Umesh Prasad Singh vs State of Jharkhand And Ors

Heard learned counsel for the parties through V.C.

The instant application has been preferred by the petitioner praying for quashing and setting aside the order dated 03.11.2014 as contained in

Resolution No.10629 (Annexure-4) whereby the reply of the second show-cause notice given by the petitioner has been rejected and the punishment

of withholding of two increments with cumulative effect has been awarded to the petitioner on the ground that no fresh evidence has been brought up

by the petitioner in the second show-cause notice. It has also been prayed for a direction upon the respondent authority to grant all the increments due

to the petitioner before passing of the order of punishment dated 3.11.2014 and also to consider the case of the petitioner for promotion on the post of

Deputy Secretary as well as the Joint Secretary since the other persons who were similarly placed with the petitioner were already granted promotion

on the post of Deputy Secretary way back in the year 2009 as well as on the post of Joint Secretary way back in the year 2013.

From record, it appears that the petitioner had earlier filed a writ petition being W.P.(S) No.3067 of 2011, for quashing the order of punishment as

contained in memo no.1192 dated 05.03.2011, whereby punishment has been imposed against the petitioner for withholding four increments with

cumulative effect. This Court vide its order dated 21.03.2014, quashed the aforesaid punishment order by holding as under:-

Having regard to the aforesaid legal position, the impugned order of punishment of imposition of major punishment of withholding of 4 increments with

cumulative effect alongwith the order directing that the petitioner would not be considered for promotion for a period of 4 years from when it is due to

him is therefore unsustainable in law as well as on facts. Accordingly, the impugned order dated 05.03.2011 is quashed. However, the respondents are

at liberty to proceed with the departmental proceeding from the stage of serving the copy of enquiry report along with second show cause notice to

the petitioner while taking a decision in the matter in accordance with law. The writ petition is allowed in the aforesaid manner"".

Pursuant to the said order, the respondent authority issued the second show-cause notice to the petitioner enclosing the enquiry report. The

petitioner thereafter filed his reply on 17.07.2014, in which petitioner has elaborately dealt the manner in which enquiry proceeding has been conducted

and relevant evidences which was not taken into consideration. A copy of the reply has also been annexed as Annexure-3 to this application.

Thereafter the respondent authority finally concluded the departmental proceeding and passed the order of punishment to the tune of withholding of

two increments with cumulative effect vide resolution no.10629 dated 03.11.2014, which is order under challenge.

Learned counsel for the petitioner submits that from bare perusal of the impugned order it would transpire that there is totally non-application of

mind. He further submits that the order of this Court was very clear whereby the respondents were directed to issue a show-cause notice and finally

pass an order after dealing each and every contention raised by the petitioner. However, the disciplinary authority has not at all dealt any of the

contention raised by the petitioner so much so that there won't be any exoneration in saying that this order is passed with total non-application of mind.

He referred to the judgment passed in the case of Raj Kumar Mehrotra Vs. State of Bihar & Ors. reported in (2005) 12 SCC 256.

Learned counsel for the petitioner further submits that the penalty for withholding of increments should not be from the date of increment accruing

to the petitioner rather it should be after the issuance of punishment order and it cannot affect the increment which was due prior to the date of

punishment order. He further contended that the petitioner has not only been deprived from the schedule promotion but also has been denied the

increments due to him for which he was entitled since long. As such, the petitioner is legally entitled for all the increments which are due to him prior

to the issuance of punishment order. He concluded his argument by submitting that the order of punishment as contained in Annexure-4 has been

passed mechanically and in routine manner without application of mind and without appreciating the facts and circumstances of the case, as such the

same is liable to be quashed and set aside.

A counter affidavit has been filed in this case wherein a preliminary objection has been raised that the petitioner has not exhausted the alternative

remedy of filing appeal apart from supporting the impugned order. Learned counsel for the respondent further reiterated the stand taken in the counter

affidavit but mainly argued on the point of maintainability. Replying to the aforesaid contention on the question of maintainability, learned counsel for

the petitioner referred to the judgment of (2016) 2 JBCJ 460 and submits that in para-24 and 25 of the said judgment it has been held that appeal

cannot be filed before the State Government.

At the outset, I would like to address on the preliminary objection raised by the respondent. Since the matter was filed way back in the year 2015

and 5 years has already lapsed; as such, in my considered opinion, dismissing this application only on technical ground would only linger the matter.

Further, the impugned order has been passed in a mechanical manner and without application of mind. This Court while deciding the earlier writ

application of this petitioner has clearly held that the respondents are at liberty to proceed with the departmental proceeding from the stage of serving

the copy of inquiry report along with second show-cause notice to the petitioner while taking a decision in the matter in accordance with law.

Without going into other issues raised in the instant writ application, I am of the considered opinion that the order imposing punishment on the

petitioner cannot be sustained on the sole ground being a non speaking order. From bare perusal of the impugned order, it appears that the disciplinary

authority has reproduced the entire facts and history of the case and in just one line it has been held that no new facts has been brought by the

petitioner and passed the impugned order. No reason has been assigned by the respondent authority for holding the charge as proved. After perusing

Annexure-3, it appears that a detailed reply was filed by the petitioner; however none of the contention raised by him in his reply to second show-

cause has been dealt by the disciplinary authority. In the case of Raj Kumar Mehrotra (Supra) the Hon'ble Apex Court has held as under in para-5.

Without going into other issues raised, we are of the view that the impugned order of the respondent authority imposing punishment on the

appellant cannot be sustained. Even if we assume that Rule 55-A which pertains to minor punishment was applicable and not Rule 55 which relates to

major punishment, nevertheless Rule 55-A requires that the punishment prescribed therein cannot be passed unless the representation made pursuant

to the show-cause notice, has been taken into consideration before the order is passed. There is nothing in the impugned order which shows that any

of the several issues raised by the appellant in his answer to the show-cause notice were, in fact, considered. No reason has been given by the

respondent authority for holding that the charges were proved except for the ipse dixit of the disciplinary authority. The order, therefore, cannot be

sustained and must be and is set aside"".

In the aforesaid case the Hon'ble Apex Court has clearly held that even if rule 55A which pertains to minor punishment was applicable and not

Rule 55 which relates to major punishment nevertheless Rule 55A requires that the punishment prescribed therein cannot be passed unless the

representation made pursuant to the show- cause notice has been taken into consideration before the order is passed. In the instant case there is

nothing in the impugned order which could shows that any of the several issues raised by the petitioner in his reply to the show- cause has been

considered. No reason, whatsoever, has been assigned by the disciplinary authority save and except that ""no new facts has been brought by the

petitioner"".

For better appreciation, the operative portion of the order impugned is reproduced hereunder:-

From bare perusal of the operative portion of the impugned order, it clearly transpires that the aforesaid order has been passed without application

of mind and in mechanical manner inasmuch as, it did not considered any of the contention / grounds raised by the petitioner in his reply to second

show-cause notice. As such, the impugned order deserves to be quashed and set aside.

Consequently, the impugned order dated 03.11.2014 as contained in Resolution No.10629 (Annexure-4) is quashed and set aside and the matter is

remitted back to the disciplinary authority to pass a fresh order after considering the grounds taken in the reply to the show-cause notice within three

months from the date of receipt/production of a copy of this order.

With the aforesaid observation this writ application is allowed.