Jharkhand High Court

Dr. Ram Krishna Mishra vs The State Of Jharkhand Through The ... on 13 September, 2021

                                    1

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
               W.P.(S) No. 1639 of 2013
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Dr. Ram Krishna Mishra ..... Petitioner Versus

1. The State of Jharkhand through the Secretary/Principal Secretary, Animal Husbandry and Fisheries Department (Animal Husbandry) having office at Nepal House, P.O. & P.S.-Doranda, District-Ranchi.

2. The Secretary/Principal Secretary, Animal Husbandry and Fisheries Department (Animal Husbandry) having office at Nepal House, P.O. & P.S.-Doranda, District-Ranchi.

3. The Commissioner, Kolhan Division having office at P.O. & P.S.-Chaibasa, District-West Singhbhum.

                                            .....    Respondents
                                  With
                       W.P.(S) No. 3499 of 2015
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      Dr. Ram Krishna Mishra                        ..... Petitioner
                              Versus

1. The State of Jharkhand through its Secretary/Principal Secretary, Animal Husbandry and Fishery Department having office at Nepal House, P.O. & P.S.-Doranda, Town & District-Ranchi.

2. The Secretary/Principal Secretary, Animal Husbandry and Fishery Department, having office at Nepal House, P.O. & P.S.-Doranda, Town & District-Ranchi.

3. Deputy Secretary, Animal Husbandry and Fishery Department, having office at Nepal House, P.O. & P.S.- Doranda, Town & District-Ranchi. ..... Respondents

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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. Manoj Tandon, Advocate (in both the cases) For the Respondent : Mr. Gaurang Jajodia, A.C to S.C.-I (in W.P.(S) No. 1639 of 2013) For the Respondent : Mr. Navneet Toppo, A.C. to S.C.-V (in W.P.(S) No. 3499 of 2015)

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11/Dated: 13th September, 2021 Heard through V.C.

2. Since common issue is involved in both these writ

applications; both are heard together and being disposed of

by this common order.

3. Writ application (W.P.(S) No. 1639 of 2013) has been

preferred by the petitioner for following reliefs:

(A) To quash/set aside order of punishment

contained in memo no. 2168 dated 10/11/2009

whereby and whereunder the following

punishments have been awarded to the petitioner:-

(i) The petitioner would be entitled for nothing

during the period of suspension except

subsistence allowance.

(ii) Recovery of a sum of Rs.1,13,146/-.

(iii) Petitioner would not be entitled for posting

as Drawing and Disbursing Officer.

               (iv)   Stoppage          of    two    increments     with

               cumulative effect.

(v) The punishment shall be entered into the

service book.

(B) For a direction commanding upon the

respondents to pay the full salary of the petitioner

during the period of his suspension, i.e., from

11/06/2007 to 10/11/2009 minus subsistence

allowance.

(C) For a direction commanding upon the

respondents to refund the amount recovered from

the petitioner to the tune of Rs.1,13,146/- which

has been recovered from the salary of the petitioner

during the pendency of the review/appeal of the

petitioner.

(D) For any other appropriate relief or reliefs to

which the petitioner is found to be entitled in the

facts and circumstances of this case.

4. Writ application (W.P.(S) No. 3499 of 2015) has been

preferred by the petitioner for the following reliefs:-

(i) To quash/set aside the penalty order

contained in Notification No.1133 dated 8.8.2011

issued under the pen and signature of

respondent no.2, whereby and whereunder, the

petitioner has been inflicted with following

punishments:-

(a) Withholding of three increments with

cumulative effect;

(b) No work no pay for 99 days;

(c) Censure with warning for further;

(d) No payment except the subsistence

allowance for the period of suspension.

(ii) During the pendency of this writ petition, the

respondents be directed to pay the admissible

terminal benefits to the petitioner including the

pension, gratuity, leave encashment and all

other dues, admissible to the petitioner on

account of his retirement on 30.09.2013 from

the post of Staff Veterinary Officer, Medninagar,

Palamau.

(iii) To direct the respondents to decide the

appeal of the petitioner dated 25.05.2012 against

the penalty order contained in Notification no.

1133 dated 8.8.2011, which has not yet been

disposed of, as informed to the petitioner under

dated 23.03.2013.

(iv) To also direct the respondents to pay all

three ACP/MACP to the petitioner, inasmuch as,

the petitioner has rendered almost 34 years of

service from the date of his appointment

(30.5.1979) till the date of his retirement

(30.9.2013) without any regular promotion.

(v) For any other appropriate relief or reliefs for

which the petitioner is found to be entitled to in

the facts and circumstances of this case as also

to do conscionable justice to the petitioner.

5. Mr. Manoj Tandon, learned counsel for the petitioner

submits that both these cases suffers from procedural

irregularity, inasmuch as, no enquiry report and/or second

show cause notice was served to this petitioner before

passing the impugned order in the respective departmental

proceedings. As a matter of fact, the enquiry report was

obtained by the petitioner under the Right to Information

Act, 2005 after the punishment order was passed.

He further submits that from perusal of the order of

punishment in both these cases it would be evident that it

is amongst major punishment; however, for the reason best

known to the respondents, neither the enquiry report was

served upon the petitioner nor any second show cause

notice was issued; as such, there is gross violation of

principles of natural justice.

Learned counsel further referred the Judgment

rendered in the case of M.P. State Agro Industries

Development Corpn. Ltd. and Another Vs. Jahan Khan

reported in (2007) 10 SCC 88 wherein it has been

reiterated by the Hon'ble Apex Court that withholding of

two increments with cumulative effect is a major

punishment. The said principle of law was first held by the

Hon'ble Apex Court in the case of Kulwant Singh Gill Vs.

State of Punjab, reported in 1991 Supp. (1) SCC, 504.

Relying upon the aforesaid judgments learned

counsel contended that the law is now no more res integra,

inasmuch as, withholding of two increments with

cumulative effect has been held to be a major punishment

and as such; serving of enquiry report and issuance of

second show-cause notice before imposing punishment is

mandatory; which is missing in both the cases. As such,

the impugned order in both these writ applications deserves

to be quashed and set aside on this score alone.

6. On merit, Mr. Tandon submits that in any case of

absence from duty or unauthorized absence; the

respondent will have to prove willful absence. In this

regards he referred a judgment passed in the case of

Krushnakant B. Parmar Versus Union of India and

Another, reported in (2012) 3 SCC 178.

Relying upon the aforesaid submission and the

judgments referred to hereinabove, he fairly submits that

the petitioner has since retired on 30.09.2013 itself, as

such the instant writ applications may be allowed and the

respondents be directed to give the consequential benefits.

7. Mr. Gaurang Jajodia, appearing for the respondent-

State (in W.P(S) No. 1639 of 2013) raised a preliminary

objection that since an appeal is pending before the

department; as such, the writ application is not

maintainable. He further submits that as per the

departmental manual; withholding of two increments with

cumulative effect is a minor punishment and accordingly;

no second show cause notice has been given to the

petitioner. He further referred to paragraph 6 (m) of the

counter-affidavit filed in W.P(S) No. 1639 of 2013 and

submits that though the contention of the petitioner that

no enquiry report was served to him and he was not given

an opportunity to make representation against the enquiry

report is correct; however, the Government has passed the

impugned order after perusing the enquiry report.

8. Mr. Navneet Toppo, learned counsel appearing for the

respondent-State in W.P.(S) No. 3499 of 2015 submits that

when the charge itself is of unauthorized absence; it is

deemed that it is a willful absence.

However, he could not show any finding by the

enquiry officer and/or by the disciplinary authority that

there is any willful absence or any finding to that effect. It

further appears that the Government has based its

opinion for imposing punishment to the petitioner on the

basis of enquiry report; however, the same was never

served to him. Thus, it goes to show that non service of the

enquiry report has seriously prejudiced this petitioner.

9. Having heard learned counsel for the parties and

after going through documents available on record,

admittedly; charge-sheet was issued in both these cases

for unauthorized absence and thereafter, departmental

proceeding was conducted and the petitioner duly

participated in both the departmental proceedings.

Thereafter, instead of issuing second show cause notice

and/or serving enquiry report to the petitioner, impugned

order has been passed in both the cases; wherein,

amongst other punishments, one of the punishments was

with regards to stoppage of two increments with

cumulative effect.

It further appears from record that though the

petitioner had filed appeal on 07.12.2009 (Annexure-7 of

W.P(S) No. 1639 of 2013), however, the appeal was kept

pending for years together and finally this petitioner was

forced to knock the door of this Court.

10. At this juncture, it is relevant to deal with the

preliminary objection raised by the respondent State that

the appeal is still pending. This contention of the

respondent is not accepted by this Court for the sole

reason that on the one hand; there is no order by this

Court for not disposing the appeal and on the other hand,

when the respondent-department sat over the matter for

almost four years; only then the petitioner knocked the

door of this Court; as such, raising such frivolous ground

after almost eight years of retirement of this petitioner, is

not appreciated by this Court.

11. Admittedly; no second show cause notice was

issued to the petitioner in both these writ applications.

The issue; "Whether stoppage of annual increments with

cumulative effect is a minor punishment or a major

punishment" is no longer res integra. The Hon'ble Apex

Court has decided this issue in the case of Kulwant

Singh Gill vs. State of Punjab [reported in 1991

Supp.(1) SCC, 504] in the following words:-

"Withholding of increments of pay simplicitor 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 mean that the two

increments earned by the employee was cut off as a

measure of penalty for ever in his upward march of

earning higher scale of pay. In other words, the clock is

put back to a 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 Supreme Court in later part has stated that the

disciplinary authority is not empowered to impose penalty

of withholding increments of pay with cumulative effect,

except after holding inquiry and following the prescribed

procedure. Non-observance thereof would render the order

without jurisdiction or authority of law and per se void."

Similarly, in the case of M.P. State Agro

Industries Development Corpn. Ltd. and Another

(supra) the Hon'ble Apex Court has reiterated that the

stoppage of increments with cumulative effect is a

major penalty and the same cannot be imposed without

following the procedure for awarding major penalties.

12. In view of the aforesaid settled position of law;

this Court holds that since the punishment was major in

nature; as such issuance of second show cause notice was

necessary.

13. Now coming on the merits of the case it is seen

that in the case of Krushnakant B. Parmar Versus

Union of India and Another reported as (2012) 3 SCC

178 it has been held by the Hon'ble Apex Court that for

sustaining any allegation of unauthorized absence, it must

be proved that unauthorized absence was willful.

Para-18 of the said judgment is quoted

hereinbelow:-

"18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in the absence of such finding, the absence will not amount to misconduct."

By going through the aforesaid judgment

passed by the Hon'ble Apex Court it clearly transpires that

for sustaining allegation of unauthorized absence the

department has to prove that such unauthorized absence

was willful and then only it will be considered as

misconduct.

In both these cases, the enquiry officer on

appreciation of evidence; though held that the petitioner

was un-authorized absent from duty but failed to hold that

the absence was willful and even the disciplinary authority

failed to hold the same. Thus, even on merits; both the

impugned orders suffer from infirmity and have no legs to

stand in the eye of law.

14. In view of the aforesaid findings, the impugned

orders as contained in Memo No. 2168 dated 10.11.2009

and Memo No. 1133 dated 08.08.2011 are quashed and

set aside. The respondents are directed to give all

consequential benefits to this petitioner within a period of