Jharkhand High Court

Sheo Kumar Singh vs The State Of Jharkhand on 13 September, 2024

Author: S.N. Pathak

Bench: S. N. Pathak

IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 1952 of 2017

Sheo Kumar Singh, son of Late Deyali Singh, Resident of - Village -
Budhuan, P.O. - Chanp, P.S. - Akorhi Gola Nagar, District - Rohtas, Bihar.
... Petitioner
VERSUS
1. The State of Jharkhand.
2. Secretary, Water Resources Department, Nepal House, Doranda, Ranchi,
Jharkhand
3. Under Secretary, Water Resources Department, Nepal House, Doranda,
Ranchi, Jharkhand
4. Joint Secretary (Vigilance), Water Resources Department, Nepal House,
Doranda, Ranchi, Jharkhand.
... ... Respondents.

CORAM: HON'BLE DR. JUSTICE S. N. PATHAK
For the Petitioner : Mr. Shrestha Gautam, Advocate
For the Respondents : Mr. Ravi Kerketta, SC-VI
Mr. Piyush Anand, AC to SC-VI

13/13.09.2024 Heard the parties.

PRAYER OF THE PETITIONER
2. The instant writ petitioner has been filed by the petitioner for a
quashing the Notification dated 23.12.2016 by which respondents have
inflicted multifold punishment especially in form of major punishment
upon the petitioner. Further prayer has been made for a direction upon the
respondents to grant and pay salary including entire amount of benefits of
ACP/ MACP, promotion with increments, arrears of pay accrued on the
basis of 6th pay revision committee report effective from 01.01.2006 up to
retirement date i.e. 31.12.2009, fixation of pension and forthwith pay the
same, gratuity, leave pay etc. up to date with monthly compound interest
and consequential benefits.
FACTS OF THE CASE

3. The factual exposition as has been delineated in the writ petition is that petitioner was initially appointed on 29.12.1973 as a Junior Engineer under Irrigation Department. After completing the course of Associate Membership Institution of Engineers, he was posted as an Assistant Engineer on 03.12.1987 in the office of Chief Engineer, Investigation and

RC Master Planning, Sub-Division, Dumri, Giridih. He was thereafter transferred on deputation in Minor Irrigation Division, Gaya and he joined as such on 02.06.1992 and continued till 01.09.1998. After repatriation, petitioner joined the parent department on 07.09.1998.

4. It is further case of the petitioner that in the month of May-June, 1997, a Scheme namely 'Sunischit Rojgar Yojna' was introduced for renovation work of Pyne, Ahar and Tank-Bed clearance and fund to the tune of Rs.1,38,00,000/- was allotted by the District Magistrate, Gaya. A departmental proceeding was conducted against the petitioner and two other Junior Engineers for the alleged irregularities and embezzlement of funds of the State Government while they were working as Assistant Engineers, Minor Irrigation Division, Gaya. Though the petitioner was awarded harsh punishment of dismissal from service and also an order for no additional payment to him except subsistence allowance for the period of suspension subject to permissibility as per Rule was passed vide memo no. 3753, dated 31.12.2008 whereas, the similarly situated two other Junior Engineers were given lesser punishment of 'Censure (Nindan)' i.e. a minor punishment. Being aggrieved, petitioner knocked door of this Court by filing W.P.(S) No. 4631 of 2009, which was disposed of vide order dated 01.05.2015 quashing the impugned order dated 31.12.2008 and further, the respondents were directed to decide quantum of punishment vis-à-vis other co-delinquents who had been inflicted with the minor punishment of 'Censure'. However, when order of the Court was not complied, he preferred Contempt Case (C) No. 695 of 2015, which was dropped vide order dated 08.04.2016.

5. When no order was passed by the respondents on quantum of punishment as petitioner got superannuated way back in the year 2009 itself, pensionary benefits could not be fixed. Being aggrieved, petitioner filed W.P.(S) No. 2454 of 2017 with a prayer for a direction upon the respondents to pass order fixing quantum of punishment. However, during pendency of the writ petition, respondents passed order dated 23.12.2016 inflicting major punishment to him, which is in teeth of the order and direction of this Court. Thereafter, vide order dated 17.01.2017, the writ petition was dismissed as withdrawn with liberty to the petitioner to file a

RC fresh writ petition. Thereafter, petitioner has knocked door of this Court by filing instant writ petition.

ARGUMENTS ON BEHALF OF THE PETITIONER

6. Mr. Shrestha Gautam, learned counsel argues that the punishments talks of:

(a) 10% of his pension shall be kept on deducting for 10 years;

(b) Since charges have been proved, therefore, he shall be only entitled for subsistence allowance for the period in which he was placed under suspension;

(c) 50% backwages shall be only given to him from the period 31.12.2008 to 31.12.2009;

(d) The period of suspension and the period from 31.12.2008 to 31.12.2009 in which he was placed under suspension, would be deemed pensionable.

Learned counsel argues that the punishment awarded to the petitioner is a major punishment and while passing such major punishment, the respondents have not at all considered the intent and purport of the order dated 01.05.2015, passed in W.P.(S) No. 4631 of 2009. The Court, while disposing of the writ petition earlier filed by the petitioner i.e. W.P.(S) No. 4631 of 2009, was of the opinion that case of the petitioner was discriminative and imparity and as such, a direction was passed to the respondents to consider afresh on the question of quantum of punishment vis-à-vis other co-delinquents strictly punished with minor punishment only. Learned counsel argues that the punishment, if any, should have been minor one, as was the intent and purport of the Court in the earlier writ petition. In the circumstances, this Court may pass appropriate order in the interest of justice. The impugned order is further unjustified on the face of it in view of the fact that similarly situated two other Junior Engineers were given lesser punishment of 'Censure (Nindan)' only i.e. a minor punishment whereas, even after direction of the Court on parity, petitioner has been awarded major punishment.

ARGUMENTS ON BEHALF OF THE RESPONDENTS

7. Mr. Ravi Kerketta, learned SC-VI assisted by Mr. Piyush Anand representing State opposes the contention of learned counsel for the petitioner and submits that the writ petition does not deserve any

RC consideration. While posted as an Assistant Engineer, Minor Irrigation Sub-Division NO. 3, Gaya under the Minor Irrigation Division, Gaya, during the period 02.06.1992 to 01.09.1998, petitioner was found guilty of embezzlement of Government funds in execution of scheme under 'Sunishchit Rojgar Guarantee Yojna'. After departmental proceeding initiated under Rule 55 of Civil Services (Classification, Control and Appeal) Rule, 1950, punishment was awarded for recovery of Rs.47,41,720/- with interest, dismissal from service and no additional payment except subsistence allowance for the period under suspension vide memo no. 1322, dated 19.04.2005. Learned counsel further argues that after thorough enquiry it was found that:

(i) Petitioner executed earth work after 15th June, which is not permissible;

(ii) He did not prepare estimate and bill of the said work taking longitudinal sections and cross sections which, in turn, resulted financial loss to the Government exchequer;

(iii) Bungling has also been detected in payment of muster rolls, payments were made in hand receipt which is completely irregularly;

(iv) Excess payment for Rs.63,300/- was made in cleaning and Chhilka construction work of Tajpur-Jamuawan Katiyawan Pine.

In view of irregularities done by the petitioner, he was inflicted with the punishment from dismissal from the service and further no additional payment except subsistence allowance for the period under suspension and subsistence allowance shall be paid, if it is payable under the rule. Learned counsel further argues that after quashment of punishment order by the High Court, the petitioner remained in service till his date of superannuation on 31.12.2009 and as such, the ongoing departmental proceeding was converted under Rule 43 'b' of the Jharkhand Pension Rule after approval of competent authority. There is no violation of natural justice, parity etc. and the impugned order is fully justified. In accordance with the punishment order bearing memo no. 5737, dated 23.12.2016, sanction order for release of pension/ gratuity has been issued vide memo no. 5154, dated 06.12.2017 to the office of the Accountant General (A & E), Jharkhand along with pension papers.

RC FINDINGS OF THE COURT

8. From the facts and pleadings, it appears that petitioner had moved this Court in W.P.(S) No. 4631 of 2009 and after hearing the parties, detailed order was passed. It is relevant to quote para-9 of the said Judgment, which reads as under:

"9. After having gone through the documents on record and the rivalized submissions although there has been no procedural irregularities but so far as quantum of punishment is concerned, it is quite evident that the similarly placed Junior Engineers for the self same cause of action have been given lesser punishment (Nindan) whereas the petitioner has been given major punishment of dismissal which is a clear case of discrimination and inequality. The petitioner has clearly made out a case of discrimination. So far as the quantum of punishment is concerned on the ground of parity the petitioner ought to have been awarded similar punishment. Therefore, in the fitness of things the case of petitioner deserves to be reconsidered afresh, therefore, in my view the impugned order (Annexure-7) is liable to be set aside and accordingly same is set aside and the matter is remitted back to the disciplinary authority (respondents) to consider the matter afresh on the question of quantum of punishment vis-à-vis other co-delinquents strictly, in accordance with law, and the respondent authority shall do well to reconsider the case of the petitioner within a period of two months from the date of receipt/ production of a copy of this order."

9. From the aforesaid observation of the Court, it appears that a clear direction was given to the respondents to consider the matter afresh on the question of quantum of punishment vis-à-vis other co-delinquents strictly, in accordance with law and were further directed to reconsider the case of the petitioner within a period of two months. Instead of acting on order and direction of the Court, the instant punishment order has been inflicted. From the punishment order, it appears that no consideration has been shown to the order passed by this Court in the earlier writ petition. Specific stand has been taken by learned counsel for the petitioner that similarly situated persons have been inflicted with punishment of censure (Nindan) whereas petitioner has been inflicted major punishment.

10. Comfortably inference can be drawn that the intent and purport of the order passed by this Court in the earlier writ petition was to consider case

RC of the petitioner for granting similar punishment which were granted to two similarly situated persons i.e. Junior Engineer but the same has not been done in the case of the petitioner and as such the impugned order is fit to be quashed and set aside.

11. The issue fell for consideration regarding the benefits granted to the petitioner after quashment of order of dismissal fell for consideration in W.P.(S) No. 7388 of 2016 [Mukesh Prasad Singh Vs. The State of Jharkhand and others] and this Court has clearly held in para-5 as under:

"5. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that case of the petitioner needs consideration in view of Rule 97 which is being quoted hereunder:

Rule 97. "(1) When a government servant who has been dismissed, removed or suspended, reinstated, the authority competent to order the reinstatement shall consider and make specific order-

(a)Regarding the pay and allowance to be paid to the Government servant for the period of his absence from duty, and

(b) Whether or not the said period shall be treated as a period spent on duty.

(2) Where the authority mentioned in sub-rule (1), is of opinion that the Government servant has been fully exonerated, or in the case of suspension, that it was wholly unjustified, the Government servant shall give full pay and allowance to which he would have been entitled had he not been dismissed, removed or suspended, as the case may be. (3) In other cases, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe.

Provided that the payment of allowances under clause (2) or clause (3) shall be subject to all other conditions under which such allowance are admissible. (4) In a case falling under clause (2), the period of absence from duty shall be treated as a period spent on duty for all purposes.

(5) In a case falling under clause (2) the period of absence from duty shall not be treated as period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose:

Provided that if the Government servant so desires such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant."

Rule 97 as quoted above is pari materia to Rule 54 of fundamental Rules which is as under:

RC Rule 54. "(1) When a Government servant who has been dismissed, removed or suspended is reinstated; the authority competent to order the reinstatement shall consider and make a specific order-

(a) Regarding the pay and allowance to be paid to the Government servant for the period of his absence from duty; and (b) Whether or not the said period shall be treated as a period spent on duty;

(2) Where the authority mentioned in sub-rule (1) is of opinion that the Government servant has been fully exonerated or in the case of suspension, that it was wholly unjustified, the Government servant shall be given the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or suspended, as the case may be.

(3) In other cases, the Government servant shall be given such proportion of such pay and allowances as such competent allowances are admissible:

Provided that the payment of allowances under clause (2) or clause (3) shall be subject to all other conditions under which such allowances are admissible.

Provided further that such proportion of such pay and allowances shall not be less than the subsistence and other allowances admissible under Rule 53.

(4) In a case falling under clause (2), the period of absence from duty shall be treated as a period spent on duty for all purposes.

(5) In a case falling under clause (3), the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose:

Provided that if the Government servant so desired, such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant."

The aforesaid two provisions being pari materia, the interpretation thereof would also be same and similar. The Hon'ble Supreme Court in the case of "M.Gopalakrishna Naidu vrs. State of Madhya Pradesh" reported in AIR 1968 SC 240, interpreted Rule 54 of fundamental Rules and held as under:

(6) "It is true that the order under F.R. 54 is in a sense a consequential order in that it would be passed after an order of reinstatement is made. But the fact that it is a consequential order does not determine the question whether the Government servant has to be given an opportunity to show cause or not. It is also true that in a case where reinstatement is ordered after a departmental inquiry the government servant would ordinarily have had an opportunity to show case. In such a case, the authority no doubt would have before him the entire record including

RC the explanation given by the government servant from which all the facts and circumstances of the case would be before the authority and from which he can form the opinion as to whether he has fully exonerated or not and in case of suspension whether such suspension was wholly unjustified or not. In such as case the order passed under a rule such as the present Fundamental Rule might be said to be a consequential order following a departmental inquiry.

But there are three classes of case as laid down by the proviso in Art. 311 where a departmental inquiry would not be held viz. (a) where a person is dismissed, removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge, (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied for reasons to be recorded in writing that it is not reasonably practicable to hold such an inquiry, and

(c) where the President or the Governor as the case may be is satisfied that in the interest of security of the State it is not expedient to hold such inquiry. Since there would be no inquiry in these classes of cases the authority would not have before him any explanation by the government servant. The authority in such cases would have to consider and pass the order merely on such facts which might be placed before him by the department concerned. The order in such a case would be ex-parte without the authority having the order side of the picture. In such cases the order that such authority would pass would not be a consequential order as where a departmental inquiry has been held. Therefore, an order passed under Fundamental Rule 54 is not always a consequential order nor is such order a continuation of the departmental proceeding taken against the employee.

(7) It is true as Mr. Sen pointed out that F.R. 54 does not in express terms lay down that the authority shall give to the employee concerned the opportunity to show cause before he passes the order. Even so, the question is whether the rule casts such a duty on the authority by implication. The order as to whether a given case falls under Cl. 2 or Cl. 5 of the Fundamental Rule must depend on the examination by the authority of all the facts and circumstances of the case and his forming the opinion therefrom of two factual findings; whether the employee was fully exonerated and in case of suspension whether it was wholly unjustified. Besides, an order passed under this rule would obviously affect the government servant adversely if it is one made under clauses 3 and 5. Consideration under this rule depending as it does on facts and circumstances in their entirety, passing an order on the basis of factual finding arrived at from such facts and circumstances and such an

RC order resulting in pecuniary loss to the government servant must be held to be an objective rather than a subjective function. The very nature of the function implies the duty to act judicially. In such a case if an opportunity to show cause against the action, proposed is not afforded, as admittedly it was not done in the present case, the order is liable to be struck down as invalid on the ground that it is one in breach of the principles of natural justice."

In the present case no notice for passing any order under Rule 97 of the service code was ever issued to the petitioner and in absence of any notice prior to passing an order taking recourse of Rule 97 is bad in law. The Division Bench of the Patna High Court in the case of "Sri Mahabir Prasad vrs. State of Bihar" reported in 1988 PLJR 82 after considering the provision of fundamental Rule 54 had held that prior to passing the order under Rule 97 a notice is required to be served to a delinquent prior to passing any order. The impugned orders so passed has been done without adhering to the provisions of law and suffers from complete non-application of mind. The impugned orders is also non-speaking as because none of the ground so raised by the petitioner has been dealt with prior to passing the impugned orders."

12. The Hon'ble Apex Court in the case of Rajendra Yadav Vs. State of Madhya Pradesh and others reported in (2013) 3 SCC 73 has held in para-9 to 11 as under:

"9. The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The disciplinary authority cannot impose punishment which is disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences.

10. The principle stated above is seen applied in a few judgments of this Court. The earliest one is DG of Police v. G. Dasayan reported in (1998) 2 SCC 407 wherein one Dasayan, a police constable, along with two other constables and one Head Constable were charged for the same acts of misconduct. The disciplinary authority exonerated two other constables, but imposed the punishment of dismissal from service on Dasayan and that of compulsory retirement on the Head Constable. This Court, in order to meet the ends of justice, substituted the order of compulsory retirement in place of the order of dismissal from

RC service on Dasayan, applying the principle of parity in punishment among co-delinquents. This Court held that it may, otherwise, violate Article 14 of the Constitution of India.

11. In Shaileshkumar Harshadbhai Shah case reported in (2006) 6 SCC 548 the workman was dismissed from service for proved misconduct. However, few other workmen, against whom there were identical allegations, were allowed to avail of the benefit of voluntary retirement scheme. In such circumstances, this Court directed that the workman also be treated on the same footing and be given the benefit of voluntary retirement from service from the month on which the others were given the benefit."

13. Admittedly, the observations and direction passed in the earlier writ petition was not considered by the respondents and in utter violation of the principles of natural justice and directions of this Court, the respondents have passed order in a hot haste, which required to be quashed and set aside. Taking into consideration his status prior to dismissal, petitioner has also prayed for the benefits of ACP and MACP.

14. Having heard counsel for the parties and considering facts and circumstances of the case, the impugned Notification dated 23.12.2016 is hereby quashed and set aside. Petitioner is at liberty to file a fresh representation before the respondents. If petitioner files the representation for grant of benefits of ACP/ MACP, promotion with increments, arrears of pay accrued on the basis of 6th pay revision committee report effective from 01.01.2006 up to retirement date i.e. 31.12.2009, fixation of pension, payment of amounts towards gratuity and leave etc. up to date with interest and consequential benefits, the same shall be considered in accordance with law and reasoned order be passed within a period of eight weeks thereafter. If petitioner is found entitled for the benefits, the same shall be paid within a period of eight weeks thereafter. However, if any adverse order is passed, the same shall be communicated to the petitioner.

15. The writ petition stands allowed.

(Dr. S.N. Pathak, J.)