Allowed

Surendra Kumar Sinha v. State of Jharkhand And Ors.

Jharkhand HC8 Feb 2021WPC/199/2011

Case brief

AI extract

What is this about?

The High Court quashed departmental punishment orders where the Disciplinary Authority differed from an Inquiry Officer who exonerated the petitioner, without issuing a mandatory show-cause notice. The matter was remitted for a fresh order.

What did the court decide?

Impugned orders dated 17.10.2006 and 08.08.2009 quashed and set aside; matter remitted to Disciplinary Authority for fresh order seeking explanations; interim entitlement to benefits if no response wi

Surendra Kumar Sinha Vs State of Jharkhand And Ors. — Service and Employment | Jharkhand HC (2021)

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THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No.199 of 2011

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Surendra Kumar Sinha ..… Petitioner

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Versus

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The State of Jharkhand

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The Secretary, Water Resources, Nepal House, Doranda, Jharkhand, Ranchi

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The Deputy Secretary, Water Resources Department, Nepal House, Doranda, Jharkhand, Ranchi

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The Under Secretary, Water Resources Department, Nepal House, Doranda, Jharkhand, Ranchi

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The Joint Secretary (Management Cell), Water Resources Department, Nepal House, Doranda, Jharkhand, Ranchi

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….. Respondents

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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. Mr. Saurav Shekhar, Advocate For the Respondents : J.C. to S.C.V

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07/08.02.2021 Heard learned counsel for the parties through V.C.

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2. The instant writ application has been preferred by the petitioner praying therein for quashing the order as contained in Memo No. 2857 dated 08.08.2009 issued by Respondent No. 4, whereby the petitioner has been punished as follows:

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Withholding of pay of two days, i.e. 25-26^th April,

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2005 on account of absence from duty without any kind of leave.

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Withholding of payment of arrear of salary other

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than the subsistence allowance during the suspension period.

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Censure for the year 2005-06.

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3. The brief fact necessary for disposal of the instant case is that the memo of charge was issued to the petitioner and thereafter, an enquiry was held after following principles of natural justice and thereafter, Inquiry Officer had exonerated the petitioner from all the three charges and submitted its report to the Disciplinary Authority.

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Subsequently, the Disciplinary Authority passed an order of punishment dated 17.10.2006. Thereafter, the petitioner filed an appeal and his appeal was disposed of by only deleting the punishment of Censure.

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4. Mr. Saurav Shekhar, learned counsel for the petitioner submits that while the petitioner was posted at Koderma as Executive Engineer, Minor Irrigation Department, Government of Jharkhand, he was suspended with effect from 04.08.2005. Thereafter, a departmental proceeding was initiated against him. He further submits that the Inquiry Officer after discussing and dealing with all aspects of the matter, exonerated the petitioner from the charges, however, the Disciplinary Authority without giving any show-cause notice for differing with the view of the Inquiry Officer, passed the order of punishment.

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Learned counsel specifically contends that no enquiry report was handed over to the petitioner which he had procured through Right to Information Act.

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Learned counsel further submits that the order impugned is a completely non reasoned order and looking to the entire order, it would transpire that the Disciplinary Authority had not discussed anything regarding the Inquiry Officer’s view.

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He further submits that for withholding of full salary during the period of suspension, which was one of the punishments; no separate notice was given to the petitioner under Rule 97(2) of Jharkhand Service Code.

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Mr. Shekhar further submits that the petitioner had earlier moved before this Court in W.P.(S) No.6703 of 2007 and the said writ application was disposed of directing the Respondent No. 2 to dispose of the appeal of the petitioner by a reasoned order. Pursuant thereto; the petitioner had filed an appeal/representation wherein he had specifically stated that the Disciplinary Authority without any reason for differing with the view expressed in the enquiry report in which the conducting officer had already exonerated the petitioner from all the three charges; has passed the order of punishment and the said contention of the petitioner was not considered by the Appellate Authority.

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As a matter of fact, though the appellate authority has reduced one punishment i.e. of Censure but in effect; deletion does not mean anything, inasmuch as, the Censure was only effective for the period 2005-06; as such, the Appellate Authority basically concurred with the order of punishment and did not consider the grounds taken by the petitioner.

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Learned counsel for the petitioner concluded his argument by submitting that since the petitioner has been exonerated by the Inquiry Officer, he is entitled for the entire salary during the period of his suspension in view of Rule 97(2) of Jharkhand Service Code, as such the respondents may be directed to pay the full salary during the period of suspension and all other consequential benefits.

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5. Learned counsel for the respondent State submits that there is no error in the impugned order and the petitioner’s appeal was duly considered by the Appellate Authority. He further referred to Paragraph 6 of the counter affidavit which reads as follows:

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“ 6. …..

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a) It is stated that the petitioner was suspended vide departmental notification no. 3110 dated 04.08.2005 against prima facie proved charges and vide departmental resolution contained in memo no.3467 dated 30.08.2005 a departmental proceeding was initiated. The departmental memo no. 3110 dated 04.08.2005 and memo no. 3467 dated 30.08.2005 have been annexed as Annexure-6 and Annexure-8 to the writ petition.

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b) It is stated that after giving opportunity of hearing to the petitioner the Enquiry Officer submitted enquiry report before the department. The Department reviewed the enquiry report and held that the petitioner is guilty for unauthorized absence from his headquarters.

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c) It is stated that the Water Resources Department concluded the proceeding awarding following punishment to the petitioner vide departmental memo no. 2522 dated 11.10.2006 which has been annexed as Annexure 12 of the writ petition.

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i. Censure 2005-06

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ii. Unauthorized absence on 25^th and 26^th April 2005 will be adjusted as extraordinary leave without pay.

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iii. Only subsistence allowance will be admissible for the suspension period.”

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6. Having heard learned counsel for the parties and after going through the documents annexed with this writ application and the averments made in the respective affidavits it clearly transpires that the Inquiry Officer had exonerated the petitioner from all the charges and the Disciplinary Authority without differing with the view of the Inquiry Officer imposed three punishment as mentioned hereinabove.

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It further transpires that no show-cause notice was given to the petitioner which is mandatory in the eye of law if the Disciplinary Authority differs with the view of the Inquiry Officer. It further appears that even the enquiry report was not handed over to the petitioner which he procured through Right to Information Act.

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From records it also appears that after the order of this court in W.P.(S) No.6703 of 2007, the petitioner preferred a representation/appeal taking specific plea that the punishment has been imposed by the Disciplinary Authority without assigning any reason for differing with the enquiry report in which the Conducting Officer had exonerated the petitioner from all the three charges. The petitioner had also specifically stated that no show cause notice was issued to the petitioner and the order of punishment was passed without giving any opportunity, which is impermissible in the

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eye of law in the background that petitioner was exonerated by the Inquiry Officer.

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Further, learned counsel for the respondents failed to demonstrate by any document that while imposing the punishment of withholding of full salary except the subsistence allowance during the period of suspension; any separate notice was given.

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At this stage, it is necessary to observe that since the Inquiry Officer had exonerated the petitioner from all the three charges; as such, the petitioner is entitled for full salary during the suspension period in accordance with Rule 97 (2) of Jharkhand Service Code.

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From the order in appeal, it transpires that all these grounds taken by the petitioner has not been considered; as such, both the impugned orders suffers from infirmity and deserves to be quashed.

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7. Consequently, the impugned order in appeal as contained in Memo No.2857 dated 08.08.2009 and also the order of punishment dated 17.10.2006 are, hereby, quashed and set aside. The matter is remitted back to the Disciplinary Authority to pass a fresh order, after seeking explanation from the petitioner and after giving reasons to differ with the report of the Inquiry Officer, within a period of four months from the date of receipt/production of copy of this order; failing which the petitioner shall be entitled for all consequential benefits which has been denied to this petitioner pursuant to the impugned order of punishment.

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It is made clear that the petitioner shall fully cooperate with the Disciplinary Authority and will be at liberty to take all grounds which he has taken in this writ application.

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8. With the aforesaid terms, the instant application is allowed.

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(Deepak Roshan, J.)

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sm/ AFR

Surendra Kumar Sinha v. State of Jharkhand And Ors.

Case brief

What is this about?

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Surendra Kumar Sinha v. State of Jharkhand And Ors.

Case brief

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