Jharkhand High Court

Pawan Kumar vs The State Of Jharkhand on 18 January, 2021

                                       1                   W.P.(S) No. 4171 of 2016




            IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(S) No. 4171 of 2016

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Pawan Kumar, son of late Bechu Sharma, resident of Quarter No.D-3/3, Fasia Dangal (Near D.C.Residence) PO and PS Godda, District Godda [presently posted as Deputy Collector, Land Reforms, Godda] ..... Petitioner

-- Versus --

1.The State of Jharkhand

2.Principal Secretary, Personnel and Administrative Reforms and Rajbhasha Department, Government of Jharkhand, Project Building, PO and PS Dhurwa, District Ranchi

3.Deputy Secretary, Personnel and Administrative Reforms and Rajbhasha Department, Government of Jharkhand, Project Building, PO and PS Dhurwa, District Ranchi

4.Under Secretary, Personnel and Administrative Reforms and Rajbhasha Department, Government of Jharkhand, Project Building, PO and PS Dhurwa, District Ranchi

5.Divisional Commissioner, South Chotanagpur Division Range cum Enquiry Officer, PO, PS and District - Ranchi ...... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Rajendra Krishna, Advocate For Resp.-State :- Mr. Jayant Franklin Toppo, SC-VII

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7/18.01.2021 Heard Rajendra Krishna, the learned counsel appearing on

behalf of the petitioner and Mr. Jayant Franklin Toppo, the learned

counsel appearing for the respondent State.

2. This writ petition has been heard through Video

Conferencing in view of the guidelines of the High Court taking into

account the situation arising due to COVID-19 pandemic. None of the

parties have complained about any technical snag of audio-video and

with their consent this matter has been heard.

3. The petitioner has preferred this writ petition for quashing

the order dated 15.12.2015 contained in Annexure-22 to the writ petition

and the prayer is also made for passing the consequential order

considering the case of the petitioner for promotion as the juniors to the

petitioner have already been promoted.

4. The petitioner was appointed on the post of Deputy

Collector vide notification dated 24.07.1993 pursuant to the 37th

Combined Competitive Examination conducted by Bihar Public Service

Commission, Patna as contained in Annexure -1 wherein the name of the

petitioner appears at Sl.no.1 of the said notification. The petitioner was

posted as Circle Officer, Taraiya (Saran) vide notification dated

13.12.1996 and in compliance of the same, the petitioner took over the

charge on 24.01.1997. Consequent upon the reorganization of the State

of Bihar, the service of the petitioner was finally allocted in the State of

Jharkhand vide naotification dated 09.05.2003. The petitioner was

posted as Circle Officer, Sadar, Chatra within the State of Jharkhand

wherein the petitioner had received the charge sheet dated 07.02.2005.

The charges against the petitioner were framed along with one Prem

Prakash Sinha. The petitioner has obtained information about the

punishment imposed upon the said Prem Prakash Sinha under the Right

to Information Act wherein it has been informed that no action has been

taken against Mr. Prem Prakash Sinha. The departmental proceeding was

initiated against the petitioner. The petitioner appeared in the

departmental proceeding. The departmental proceeding was concluded

and the enquiry officer has submitted the report wherein the inquiry

officer came to the conclusion that the charge against the petitioner has

been proved and suggested certain punishment against the petitioner.

5. The petitioner had earlier moved before this Court in

W.P.(S) No.2096 of 2012 which was disposed of by order dated

05.08.2015. By way of quashing the punishment order and the appellate

authority was directed to consider the case of the petitioner afresh and to

pass a reasoned order on the appeal preferred by the petitioner.

Pursuant thereto, the appellate authority has passed the order wherein

the punishment has been revised and the punishment of withholding of

two increments with cumulative effect has been passed by the appellate

authority after the matter was remanded back to the appellate authority.

Aggrieved with this, the petitioner has preferred this writ petition before

this Court.

6. Mr. Rajendra Krishna, the learned counsel for the petitioner

submits that the charges against the petitioner is with regard to payment

of certain advance from the provident fund amount of different persons.

He submits that the amount in question directed by the petitioner has

been paid to the beneficiary whose account with regard to the provident

fund was there. He submits that the petitioner has not misappropriated

any amount. He submits that after remand by this Court in the earlier

round of litigation, the appellate authority has also come to the

conclusion that there is no misappropriation of the fund, however, the

appellate authority has only come to the conclusion that certain rule has

not been followed and that is why the appellate authority has modified

the earlier punishment order. He submits that one Prem Prakash Sinha

was also charge sheeted in the said departmental proceeding and he has

been left out by the respondents whereas the petitioner has been

punished and due to which the petitioner has got no any promotion

whereas the juniors to the petitioner have been promoted in the year,

2009, 2013 respectively. Thus, he makes out a case of the parity in

punishment. He further submits that in absence of the misappropriation

of the fund, for which the finding is already there, such major

punishment order was not required to be passed by the appellate

authority. He further submits that the required document as indicated by

the petitioner at page no.88 and page no.93 of the writ petition was not

supplied to the petitioner and as such the case of the petitioner has been

prejudiced which has been accepted in the counter affidavit.

7. Mr. Toppo, the learned counsel appearing for the

respondent States draws the attention of the Court to the rules for

payment of the provident fund to the government employee. He submits

that rule 15(i) r/w rule ga(1)(ii)(iv) of the said rule has not been followed

and in that view of the matter the appellate authority has rightly

considered this aspect of the matter and passed the impugned order. He

submits that there is no illegality in the impugned order.

8. In view of the above facts and considering the submissions

of the learned counsel for the parties, the Court has gone through the

materials on record. It is admitted position that the appellate authority

has come to the conclusive finding that there is no misappropriation of

fund by the petitioner. The appellate authority further noted that the

amount in question paid to the different persons have already been

adjusted in other heads by the other officers, however, he came to the

conclusion that rules were not followed that is why he has modified the

punishment order whereby he has inflicted withholding of two increments

with cumulative effect. The modified order of punishment is also a major

punishment wherein the appellate authority has come to the conclusion

that if the petitioner has not followed the rules thus, the intention of the

petitioner is clear that the petitioner has not withdrawn the amount in

question for himself rather the said amount was paid to the persons who

are having the provident fund account. This can be said to be an error in

judgment in not relying on the said rule. Reference in this regard may be

made to the case of "Union of India v. J. Ahmed", (1979) 2 SCC 286.

Paragraph no.11 of the said judgment is quoted hereinbelow:

11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct

expected of a member of the service. It would follow that conduct which is blameworthy for the government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers)]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur, and Satubha K. Vaghela v. Moosa Raza. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under:

        "Misconduct           means,         misconduct
     arising    from     ill       motive;      acts     of
     negligence,      errors       of    judgment,       or
     innocent mistake, do not constitute such
     misconduct."
        In     industrial      jurisprudence           amongst

others, habitual or gross negligence constitute misconduct but in Utkal Machinery Ltd. v.

Workmen, Miss Shanti Patnaik in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In S. Govinda Menon v. Union of India the manner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious

consequences the same may amount to misconduct as was held by this Court in P.H.

Kalyani v. Air France, Calcutta7 wherein it was found that the two mistakes committed by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the context of serious consequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar instances of which a railway cabinman signals in a train on the same track where there is a stationery train causing head-on collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashes causing heavy

loss of life. Misplaced sympathy can be a great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Coop. Department Stores Ltd.). But in anycase, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty.

9. One Prem Prakash Sinha who was identically placed has

been left out whereas the petitioner has been punished with major

punishment thus, the case of the petitioner also comes within the

parameters of parity in punishment. The punishment order is a major

punishment. After the first remand, it was required by the appellate

authority to pass the order which is not harsh.

10. As a cumulative effect of the above discussion, the writ

petition [W.P.(S) No.4171 of 2016] succeeds.

11. The impugned order dated 15.12.2015 is quashed.

12. The matter is remanded back to the appellate authority to

consider the case of the petitioner afresh and pass the order afresh

within a period of 8 weeks from the date of receipt/production of a copy