Umeshwar Ram Son Of Shri Ram ... vs The State Of Jharkhand Through Its ...
2022 Latest Caselaw 4435 Jhar

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI

                                W.P. (S) No. 236 of 2015

            Umeshwar Ram son of Shri Ram Parvesh Ram, resident of Parwati
            Awas, Flat No. 11, P.O. Tata Nagar, P.S. Parsudih, Town of
            Jamshedpur, District East Singhbhum         ...      ...    Petitioner
                                      Versus
            1. The State of Jharkhand through its Secretary/Principal Secretary
               Road Construction Department, having office at Project Building,
               Dhurwa, P.O. and P.S. Dhurwa, Town and District Ranchi
            2. The Deputy Secretary, Road Construction Department, having
               office at Project Building, Dhurwa, P.O. and P.S. Dhurwa, Town
               and District Ranchi
            3. The Engineer-in-chief, Road Construction Department, having
               office at Project Building, Dhurwa, P.O. and P.S. Dhurwa, Town
               and District Ranchi
            4. The Chief Engineer, Road Construction Department, having office
               at Project Building, Dhurwa, P.O. and P.S. Dhurwa, Town and
               District Ranchi                    ...       ...       Respondents
                                      ---

CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. Navin Kumar Singh, Advocate For the Respondents : Mr. Rakesh Kumar Roy, Advocate

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06/07.11.2022 Heard learned counsel for the parties.

2. This writ petition has been filed for the following reliefs:-

(i) "To quash/set aside the office order contained in memo no. 4833 (S) dated 27.06.2014 issued under the signature of respondent no. 3, whereby and whereunder, the punishment of censure and during suspension period expect subsistence allowance nothing would be paid has been passed.

(ii) For a direction commanding upon the respondent to pay the full salary minus subsistence allowance during the period of suspension for more than 15 months.

(iii) During the pendency of this writ petition, the operation of penalty order contained in office order contained in memo no. 4833 (S) dated 27.06.2014 may kindly be stayed."

3. The appellate order dated 23.02.2015 (Annexure-12) has also been challenged vide I.A No. 2067 of 2015 and amendment has been allowed vide order dated 09.09.2015.

Arguments of the Petitioner.

4. Learned counsel for the petitioner has submitted that the petitioner has been imposed punishment of 'censor' and has been held not entitled for any amount for the period of suspension apart from subsistence allowance.

5. Learned counsel has submitted that the reply filed by the petitioner pursuant to show cause issued to the petitioner has not been properly considered by the Authority while passing the impugned order. He further submits that the impugned order of punishment is non-speaking and therefore the same is fit to be set aside. He has referred to judgment passed by Hon'ble Patna High Court in the case of Dr. Rabindra Nath Singh versus State of Bihar reported in 1983 BBCJ 33 and has referred to paragraph 7 thereof to submit that the show cause reply was required to be properly considered and the order passed should reflect active application of mind by the disciplinary authority, but this exercise has not been done in the present case and therefore the order passed by the disciplinary authority is non speaking. He also submits that appellate authority has also not passed any reasoned order which also calls for interference.

6. The learned counsel has submitted that before passing the order regarding non-payment of any amount except subsistence allowance during the period of suspension from 14.03.2013 to 27.06.2014, no opportunity of hearing was granted to the petitioner in terms of Rule 97 of Jharkhand Service Code. The learned counsel has relied upon three judgments in support of his submissions. He has also relied upon judgment passed by this court in W.P. (S) No. 1081 of 2019 for the purposes of his argument in connection with Rule 97 of Jharkhand Service Code and also judgment passed by Hon'ble Division Bench of court in L.P.A. No. 343 of 2013 decided on 17.06.2014. He has referred to paragraph 11 of the aforesaid judgment passed in LPA.

7. Learned counsel for the petitioner has also referred to the writ petition wherein a statement has been made that the punishment order was passed by Sri Ram Naresh Raman, who had no power and jurisdiction to pass such an order as he was given the regular promotion as Superintending Engineer only on 03.09.2014.

8. Learned counsel for the petitioner has also submitted that as per the writ petition, the contractor was already blacklisted prior to the joining of the petitioner and the period of contract was also over.

9. However, during the course of argument, the petitioner has placed the show cause reply filed by the petitioner as well as memorandum of appeal which is on record and there is no such plea

that the contractor was already blacklisted prior to the joining of the petitioner, rather the petitioner has taken a specific plea that the contractor was put in blacklist and his registration was cancelled vide letter dated 19.02.2013. It is not in dispute that the entire incident relates to the date 17.02.2013 when the Hon'ble Governor moved on the concerned road and pot holes were found.

Arguments of the Respondents.

10. The learned counsel appearing on behalf of the respondents while opposing the prayer of the petitioner has submits that the points which have not been raised by the petitioner in show cause reply and before the appellate authority cannot be permitted to be raised for the first time in writ jurisdiction. Learned counsel further submits that it is not in dispute that the petitioner was in charge of the work on the date of incident i.e on 17.02.2013 and the petitioner, as per his show cause reply itself, was made in charge of the work right from 17.10.2012. The learned counsel has submitted that the presence of pot holes on the road is not in dispute and the petitioner has given his explanation which has been considered and rejected by the disciplinary authority. He submits that the petitioner has been imposed the punishment of censor only and the period for which the petitioner has suffered the punishment of censor has already elapsed.

11. The learned counsel for the respondents has also referred to the counter affidavit, paragraph 34, wherein it has been stated that Shri Ram Naresh Raman was posted as Engineer in chief by Notification No. 6609 (S) dated 03.04.2014 of Road Construction Department Government of Jharkhand and hence he had the power to pass punishment order against the petitioner.

12. So far as the payment of salary for the intervening period is concerned, it is not in dispute that by the impugned order, the petitioner has been held entitled to only subsistence allowance and it is also not in dispute that no separate show cause was issued to the petitioner prior to making such order that petitioner would be entitled only to subsistence allowance for the period of his suspension and no more.

Findings of the court

13. After hearing the learned counsel for the parties this court finds that the charge memo dated 30.03.2013 was issued to the petitioner in prapatra-Ka wherein it was mentioned that the petitioner at the relevant point of time was the Junior Engineer in National Highway Division, Ranchi and was given additional charge of the National Highway No. 75 (km. 31 to 41). It was alleged in the charge memo that in the aforesaid stretch of road, pots were found and agreement was already in place for widening and strengthening of the road. It was alleged that in order to keep the road pot-less, direction was to be issued by the petitioner to the contractor and the road was to be kept pot-less, but the petitioner did not discharge his duty diligently which led to presence of pots on the road. With this allegation it was alleged that the petitioner was responsible under Rule 51(C) of the Jharkhand Public Works Code.

The Deputy Secretary, Road Construction Department, Ranchi vide another letter dated 4074 dated 26.04.2013 asked the petitioner to respond wherein it was specifically stated that on 17.02.2013, during the movement of the Hon'ble Governor in the aforesaid stretch of road, the condition of the road was found to be very bad which tarnished the image of the department and it was the responsibility of the petitioner to keep the road pot- less.

14. The petitioner filed show cause reply on 10.05.2013 inter alia stating that written communication to the contractor was to be made by the Executive Engineer as per the agreement and therefore the petitioner did not give any written communication to the contractor, but he had verbally asked the contractor to work as per the agreement and also to keep the stretch of road pot-less. He also stated that as per the agreement, the date of commencement of work was 09.04.2010 and the date of completion was 08.05.2011 and the petitioner had taken the charge of the aforesaid stretch of road only on 17.10.2012. The petitioner had also stated that the contractor was not taking any interest in doing the work and on earlier occasion on 19.06.2012, contractor was also warned for the purposes of taking final measurement. The petitioner had stated in his reply that the contractor was blacklisted and his registration was also cancelled on 19.02.2013. The petitioner also stated in his reply that he had verbally requested

the contractor to complete the work and upon his request, the contractor had simply made the road motorable. The petitioner had expressed that the inconvenience caused to the Hon'ble Governor during his movement on 17.02.2013 was regretted.

15. Thereafter the impugned order of punishment dated 27.06.2014 (Annexure-8) was passed considering the reply of the petitioner and the petitioner was found guilty of dereliction of duty and the punishment of censor was awarded to the petitioner. It was further directed that the petitioner will not be entitled for any salary for the intervening period except subsistence allowance and the intervening period will not be treated as break in service. The petitioner filed appeal and raised the same points. Further the petitioner also raised the point that the petitioner has been kept under suspension of period of 15 months and he had also referred to one circular dated 26.12.2012 (Annexure-10) to submit that the period of suspension was to be discontinued after expiry of 3 months 15 days.

16. As per the counter affidavit no departmental proceeding as such was conducted and it was also admitted position that the petitioner was posted for additional charge of the work w.e.f. 17.10.2012 in connection with the stretch of road found with pot holes. It has also been stated that only a minor punishment of censor has been given to the petitioner. In the counter affidavit it has been stated at para 34 that Sri Ram Naresh Raman, who has imposed punishment upon the petitioner, was posted as engineer-in-chief by notification dated 03.09.2014 of the Road Construction Department, Government of Jharkhand and he had the power the punish the petitioner. This fact has not been denied by the petitioner even in the rejoinder to the counter affidavit.

17. This court finds from perusal of the show cause reply filed by the petitioner that it was an admitted position that the petitioner was given additional charge in connection with the aforesaid stretch of road on 17.10.2012 and on 17.02.2013 when the Hon'ble Governor moved on the road, found it in bad condition with pot holes. The fact that the road was in bad condition is not in dispute and it is also not in dispute that the petitioner was the junior engineer working on the spot. The explanation furnished by the petitioner for the condition of road

including his plea that he had given verbal instruction to the contractor who did not carry on his instruction, was rejected while holding the petitioner guilty of dereliction of duty and consequently, passing the order of punishment of censor.

18. In view of the aforesaid admitted position on record that the petitioner was posted on the spot and the road was found in a bad condition with pot holes during movement of Hon'ble Governor on 17.02.13 and considering the fact that only a punishment of censor has been given to the petitioner for his mis-conduct, this court is of the considered view that no interference is called for under Article 226 of the Constitution of India so far as the impugned order holding the petitioner guilty of dereliction of duty and imposing of order of punishment of censor is concerned. This court finds that sufficient reason has been assigned by the disciplinary authority reflecting due application of mind to hold the petitioner guilty. This court also finds that the appellate authority has also considered the appeal and as no new points were available from the side of the petitioner on these points, the appeal has been dismissed.

19. So far as the order in connection with non-payment of differential salary etc. except payment of subsistence allowance for the period of suspension is concerned, this court finds that admittedly no show- cause was issued to the petitioner for denying the salary, except subsistence allowance, for the intervening period of suspension of 15 months. This point was also raised by the petitioner before the appellate authority but has not considered in the appellate order.

20. In the judgment passed by this court in L.P.A. No. 343 of 2013 (State of Jharkhand versus Aruna Devi) reported in 2014 SCC Online Jhar 1005, it has been held that even though Rule 97 of Jharkhand Service Code does not contemplate affording of opportunity, in judicial proceedings consistent view has been taken that opportunity is to be afforded to the employee before taking a decision under Rule 97(3) and Rule 97(4) of Jharkhand Service Code. The judgment passed by this court in the case of Sharafat Hussain versus State of Bihar reported in 2003 (3) JCR 102 (Jhr.) has been considered in the aforesaid L.P.A. wherein it has been observed that any direction restricting payment of pay and allowances other than

subsistence allowance ought to be taken only after affording opportunity of hearing.

21. In aforesaid circumstances and in view of the aforesaid legal position, the impugned order dated 27.06.2014, so far it relates to denial of salary for the intervening period except subsistence allowance, cannot be sustained in the eyes of law and is accordingly set-aside to the aforesaid extent and the point regarding payment of differential salary for the period of suspension requires re- consideration after giving an opportunity of hearing to the petitioner. Entitlement to the extent of subsistence allowance has already been allowed by the impugned order.

22. The matter is remitted back to the disciplinary authority for passing an order in accordance with law after giving an opportunity of hearing to the petitioner with regard to payment of differential salary for the period of suspension within a period of 2 months from the date of receipt of a representation by the petitioner. The petitioner shall file a representation along with a copy of the writ record and a copy of this order before the disciplinary authority within a period of 1 month from today.

23. Thus, the impugned order passed by the disciplinary authority to the extent it holds the petitioner guilty of the charges levelled against him as well as the order of punishment of censor is upheld but is set aside and remitted to the disciplinary authority for fresh consideration only to the extent it denies payment of differential salary for the intervening period.

24. This writ petition is disposed of in aforesaid terms.

(Anubha Rawat Choudhary, J.) Binit