State Of Jharkhand And Ors vs Jai Prakash

Aniruddha Bose, CJ

We are taking up this appeal for hearing at this stage only on consent of learned Advocates appearing for the parties.

The appeal arises from an order of dismissal from his service passed against the respondent writ petitioner upon completion of departmental enquiry by the appropriate authority. The respondent writ petitioner, at the material point of time, was holding the post of Engineer-in-Chief on charge basis with Rural Works Department. Disciplinary proceeding was initiated against him and memorandum of charges was served upon him on the allegation of disobedience of the orders of the superior authorities in not lodging a first information report against certain erring contractor and officials. This memorandum of charges is dated 16th January, 2008. We are apprised by learned counsel for the appellant State that two other memoranda of charges were issued against the same respondent. An earlier proceeding was initiated by memorandum of charges dated 1st March, 2008. The earlier charge primarily related to floating of tender without proper sanction in respect of widening of road. It has been stated in the memorandum of appeal that both these disciplinary proceedings were amalgamated and a composite order was passed on 10th October, 2012, after completion of enquiry. The disciplinary authority found the misconduct alleged in both the memoranda of charges to be proved and after second show cause notice, ordered his dismissal. In course of the departmental proceeding, the respondent writ petitioner had denied the charges.

The respondent writ petitioner challenged the finding of the disciplinary authority as also the order of punishment. The learned First Court did not interfere with the order of the disciplinary authority holding the charges proved against the appellant, but quashed the order of punishment. The matter was remanded to the State authorities directing them to pass appropriate order on quantum of punishment keeping in view the long unblemished service record of the writ petitioner. The learned First Court, in the judgment assailed by the State in this appeal, observed and held :-

"6. After hearing learned counsel for the respective parties at length and upon bestowing my anxious consideration to the documents on record, I am of the considered view that the petitioner has been able to make out a case for interference, due to the following facts reasons and judicial pronouncements:

(I) In the instant case, it appears that the petitioner was holding the post of Engineer-in-Chief and the charges framed against the petitioner pertains to non reporting of case does not relate to any pecuniary loss and the omissions and commissions made by the petitioner is not so grave so as to entail major punishment. On that score, on the point of quantum of punishment, this Court vide order dated 26.11.2015 directed the State counsel to obtain instruction as to how other similar co-delinquents, who were Assistant Engineers at the relevant time, namely Rajeev Kumar Singh and Ram Vilash Ranjan have been inflicted stoppage of three increments with cumulative effect, whereas Jitendra Kumar has been exonerated from the charges and one Ram Naresh Kumar Singh, the then Executive Engineer was served show cause notice as to why 10% deduction in pension be not deducted from him and the petitioner, who was the Superintending Engineer, was doing only supervisory work, has been awarded maximum punishment i.e dismissal from service.

(II) In pursuance to order dated 25.06.2015, a supplementary counter affidavit has been filed by the State on 12.01.2016 apprising that manipulation have been done on the part of the Superintending Engineer and such kind of punishment has been inflicted to the petitioner after going through the report of the presenting officer. It appears that the charges which has been alleged against the petitioner have not been proved nor the enquiry officer has discussed the findings of the presenting officer, therefore, the enquiry officer in a very cavalier fashion has submitted the report, which has been blindly relied by the disciplinary authority to inflict such kind of punishment which in the facts and circumstances appears to be harsh and excessive. Keeping in view lesser punishment has been awarded to the other co-delinquents, in the fitness of things petitioner ought to be given benefit of parity of treatment.

(III) In this regard, it would be profitable to refer to a decision rendered by the Hon'ble Apex Court in the case of Rajendra Yadav Vs. State of Madhya Pradesh and Others as reported in (2013) 3 SCC 73, in particular paragraph 9, which is quoted herein below:

"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."

In view of the reasons stated in the foregoing paragraphs, the impugned order of punishment dated 10.10.2012, vide Annexure-10 to the writ application, is quashed and set aside and the matter is remitted to the respondents to pass appropriate order on the quantum of punishment, keeping in view the long unblemished service record of the petitioner strictly in accordance with law within a period of three months from the date of receipt of a copy of the order."

The State preferred this appeal on 1st March, 2017 against the judgment of the learned First Court delivered on 20th September, 2016. Along with the memorandum of appeal, an application for stay of operation of the judgment and order of the learned First Court was filed. A coordinate Bench had rejected the prayer for stay of operation of the order on 16th August, 2017.

During pendency of the appeal and the stay petition connected with the appeal, a contempt petition was filed by the writ petitioner alleging disobedience of the order of the learned First Court. It appears from the order passed by the Contempt Court on 20th July, 2018 that no affidavit was being filed by the State in response to the contempt action. On 20th July, 2018, the State was given four weeks' time as "last chance". An order was passed by the appropriate authority earlier reducing the quantum of punishment from "dismissal" to "compulsory retirement". The relevant passage of this order along with the English translation thereof are reproduced below :-

''11‐ उपर्युक्त तीनों विभागीय कार्यवाहियों में संचालन पदाधिकारी से प्राप्त जांच प्रतिवेदनो में श्री प्रकाश के विरूद्ध गठित सभी आरोप प्रमाणित प्रतिवेदित किये गये। जिनकी समीक्षा से स्पष्ट होता है कि श्री प्रकाश Habitual Offender हैं एवं इनकी सेवा बेदाग (Unblemished) नही रही है। W.P.(S) No. 7980/2012, दि0-20‐09‐2016 को पारित न्यायदेश की कंडिका-6 में वर्णित अन्य अभियंताओं से श्री प्रकाश का मामला भिन्न हैं।

12‐ माननीय झारखण्ड उच्च न्यायालय द्वारा पारित न्यायादेशों के आलेक में उपुर्यक्त सभी तथ्यों तथा Qunatum of Punishment के बिन्दु पर विचार किया गया तथा सम्यक समीक्षोपरांत सक्षम प्राधिकारी द्वारा निर्णय लिया गया है कि श्री जय प्रकाश, तत्कालीन प्रभारी अधीक्षण अभियंता, पथ अंचल, डाल्टेनगंज के विरूद्ध अनुशासनहीनता, कर्तव्यहीनता, स्वेच्छाचारिता, सरकारी सेवक आचार नियमावली के नियम-3 के प्रतिकूल आचरण करने आदि जैसे प्रमाणित गंभीर आरोपो के आलोक में दि0 -10‐10‐2012 के प्रभाव से सेवा से वर्खास्तगी के पूर्व में अधिरोपित दण्ड जो माननीय झारखण्ड उच्च न्यायालय द्वारा में W.P.(S) No. 7980/2012 दि0- 20‐09‐2016 को पारित न्यायादेश के अनुपालन में निरस्त कर दिया गया है, के स्थान पर दि0-10‐10‐2012 के प्रभाव से 'अनिवार्य सेवानिवृति' (Compulsory Retirement) का दण्ड इस शर्त के साथ अधिरोपित किया जाए की यह आदेश L.P.A. No.-103/2017 में माननीय झारखण्ड उच्च न्यायालय द्वारा पारित अंतिम न्यायादेश के फलाफल सें प्रभावित होगा।

तदनुसार L.P.A. No.-103/2017 में माननीय झारखण्ड उच्च न्यायालय द्वारा पारित अंतिम न्यायादेश के फलाफल से प्रभावित होने के शर्त के साथ श्री जय प्रकाश, तत्कालीन अधीक्षण अभियंता, पथ अंचल डाल्टेनगंज के विरूद्ध दि0.10‐10‐2012 के प्रभाव सें 'अनिवार्य सेवानिवृति' (Compulsory Retirement) का दण्ड अधिरोपित करते हुए उनके विरूद्ध संचालित उपर्युक्त तीनों विभागीय कार्यवाहियों को निस्तारित किया जाता है।

श्री प्रकाश के दिनांक-16‐12‐2009 से दिनांक- 10‐10‐2012 तक के निलंबनावधि में इन्हें जीवन निर्वाह भत्ता के अतिरिक्त अन्य कुछ भी देय नहीं होगा परंतु उक्त निलंबनावधि पेंशन की गणना के लिए सेवा में टूट नहीं मानी जाएगी।"

"11. In all the three aforesaid departmental proceedings, it is reported in Enquiry Reports received from the Conducting Officer that all charges framed against Sri Prakash are proved. it is clear from its review that Sri Prakash is a habitual offender and his service has not been unblemished. The matter of Sri Prakash is different from other Engineers as mentioned at Para 6 of the judgment passed on 20.09.2016 in W.P.(S) No. 7980/2012.

In view of the judgments passed by the Hon'ble Jharkhand High Court, it was considered on all the above facts and the points of quantum of punishment and after due review, it has been decided by the competent authority that in view of serious charges such as indiscipline, dereliction of duty, arbitrariness and behaving against Rule-3 of the Government Servant Conduct Rules etc. which are proved against Sri Jai Prakash, the then Superintending Engineer in-charge, Road Circle, Daltonganj, the earlier imposed punishment of dismissal from the service with effect from 10.10.2012 has been set aside in compliance of the order passed in W.P.(S) No.7980/2012 dated 20.09.2016 by the Hon'ble Jharkhand High Court and in lieu of the same, punishment of compulsory retirement should be imposed with effect from 10.10.2012 with condition that this order shall be affected by the final order/judgment passed in L.P.A. No.103/2017 by the Hon'ble Jharkhand High Court.

Accordingly, after imposing punishment of compulsory retirement against Sri Jai Prakash, the then Superintending Engineer, Road Circle, Daltonganj, with effect from 10.10.2012 all the aforesaid three departmental proceedings conducted against him are concluded with condition that this order shall be affected by the final order/judgment passed in L.P.A. No.103/2017 by the Hon'ble Jharkhand High Court.

Nothing except subsistence allowance shall be payable to Sri Prakash for the period of suspension from dated 16.12.2009 to 10.10.2012, but for the calculation of pension the aforesaid period of suspension shall not be treated as break in service."

On behalf of the writ petitioner, it is contended by Mr. Tandon, learned Advocate that since the State on its own had reduced the quantum of punishment, the present appeal has become infructuous. He also points out that the respondent/writ petitioner had retired on 21st December, 2012.

Mr. Haque, learned counsel for the State, on the other hand, submits that the aforesaid order was issued subject to final outcome of the appeal and this order could not be the reason for not continuing with the appeal. Case is sought to be made out on behalf of the State that the order of reduction of punishment was passed in the face of the contempt action. It is also submission of Mr. Haque that on merit also, the learned First Court had erred in law in equating the writ petitioner with four other persons against whom memoranda of charges were issued. There were altogether three departmental proceedings against the petitioner but that was not the case so far as the other four individuals named in the judgment.

We are unable to accept the stand of the State that the order of reduction of punishment was passed in the face of the contempt action. So far as the two orders passed by the learned First Court in exercise of contempt jurisdiction are concerned, we do not find that there was any pressure on the State to comply with the order on threat of punishment. The State had defaulted in filing the affidavit and in the order of 20th July, 2018, time was extended giving chance to the State to file such affidavit. But before that date the order of reduction of punishment was passed by the appropriate authority on 16th March, 2018. Subsequently on 21st December, 2018, when the contempt petition was taken up for hearing, a supplementary show cause affidavit dated 5th December, 2018 was filed. In the order passed on 21st December, 2018 it has been inter alia recorded :-

"Supplementary show cause affidavit, dated 05.12.2018 has been filed by the Opposite Party No. 3, wherein, it has been submitted that the punishment of dismissal has been converted into compulsory retirement vide reasoned order dated 16.03.2018, passed by the Opposite party and steps have been taken for payment of the retirement benefits.

In view of the assertions made in the show cause affidavit, the order dated 20.09.2016, passed in W.P. (S) No. 7980 of 2012 seems to have been complied with."

In the authority's order of reduction of punishment, it has been recorded that the same was being passed without prejudice to its right and contention in the pending appeal. It could not be demonstrated before us as to why such an order was passed reducing punishment pending the appeal. The State has expressed its views in the order of reduction of punishment and the attempt on the part of the State to give the said order a transient character is not sustainable. It has been specifically recorded in the said order that it was being passed upon consideration of the judgment of the First Court and after due review, the same was being passed.

We have quoted the reasoning of the learned First Court in the earlier part of this judgment in quashing the order of punishment. Exoneration of co-delinquent was not the sole reason as to why direction was given for reduction of punishment. The fact that the respondent writ petitioner had long unblemished service record was also considered by the learned First Court. The learned First Court also found that the charges framed against the writ petitioner in relation to non-reporting of case did not result in any pecuniary loss and the omissions and commissions made by the writ petitioner was not so grave so as to entail major punishment.

Having gone through the memoranda of charges and the finding of the disciplinary authority, we do not find any reason to take a view contrary from that taken by the learned First Court. In these circumstances, on merit also we do not find any reason to interfere with the decision of the learned First Court.

The appeal of the State is dismissed.

No order as to costs.