Anil Kumar vs The State Of Jharkhand
2021 Latest Caselaw 606 Jhar

     THE HIGH COURT OF JHARKHAND AT RANCHI
                       W.P.(S) No.4400 of 2008
                                  With
                       I.A. No. 912 of 2009 and
                       I.A. No. 2193 of 2010.
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   Anil Kumar                            ..... Petitioner
                               Versus
      1. The State of Jharkhand

2. The Divisional Commissioner, South Chhotanagpur Division, Ranchi

3. The Director, Primary Education, Human Resources Development Department, Government of Jharkhand

4. The District Superintendent of Education, Ranchi ..... Respondents

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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. Saurav Arun, Advocate For the Respondents : Mr. Ashish Shekhar, Advocate

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14/09.02.2021 Heard learned counsel for the parties through V.C.

2. The instant writ application has been preferred by the petitioner praying therein for quashing the order of punishment as contained in Memo No. 2703 dated 20.6.2007 (annexure 4) passed by Respondent No.4 whereby three punishments were awarded to the petitioner, i.e. (i) Stoppage of two increments with cumulative effect (ii) Nothing shall be paid except subsistence allowance during the period of suspension. (iii) The petitioner was transferred from Budmu to Anchal Raniya by way of punishment.

The petitioner has also prayed for quashing the appellate order dated 28.7.2008 whereby the appeal preferred by the petitioner was rejected and communicated to this petitioner vide Memo No. 222 dated 01.8.2008 (Annexure 6).

3. The relevant fact necessary for disposal of the instant writ application is that the petitioner was appointed as Assistant Teacher on compassionate ground on account of death of his father on 28.03.1986. In the year 2006 the petitioner was suspended with effect from 17.5.2006. It has been alleged by the petitioner that the order of suspension was never handed over to him and he came to know about his suspension through a paper publication and thereafter he applied for the same under Right to Information Act, 2005.

However, subsequently several documents were supplied to the petitioner except the suspension order as well as relieving order.

A charge sheet has been issued to the petitioner under Memo No. 4414 dated 04.11.2006 whereby the In- charge Area Education Officer, Ranchi was appointed as the Inquiry Officer. Thereafter, the departmental proceeding was conducted by another Inquiry Officer who was the Block Education Extension Officer Ormanjhi and the said Inquiry Officer has prescribed a punishment to be imposed upon the petitioner and thereafter order of punishment was passed against this petitioner which was further challenged before the appellate authority but the appeal was also rejected.

4. Mr. Saurav Arun, learned counsel for the petitioner raised following issues in his argument:

"(i) Inquiry Officer cannot prescribe any punishment

(ii) Inquiry Officer was not competent in view of the Annexure-2

(iii) Non-payment of subsistence allowance vitiates the entire departmental proceeding.

(iv) No show cause notice was issued before the order of punishment though it is a major punishment and the respondents were duty bound to issue second show cause notice before imposing punishment.

(v) The petitioner was never informed to participate in the departmental proceeding"

A counter affidavit has been filed in this case, wherein the ground taken by the respondents for non- payment of subsistence allowance is that the petitioner never reported to the Headquarter during period of suspension and at paragraph 8 they have stated that second show cause is not required as the punishment was a minor punishment and in Paragraph 23 it is stated that whereabouts of the petitioner was unknown to the respondents.

Learned counsel for the petitioner assails the impugned order and submits that now it is a settled

proposition of law that the Inquiry Officer cannot prescribe any punishment. He further submits that by going through the charge sheet (Annexure 2) it is clear that the In-Charge Area Education Officer, Sadar, Ranchi was appointed as the Inquiry Officer but for the reason best known to the respondents, behind the back of the petitioner; Inquiry Officer was changed, inasmuch as, the enquiry report has been submitted by the Block Education Extension Officer Ormanjhi. He further submits that non-payment of subsistence allowance has vitiated the entire departmental proceeding and further in the case of KULWANT SINGH GILL vs. STATE OF PUNJAB reported in 1991 Supp (1) SCC 504, it has been categorically held that stoppage of two increments with cumulative effect is a major penalty. He further submits that the stand of the respondent authorities for not paying the subsistence allowance is also bad in law in view of the ratio laid down in the case of State of Bihar vs. Arbind reported in (2014) 1 JLJR SCC 85 wherein at paragraph 10 the Hon'ble Court has held as under:

"10. It is apt to note that the subsistence allowance is governed by the service rules. It is given to a suspended employee for his subsistence. It is in a way making a provision for maintenance and survival. In O.P. Gupta vs. Union of India and Others it has been stated that the very expression "subsistence allowance" has an undeniable penal significance. It basically means- means of supporting life, especially a minimum livelihood. Thereafter, the learned Judges proceeded to observe thus:-

"It is a clear principle of natural justice that the delinquent officer when placed under suspension is entitled to represent that the departmental proceedings should be concluded with reasonable diligence and within a reasonable period of time. If such a principle were not to be recognized, it would imply that the Executive is being vested with a totally arbitrary and unfettered power of placing its officers under disability and distress for an indefinite duration."

By relying upon the aforesaid contention and the judicial pronouncement, learned counsel submits that entire departmental proceeding is vitiated due to non-payment of subsistence allowance as well as due to non-supply of second show cause notice since the order of punishment is a major punishment.

5. Mr. Ashish Shekhar, learned counsel for the respondent State submits that it is true that the Inquiry Officer should not prescribe any punishment but the order of punishment has not been passed only on the recommendation of Inquiry Officer; rather the Disciplinary Authority had applied his own mind also.

He further submits that the claim of the petitioner that he has not received the suspension order, is not correct and the same was handed over to him by hand and he was directed to report to the Headquarter.

He further submits that in Paragraph 8 of the counter affidavit it has been specifically stated that as per the Notification No. 980 dated 16.09.1994 the nature of punishment which has been imposed upon this petitioner is not a major punishment and as such second show cause notice was not supplied to the petitioner.

In nutshell, it is an admitted case that no second show-cause notice was given to the petitioner as well as no subsistence allowance was paid to him during the period of suspension.

6. Having heard learned counsel for the parties and after going through the documents and the averments made in respective affidavits it appears that pursuant to the charge-sheet and enquiry proceeding; the petitioner has been imposed three punishments i.e. Stoppage of two increments with cumulative effect (ii) Nothing shall be paid except subsistence allowance (iii) The petitioner was transferred from Budmu to Anchal Ramiya as punishment.

It further appears that during the entire proceeding no subsistence allowance has been paid to the

petitioner which itself is illegal and against the settled proposition of law. The ground for non-payment of subsistence allowance as mentioned in the counter affidavit is not sustainable in the eye of law.

Further in the case of KULWANT SINGH GILL vs. STATE OF PUNJAB (Supra) it has been clearly held that stoppage of two increments with cumulative effect is a major punishment. Paragraph 4 of the aforesaid judgment is quoted hereinbelow.

"4. Withholding of increments of pay simpliciter undoubtedly is a minor penalty within the meaning of Rule 5(iv). But sub-rule (v) postulates reduction to a lower stage in the time scale of pay for a specified period with further directions as to whether or not the government employee shall earn increments of pay during the period of such reductions and whether on the expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay. It is an independent head of penalty and it could be imposed as punishment in an appropriate case. It is one of the major penalties. The impugned order of stoppage of two increments with cumulative effect whether would fall within the meaning of Rule 5(v)? If it so falls rules 8 and 9 of the Rules require conducting of regular enquiry. The contention of Shri Nayar, learned counsel for the State is that withholding two increments with cumulative effect is only a minor penalty as it does not amount to reduction to a lower stage in the time scale of pay. We find it extremely difficult to countenance the contention. Withholding of increments of pay simpliciter without any hedge over it certainly comes within the meaning of Rule 5(iv) of the Rules. But when penalty was imposed withholding two increments i.e. for two years with cumulative effect, it would indisputably man that the two increments earned by the employee was cut off as a measure of penalty for even in his upward march of earning higher scale of pay. In other words, the clock is put back to lower

stage in the time scale of pay and on expiry of two years the clock starts working from that stage afresh. The insidious effect of the impugned order, by necessary implication, is that the appellant employee is reduced in his time scale by two places and it is in perpetuity during the rest of the tenure of his service with a direction that two years' increments would not be counted in his time scale of pay as a measure of penalty. The words are the skin to the language which if peeled off its true colour or its resultant effects would become apparent..........."

Even otherwise, principle of natural justice demands that before imposition of penalty necessary show cause must be issued. Further, the Inquiry Officer is not empowered to prescribe any punishment. At this stage, it is relevant to mention here that though initially, as per Annexure 2, the In-Charge Area Education Officer, Sadar, Ranchi was appointed as the Inquiry Officer, however, on perusal of the enquiry report it appears that the Inquiry Officer was changed during the proceeding.

The respondent State has failed to substantiate by any document that when the Inquiry Officer was changed; the petitioner has been informed. It is a settled proposition of service jurisprudence that once an Inquiry Officer is appointed he has to conduct the entire enquiry and if for any reason the first Inquiry Officer is changed, the same is to be communicated to the delinquent employee which is not done in the instant case.

It has already been held hereinabove that non payment of subsistence allowance is not permissible and as such the petitioner is entitled for the entire subsistence allowance during the relevant period.

Another issue which is necessary to address is with regards to one of the punishments that during the period of suspension the petitioner will not get full salary. In this regard nothing has been brought on record by the respondent authorities that whether any notice under Rule

97(2) of Jharkhand Service Code has been issued to this petitioner for imposing punishment No.2.

Further, the impugned order of punishment (Annexure 4) is a completely non speaking order and no reason has been assigned except that the Inquiry Officer has found the petitioner guilty of the charges alleged against him. It has already been held above that the Inquiry Officer, who was appointed vide Annexure 2 had not submitted the said report.

In view of the cumulative facts and the judicial pronouncement, the order of punishment and appellate order deserves to be quashed and set aside.

6. Consequently, the order of punishment as contained in Memo No. 2703 dated 20.6.2007 (annexure 4) and appellate order dated 28.7.2008 are quashed and set aside and the instant writ application is allowed.

The respondent authorities are at liberty to initiate the departmental proceeding from the stage of serving show cause notice and after considering the reply of the petitioner, if any, pass a fresh order.

It is made clear that the entire exercise shall be completed within a period of four months from the date of receipt/production of a copy of this order; failing which, the petitioner shall be entitled for all consequential benefits which has been denied to him pursuant to the impugned order.

7. I.A. No. 912 of 2009 and I.A. No. 2193 of 2010.

In the light of the final order passed in the instant writ application, these Interlocutory Applications also stands disposed of.

(Deepak Roshan, J.)

sm/ AFR