Jharkhand High Court
Nirmal Shashi Tirkey vs The State Of Jharkhand on 17 January, 2024
Author: S.N. Pathak
Bench: S.N. Pathak
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 1220 of 2015
Nirmal Shashi Tirkey .... .... Petitioner
Versus
1. The State of Jharkhand
2. The Director General cum Inspector General of Police, Jharkhand,
Ranchi.
3. The Inspector General of Police, Special Branch, Jharkhand, Ranchi.
4. The Deputy Inspector General of Police, Special Branch, Jharkhand,
Ranchi.
5. The Superintendent of Police, Special Branch, Jharkhand, Ranchi.
.... ... Respondents
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CORAM : HON'BLE DR. JUSTICE S.N. PATHAK
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For the Petitioner : Mr. Chanchal Jain, Advocate
For the Respondents : Mr. Anil Kumar Singh, AC to GP-I
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7/ 17.01.2024 Heard the parties.
2. The petitioner has approached this Court with a prayer for
quashing of the order contained in Memo No. 3415 dated 6.12.2004 passed by
the Deputy Inspector General of Police, Special Branch, Ranchi by which two
future increments have been forfeited which is equivalent to three black marks.
The petitioner has also challenged the appellate order contained in Memo No.
3537 dated 28.12.2006 whereby the appeal preferred by the petitioner has been
rejected.
3. The facts of the case are that the Superintendent of Police
(Security), Special Branch was informed vide letter no. 146 dated 22.8.2003
issued under the signature of Private Secretary to the Departmental Minister
that one Ram Govind Purty (Bodyguard) is unauthorisedly absent from the
date of his joining. A preliminary enquiry was conducted in which it was found
that the petitioner was prime facie guilty in helping said Ram Govind Purty to
put the attendance during the period of unauthorised absence. Therefore,
charge memo was issued under the signature of Superintendent of Police,
Special Branch by memo no. 1485 dated 28.7.2004 under the provisions of
Rule 828 (c) of the Jharkhand Police Manual. It was alleged inter alia that the
petitioner being the Inspector took the letter receipt register from In-charge of
the register and kept it for some days and helped said Ram Govind Purty in
getting salary of unauthorized absence of 11 months. It was also alleged that
there had been manipulation in entry no. 1399 dated 23.8.2003 with respect to
Ram Govind Purty. Denying the allegation levelled against the petitioner, he
submitted his reply on 4.8.2004. Thereafter, departmental enquiry was started
and the enquiry officer submitted his report on 30.10.2004 holding the
petitioner guilty of the charge. Agreeing with the enquiry report, the
disciplinary authority (Deputy Inspector General of Police, Special Branch,
Jharkhand) inflicted the impugned punishment of forfeiture of two increments
which amounts to three black marks vide Memo No. 3415 dated 6.12.2004.
Aggrieved thereby, the petitioner filed appeal before the appellate authority on
6.6.2005. However, the Inspector General of Police, Special Branch, Jharkhand
being the appellate authority rejected the appeal and the same was
communicated to the petitioner by memo No. 3537 dated 28.12.2006. Hence,
this writ petition.
4. Assailing the impugned orders, Mr. Chanchal Jain, learned
counsel appearing for the petitioner assiduously argues that the same are not
tenable in the eyes of law, inasmuch as, the same are totally against the settled
principles of law what has been held by the Hon'ble Apex Court in the case of
Kulwant Singh Gill Vs. State of Punjab & Ors., reported in 1991 Suppl (1)
SCC 504. Learned counsel further submits that whenever a major penalty is
imposed, certainly a regular enquiry has to be conducted and in absence of
regular departmental proceeding, the major penalty is clearly illegal. He further
submits that in the instant case, forfeiture of two increments equivalent to three
black marks has been imposed, which is certainly a major punishment, as has
been held by the Hon'ble Apex Court in the case of Kulwant Singh Gill
(supra), and the respondents without conducting to the regular departmental
proceeding has imposed punishment.
5. Learned counsel further submits that even otherwise, the
impugned order is in teeth of Rule 834 of the Jharkhand Police Manual,
inasmuch as, imposition of black marks may be awarded in appropriate cases
to all officers below the rank of Inspector. Since, the petitioner was working as
Inspector at the time of imposition of penalty, the imposition of black marks is
not sustainable against the petitioner.
6. Placing reliance on the aforesaid legal aspects, learned counsel
submits that it is a fit case in which the impugned punishment orders are
quashed and set aside by this Court.
7. On the other hand, Mr. Anil Kumar Singh, learned AC to GP-I
opposing the contention of learned counsel for the petitioner submits that since
the petitioner has been held guilty by the enquiry officer, he was rightly
inflicted the punishment by the disciplinary authority, affirmed by the appellate
authority. Learned counsel submits that imposition of black marks which is
only equivalent to forfeiture of increment cannot be said to be a major
punishment. Learned counsel submits that forfeiture of increment is minor in
nature and as such, rightly the punishment has been awarded under Rule 828
(c) of the Jharkhand Police Manual. Justifying the action of the respondents,
learned counsel submits that there is no illegality and/or irregularity in the
impugned order and the same are fully justified and in accordance with law.
8. Having heard the learned counsel for the parties and upon perusal
of the records, this Court is of the view that interference in the impugned
orders is necessitated for the following facts and reasons:
(i) Admittedly, the petitioner was charged with the allegation of helping
one police personnel in procuring the attendance and in getting the
salary of 11 months, though the said police personnel was absent from
duty where he was deputed at the disposal of the Departmental
Minister.
(ii) The respondents were at liberty to proceed against the petitioner on the
basis of charges framed. If the respondents think it proper to impose a
major penalty, the requirement of law is that there should have been a
regular departmental proceeding and in a summary proceeding, no
major punishment can be imposed against a delinquent. Admittedly, in
the present case, the respondents have chosen to adopt summary
proceeding under Rule 826 (c) of the Police Manual. The disciplinary
authority without issuance of second show cause after supplying the
copy of enquiry report, straightway imposed the punishment of
forfeiture of two increments equivalent to three black marks. Law is
well settled that whenever a finding has been derived that the
delinquent is entitled for major punishment, the regular proceeding
should be adhered to.
(iii) No doubt it is true that imposition of black marks in accordance with
Police Manual is a major punishment. The issue as to whether stoppage
of increment with cumulative effect is a major punishment or minor one
has been set at rest by the Hon'ble Apex Court in the case of Kulwant
Singh (supra). The relevant para-s is quoted herein below:-
"Withholding of increments of pay simpliciter undoubtedly
is a minor penalty within the meaning of Rule 5(iv). But
sub-rule (v) postulates reduction to a lower stage in the
time-scale of pay for a specified period with further
directions as to whether or not the Government employee
shall earn increments of pay during the period of such
reductions and whether on the expiry of such period the
reduction will or will not have the effect of postponing the
future increments of his pay. It is an independent head of
penalty and it could be imposed as punishment in an
appropriate case. It is one of the major penalties. The
impugned order of stoppage of two increments with
cumulative effect whether would fall within the meaning of
Rule 5(v)? If it so fails Rules 8 and 9 of the Rules require
conducting of regular enquiry. The contention of Shri
Nayar, learned counsel for the State is that withholding two
increments with cumulative effect is only a minor penalty as
it does not amount to reduction to a lower stage in the time-
scale of pay. We find it extremely difficult to countenance
the contention. Withholding of increments of pay simpliciter
without any hedge over it certainly comes within the
meaning of Rule 5(iv) of the Rules. But when penalty was
imposed withholding two increments i.e. for two years with
cumulative effect, it would indisputably mean that the two
increments earned by the employee was cut off as a
measure of penalty for ever in his upward march of earning
higher scale of pay. In other words the clock is put back to
a lower stage in the timescale of pay and on expiry of two
years the clock starts working from that stage afresh. The
insidious effect of the impugned order, by necessary
implication, is that the appellant employee is reduced in his
time scale by two places and it is in perpetuity during the
rest of the tenure of his service with a direction that two
years' increments would not be counted in his time-scale of
pay as a measure of penalty. The words are the skin to the
language which if pealed off its true colour or its resultant
effects would become apparent. When we broach the
problem from this perspective the effect is as envisaged
under Rule 5(v) of the Rules. It is undoubted that the
Division Bench in Sarwan Singh v. State of Punjab & Ors.,
I.L.R. 1985 2 P & H. 193, P.C. Jain, A.C.J. speaking for the
division bench, while considering similar question, in
paragraph 8 held that the stoppage of increments with
cumulative effect, by no stretch of imagination falls within
clause (v) of Rule 5 or in rule 4.12 of Punjab Civil Services
Rules. It was further held that under clause (v) of Rule 5
there has to be a reduction to a lower stage in the time-
scale of pay by the competent authority as a measure of
penalty and the period for which such a reduction is to be
effective has to be stated and on restoration it has further to
be specified whether the reduction shall operate to
postpone the future increments of his pay. In such cases
withholding of the increments without cumulative effect
does not at all arise. In case where the increments are
withhold with or without cumulative effect the Government
employee is never reduced to a lower stage of time scale of
pay. Accordingly it was held that clause (iv) of Rule 5 is
applicable to the facts of that case. With respect we are
unable to agree with the High Court. If the literal
interpretation is adopted the learned Judges may be right to
arrive at that conclusion. But if the effect is kept at the back
of the mind, it would always be so, the result will be the
conclusion as we have arrived at. If the reasoning of the
High Court is given acceptance, it would empower the
disciplinary authority to impose, under the garb of
stoppage of increments, of earning future increments in the
time scale of pay even permanently with expressly stating
so. This preposterous consequence cannot be permitted to
be permeated. Rule 5(IV) does not empower the
disciplinary authority to impose penalty of withholding
increments of pay with cumulative effect except after
holding inquiry and following the prescribed procedure.
Then the order would be without jurisdiction or authority of
law, and it would be per se void. Considering from this
angle we have no hesitation to hold that the impugned
order would come within the meaning of Rule 5(v) of the
Rules; it is a major penalty and imposition of the impugned
penalty without enquiry is per se illegal."
(iv) Further the High Court of Delhi in the case of Uttam Kumar Vs. Delhi
Jal Board, reported in (2001) 58 DRJ 342 has laid down the same
principle and opined that there is a distinction between withholding of
increment without cumulative effect and withholding of increment with
cumulative effect. The former is in the realm of minor punishment and
the latter is in the compartment of major penalty. In the latter one, there
is permanent postponement of the increments, whereas in the former
one it is for a specified period, to be released after expiry of the said
period.
(v) The same issue fell for consideration before the Division Bench of this
Court in Bipin Bihari Mishra's case (supra), wherein in para-12 this
Court has held that:
"12. In "Kulwant Singh Gill", on a conjoint reading of sub-rule (iv)
and sub-rule (v) of Rule 5 of the Punjab Rules, the Supreme Court
has observed that withholding of two increments would mean that the
employee would be now denied upward march of earning higher
scale of pay. That is to say, the employee is put back to a lower stage
in the time-scale of pay and it is only on expiry of two years that he
would resume the position where he was before the punishment of
withholding of two increments was inflicted upon him. Viewed thus,
the Supreme Court has held that withholding of two increments with
cumulative effect is, infact, a penalty under sub-rule (v) which is a
major penalty. Applying a similar logic in the present case, we find
that the respondent who has been awarded punishment of
withholding of one increment with cumulative effect would suffer a
similar disability, may be for one year, but nonetheless the effect
would be that he suffers reduction to a lower stage in the time-scale
of pay for one year, which would be a major penalty. No doubt, Rule-
49 of the Civil Services Rules, 1930 does not specify that reduction to
a lower post or time-scale, or to a lower stage in a time-scale under
sub-rule (iii) would be a major penalty but going by the judgment in
"Kulwant Singh Gill", we have no hesitation to hold that the penalty
under Rule 49 (iii) of the Civil Services (Classification, Control and
Appeal) Rules, 1930 is a major penalty and the penalty of
withholding of one annual increment with cumulative effect is, in
fact, a punishment falling under Rule 49 (iii)."
(vi) Similar view fell for consideration before this Court in the case of
Nikhila Nand Das Vs. The State of Jharkhand & Ors., reported in
W.P.(S) No. 1029 of 2018, whereby it was held that withholding of one
increment with cumulative effect is a major punishment.
(vii) In the instant case, the punishment of withholding of two increments is
of cumulative effect, as the order does not specify the period that the
increments shall be released after expiry of the said period. Certainly
forfeiture of increments is going to affect the petitioner all along his
service. Hence, it is a major punishment was supposed to be passed in a
regular departmental proceeding by the respondents.
(viii) The same and identical view was further expressed by this Court in the
case of Rajendra Prasad Sharma Vs. The State of Jharkhand & ors.,
in W.P.(S) No. 415 of 2021.
(ix) To sum up, it can comfortably be inferred that since a major punishment
has been imposed against the petitioner in a summary proceeding under
the provisions of Rule 826 (c) of the Jharkhand Police Manual, the
impugned order is fit to be quashed and set aside. While awarding a
major punishment, the respondent authorities ought to have considered
that cardinal principle of natural justice has to be adhered to.
(x) The contention of learned counsel for the respondents that the petitioner
was not prejudiced by non-issuance of second show cause and the
punishment is minor in nature are not acceptable to this Court. Law is
well neigh settled that whenever the authority decides to give major
penalty, the issuance of second show cause notice along with the copy
of enquiry report is a sine qua non and no major punishment can be
awarded in a summary proceeding.
(xi) The impugned punishment order is even otherwise not sustainable in
view of Rule 834 of the Jharkhand Police Manual, which talks about
imposition of black marks. The Rule provides that black marks may be
awarded in appropriate cases to all officers below the rank of Inspector.
The petitioner was at the relevant point of time holding the post of
Inspector and as such, imposition of black marks is not sustainable.
9. As a sequitur to the aforesaid observations, rules, guidelines, legal
propositions and judicial pronouncements, the order contained in Memo No.
3415 dated 6.12.2004 passed by the Deputy Inspector General of Police,
Special Branch, Ranchi and the appellate order contained in Memo No. 3537
dated 28.12.2006 are hereby quashed and set aside. The respondents are
directed to restore the increments with all consequential benefits to the
petitioner within a period of six weeks from the date of receipt/ production of a
copy of this order.
10. With the aforesaid observations and directions, this writ petition
stands allowed.
(Dr. S.N. Pathak, J.)
R.Kr.
