Ashok Kumar Mishra v. The Block Education Extension Officer, Dumariya, East Singhbhum

:Mr. Manoj Tandon, Advocate Ms. Neha Bhardwaj, Advocate Mr. Adamya Kerketta, Advocate Ms. Ankita, Advicate Mr. Piyush Kumar Roy, Advocate. :Mr. Divyam, AC to SC-IV 09/02.11.2023 Heard learned counsel for the parties.

2. Petitioner has approached before this Court with a prayer for quashing the office order, as contained in Memo No. 2793, dated 04.12.2017, passed by respondent no. 3, whereby his five increments have been withheld with a further direction that petitioner would not be paid rest amount for the period of suspension. Petitioner has further prayed to quash part of appellate order dated

29.08.2018, communicated by Memo No. 905, dated 04.09.2018, passed by respondent no. 2, whereby two increments have been withheld and petitioner has been made not entitled for full salary up to 27.07.2017. Further prayer has been made for a direction upon the respondents to pay full salary for the period he remained under suspension i.e. 27.07.2015 to 26.07.2017 with consequential benefits.

3. According to the petitioner, he was appointed as an Assistant Teacher in Elementary School on 21.09.1994 and had an unblemished service career. However, while posted as Assistant Teacher, Primary School, Punasibad, Dumariya, he was proceeded departmentally, for which a memo of charge was framed against him vide memo no. 350, dated 08.02.2016, which was totally denied by the petitioner in his reply. The inquiry officer, after finding the reply of the petitioner satisfactory, exonerated him from the charges vide his inquiry RC 2 report dated 27.10.2016. However, pursuant to the Memo no. 490, dated

25.02.2017, issued by the respondent no. 3, another inquiry officer was appointed to inquire into charges levelled against the petitioner without affording any opportunity of hearing to the petitioner. Again reply was filed by the petitioner on 16.03.2017. Thereafter, penalty order as contained in memo no. 2793, dated 04.12.2017 was passed whereby five increments of the petitioner were withheld without cumulative effect with a further direction that petitioner would not be entitled for rest amount for the period he remained under suspension. Thereafter, petitioner preferred appeal before the Divisional Commissioner on 03.01.2018. The appellate authority, vide order dated

29.08.2018, modified the impugned order and instead of five increments, two increments were withheld without cumulative effect with a further direction that suspension of the petitioner deemed to be revoked from 27.07.2017 i.e. on completion of two years of suspension period. Being aggrieved, petitioner has been constrained to knock door of this Court.

4. Mr. Manoj Tandon, learned counsel appearing on behalf of the petitioner, assailing the impugned order vociferously argues that the impugned orders are not tenable in the eyes of law. Learned counsel further argues that in the first inquiry, petitioner has been exonerated from the charges and, thereafter, the disciplinary authority has inflicted punishment based on the second inquiry report. Learned counsel further argues that the second inquiry was not permissible in the eyes of law in as much as respondents have proceeded with fresh inquiry. As per law laid down, the respondents would have proceeded for further inquiry but without assigning any reasons, it was impermissible for the disciplinary authority to proceed for fresh inquiry. Nothing has been reflected from the inquiry report as to what was the reason for proceeding for second inquiry. Since petitioner has already been exonerated after following the procedure of law and as such the second inquiry report is not tenable in the eyes of law, any punishment based on the second inquiry report is fit to be quashed and set aside. Assailing the suspension order, learned counsel for the petitioner submits that when order of punishment is based on the inquiry report which is not tenable in the eyes of law and the same is perverse, the punishment order is not tenable and as the same is fit to be quashed and set aside and petitioner is entitled for the full salary for the period he was under suspension as suspension itself goes. RC 3

5. Mr. Divyam, AC to learned SC-IV opposes the contention of learned counsel for the petitioner and submits that in the second inquiry, petitioner was held guilty of charges and, therefore, it was open for the disciplinary authority to slap the petitioner with punishment. The lenient view was taken by the appellate authority since petitioner was going to superannuate and thus punishment order was reduced and petitioner was inflicted with withholding of two increments in place of five increments with non-cumulative effect. Learned counsel further argues that petitioner was paid subsistence allowance and thus he cannot claim for full salary as he has not worked.

6. Having heard rival submissions of the parties across the bar, this Court is of the considered view that the impugned order is not tenable in the eyes of law in view of following facts and reasons: (i) Petitioner was exonerated by the first inquiry officer. There was no occasion to proceed afresh for the second inquiry without assigning any reasons. It was permissible in the eyes of law to proceed for further inquiry but de novo and fresh inquiry is impermissible. (ii) Petitioner had an unblemished service career of approximately 25 long years but the same was not considered by the respondents while inflicting harsh punishment to him. The respondents ought to have considered his long unblemished service career. (iii) In the case of Prem Chand Ram Vs. State of Bihar and others reported in 19991 SCC OnLine Pat 1015:(2000) 2 PLJR 918, the Hon’ble Court has held as under: “10. In the case of K.R. Dev V. The Collector of Central Excise, Shillong [(1971) 2 SCC 102:AIR 1971 SC 1447], the Supreme Court held that in case of some defect in the enquiry conducted by the Enquiry Officer, the disciplinary authority can direct the Enquiry Officer to conduct further enquiry in respect of the matter, but it cannot direct a fresh enquiry to be conducted by some other officer.” 11. Admittedly, it is always open to the disciplinary authority to differ with the finding of the Enquiry Officer and/or may remit the matter for further enquiry, if any relevant evidence has not been taken into consideration by the Enquiry Officer.” (iv) While dealing with similar matter in the case of Madhurendra Kumar Singh Vs. State of Jharkhand and others in W.P.(S) No. 2053 of 2018 reported in 2019 SCC OnLine Jhar 2964, this Court has clearly observed that there was no occasion for conducting a de novo and RC 4 second inquiry as without assigning any reasons for deferring with the first inquiry report, the disciplinary authority had ordered for second inquiry, which is impermissible in the eyes of law, as after deferring with the inquiry report and following the principles of natural justice, a further inquiry could have been initiated and not a fresh inquiry. There has been complete violation of principles of audi alteram partem. (v) It is settled legal propositions that issuance of 2nd show-cause notice along with copy of inquiry report is sine qua non and inflicting the punishment without seeking reply by way of 2nd show-cause notice is not tenable in the eyes of law.

7. In view of the aforesaid facts and circumstances, this Court is of the considered view that petitioner has a good case and the impugned orders are fit to be quashed and set aside. As a sequitur to the aforesaid discussions and considering facts and circumstances of the case, the office order, as contained in Memo No. 2793, dated 04.12.2017, passed by respondent no. 3 as also the order dated 29.08.2018, communicated by Memo No. 905, dated 04.09.2018, passed by respondent no. 2, are hereby quashed and set aside. The respondents are directed to pay full salary for the period petitioner remained under suspension i.e. 27.07.2015 to 26.07.2017 with consequential benefits.

8. Resultantly, the writ petition stands allowed. (Dr. S.N. Pathak, J.)