Jharkhand High Court
Tribhuwan Prasad Singh vs The State Of Jharkhand & Others on 8 December, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 835 of 2019
Tribhuwan Prasad Singh
...... Petitioner
Versus
The State of Jharkhand & Others. ...... Respondents
........
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
---------
For the Petitioner : Mrs. Khalida Haya Rashmi, Advocate
Mr. Vishal Kumar, Advocate
For the State : Mr. Sharad Kaushal, A.C. to A.A.G.-III
10/Dated: 08/12/2023
Heard Mrs. Khalida Haya Rashmi, learned counsel for the
petitioner and Mr. Sharad Kaushal, learned counsel for the State.
2. This writ petition has been filed for setting aside the order
dated 19.08.2016 contained in Annexure-5 whereby fresh punishment order
has been passed in connection with D.P. Case No. 42 of 2004 after cancelling
the earlier orders dated 28.01.2008 and 15.01.2009 passed in D.P. Case No. 42
of 2004. Further prayer has been sought for quashing the order dated
26.08.2016 and 18.09.2016 and order dated 03.11.2016 which are the
consequential order pursuant to order dated 19.08.2016. Further prayer has
been made for grant of third MACP benefits to the petitioner including all
consequential benefits.
3. Mrs. Khalida Haya Rashmi, learned counsel for the petitioner submits
that the petitioner was appointed on the post of Assistant Sub Inspector on
11.03.1978 and thereafter upon cadre reorganization petitioner was promoted to
the post of Sub-Inspector on 04.09.1989. She submits that on 31.03.2004 when
the petitioner was posted in Bada Jamda Police Station for election duty at about
2.00 P.M. extremists attacked at the O.P. and snatched 9 rifles, cartridges and one
service revolver and upon enquiry it was alleged that officials and constables
including this petitioner present at the place of occurrence fled away in order to
save their lives and did not protest the attack of extremists. She submits that for
the said Act departmental proceeding was initiated and the petitioner was found
guilty and dismissed from the service vide order dated 28.01.2008. She submits
that for the identical charge another person was provided lesser punishment and
he was not dismissed. She submits that the petitioner challenged the said order in
W.P.(S) No. 2341 of 2008 which was disposed of with liberty to pursue the
departmental appeal. She submits that the appellate authority vide order dated
15.01.2009 dismissed the appeal and affirmed the order of dismissal passed by the
disciplinary authority. She submits that pursuant to that the petitioner filed W.P.(S)
No. 1100 of 2009 challenging the order passed by the appellate authority and the
said writ petition was allowed vide order dated 01.02.2016 and order of dismissal
from service and order of the appellate authority dated 13.01.2009/15.01.2009
were quashed and set aside and the matter was remanded to the disciplinary
authority with direction to pass appropriate order on quantum of
punishment/delinquency proved against the petitioner within two months from the
date of receipt/production of copy of that order. She submits that pursuant to that
authority concerned passed impugned order dated 19.08.2016 whereby
punishment imposed upon the petitioner vide order dated 19.08.2016 was
accepted and a correction was introduced separately in the order passed by the
Superintendent of Police, West Singhbhum. She submits that the said order was
passed without application of mind as the authority had accepted that allegations
levelled against the petitioner are minor in comparison of the allegations levied
against a co-delinquent namely, Shankar Thakur in D.P. Case No. 42/2004 and
inspite of that authority has passed order of stoppage five increments and salary
was reduced to basic pay. She submits that this order is bad in law as the High
Court reasons has not been made. She further submits that order further speaks
of 'No work No Pay'. She submits that so far prayer of MACP is concerned that is
accepted by the State in the counter affidavit filed on 27.03.2023 in para 8 and
recommendation is made to grant said MACP. She further submits that even the
pension rule was not taken care of in passing the said order as the petitioner has
already retired on 29.02.2016 whereas the order is dated 19.08.2016 was passed
modifying the punishment thereafter. She submits that prayers made in the writ
petition may kindly be allowed.
4. The said prayer of the learned counsel for the petitioner is objected by
the learned counsel for the respondent-state on the ground that High Court has
remanded back the matter and the competent authority rightly passed the order
and they have been pleased to reduce the punishment order. He further submits
that even not following the procedure of the pension after retirement if the order
has been passed it was in view of the order of the High Court.
5. The Court has gone through the impugned order dated 19.08.2016
contained in anneure-5 and finds that there are finding that another person was
having more serious charge however he has been inflicted lesser punishment and
however the petitioner was dismissed and in view of that further punishment
order was modified. The petitioner was already retired on 29.02.2016 and this
order was passed on 19.08.2016 and if such a situation was there the authority
concerned was required to follow the pension rule in passing of such order and
while remanding the matter to the authority concerned the High Court has not
observed that without following the procedure they will pass order. Further once,
dismissal order was already quashed the superintendent of Police came to the
conclusion that the petitioner has required to be inflicted with further punishment
the basis of coming to that conclusion has not been disclosed in the impugned
order and the said order was passed after superannuation of the petitioner. The
punishment order was required to be passed in terms of pension rules which is
absent in the impugned order.
6. Accordingly, the Court comes to the conclusion that the impugned order
dated 19.08.2016 is not accordance with law. The observation of the High Court
has not been taken care of while passing the said order and accordingly the order
dated 19.08.2016 is quashed.
7. So far as the prayer made for consequential benefit is concerned,
there is no doubt that the petitioner has not worked for certain period on the
basis of No work No Pay the order can be passed, but there are parameters of
passing such order. If the Court comes to the conclusion that there is illegality
on behalf of the authority concerned, the petitioner was not allowed to work,
the court is required to quash the order and to pass appropriate order. In the
case in hand, it has already been held by this Court that the impugned order is
not in accordance with law and further earlier dismissal order has already been
quashed. Thus, for the wrong of the respondent-State the petitioner was
prevented to work and if such a situation is there the case of the petitioner is
covered in the light of the judgment of the Hon'ble Supreme Court in the case
of Pradeep son of Raj Kumar Jain v. Manganese Ore (India) Ltd.
reported in (2022) 3 SCC 683 in which it has been held that the question
arises as to whether the back wages is to be given and as to what is to be the
extent of that back wages, these are the aspects which will depend on the facts of the
case as noted in Deepali Gundu Surwase v. Kranti Junior Adhyapak
Mahavidyalaya (D.Ed.) & Ors., (2013) 10 SCC 324.
8. Thus, it is well settled that in a case where it is found that the
employee was not at all at fault and yet, he was visited with illegal termination
or termination which is actually activised by malice, it may be unfair to deny
him the fruits of the employment which he would have enjoyed but for the
illegal/malafide termination he was not allwoed.
9. In view of that the effort of the court must be to then to restore
the status quo in the manner which is appropriate in the facts of each case.
10. In the case in hand, the nature of the charges, the exact reason
for the termination has been evaluated hereinabove. It is crystal clear that the
petitioner was not allowed to work and in view of that liability cannot be
fastened upon the petitioner and in that view of the matter the subsequent
orders dated 26.08.2016, 18.09.2016, and 03.11.2016 are not in accordance
with law and accordingly, these orders are quashed. The petitioner shall be
entitled for consequential benefits for the period during which he has not
worked due to such illegal termination.
11. So far the third prayer with regard to grant of third MACP is
concerned, that is admitted in para 8 of the counter-affidavit and in view of that
there will be no impediment in passing order of the compliance and in view of
that the said prayer is also allowed.
12. The respondent-State is directed to comply this order within a
period of six weeks from the date of receipt/ production of a copy of this order.
13. This writ petition is allowed in above terms.
( Sanjay Kumar Dwivedi, J.)
Satyarthi/
