Karu Das vs State of Jharkhand And Ors

Heard, Mr. Manoj Tandon, learned counsel appearing for the petitioner and Mr. Manish Mishra, learned counsel for the respondent-State.

This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

Petitioner has preferred this writ petition for quashing of the order dated 26.08.2016 whereby penalty of censure has been inflicted upon the petitioner. Further prayer has been made for payment of salary for the period running from 15.03.2013 to 07.04.2015 (minus subsistence allowance). Further prayer has been made for payment of full salary to the petitioner for the period the petitioner was kept waiting for posting from 07.04.2015 to 28.06.2015.

Mr. Manoj Tandon, learned counsel for the petitioner submits that petitioner was served with charge whereby it has been said that the petitioner was absent from duty with regard to government functioning and in that view of the matter charge-sheet has been issued and the petitioner was put under suspension. The suspension was vacated with effect from 07.04.2015. The petitioner joined on 27.04.2015. The petitioner was waiting for the post 07.04.2015 to 28.06.2015. Pursuant to charge, the enquiry officer was appointed. The enquiry officer submitted report whereby he has found that charge has not been proved against the petitioner.

Learned counsel for the petitioner assailed the impugned order on the ground that in the enquiry, the petitioner has been exonerated. He submits that in view of exoneration, the disciplinary authority was required to follow the procedure in the law laid down by the Hon'ble Supreme Court in the case of "Punjab National Bank Vs. Kunj Behari Misra" reported in (1998) 7 SCC 84. The relevant para of the said judgment is quoted here-in-below:-

"19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must ecord its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."

The learned counsel for the petitioner further submitted that Jharkhand Government Servants (Classification, Control & Appeal ) Rules, 2016 has also been taken care of and the direction was issued by the Hon'ble Supreme Court in the case of "Punjab National Bank" (supra). He referred Rule 18 of the Jharkhand Government Servants (Classification, Control & Appeal ) Rules, 2016 which reads as under:

"18.Action on the inquiry report (1) The Disciplinary Authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, remit the case to the inquiring authority for further inquiry, as far as may be according to the provisions of rule 17.

(2). The Disciplinary Authority, after receipt of the enquiry report as per rule 17(23) (ii) or as per sub-rule (1), shall if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own finding on such charge, if the evidences on record is sufficient for the purpose.

(3) The Disciplinary Authority shall forward or cause to be forwarded a copy of the inquiry report together with its own findings, if any, as provided in sub rule (2) to the Government Servant who may submit, if he or she so desires, his or her written representation or submission to the Disciplinary Authority within fifteen days. (4). The Disciplinary Authority if it is different from the inquiry authority shall before making a final order in the case, forward a copy of the inquiry report to the Government Servant concerned who may submit, if he or she so desires, his or her written representation or submission to the Disciplinary Authority within fifteen days.

The Disciplinary Authority shall consider the representations or submission, if any, submitted by the Government Servant before proceeding further in the manner specified in sub rule (5) and (6).

(5) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in clauses (i) to Iv) of rule 14 should be imposed on the Government Servant, if shall notwithstanding anything contained in rule 19, make an order imposing such penalty.

(6). If the Disciplinary Authority having regard to its findings on all or any of the articles of charge and on the basis of the evidences adduced during the inquiry is of the opinion that any of the penalties specified in clauses (v) to (xi) of Rule 14 should be imposed on the Government Servant, it shall make an ordr imposing such penalty and it shall be necessary to give the Government Servant an opportunity of making representation on the penalty proposed to be imposed.

(7). Notwithstanding anything contained in sub rule (5) and (6) in every case where it is necessary to consult the Commission, the Commission shall be consulted and its advice shall be taken into consideration before making any order imposing any penalty on the Government Servant."

Learned counsel for the petitioner further submits that once the petitioner succeeds in the writ petition, he will be entitled for rest of the salary for the suspension period.

Per contra, Mr. Manish Mishra, learned counsel for the respondent- State submits that the respondent-State is justified in impugned order. He further submits that there is no illegality in the impugned order. In the enquiry the petitioner was found unauthorized absent. Accordingly, charge has been framed and departmental proceeding has been initiated against the petitioner under Rule 49 and 55 of the Civil Services ( Classification, Control and Appeal) Rules, 1930, though he admits that the petitioner has been exonerated from the charge in the departmental proceeding and suspension was revoked. He further submits that the penalty is proportionate and the petitioner is not entitled for any relief.

Having heard the learned counsel for the parties, the Court found that on exoneration of the petitioner in the departmental proceeding, it was incumbent upon the disciplinary authority to give reasons of difference and to provide opportunity of hearing to the petitioner which has not been done in this case. This fact has not been denied in the counter-affidavit. Jharkhand Government Servants (Classification, Control & Appeal ) Rules, 2016 is in favour of the petitioner and as the law laid down in "Punjab National Bank" (supra) case, the impugned order dated 26.08.2016 is not sustainable in the eye of law and accordingly, it is quashed. The petitioner will be entitled for full salary (minus subsistence allowance) for the period of suspension. So far as the salary for the period 07.04.2015 to 28.06.2015 is concerned, during pendency of the writ petition by way Annexure-D that has been decided against the petitioner, the petitioner is at liberty to take proper step in accordance with law.

In view of above observation and direction, this writ petition stands disposed of.