procedural irregularity, the case should have been remanded with a direction to pass a fresh order; however in the instant case, as submitted by learned counsel for the petitioner and admitted by learned counsel for the State that the petitioner has already retired from service in the year 2019, as such, no fruitful purpose would be served by remitting the case back to the respondents. 9. Accordingly, the respondents are directed to calculate the financial benefits, which will accrue since the impugned order has been quashed, within a period of eight weeks from the date of receipt/production of copy of this order, and pay the same to the petitioner within a further period of four weeks. JK/ vikas/- (Deepak Roshan, J.)