Gupteshwar Ram Vs. State of Jharkhand and Ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/70017
CourtJharkhand High Court
Decided OnApr-28-2016
AppellantGupteshwar Ram
RespondentState of Jharkhand and Ors.
Excerpt:
in the high court of jharkhand at ranchi w.p. (s) no.1696 of 2006 gupteshwar ram, son of shri akshaya lal ram, resident of kunwar singh colony, hinoo, p.o.-doranda, p.s. doranda, district-ranchi. .... petitioner versus 1.the state of jharkhand 2. the principal secretary, human resources development, primary & secondary education, govt. of jharkhand, ranchi.3. the secretary, primary and secondary education, govt. of jharkhand, ranchi.4. the state of bihar.5. the director (administration)-cum-joint secretary, secondary/primary, govt. of bihar, patna.6. the joint secretary, secondary/primary education department, govt. of jharkhand, ranchi. ...... respondents --- coram : hon'ble mr. justice pramath patnaik --- for the petitioner : mr. arpan mishra, advocate for the respondents : mr. rakesh kr. shahi, j.c to a.a.g ----- 08/28.04.2016 being partly aggrieved by the impugned order dated 19.06.2000 (annexure-2) by which the petitioner has prayed for quashing of the same and for direction to respondents to pay the full salary to the petitioner from 07.06.1999 to 19.06.2000, the period of suspension, in view of rule 97 of the bihar service code.2. the facts as disclosed in the writ application, in a nutshell is that the petitioner was placed under suspension thereafter the inquiry officer was appointed and the departmental proceeding was initiated against the petitioner. there are 10 charges instituted against the petitioner. in the inquiry proceeding, the petitioner has been found guilty by the charge no.4, which has been fully proved. as per the inquiry report, charge nos. 5 and 6 are partly proved and other charges against the petitioner are not proved. after conclusion of the departmental proceeding, the petitioner although has been exonerated from the punishment of suspension but he has been inflicted punishment withholding of three annual increments and during the period of suspension, he is entitled to suspension allowance. being aggrieved by the impugned order, the petitioner has submitted representations dated 30.01.2001 and 29.03.2004 but the same have fallen under deaf ears.3. mr. arpan mishra, learned counsel for the petitioner has vehemently submitted that the impugned order dated 19.06.2000 (annexure-2) is non- speaking and non-reasoned order. on that score, the impugned order is liable to be set aside. learned counsel for the petitioner further submits that since the impugned order of punishment i.e. withholding of three annual increments with cumulative effect is a major punishment as has been held by the hon'ble apex court as reported in 1991 supp. (1) scc504in the case of kulwant singh gill vs. state of punjab. the impugned order being a major penalty, the second show cause notice prior to infliction of punishment ought to have been issued to the petitioner. in the instant case, no second show cause notice was issued prior to the imposition of the punishment therefore, the impugned order is liable to be interfered with. learned counsel further submits that the petitioner has retired from services on 31.07.2008. the petitioner is entitled to pay arrears during the aforesaid period of suspension.4. mr. rakesh kr. shahi, learned j.c to a.a.g, appearing for the respondents referring the submissions made in the counter-affidavit, has submitted that considering the gravity of charges, the punishment has been inflicted to the petitioner. learned counsel for the respondents has referred to the supplementary counter-affidavit dated 29.06.2015 it has been submitted that the punishment order as contained in memo no.432 dated 19.06.2000 does not come under the major punishment and therefore, the second show cause notice was not required to be served upon the petitioner. learned counsel for the respondents further submits that in the case of minor penalty, it has not needed to issue second show cause to be served upon the petitioner after conducting the departmental proceedings.5. after hearing learned counsel for the respective parties and perusal of the documents on record and after giving anxious consideration, i am of the considered view that the impugned order of punishment inflicted upon the petitioner vide order dated 19.06.2000 is not legally sustainable, in view of the facts stated herein-below:- (i) on perusal of the impugned order dated 19.06.2000, it is quite apparent that the said order does not contain the reasons and it is cryptic and non- reasoned order which cannot be sustained in the eye of law and on that score, the impugned order of punishment is liable to be interfered with. (ii) the hon'ble apex court in the case of kulwant singh gill vs. state of punjab as reported in 1991 supp. (1) scc504in paragraph 4 held as under:-“4. 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 falls 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 time scale 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 peeled 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, 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 withheld 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, (sic stoppage) of earning future increments in the time scale of pay even permanently without 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.”6. therefore, in that view of the matter the impugned order of punishment is a major punishment i.e. withholding of increments with cumulative effect (annexure-2) but as it appears from the counter-affidavit as well as supplementary counter-affidavit dated 29.06.2015, filed by the respondents, that the respondents are under mistaken notion that infliction of punishment of stoppage of increment is minor punishment. however, in view of the decisions of punishment rendered by the hon'ble apex court in the case of kulwant singh gill (supra), the impugned order being a major punishment, second show cause notice prior to infliction of punishment was sine-qua-non for compliance of principles of natural justice but same having not been followed by the respondent authorities, impugned order is not legally sustainable.7. viewed thus, the impugned order of punishment dated 19.06.2000 (annexure-2 to the writ application) being not legally sustainable is, hereby, quashed and the respondent authority is directed to determine the balance arrear of salary for suspension period i.e. from 07.06.1999 to 19.06.2000 since more than seven years have elapsed from the date of retirement of the petitioner and pass an appropriate order in accordance with rule 97 of the bihar service code and other relevant statutory law expeditiously, preferably within a period of 12 weeks from the date of receipt/production of the copy of this order .8. the writ petition is disposed of with the aforesaid directions. (pramath patnaik, j.) rkm
Judgment:

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No.1696 of 2006 Gupteshwar Ram, son of Shri Akshaya Lal Ram, resident of Kunwar Singh Colony, Hinoo, P.O.-Doranda, P.S. Doranda, District-Ranchi. .... Petitioner Versus 1.The State of Jharkhand 2. The Principal Secretary, Human Resources Development, Primary & Secondary Education, Govt. of Jharkhand, Ranchi.

3. The Secretary, Primary and Secondary Education, Govt. of Jharkhand, Ranchi.

4. The State of Bihar.

5. The Director (Administration)-cum-Joint Secretary, Secondary/Primary, Govt. of Bihar, Patna.

6. The Joint Secretary, Secondary/Primary Education Department, Govt. of Jharkhand, Ranchi. ...... Respondents --- CORAM : HON'BLE MR. JUSTICE PRAMATH PATNAIK --- For the Petitioner : Mr. Arpan Mishra, Advocate For the Respondents : Mr. Rakesh Kr. Shahi, J.C to A.A.G ----- 08/28.04.2016 Being partly aggrieved by the impugned order dated 19.06.2000 (Annexure-2) by which the petitioner has prayed for quashing of the same and for direction to respondents to pay the full salary to the petitioner from 07.06.1999 to 19.06.2000, the period of suspension, in view of Rule 97 of the Bihar Service Code.

2. The facts as disclosed in the writ application, in a nutshell is that the petitioner was placed under suspension thereafter the inquiry officer was appointed and the departmental proceeding was initiated against the petitioner. There are 10 charges instituted against the petitioner. In the inquiry proceeding, the petitioner has been found guilty by the charge no.4, which has been fully proved. As per the inquiry report, charge nos. 5 and 6 are partly proved and other charges against the petitioner are not proved. After conclusion of the departmental proceeding, the petitioner although has been exonerated from the punishment of suspension but he has been inflicted punishment withholding of three annual increments and during the period of suspension, he is entitled to suspension allowance. Being aggrieved by the impugned order, the petitioner has submitted representations dated 30.01.2001 and 29.03.2004 but the same have fallen under deaf ears.

3. Mr. Arpan Mishra, learned counsel for the petitioner has vehemently submitted that the impugned order dated 19.06.2000 (Annexure-2) is non- speaking and non-reasoned order. On that score, the impugned order is liable to be set aside. Learned counsel for the petitioner further submits that since the impugned order of punishment i.e. withholding of three annual increments with cumulative effect is a major punishment as has been held by the Hon'ble Apex Court as reported in 1991 supp. (1) SCC504in the case of Kulwant Singh Gill Vs. State of Punjab. The impugned order being a major penalty, the second show cause notice prior to infliction of punishment ought to have been issued to the petitioner. In the instant case, no second show cause notice was issued prior to the imposition of the punishment therefore, the impugned order is liable to be interfered with. Learned counsel further submits that the petitioner has retired from services on 31.07.2008. The petitioner is entitled to pay arrears during the aforesaid period of suspension.

4. Mr. Rakesh Kr. Shahi, learned J.C to A.A.G, appearing for the respondents referring the submissions made in the counter-affidavit, has submitted that considering the gravity of charges, the punishment has been inflicted to the petitioner. Learned counsel for the respondents has referred to the supplementary counter-affidavit dated 29.06.2015 it has been submitted that the punishment order as contained in memo no.432 dated 19.06.2000 does not come under the major punishment and therefore, the second show cause notice was not required to be served upon the petitioner. Learned counsel for the respondents further submits that in the case of minor penalty, it has not needed to issue second show cause to be served upon the petitioner after conducting the departmental proceedings.

5. After hearing learned counsel for the respective parties and perusal of the documents on record and after giving anxious consideration, I am of the considered view that the impugned order of punishment inflicted upon the petitioner vide order dated 19.06.2000 is not legally sustainable, in view of the facts stated herein-below:- (i) On perusal of the impugned order dated 19.06.2000, it is quite apparent that the said order does not contain the reasons and it is cryptic and non- reasoned order which cannot be sustained in the eye of law and on that score, the impugned order of punishment is liable to be interfered with. (ii) The Hon'ble Apex Court in the case of Kulwant Singh Gill Vs. State of Punjab as reported in 1991 supp. (1) SCC504in paragraph 4 held as under:-

“4. 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 falls 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 time scale 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 peeled 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, 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 withheld 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, (sic stoppage) of earning future increments in the time scale of pay even permanently without 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.”

6. Therefore, in that view of the matter the impugned order of punishment is a major punishment i.e. withholding of increments with cumulative effect (Annexure-2) but as it appears from the counter-affidavit as well as supplementary counter-affidavit dated 29.06.2015, filed by the respondents, that the respondents are under mistaken notion that infliction of punishment of stoppage of increment is minor punishment. However, in view of the decisions of punishment rendered by the Hon'ble Apex Court in the case of Kulwant Singh Gill (Supra), the impugned order being a major punishment, second show cause notice prior to infliction of punishment was sine-qua-non for compliance of principles of natural justice but same having not been followed by the respondent authorities, impugned order is not legally sustainable.

7. Viewed thus, the impugned order of punishment dated 19.06.2000 (Annexure-2 to the writ application) being not legally sustainable is, hereby, quashed and the respondent authority is directed to determine the balance arrear of salary for suspension period i.e. from 07.06.1999 to 19.06.2000 since more than seven years have elapsed from the date of retirement of the petitioner and pass an appropriate order in accordance with Rule 97 of the Bihar Service Code and other relevant statutory law expeditiously, preferably within a period of 12 weeks from the date of receipt/production of the copy of this order .

8. The writ petition is disposed of with the aforesaid directions. (Pramath Patnaik, J.) RKM