The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Ajay Kumar Sinha … Petitioner W.P. (S) No. 4131 of 2021 Vs. 1.The Union of India through Secretary to the Govt. of India Ministry of Coal- cum-Chairman/Board of Trustees, Coal Mines Provident Fund Organization (CMPFO), Shashtri Bhawan, Dr. Rajendra Prasad Path, P.O.-G.P.O., New Delhi-110001 2.The Commissioner, Coal Mines Provident Fund Organization (CMPFO), Head Quarters Office, Police Line, Dhanbad, P.O., P.S. and District-Dhanbad (Jharkhand) 3.The Regional Commissioner-I-cum-Inquiry Officer, Coal Mines Provident Fund Organization (CMPFO), Regional Office, Nagpur at Jaripatka, Nagpur. P.O. and P.S.-Nagpur, District-Nagpur (Maharashtra) Pin-440014. 4.The Assistant Commissioner-I-cum-Presenting Officer, Coal Mines Provident Fund Organization (CMPFO), Head Quarters Office, Police Line, Dhanbad, P.O. & P.S. and District-Dhanbad (Jharkhand) … Respondents ---------- CORAM: HON'BLE DR. JUSTICE S.N.PATHAK For the Petitioner For the Respondents
Legal Reasoning
It has been held by this Court in W.P.(S) 678 of 2019 which has been affirmed by Hon’ble Division Bench in L.P.A. No.221 of 2020 held that since -4- the management has its own regulation, they cannot be permitted to proceed and take help of CCS Rules. It has been further observed that, even if it is required then they have to proceed under the CCS rules in absence of regulation, there has to be a prior approval. Nothing has been brought on record to show that respondents have taken prior approval before proceeding under the CCS rules. The Hon’ble Apex Court in the case of Vijay Singh Vs. State of Uttar Pradesh & Ors. reported in (2012) 5 SCC 242 has observed that “Undoubtedly, in a civilized society governed by the Rule of Law, the punishment not prescribed under the statutory rules cannot be imposed. Principle enshrined in criminal jurisprudence to this effect is prescribed in the legal maxim nulla poena sine lege which means that a person should not be made to suffer penalty except for a clear breach of existing law.” As a squatter of the aforesaid rules, guidelines and judicial pronouncement, the impugned order at Annexures-10 and 20 is not sustainable in the eyes of law and the same are hereby quashed and set aside. However, since the charges are grave in nature, liberty is reserved with the respondent to proceed against the petitioner in view of their own regulation i.e. Coal Mines Provident Fund (Staff and Conditions of Service Regulation, 1964), if they so desire.
Arguments
: Mr. Anjani Kr. Verma, Advocate : Mr. Prashant Kr. Singh, Advocate 07/ 02.11.2023 Heard the parties ----------- 2. Petitioner has approached this Court for quashing of Memo No.1105 dated 26.11.2020 (Annexure-10) issued by the respondent No.2, by which without conducting any regular departmental enquiry in proper manner, major punishment such as reduction of pay by three stages from Rs.41100/- (Cell 6 of Level 6) to Rs.37600/- (Cell 3 of Level 6) in the time scale of pay for a period of three years w.e.f. from 15.12.2020 under Rule 31(iv) of Coal Mines Provident Fund (Staff and Conditions of Service Regulation, 1964 and the petitioner will not earn increments of pay during the period of reduction and that on expiry of this period, the reduction will have the effect of postponing his future increment of pay meaning thereby withholding of the annual increments for three years with cumulative effect has been imposed upon the petitioner. He has further prayed for quashing of Memo No.28.03.2023 (Annexure-20), i.e., the respondent no.1 has rejected the Memo of Appeal preferred by the petitioner and confirmed the order of penalty imposed by the disciplinary authority. Factual Matrix 3. Petitioner joined the Government Service as Lower Division Clerk on 06.06.2000 in Coal Mines Provident Fund Organization (hereinafter called as CMPFO) and at present posted as Upper Division -2- Clerk (UDC) now known as Sr. Social Secretary Assistant which is a Class-III post, in the Office of the CMPFO, Head Quarter, Dhanbad. The claim forms of the employees after duly attested by the colliery management are forwarded to the CMPFO. There is no work manual or internal audit manual in CMPFO as evident from Memo No.14 dated 07.05.2019 issued by the Regional Commissioner-I/Audit, Dhanbad under RTI, as such the officials of CMPFO dealing with the said claim form deals the same in absence of work manual and no payment is made directly to the colliery employees through CMPFO office, which is evidence from the Memo No.130 dated 14.05.2007 issued by the Respondent No.2. A memo of charge was issued under the signature of disciplinary authority i.e. the Commissioner, CMPFO, Head Quarters Office, Dhanbad vide Memo No. 1086 dated 24.01.2019. For certain irregularities committed by the petitioner, following that, the show cause reply was submitted by the Petitioner on 01.02.2019 refuting all the charges contained in Memo of Charge and ample opportunity of hearing was given by the Inquiry Officer. Afterwards, Inquiry report was submitted by Respondent No.3 before the Commissioner, CMPFO, Head Quarters, Dhanbad vide Memo No 931 dated 09.10.2020 and the same was partially accepted by the undersigned in disagreement with the findings of the Inquiry Officer and petitioner was directed to submit his defect. As such disciplinary authority leveled a new charge in the said show cause vide Memo No. 931 dated 09.10.2020. On 21.10.2020, the petitioner has submitted his detailed written defence before the disciplinary authority refuting all the charges mentioned in the memo of charge. In full agreement with findings of the Inquiry Officer that the petitioner has failed to comply with the provision of Para 63A Of CMPF Scheme, 1948 imposed major punishment such as reduction of pay by three stages from Rs. 41100/- (Cell 6 of Level 6) to Rs. 37600/- (Cell 3 of Level 6) for a period of three years with effect from 15.12.2020 as per Rule 31(iv) of Coal mines Provident Fund Regulation, 1964 and the petitioner will not earn increments during the period of reduction and on expiry of the said period, the reduction will have the effect of postponing his future increments i.e. withholding of the annual increments for three years with cumulative effect vide Memo No. 1105 dated 26.11.2020 issued by respondent No. 2. Aggrieved by the same, petitioner preferred an appeal before the appellate -3- authority i.e. Secretary to Government of India, Ministry of Coal-cum- Chairman/Board of trustees, Coal Mines Provident Fund Organization, New Delhi (Respondent No. 1). The appellate authority vide Letter No. 20018/1/2021-CMPF dated 28.03.2023 affirmed the punishment order. Aggrieved by the order of the Appellate Authority and Disciplinary Authority, Petitioner has knocked the door of this Hon’ble Court for quashing the order passed by Respondent 1 and Respondent No. 2 4. Learned counsel for the petitioner argued that initiation of proceeding itself is bad in law as the respondents have proceeded under the CCS Rules, whereas they ought to have proceeded under Coal Mines Provident Fund (Staff and Conditions of Service Regulation, 1964). It has been further argued that even the punishment inflicted upon the petitioner is not prescribed under the said regulation. Learned counsel further argues that since initiation of proceeding itself is not inconsonance with the rules, the entire proceeding is fit to be quashed and set aside. 5. On the other hand, learned counsel appearing on behalf of the respondents submits that though the respondent-management has proceeded under CCS Rules but the enquiry has been concluded as per their own regulation and final order has been passed. Learned counsel justifying the impugned order submits that there is no illegality or any infirmity in the impugned order, in view of the serious charges levelled against the petitioner and as such the same is fully justified. This writ court should not interfere with the order of punishment. 6. Having heard the rival submissions of the parties, this court is of the considered view that case of the petitioner needs consideration for the following fact and reasons; (i) Admittedly, the departmental proceeding was initiated against the petitioner in view of CCS Rules. The law has been set at rest that since the management has its own regulations i.e. Coal Mines Provident Fund (Staff and Conditions of Service Regulation, 1964), they are precluded from adopting a different service condition for initiation of departmental proceeding. The CCS rules cannot be applied in case of any proceeding conducted by CMPFO as they have their own regulation. (ii)
Decision
Accordingly, the writ petition stands allowed. Rohit/- (Dr. S.N. Pathak, J.)