Manish Kumar Mishra vs The State Of Jharkhand Through The ...
2023 Latest Caselaw 1633 Jhar

                                           1

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(S) No. 1698 of 2023
                                   ---

        Manish Kumar Mishra                   ...     ...     Petitioner
                                     Versus

1. The State of Jharkhand through the Principal Secretary, Home Department, Ranchi

2. The Commandant, Jharkhand Armed Police, Hazaribagh .... ... Respondents CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner : Mr. Navneet Sahay, Advocate For the Respondents : Mr. Gaurav Abhishek, A.C. to A.G.

Order No. 02 Dated: 18.04.2023

The present writ petition has been filed for setting aside the order as contained in memo no. 20 dated 25.01.2023 (Annexure-3 to the writ petition) issued by the Commandant, Jharkhand Armed Police-7, Hazaribagh (the respondent no. 2) whereby following punishments have been imposed upon the petitioner:

(i) Forfeiture of one annual increment which would be equivalent to two black marks and the same would not affect his future annual increments.

(ii) No payment other than the payment received by him during the period of suspension i.e. from 31.10.2012 to 04.03.2013 (total 124 days) would be payable and the said period has been adjusted in half-earned leave.

(iii) The period of dismissal from service w.e.f. 05.03.2013 to 20.09.2022 would be considered as 'No Work, No Pay' for which no amount would be disbursed to him. Moreover the said period would be adjusted as extraordinary leave.

2. The petitioner earlier filed a writ petition being W.P.(S) No. 3261 of 2014 challenging the order as contained in memo no. 115 dated 05.03.2013 whereby he was dismissed from service as well as the order passed by the appellate authority as contained in memo no. 1315 dated 16.08.2013 whereby the appeal preferred by him was rejected. A Bench of this Court vide order dated 05.08.2021 partly allowed the said writ petition with following observations:

"6. Having heard learned counsel for the parties and after perusing the documents annexed with the respective affidavit and the averments made therein; it appears that the

petitioner has been alleged for the charge that he used to leave duty place without permission and take alcohol with the villagers. The other allegation was that after taking liquor he used filthy language with the Superior Officer. This part of the charge has not been proved by the Inquiry Officer. However, the Disciplinary Authority without taking into consideration the reply to the show-cause notice pass the order of termination by holding that all the charges has been proved.

It further transpires that the petitioner has taken specific stand that no medical examination has been conducted for holding the charge for taking liquor; however the same was not considered by the Disciplinary Authority. From the entire enquiry report/other relevant documents it appears that not even a single time the petitioner has been sent for medical examination; though the charge was general in nature that the petitioner frequently goes to the village and takes liquor with the villagers.

7. It has been held in catena of judgments that to punish a person on the ground that he was under the influence of alcohol in a work place; a proper test report of the level and amount of alcohol of blood and urine is necessary. Mere oral evidence to punish a person to the extent of termination has been condemned by the Court.

In the instant case admittedly; one part of the charge has not been proved that he has misbehaved with the Superior Officer over telephone. So far as other part of the charge that the petitioner frequently uses to take drink with the villagers after leaving the work place; it is an admitted position that not even on a single occasion the petitioner has been sent for medical examination; what to say about the present charge. Thus, only on the basis of oral evidence of two Police Constables; the order of termination on the ground of taking liquor that too without any independent witness is too harsh and excessive.

It further transpires that this ground which has been taken by the petitioner in his reply to the second show-cause notice has not been considered by the Disciplinary Authority.

8. In this view of the matter, the instant writ application is partly allowed. The impugned order of dismissal from service as contained in Memo No.115 dated 5.3.2013 as well as the appellate order as contained in Memo No.1315 dated 16.08.2013, are hereby, quashed and set aside.

9. The respondents are directed to reinstate the petitioner in service and pass a fresh order on the quantum of punishment after considering the reply to the showcause filed by the petitioner and keeping in mind the discussion made hereinabove.

10. It is made clear that the respondents will also take a decision on the question of payment of salary from the date of suspension till the date of reinstatement.

11. With the aforesaid observation the instant writ application stands partly allowed."

3. It would thus be evident that though the said writ petition filed by the petitioner was partly allowed by setting aside the order of dismissal from service treating the said punishment to be harsh/excessive and the respondents were directed to reinstate him in service, yet they were directed to pass a fresh order on the quantum of punishment after considering the reply to the second show cause notice filed by the petitioner in terms with the observations made in the said order.

4. Subsequent to order dated 05.08.2021 passed in W.P.(S) No. 3261 of 2014, the disciplinary authority, i.e., the respondent no. 2 has passed a fresh order as contained in memo no. 20 dated 25.01.2023 on the quantum of punishment forfeiting one annual increment of the petitioner equivalent to two black marks as well as disentitling him from receiving any payment other than the payment received during the period of suspension i.e. from 31.10.2012 to 04.03.2013 (total 124 days) and the said period is to be adjusted as Half-Earned Leave. The petitioner was also not provided salary for the period he remained dismissed from service i.e. from 05.03.2013 to 20.09.2022 following the principle of 'No Work, No Pay'.

5. This Court does not find any infirmity in the first two punishments inflicted on the petitioner pursuant to order dated 05.08.2021 passed in W.P.(S) No. 3261 of 2014.

6. So far as the last punishment inflicted upon the petitioner is concerned, learned counsel for the petitioner submits that the principle of 'No Work, No Pay' followed by the respondent no. 2 is not in accordance with law as in fact, the petitioner was prevented from rendering his service during the intervening period and subsequently vide order dated 05.08.2021 passed in W.P.(S) No. 3261 of 2014, he was reinstated in service.

7. This Court is of the view that the respondent no. 2 while passing the order on the quantum of punishment particularly with respect to not providing the salary to the petitioner for the period from 05.03.2013 to 20.09.2022, has though erroneously noted the principle 'No work, No pay', however the fact remains that the charge of misconduct against the petitioner, particularly his frequent visit to nearby village and drinking with villagers during duty hours, was not interfered while remanding the matter to pass fresh order on the quantum of punishment.

8. In the case of J.K. Synthetics Ltd. Vs. K.P. Agrawal & Another reported in (2007) 2 SCC 433, the Hon'ble Supreme Court has held as under:-

"19. But the cases referred to above, where back wages were awarded, related to termination/retrenchment which were held to be illegal and invalid for non- compliance with statutory requirements or related to cases where the Court found that the termination was

motivated or amounted to victimisation. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental inquiry, and the court confirms the finding regarding misconduct, but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee. Where the power under Article 226 or Section 11-A of the Industrial Disputes Act (or any other similar provision) is exercised by any court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in the wrong or that the dismissal was illegal and invalid. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force. When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions, etc."

9. Thus, it is well settled that where reinstatement is a consequence of imposition of a lesser punishment, back wages do not follow as a natural or necessary consequence of such reinstatement. Award of back wages in such type of cases would amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee.

10. In the case in hand, a Bench of this Court while passing the order

dated 05.08.2021 in W.P.(S) No. 3261 of 2014, though passed the order of reinstatement of the petitioner, however specifically directed the respondents to pass fresh order on the quantum of punishment after considering the reply of the second show cause notice of the petitioner and accordingly, the impugned order on the quantum of punishment has rightly been passed by the respondent no. 2.

11. Hence, I see no reason to interfere with impugned order as contained in memo no. 20 dated 25.01.2013 issued by the respondent no. 2. The writ petition is accordingly dismissed.

(Rajesh Shankar, J.) Ritesh/AFR