Jharkhand High Court

The State Of Jharkhand vs Arvind Kumar on 22 February, 2023

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 IN THE HIGH COURT OF JHARKHAND AT RANCHI
             L.P.A. No. 149 of 2021
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1.The State of Jharkhand, through the Chief Secretary, Government of Jharkhand, Project Building, Dhurwa, PO and PS -Dhurwa, District- Ranchi.

2.The Additional Chief Secretary, Department of Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand, Project Building, Dhurwa, PO and PS Dhurwa, District- Ranchi

3.The Secretary, Department of Land and Revenue, Government of Jharkhand, PO and PS Dhurwa, District-Ranchi, Jharkhand

4.The Deputy Commissioner, Giridih, PO, PS and District-Giridih

5.The Joint Secretary, Department of Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand, Project Building, Dhurwa, PO and PS-Dhurwa, District-Ranchi

6.The Deputy Secretary, Department of Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand, Project Building, Dhurwa, PO and PS Dhurwa, District Ranchi ... ... ...Respondents/Appellants Versus Arvind Kumar, aged about 56 years, son of late Baliram Sharma, resident of at Officers' Quarter, Kutchery Maidan, Khunti, PO, PS and District- Khunti, Jharkhand ...Petitioner/Respondent

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CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellants : Mr. Indranil Bhaduri, S.C. IV Mr. Suman Marandi, AC to SC IV For the Respondent : Mr. Rahul Kumar, Advocate Ms. Apoorva Singh, Advocate

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Per Sujit Narayan Prasad, J:

Order No. 5/Dated 22nd February, 2023

The instant intra-court appeal, under clause 10 of

the Letters Patent, has been preferred against the

order/judgment dated 20.01.2021 passed by learned Single

Judge of this Court in W.P. (S) No. 1093 of 2020 whereby

and whereunder while allowing the writ petition the

decision as contained in Resolution dated 25.07.2019

purported to be issued in exercise of power conferred under

Rule 14(1) of the Jharkhand Government Servants

(Classification, Control and Appeal) Rules, 2016,

[hereinafter referred to as „Rules, 2016‟] by which the

punishment of censure has been imposed upon the

petitioner as also the decision as contained in Resolution

dated 29.01.2020 by which the review application preferred

by the petitioner was dismissed upholding the order of

penalty dated 25.07.2019, have been quashed and set

aside.

2. The brief facts of the case, as per pleadings made in

the writ petition, read as hereunder:

The petitioner was appointed on 01.03.1993 in the

cadre of Bihar Administrative Services pursuant through

37th Combined Competitive Examination conducted by

Bihar Public Service Commission. Pursuant to re-

organization of State of Bihar, the petitioner's service was

allocated to the State of Jharkhand. During the period

10.07.2002 to 06.02.2004, the petitioner was posted as

Circle Officer, Jamua in the district of Giridih.

It is the case of the petitioner that while he was

posted as Circle Officer at Jamua on 27.08.2003 he met

with a minor accident in which he sustained minor injuries

though it did not restrict his movement and after taking

advice from the doctor, he continued to discharge his

duties as before, but the Deputy Commissioner, Giridih

vide letter dated 09.09.2003 directed the Circle Officer,

Giridih, Sadar to assume the charge of the post of Circle

Officer, Jamua where the petitioner was working and the

petitioner was directed to proceed on leave.

Even on 14.09.2003 there had been a camp

organized for distribution of land parcha wherein also the

petitioner appeared and played its active role in distribution

of the land parcha. But the Deputy Commissioner, Giridih

recommended for suspension of the petitioner and framed

charge against him in prapatra-ka vide letter dated

11.10.2003 alleging inter alia that the petitioner was having

a fracture in his leg and on account of the same he had

been absenting himself from duty without leave and had

been discharging his duties from his residence.

It is further case of the petitioner that the said

charge was not even approved by the disciplinary authority

and the then Deputy Commissioner found no evidence on

the basis of which the charges were imputed against the

petitioner. It is further stated that the Deputy

Commissioner, realizing the fact that the petitioner was

discharging his duties, vide letter dated 03.12.2003

amended the directives as contained in letter dated

09.09.2003 to the extent of giving charge to Circle Officer,

Giridih. It is alleged that since no evidence had been

furnished along with the proposed memo of charge, the

Personnel Department, Govt. of Jharkhand vide letter dated

09.01.2004 wrote to the Deputy Commissioner, Giridih to

furnish the documents and evidence forming basis of

charges imputed against the petitioner.

Since the charges framed by the then Deputy

Commissioner, Giridih had not been approved by the

disciplinary authority the petitioner had been show caused

vide letter dated 14.01.2004, to which, the petitioner

replied vide letter dated 31.01.2004 which was forwarded to

the Principal Secretary, Land & Revenue vide letter dated

11.02.2006.

It is stated that in the meantime, vide letter dated

24.02.2004 again the Personnel Department wrote to the

Deputy Commissioner to furnish the very basis of article of

imputation as against the petitioner. Thereafter, again vide

letter dated 04.06.2004 and 28.05.2007 the Deputy

Commissioner was directed to comply the earlier direction

but no reply was furnished by the Deputy Commissioner,

Giridih.

It is further stated that in the meanwhile, the

petitioner was granted junior selection grade and was

promoted to the rank of Additional Collector w.e.f. 2013

and in the rank of Joint Secretary w.e.f. 2018. But all of a

sudden in gross violation of principles of natural justice

and the procedure established by law vide Resolution dated

25.07.2019, the petitioner was imposed the punishment of

censure in terms of Rule 14(1) of the Rules, 2016, against

which the petitioner preferred review which was rejected

vide order dated 29.01.2020.

The petitioner being aggrieved with the impugned

order of punishment dated 25.07.2019 as also review order

dated 29.01.2020 preferred writ application before writ

Court by filing W.P. (S) No. 1093 of 2020, which was

allowed vide order dated 20.01.2021 by which the

impugned order of punishment as also the order passed in

Review were quashed and aside, against which the instant

intra-court appeal has been preferred by the State.

3. Mr. Indranil Bhaduri, learned S.C. IV appearing for

the appellants-State has submitted that since the order of

punishment of 'Censure' is a minor punishment as such

there is no requirement to follow the stipulation made

under the provisions of Rule 19 of Rules, 2016, but the

learned Single Judge without appreciating that aspect of

the matter has quashed and set aside the order passed by

the disciplinary authority and the reviewing authority.

Therefore, the order passed by the learned Single Judge is

not sustainable in the eye of law.

4. Per contra, Mr. Rahul Kumar, learned counsel for

the writ petitioner has submitted that it is not the fact that

the disciplinary authority proceeded to impose minor

punishment otherwise there was no occasion for the

disciplinary authority to come out with the memorandum of

charge and once memorandum of charge was issued which

itself suggests that the disciplinary authority has decided to

initiate a regular departmental proceeding. However, the

disciplinary authority after going through the finding

recorded by the enquiry officer has not thought it proper to

impose major punishment as per the list of punishment

prescribed under Rules, 2016 rather decision was taken to

impose minor punishment in the nature of 'Censure'.

Therefore, once memo of charge has been issued for the

purpose of initiating a regular departmental proceeding, the

stipulation made under Rule 19 of Rules, 2016 was

required to be followed but since the same has not been

followed, the learned Single Judge taking into consideration

the aforesaid fact has quashed the impugned order of

punishment, which suffers from no error.

5. We have heard learned counsel for the parties,

perused the documents available on record as also the

finding recorded by learned Single Judge.

6. The facts, which are not in dispute in this case, is

that a regular departmental proceeding was initiated

against the petitioner by serving memorandum of charge as

contained in letter dated 11.10.2003 but the enquiry officer

was not appointed. It appears from the record that the

aforesaid memo of charge was issued on the basis of

recommendation of Deputy Commissioner, Giridih, as

would appear from letter dated 09.01.2004 and as such the

Government sought for evidence from the Deputy

Commissioner to proceed with the charge against the

petitioner and again request was made on 24.06.2013

wherein nine references of request have been mentioned.

Further request was made on 06.12.2013, 10.02.2014 and

vide letter dated 15.02.2017, request of 12 reference letters

has been disclosed. But the recommending authority-

Deputy Commissioner, Giridih did not produce any

corroborative fact in order to substantiate the charge.

7. In this context, reference of Rule 19 of Rules, 2016

is required to be made, which provides the provision for

imposing minor penalty, whereby and whereunder it is the

requirement of the law that the Government servant in

writing of the proposal to take action against him and of the

imputations of misconduct or misbehaviour on which it is

proposed to be taken, and giving him reasonable

opportunity of making such representation as he may wish

to make against the proposal. It further appears from the

aforesaid provision that considering the representation, if

any, submitted by the Government Servant under clause (a)

and recording a finding on each imputation of misconduct

or misbehaviour.

For ready reference, Rule 19 of Rules, 2016 is

reproduced hereunder as:

"19. Procedure for imposing minor penalties:-(1) Subject to the provisions of sub rule (3) of rule 18, no order imposing on a Government Servant any of the penalties specified in clauses (i) to

(iv) of rule 14 shall be made except after-

a) informing the Government Servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him reasonable opportunity of making such representation as he may wish to make against the proposal;

b) considering the representation, if any, submitted by the Government Servant under clause (a);

(c) recording a finding on each imputation of misconduct or misbehaviour."

8. It is, thus, evident that provision as contained

under Rule 19 of Rules, 2016 requires to provide an

opportunity to the delinquent employee by asking the

delinquent employee to make representation but it is not in

dispute that no representation was asked for from the

employee and there is no requirement of finding on the

charge imputated on the conduct of the petitioner.

9. The conduct Rule if has been enacted which in any

case is to be followed in strict sense. It is not in dispute

that the provision of Rule 19 provides the process for

imposing minor punishment. Even for the purpose of

imposing minor punishment, the statute stipulates to

provide an opportunity before taking any adverse decision

by giving an opportunity to file representation by the

delinquent employee with respect to the content of the

charge and same is required to be considered by recording

the finding of imputation of misconduct or misbehavior.

Here, in the instant case, it appears from the

record that the memorandum of charge has been issued on

the recommendation of Deputy Commissioner, Giridih but

the writ petitioner since was holding the post under the

State under Jharkhand Administrative Cadre and as such

the Government sought for evidence from the Deputy

Commissioner to proceed with the charge and to that effect

several correspondences were made vide letter dated

24,06.2013, 06.12.2013, 10.02.2014 and vide letter dated

15.02.2017 but the Deputy Commissioner, Giridih has

failed to substantiate that charge since no response to the

said letters have been made. The aforesaid issue coupled

with the fact of non-observance of provisions of Rule 19 (b)

and (C) of the Rules, 2016 clarifies that the petitioner was

not provided with an opportunity since no opportunity to

file representation was given, therefore, the statutory

provision as contained under Rule 19 (b) and (c) has not

been followed.

10. It is settled position of law that the disciplinary

authority can initiate a departmental proceeding under the

governing rule but the process stipulated in the aforesaid

governing rule is strictly to be adhered to otherwise the

punishment if imposed without adhering to the statutory

provision will be said to be not in consonance with the law

and will not be sustainable since order of punishment will

be treated to be in the teeth of statutory provision.

11. The mandate of the Rule 19 (b) and (c) since is to

provide opportunity to the delinquent employee to file

representation for its due consideration which is for the

purpose of observing the principles of natural justice but in

the instant case it is not disputed by learned counsel

appearing for the State that the writ petitioner was ever

given opportunity to file representation what to say about

its consideration as required under the provision of Rule 19

(b) and (c) of Rules, 2016.

12. It is settled position of law that decision is to be

taken by the authorities having power to take decision

strictly in accordance with law.

Reference in this regard be made to the judgment

rendered by Hon'ble Apex Court in Babu Verghese and

Ors. vs. Bar Council of Kerala and Ors., [(1999) 3 SCC

422], wherein at paragraphs 31 and 32 it has been held as

under:

"31.It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under: "[W]here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."

32.This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-judge bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognized as a statutory principle of administrative law."

The Hon'ble Apex Court further in the judgment

rendered in Commissioner of Income Tax, Mumbai vs.

Anjum M.H. Ghaswala & Ors., [(2002) 1 SCC 633], at

paragraph 27 as under:

"..... it is a normal rule of consideration that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself...."

Reference in this regard also be made to the

judgment rendered by the Hon'ble Apex Court in State of

Jharkhand & Ors. vs. Ambay Cements & Anr., [(2005)

1 SCC 368], wherein at paragraph 26 it has been held as

under:

"....it is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. It is also settled rule of interpretation that where a statute is penal in character, it must be strictly construed and followed....."

Reference is also made to the judgment rendered by

the Hon'ble Apex Court in Zuari Cement Ltd. vs.

Regional Director ESIC Hyderabad & Ors. [(2015) 7

SCC 690], wherein at paragraph 14 it has been held as

under:

"14. As per the scheme of the Act, the appropriate Government alone could grant or refuse exemption. When the statute prescribed the procedure for grant or refusal of exemption from the operation of the Act, it is to be done in that manner and not in any other manner. In State of Jharkhand v. Ambay Cements, it was held that: (SCC p. 378, para 26)

26.... it is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way."

13. This Court after having discussed the factual aspect

vis-a-vis the legal position has considered the finding

recorded by learned Single Judge wherefrom it is evident

that the learned Single Judge has found sufficient reason to

interfere with the impugned decision of punishment on the

ground that statutory provision as contained under Rule 19

(b) and (c) of Rules, 2016 has not been followed and in

absence thereof the punishment of 'Censure' has been

imposed, which led the learned Single Judge to interfere

with the order.

14. This Court, therefore, is of the considered view that

since the statutory mandate as provided under Rule 19 (b)