Jharkhand High Court
Akhileshwar Singh vs The State Of Jharkhand Through The ... on 2 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.1348 of 2010
--------
Akhileshwar Singh ..... Petitioner
Versus
1. The State of Jharkhand through the Secretary, Road
Construction Department, Government of Jharkhand
2. The Deputy Secretary, Road Construction Department,
Government of Jharkhand
3. Engineer-in-Chief, Road Construction Department,
Government of Jharkhand
4. The State of Bihar through the Secretary, Road
Construction Department, Government of Bihar
5. The Joint Secretary, Road Construction Department,
Government of Bihar
..... Respondents
---------
CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
---------
For the Petitioner : Manoj Tandon, Advocate
For the Respondents : Tarun Kumar Mahato, A.C. to G.A.V
---------
08/02.07.2021 Heard learned counsel for the parties through
V.C.
2. The instant writ application has been preferred
by the petitioner praying for quashing and setting aside
the decision as contained in Office Order No. 188 dated
10.4.2008 issued by Respondent No. 3; whereby the
petitioner has been awarded punishment of stoppage of
three increments with cumulative effect with further
direction to recover a sum of Rs.50,000/- from the
petitioner.
The petitioner has also challenged the appellate
order dated 04.01.2010 whereby the appeal preferred by
the petitioner has been rejected.
3. The brief facts as disclosed in the instant writ
application are that while the petitioner was posted as
Junior Engineer under the Executive Engineer, Road
Division, Supaul, Bihar, some complaints were made to
the office of the Lok Ayukta, Bihar in the year 1998 with
respect to irregularities committed in construction of
bridge in Ratauli Panchayat of the Supaul district.
Subsequently, when the State of Bihar was
bifurcated on 15.11.2000, in view of the provisions
enshrined in Bihar Reorganization Act, 2000, the service
of the petitioner was allocated to the State of Jharkhand.
After bifurcation of State; an explanation was
sought for from the petitioner from the office of the
Lokayukta, Bihar to which the petitioner duly replied. It
also appears from records that the office of the Lokayukta,
Bihar sent a report on 18.7.2002 to the Commissioner
and Secretary, Road Construction Department,
Government of Bihar in which it was recommended that
three increments of the petitioner be stopped and he
should not be posted in works and it was also
recommended that Rs. 1 lakh should be recovered from
the petitioner and one Shri Ramayan Ram holding the
post of Executive Engineer to the extent of Rs. 50,000/-
(Fifty thousand) each.
Pursuant thereto; Respondent No.5, vide its
letter dated 15.1.2003 directed the petitioner to submit
his reply. Thereafter, Respondent No.4 requested
Secretary, Road Construction Department, State of
Jharkhand to take appropriate action in the light of the
recommendation of the Lok Ayukta, Bihar.
Thereafter, Respondent No.3 without issuing
any charge-sheet and/or without any departmental
proceeding and without following due procedure of law;
passed the impugned order (Annexure-1); whereby the
petitioner has been awarded punishment of stoppage of
three increments with cumulative effect along with a
direction to recover Rs.50,000/- from the petitioner.
4. Mr. Manoj Tandon, learned counsel for the
petitioner assailed the impugned order on following
grounds;
(i) The punishment being a major punishment,
the respondent authorities should have followed the
principles of natural justice by conducting a proper
departmental enquiry; but in the instant case no
departmental proceeding was initiated and even no
charge sheet was given to the petitioner which is
against the settled principles of law.
In support of his contention he relied
upon the judgment passed in the case of KULWANT
SINGH GILL versus STATE OF PUNJAB reported in
1991 Suppl. (1) SCC 504 wherein it has been held
that a stoppage of increment with cumulative effect
cannot be held to be a minor punishment.
He further relied upon the judgment
passed in the case of Bengali Prasad Sinha Versus
State of Bihar & Ors. reported in (1996) 1 PLJR,
Page 59, wherein the aforesaid ratio has been
reiterated.
(ii) The petitioner has in addition assailed the
impugned order on the ground that when the
services of the petitioner was allocated to the State of
Jharkhand after 15.11.2000; the Lokayukta, Bihar
was having no jurisdiction to recommend directly to
the State of Bihar to impose punishment upon the
petitioner, inasmuch as, in the case of Arvind Vijay
Bilung With V.N. Mishra Versus State of Bihar
reported in (2001) 3 JCR 155, this court has held
that if a situation arises that when the services of a
person working in erstwhile State of Bihar, against
whom action is contemplated with respect to some
irregularities has been allocated to the successor
State of Jharkhand, in that case the proper course
should have been to send the entire record to the
successor State of Jharkhand and then the
successor State should start a full-fledged
proceeding.
(iii) The petitioner lastly submits that the action of
Respondent No.3 in passing the impugned order
without issuing any charge-sheet and/or without
any departmental proceeding and without following
due procedure of law is against the settled proposition of
law.
Relying upon the aforesaid contention; Mr.
Tandon submits that the impugned orders are fit to be
quashed and set aside.
5. Mr. Tarun Kumar Mahato, learned counsel for
the respondents, relying upon the counter affidavit
submits that period of occurrence of this case was prior to
bifurcation of the erstwhile State of Bihar so the
contention of the petitioner is not relevant in the instant
case. Further, relying upon Paragraph 10 of the counter
affidavit, he submits that for imposing punishment, the
State of Jharkhand did not find it necessary to initiate
full-fledged departmental proceeding since the
punishment awarded is a minor one, as such there is no
error in the impugned order of punishment and the
instant writ application deserves to be dismissed.
6. Having heard learned counsel for the parties
and after going through the documents available on
record and the averments made in the respective
affidavits, it appears that on the basis of some complaints
made before the Lokayukta, Bihar; a recommendation was
made to the State of Bihar in the year 2002 by the Lok
Ayukta, Bihar that three increments of the petitioner
should be stopped and he should not be posted in works.
It was also recommended that Rs. 1 lakh be recovered
from the petitioner and one Shri Ramayan Ram holding
the post of Executive Engineer to the extent of Rs.
50,000/- (Fifty thousand) each.
Thereafter; the Joint Secretary, Road
Construction Department, State of Bihar directed the
petitioner to submit his reply. After that, the Secretary,
Road Construction Department, State of Bihar, requested
Secretary, Road Construction Department, State of
Jharkhand to take appropriate action in the light of the
recommendations of the Lok Ayukta, Bihar. Pursuant
thereto; the Respondent No.3 without issuing any charge-
sheet and/or without any departmental proceeding and
without following due procedure of law; passed the
impugned order (Annexure-1).
Now, the law is well settled that when a penalty
is imposed for withholding two or three increments with
cumulative effect; it would indisputably mean that it is a
major punishment as two increments earned by the
employer was cut off as a measure of penalty forever in his
upward march of earning higher pay of scale, as such the
petitioner in a sense is put back to a lower stage and after
expiry of two or three years, as the case may be, the
increment will start afresh.
In the case of Kulwant Singh Gill (Supra) the
Hon'ble Apex Court has categorically held that stoppage of
increments with cumulative effect, by no stretch of
imagination can be held to be a minor punishment. Even
the Patna High Court reiterated the aforesaid ratio in the
year 1996 by holding that withholding two increments
with cumulative effects has been held to be a major
punishment. As such the contention of the respondent
State of Jharkhand that the punishment imposed is a
minor punishment is not acceptable to this Court.
Consequently, imposition of penalty without issuing any
charge-sheet and/or without holding a full-fledged
departmental proceeding is not permissible in the eye of
law and thus the impugned order has no legs to stand.
When the service of the petitioner was allocated
to the State of Jharkhand after bifurcation of the State of
Bihar, the correct recourse should have been to call for
the entire record from the erstwhile State of Bihar and
thereafter to proceed in accordance with law. Since in the
instant case, major punishment has been awarded to the
petitioner; a full-fledged departmental enquiry was
required which has not been done in the instant case.
7. In view of the aforesaid findings, the impugned
orders, i.e. the decision as contained in Office Order No.
188 dated 10.4.2008 and the appellate order dated
04.01.2010, are quashed and set aside.
8. The amount so recovered pursuant to the
impugned order of punishment shall be refunded to the
petitioner within a period of 12 weeks along with all
consequential benefits from the date of receipt of copy of
this order; failing which the petitioner shall be entitled to
7% interest from the date of recovery till the date of actual
payment.
However, the Respondent State of Jharkhand
shall be at liberty to proceed against the petitioner in
accordance with law.
9. With the aforesaid direction the instant writ
application stands allowed.
(Deepak Roshan, J.)
sm/
A.F.R.
