Jharkhand High Court
Anita Devi vs The State Of Jharkhand on 3 August, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Letters Patent Appellate Jurisdiction)
L.P.A No. 397 of 2017
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Anita Devi, w/o late Binay Kumar Singh, r/o village-Sahpur, PO-
Haridaspur, PS-Nath Nagar, District-Bhagalpur. ... Appellant
Versus
1. The State of Jharkhand.
2. The Principal Secretary, Department of Home, Prison and
Disaster Management, Government of Jharkhand, Ranchi, PO &
PS-Dhurwa, District-Ranchi.
3. The Inspector General of Prison, Government of Jharkhand, PO
& PS-Dhurwa, District-Ranchi.
4. The Superintendent, District Jail, Lohardaga, PO, PS & District-
Lohardaga. ... Respondents
With
L.P.A No. 367 of 2018
1. The State of Jharkhand through the Secretary, Department of
Home, Govt. of Jharkhand, PO & PS-Dhurwa, District-Ranchi.
2. The Joint Secretary, Department of Home, Govt. of Jharkhand,
Ranchi, Project Bhavan, PO & PS-Dhurwa, District-Ranchi.
3. The Under Secretary to the Government, Department of Home,
Government of Jharkhand, Ranchi, Project Bhavan, PO & PS-
Dhurwa, District-Ranchi.
4. The Inspector General of Prison, Jharkhand, Ranchi, Project
Bhavan, Dhurwa, PO & PS-Dhurwa, District-Ranchi.
... Appellants
Versus
Anita Devi, wife of late Binay Kumar Singh (original petitioner who
died on 20.12.2017 after passing of the impugned order/judgment
dated 10.02.2017), r/o village-Sahpur, PO- Haridaspur, PS-Nath
Nagar, District-Bhagalpur at present r/o Modi Chowk, Tenughat,
PO-Tenughat, PS-Petarwar & District-Bokaro. ... Respondent
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant(s) : Mr. Amritansh Vats, Advocate
[in L.P.A No. 397 of 2017]
Mr. Yogesh Modi, AC to AAG-IA
Mr. Ranesh Anand, AC to AAG-IA
[in L.P.A No. 367 of 2018]
For the Respondent/State : Mr. Mr. Yogesh Modi, AC to AAG-IA
Mr. Ranesh Anand, AC to AAG-IA
[in L.P.A No. 397 of 2017]
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2 L.P.A No. 397 of 2017
with
L.P.A No. 367 of 2018
ORDER
rd
3 August 2022
Per, Shree Chandrashekhar, J.
W.P.(S) No. 6211 of 2010 and W.P.(S) No. 6274 of 2010
were taken up together and by the common order dated
10th February 2017 both writ petitions were disposed of.
2. The State of Jharkhand has filed L.P.A No. 367 of 2018
challenging the order passed by the writ Court in W.P.(S) No.6211
of 2010.
3. L.P.A No. 397 of 2017 has been filed by Binay Kumar
Singh challenging the order passed in W.P.(S) No. 6274 of 2010.
4. Having heard the learned counsels appearing for the
parties, we find no substance in both the Letters Patent Appeals.
5. Challenge by the State of Jharkhand to the order
passed by the writ Court to the effect that the period of
unauthorized absence from 8th July 2001 to 4th March 2002 shall
not be taken as break in service must be rejected. An order of
break in service is in the nature of an extraordinary order which
would have serious civil consequences on the entitlement of
pensionary benefits to a Government employee.
6. The writ Court has held as under :
" W.P.(S) No. 6211 of 2010
............................................................................................
5. In view of the submissions, advanced by learned
counsel for the parties, it appears that after attending the
official duty at S.D.J.M. Court at Dhanbad, on return, the
petitioner fell ill, and accordingly he submitted application
dated 28.07.2001 for grant of earned leave and also
intimated his authorities telephonically. This fact finds
mention in order dated 25.06.2010 passed by respondent
no. 4 vide Annexure 4 to the writ application and even he
recommended for deletion of that part of order whereby it is
ordered that it will be treated as break in service. But the
respondent no. 3 without assigning any cogent reason
passed a cryptic order without mentioning the reason for
disagreeing with the recommendation of respondent no. 4
and passed impugned order dated 6.10.2010. It further
appears that on the one hand the respondents-authorities
sanctioned the leave treating it as extraordinary
leave/leave without pay and on the other hand passed the
order treating it as break in service, which certainly shall
have adverse impact on the service benefits e.g.
promotional avenues, retiral benefits/pensionary benefits
with
L.P.A No. 367 of 2018
etc., without affording any opportunity to put forth his case.
In such condition, the petitioner ought to have been afforded
opportunity of hearing to defend his case. The respondents-
authorities cannot blow hot and cold at the same time.
6. Generally, the writ Court precludes from
substituting/amending the punishment. But, in the facts of
the case, it would be apposite to quash the impugned order
dated 06.10.2010, in particular, that part of the order
whereby it is ordered that it will be treated as break in
service.
7. Accordingly, W.P. (S) 6211 of 2010 stands allowed in
part and it is held that petitioner's service shall not be
treated as break in service."
7. Jharkhand Service Code, 2001 provides different kinds
of leave including extraordinary leave as indicated under Rule 180
which can be granted to a Government employee to avoid a
situation of break in service. Rule 180 of the Jharkhand Service
Code, 2001 is extracted below :
"Rule 180 :(a) In special circumstances and when no other
leave is under these rules admissible, extraordinary leave
may be granted. Such leave is not debited against the leave
account. No leave-salary is admissible during such leave.
(b) The authority empowered to sanction leave may grant
extraordinary leave in combination with, or in continuation
of, any leave that is admissible, and may
commute retrospectively period of absence without
leave into extraordinary leave.
Note 1-The State Government may for special
reasons dispense with the condition that extraordinary
leave may be granted only when no other leave is by rule
admissible, provided that a Government servant cannot be
compelled to take extraordinary leave when leave
with allowances is admissible to him.
Note 2- The power of commuting period of absence without
leave into extraordinary leave under sub-rule(b) is absolute;
in other words, such commutation is permissible even when
other leave was admissible to Government servant at the
time his absence without leave commenced."
8. The order dated 29th May 2010 is a cryptic order which
does not take note of the various provisions under the Jharkhand
Service Code, 2001 in respect to sanction of leave. Even otherwise,
we find no justifiable reasons for interfering with the order passed
by the writ Court holding that the period between 8 th July 2001 to
4th March 2002 shall not be treated as break in service.
9. The order passed by the writ Court in W.P.(S) No. 6211
of 2010 is therefore affirmed.
10. Binay Kumar Singh who was proceeded departmentally
with
L.P.A No. 367 of 2018
has challenged the common order dated 10 th February 2017 passed
in W.P.(S) No. 6274 of 2010 by which the challenge laid by him to
the order of punishment dated 29 th May 2010 was modified to the
extent that punishment with regard to a direction not to give him
independent charge of any sub-jail has been quashed. During
pendency of L.P.A No. 397 of 2017 original appellant, namely,
Binay Kumar Singh died on 20th December 2017 and his wife,
namely, Anita Devi was substituted in his place vide order dated
20th February 2018.
11. The following punishments were awarded to the
delinquent:
(a) Withholding of three increment with non cumulative effect
(b) Censure
(c) In future he will not be given independent charge in any
sub-jail, and
(d) Nothing will be payable to him except what has been paid
during the period of suspension.
12. The delinquent Government employee has taken
exception to dismissal of W.P.(S) No. 6274 of 2010 on the ground
that the enquiry conducted against him was based on hearsay
evidence and it was mere ipse dixit of the enquiring officer which
held the charges proved.
13. The writ Court has held as under :
"W.P.(S) No. 6274 of 2010
...............................................................................................
5. Admittedly, in the case at hand, there is no procedural
proceeding in conducting the departmental proceeding and
the petitioner time and again came before this Court
invoking extraordinary jurisdiction of this Court under
Article 226 of Constitution of India for redressal of his
grievances. In the departmental proceeding, the conducting
officer after appreciating all the materials available on
record found 10 charges proved out of 18 charges.
6. In the case at hand, in view of the seriousness of
allegation and misconduct committed by the petitioner, the
power of judicial review cannot be applied and moreover
the fact finding given by the enquiry officer based upon the
materials on record cannot be interfered with, as has been
held by Hon'ble Supreme Court in the case of State of Uttar
Pradesh and Another Vs. Man Mohan Nath Sinha &
Another as reported in (2009) 8 SCC 310, specially at
with
L.P.A No. 367 of 2018
paragraph 15, which is quoted herein below:
"15.The legal position is well settled that the
power of judicial review is not directed against the
decision but is confined to the decision-making process.
The court does not sit in judgment on merits of the
decision. It is not open to the High Court to reappreciate
and reappraise the evidence led before the inquiry officer
and examine the findings recorded by the inquiry officer
as a court of appeal and reach its own
conclusions. .............. "
Applying the aforesaid principles of Hon'ble Apex
Court, as indicated herein above, I find no reason to
interfere with the impugned order.
7. In C.W.J.C No. 2654 of 1998(R), the matter was
remanded back on the question of quantum of punishment
and the respondent no. 3 after considering all aspects of
the matter, commuted the order of punishment. Hence, on
the count also, I find no reason to interfere with the
impugned order.
8. So far as punishment no. 3, which speaks that he
will not be given independent charge of any sub-jail, is
concerned since it is not envisaged in the Rules, it would be
apposite to quash that part of impugned punishment.
W.P. (S) No. 6011 & 6274 of 2010
9. In the net result, W.P. (S) No. 6011 of 2010 is allowed in
part to the extent that period spent on leave shall only be
treated as extra-ordinary leave and it shall not be treated
as break in service.
However, the impugned order of punishment dated
29.05.2010, which is the subject matter of W.P.(S) 6274 of
2010, is modified to the extent that punishment with regard
to giving independent charge of any sub-jail is quashed.
With the aforesaid modification, W.P.(S) No. 6274 of 2010
stands disposed of."
14. In "Syed Yakoob v. K. S. Radhakrishnan" AIR 1964 SC
477 the Hon'ble Supreme Court has held that against an order of
punishment a writ of certiorari shall lie only under two conditions
viz. (i) the order of punishment was passed in breach of the rules of
natural justice and (ii) the order was passed contrary to the rules.
A writ Court exercising powers under Article 226 of the
Constitution of India normally would not interfere with the findings
of fact recorded by the departmental authority and, if there is some
evidence to support the charge, the order of punishment remains
immune from interference by the writ Court for sufficiency of
evidence is not a plea which can be agitated before the writ Court.
15. The disciplinary authority in his order dated 29 th May
2010 has taken note of all necessary facts and concurred with the
enquiring officer that it was a case of administrative lapse on the
with
L.P.A No. 367 of 2018
part of the delinquent employee. No new plea has been taken
before us to challenge the modified order of punishment.
16. L.P.A No. 397 of 2017 and L.P.A No. 367 of 2018 are
dismissed.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Amit/N.A.F.R
