Allowed

Ramnath Prasad Shramik v. the State of Jharkhand through the Secretary Pr Secretary School Education and Literacy Deptt

Jharkhand HC5 Oct 2023WPC/1388/2019

Case brief

AI extract

What is this about?

The High Court of Jharkhand quashed orders depriving a suspended Block Education Extension Officer of full pay and allowances. The court held the authorities violated natural justice and applicable rules by failing to apply their mind, assign reasons, or provide the enquiry report to the petitioner before determining the proportionate allowance.

What did the court decide?

Quashed orders dated 09.01.2018 and 10.09.2018. Matter remitted to authority to pass appropriate order after giving due opportunity.

Ramnath Prasad Shramik Vs the State of… — Pension and Retirement Benefits | Jharkhand HC (2023)

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W.P.(S) No.1388 of 2019

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No.1388 of 2019

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....

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Ramnath Prasad Shramik

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.… Petitioner

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Versus

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The State of Jharkhand through the Secretary/ Principal Secretary, School Education and Literacy Department, having office at Project Building, Dhurwa, P.O. & P.S.Dhurwa, Town and District-Ranchi

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The Director, Primary Education, having office at M.D.I. Building, Project Building, Dhurwa, P.O. & P.S.-Dhurwa, Town and District-Ranchi

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The Regional Deputy Director of Education, Hazaribag, P.O. & P.S.-Hazaribag, District-Hazaribag .... Respondents ....

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CORAM: HON’BLE MR. JUSTICE RAJESH KUMAR

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For the Petitioner	: Mr. Manoj Tandon, Adv.
	: Ms. Neha Bhardwaj, Adv.
	: Mr. Adamya Kerketta, Adv.
	: Mr. Piyush Kumar Roy, Adv.
For the Respondents	: Mr. Devesh Krishna, S.C. Mines-III

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10/05.10.2023

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Heard learned counsel for the parties.

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The present writ petition has been filed for quashing the order dated 09.01.2018 whereby the order has been passed, on culmination of the departmental proceeding, holding that the petitioner is only entitled for subsistence allowances. The same has been upheld by the appellate authority vide order dated 10.09.2018. Both orders have been impugned in the present writ petition.

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From the arguments and pleadings of the parties, it appears that the petitioner has been appointed on the post of Block Education Extension Officer on 18.03.1981 and while he was posted as B.E.E.O., Chattarpur (West), Palamau he was put under suspension on 02.08.2017.

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Thereafter, charge has been issued vide Memo dated 16.08.2017 whereby four charges have been framed and the charges are regarding the irregularities in the mid-day meal scheme.

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It further appears that the Enquiry Officer has submitted a report holding that three charges stands proved and regarding fourth, the observation is vague.

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Accepting the Enquiry report, the impugned order dated 09.01.2018 has been passed by the Director, Primary Education, Government of Jharkhand. The impugned order reads as under :-

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मु�यमं�ी जनसंवाद के तहत् िदनांक 01.08.2017 क� सीधी बात म� माननीय मु�यमं�ी, झारख�ड सरकार से �ा� आदेश के आलोक म� िनदेशालय के आदेश �ापांक- 1116, िदनांक 02.08.2017 के �ारा िनलंिबत �ी रामनाथ �साद �िमक, त�कालीन �ख�ड िश�ा �सार पदािधकारी, छ�रपुर (प०), पलामू को उनके िव�� िजला िश�ा अधी�क, पलामू के प�ांक- 1778, िदनांक 01.08.2017 �ारा गिठत �प� ‘क’ के आधार पर �थम ��या �मािणत आरोप� के िलये आदेश सं�या-

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W.P.(S) No.1388 of 2019

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(2)

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1116 िदनांक 02.08.17 �ारा िनलंिबत कर आदेश सं�या-1192. िदनांक 16.08.17 के �ारा झारख�ड सरकारी सेवक (वग�करण, िनयं�ण एवं अपील) िनयमावली, 2016 के िनयम 09 के तहत् िवभागीय काय�वाही के अधीन िकया गया है।

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�ी �िमक के िव�� संचािलत िवभागीय काय�वाही के संचालन पदािधकारी �े�ीय िश�ा उप िनदेशक, उ�री छोटानागपुर �म�डल, हजारीबाग के जाँच �ितवेदन प�ांक- 1847. िदनांक 12.12.17 के समी�ोपरा�त उनके �ारा अपने काय� / दािय�व� के िनव�हन म� बरती गई लापरवाही के �मािणत आरोप� के आधार पर िन�न िनण�य िलये जाते ह�।

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�ी रामनाथ �साद �िमक, िनलंिबत �ख�ड िश�ा �सार पदािधकारी, छ�रपुर (प०). पलामू को त�काल �भाव से िनलंवन मु� करते ह�ये �या�याता, �ा०िश०िश० महा०, सतबरवा, पलामू के पद पर पद�थािपत िकया जाता है।

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�ी �िमक क� िनलंबन अविध के िलये जीवन िनव�हन भ�े के आलावे अनुमा�य वेतन एवं अ�य देय भ�ा देय नह� ह�गे।

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It further appears that the said order has been challenged before the appellate authority but the appellate authority has upheld the same vide order dated 10.09.2018 mentioning that no defect has been pointed out in the impugned order.

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Learned counsel for the petitioner has assailed the impugned order on the following grounds.

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(i) it is in violation of Rule 10 of the Jharkhand Government Servant (Classification Control and Appeal) Rules, 2016 whereby it has been contemplated that the allowances will be payable in proportion of the punishment.

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(ii) if there is complete acquittal then entire salary otherwise it has to be proportionate. Thus, Rules itself contemplates that there has to be application of mind by the disciplinary authority after giving due opportunity to the petitioner.

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In the present case, neither any opportunity has been given to the petitioner nor there is application of mind as is evident from the perusal of the impugned order itself. The appellate authority has also not looked into the matter although the issue has been raised.

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It has further been submitted that neither enquiry report has been given nor second show cause has been issued and as such the impugned order is bad in law.

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Learned counsel for the respondents has tried to justify the order by making submission that no punishment has been imposed rather only decision has been taken regarding the fact that the petitioner is entitled for subsistence allowance only as the petitioner has not been fully exonerated and as such the impugned order is fully justified.

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Perused the record. Rule 11 of the Jharkhand Government Servants (Classification Control & Appeal) Rules, 2016 covers the field. Sub Rule 3, 5, 7 and 8 of the said Rules are quoted hereinbelow:-

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11. Treatment of Service on reinstatement and admissibility of pay and allowances after suspension-

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W.P.(S) No.1388 of 2019

(3)

(1)

(2)

(3) Where the Disciplinary Authority is of the opinion that the suspension was wholly unjustified, the Government Servant shall, subject to the provisions of sub rule (8) of this rule, be paid such full pay and allowances to which he would have been entitled, had he not been suspended. While making such payment adjustment shall be made in respect of subsistence allowance and other allowances already paid.

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Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government Servant had been delayed due to reasons directly for which the Government Servant is liable, it may, give the Government Servant an opportunity to make his or her representation and consider the representation, if any, submitted by him or her. After that it may direct, for reasons to be recorded in writing, that the Government Servant shall be paid for the period of such delay only such proportion of such pay and allowances as may be determined by it.

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(5) In cases other than those falling under sub rule (2) and (3) of this rule, the Government Servant shall subject to the provisions of sub rule (8) and (9) be paid such proportion of the full pay and allowances to which he would have been entitled had he not been suspended, as the Disciplinary Authority may determine. Such determination by the Disciplinary Authority shall be done after giving notice to the Government Servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within sixty days from the date on which notice aforesaid is served on the Government Servant.

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(7) In a case failing under sub rule (5) of this rule the period of suspension shall not be treated as a period spent on duty, unless the Disciplinary Authority specifically directs that it shall be the period spent for any specified purposes.

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(8) The payment of allowances under sub rule (2), sub rule (3) or sub rule (5) of this rule shall be subject to all other conditions under which such allowances are admissible.

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Mere perusal of the above Rule, it is evident that if the petitioner is fully exonerated then he is entitled for entire salary, allowances and further the said period has to be treated as period spent on duty.

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If the petitioner is not fully exonerated, then the authority has to decide the proportionate salary and allowances payable to the petitioner and also the fact that how the period has to be treated. The period automatically will not be treated as a period spent on duty. There has to be specific order by the authority. In the present case, it appears that the authority although has accepted the enquiry report whereby the charges has been accepted as proved by the Enquiry Officer, but before passing the order neither the enquiry report has been supplied to the petitioner nor any opportunity has been given as per the mandate of Rule 11 of the Jharkhand Government Servant (Classification Control and Appeal) Rules, 2016. It is also evident that the authority has not applied his mind as there is no reason

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W.P.(S) No.1388 of 2019

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(4)

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assigned. The word “proportion of the full pay and allowance” has been used which suggest that there has to be application of mind by the authority and this will be reflected by the reason assigned in the order.

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In the present case, neither reason has been assigned nor the principle of natural of justice has been followed which is engrafted in the above quoted Rule itself. Thus, the impugned order is product of non application of mind and violation of the above quoted Rule. Consequently, the impugned orders dated 09.01.2018 and 10.09.2018 are, hereby, quashed and set aside.

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The matter is remitted back to the concerned authority to pass an appropriate order after giving due opportunity to the petitioner in accordance with the mandate of the above quoted Rule.

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Accordingly, the present writ petition stands allowed and disposed of.

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(Rajesh Kumar, J.)

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Shahid/

Ramnath Prasad Shramik v. the State of Jharkhand through the Secretary Pr Secretary School Education and Literacy Deptt

Case brief

What is this about?

What did the court decide?

Ramnath Prasad Shramik v. the State of Jharkhand through the Secretary Pr Secretary School Education and Literacy Deptt

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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