Arvind Kumar vs The State Of Jharkhand
2021 Latest Caselaw 299 Jhar

                                             1                    W.P.(S) No.1093 of 2020




             IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(S) No.1093 of 2020

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Arvind Kumar, aged about 56 years, son of late Baliram Sharma, resident of at Officers' Quarter, Kutchery Maidan, Khunti, PO, PS and District- Khunti, Jharkhand ..... Petitioner

-- Versus -

1.The State of Jharkhand, through the Chief Secretary, Government of Jharkhand, Project Building, Dhurwa, PO and PS -Dhurwa, District-Ranchi

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

3.The Secretary, Department of Land and Revenue, Government of Jharkhand, PO and PS Dhurwa, District-Ranchi, Jharkhand

4.The Deputy Commissioner, Giridih, PO, PS and District-Giridih

5.The Joint Secretary, Department of Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand, Project Building, Dhurwa, PO and PS-Dhurwa, District-Ranchi

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

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Rahul Kumar, Advocate Ms. Apoorva Singh, Advocate For Resp.-State :- Ms. Ruchi Rampuria, Advocate

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4/20.01.2021 Heard Mr. Rahul Kumar, the learned counsel for the

petitioner and Ms. Ruchi Rampuria, the learned counsel 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

of the Resolution dated 25.07.2019 purported to be in exercise of power

under Rule 14(i) of the Jharkhand Government Servants (Classification,

Control and Appeal) Rules, 2016 whereby the punishment of censure has

been imposed upon the petitioner for the cause of action of the year

2003 and further prayer is to quash the Resolution dated 29.01.2020

whereby the review preferred by the petitioner has been dismissed and

the order of penalty dated 25.07.2019 has been upheld.

4. The petitioner has been appointed on 01.03.1993 in the

cadre of Bihar Administrative Services pursuant to the 37th combined

competitive examination conducted the then Bihar Public Service

Commission. Pursuant to re-organization of State of Bihar, the

petitioner's service was allocated to the State of Jharkhand. The

petitioner was posted as Circle Officer, Jamua in the district of Giridih

with effect from 10.07.2002 to 06.02.2004. While posted as Circle

Officer at Jamua on 27.08.2003 there had been a minor accident in

which he has sustained minor injuries which did not restrict his

movement and after taking advice from the doctor, he continued to

discharge the duties as before. The Deputy Commissioner, Giridih vide

letter dated 09.09.2003 directed the Circle Officer, Giridih, Sadar to

assume the charge of the post of Circle Officer, Jamua where the

petitioner had been working and the petitioner was further directed to

proceed on leave. On 14.09.2003 there had been a camp organized for

distribution of land parcha wherein also the petitioner had appeared and

played its active role in distribution of the land parcha. The Deputy

Commissioner, Giridih had recommended for suspension of the petitioner

and also framed charge against him in prapatra-ka by letter dated

11.10.2003. The charge was that the petitioner was having a fracture of

his leg and on account of the same had been absenting from duty

without leave and had been operating and discharging his duties from his

residence. The said charge was not proved by the disciplinary authority.

For the cause of action of the year 2003 now by way of impugned order

the punishment order has been issued against the petitioner whereby

punishment of censure has been imposed upon the petitioner. Aggrieved

with this, the petitioner has approached this Court.

5. Mr. Rahul Kumar, the learned counsel for the petitioner has

assailed the impugned order on the ground that for the cause of action

of the year 2003, the impugned order has been passed on 25.07.2019.

He submits that this is stale and in view of settled proposition of law the

same cannot sustain in the eye of law. He draws the attention of the

Court to Annexure-4 which is a Government letter whereby Deputy

Commissioner, Giridih was requested to provide evidence forming the

basis of such charge. He further refers to the letter of the Government

dated 24.06.2013 and submits that in that letter about nine reference

letters have been referred to whereby it was requested to send the

evidence for proceeding on such charge but the same was not provided.

He further refers to letters of the Government dated 10.02.2014 and

15.02.2017 and submits that again the request was made to the

concerned authority for providing the evidence. He further submits that

in the letter dated 15.02.2017 about 12 references of request have been

reflected and inspite of that nothing was provided and thereafter the

impugned order has been passed. He submits that the impugned order is

also a non-speaking order that has been passed without any show cause

and accepting the version of the Deputy Commissioner, Giridih. He

submits that this is also a non-speaking order. He further submits that

Rule-19 of the Jharkhand Government Servants (Classification, Control

and Appeal) Rules, 2016 has not been followed before passing of the

impugned order. For the sake brevity, Rule-19 of Jharkhand Government

Servants (Classification, Control and Appeal) Rules, 2016 is quoted

hereinbelow:

"19. Procedure for imposing minor penalties:-(1) Subject to the provisions of sub rule (3) of rule 18, no order imposing on a Government Servant any of the penalties specified in clauses (i) to

(iv) of rule 14 shall be made except after-

a) informing the Government Sevant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him reasonable opportunity of making such representation as he may wish to make against the proposal;

b) considering the representation, if any, submitted by the Government Servant under clause (a);

(c) recording a finding on each imputation of misconduct or misbehaviour."

6. By way of referring Rule-19(b) and Rule-19(c), he submits

that no representation was asked from the employee and there is no

recording of finding on the charge imputed on misconduct of the

petitioner. He submits that this has not been followed in the case of the

petitioner. He further relied in the case of "State of M.P. v. Bani Singh",

1990(Supp) SCC 738. Paragraph no.4 of the said judgment is quoted

hereinbelow:

"4. The appeal against the order dated December 16, 1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned counsel. The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal."

7. He submits that in view of this judgment wherein the delay

and laches aspect have been considered by the Hon'ble Supreme Court

whereby it has been held that delay in issuing charge-memo is vital for

issuing any punishment order. He further submits that the case of "State

of M.P. v. Bani Singh" (supra) has again been considered by the Hon'ble

Supreme Court in the case of "P.V. Mahadevan v. Managing Director, T.N.

Housing Board", (2005) 6 SCC 636. He refers to paragraph no.7 and 11 of

the said judgment, which are quoted hereinbelow:

"7. The very same ground has been specifically raised in this appeal before this Court wherein it is stated that the delay of more than 10 years in initiating the disciplinary proceedings by issuance of charge memo would render the departmental proceedings vitiated and that in the absence of any explanation for the inordinate delay in initiating such proceedings of issuance of charge memo would justify the prayer for quashing the proceedings as made in the writ petition.

11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer."

8. He submits the Hon'ble Supreme Court in the case of

"P.V. Mahadevan v. Managing Director, T.N. Housing Board"(supra) has

come to the finding that the departmental proceeding at the distance of

time will be very prejudicial to the petitioner of that case. He further

submits that this aspect of the matter has been again considered by the

Hon'ble Supreme Court in the case of "State of A.P. v. N. Radhakishan",

(1998) 4 SCC 154. Paragraph no.19 of the said judgment is quoted

hereinbelow:

"19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations."

9. On these grounds, he submits that the impugned order will

not sustain in the eye of law. He further submits that the reason of

passing of the impugned order is the fact that now the petitioner is

within the zone of consideration for promotion and that is why by way of

ill motive the impugned order has been passed for a cause of action of

the year 2003.

10. Per contra, Ms. Ruchi Rampuria, the learned counsel

appearing on behalf of the respondent State draws the attention of the

Court to the impugned order and submits that there are charges against

the petitioner which have been disclosed in the impugned order and that

is why the impugned order has been passed. She submits that for this

minor punishment though Rule 19 was required for passing the same and

there is no illegality in the impugned order and the writ petition is fit to

be dismissed.

11. Having heard the learned counsels appearing on behalf of

the parties, the Court has gone through the materials on record. Pursuant

to the recommendation of the Deputy Commissioner, Giridih by letter

dated 09.01.2004, the Government sought the evidence from the Deputy

Commissioner to proceed with the charge and again some request was

made on 24.06.2013 wherein nine references of request have been

mentioned. Further request was made on 10.02.2014 and 15.02.2017 and

in letter dated 15.02.2017, request of 12 reference letters has been also

disclosed and thereafter all of a sudden, the impugned order has been

passed on 25.07.2019. Rule-19 of the Jharkhand Government Servants

(Classification, Control and Appeal) Rules, 2016 clearly stipulates that a

representation is required to be submitted in view of clause-(a) of the

Rule-19. It further stipulates that recording of finding on each imputation

is required. This rule has not been followed in the case in hand. The case

of the petitioner is fully covered in view of the judgment rendered by the

Hon'ble Supreme Court in the cases of "State of M.P. v. Bani Singh",

"P.V. Mahadevan v. Managing Director, T.N. Housing Board" and "State of A.P.

v. N. Radhakishan"(supra). The argument of the learned counsel for the

respondent State is not accepted by the Court in view of the fact that she

has not been able to demonstrate as to how Rule-19 of the said rule has

been followed and she has also not been able to demonstrate the delay in

passing the impugned order.

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

petition succeeds. The impugned orders dated 25.07.2019 and

29.01.2020 are quashed.

( Sanjay Kumar Dwivedi, J) SI/,