1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 1016 of 2014 ------ Shailesh Kumar Singh, son of late Rajendra Prasad Singh, residing at House No. 4A, Shyam Bachau Path, Uliyan Kadma, P.O & P.S.-Kadma, District-Jamshedpur, District-East Singhbhum. ... Petitioner Vs. 1.The State of Jharkhand through Secretary/Principal Secretary, Human Resources Development Department, having office at Project Building, Dhurwa, P.O & P.S.-Dhurwa, Town and District- Ranchi. 2.The Director, Secondary Education-cum-Special Secretary, Human Resources Development Department, having office at near Project Building, Dhurwa, P.O & P.S.-Dhurwa, Town and District- Ranchi. 3.The Regional Deputy Director of Education (RDDE), Kolhan Division, having office at Chaibasa, P.O & P.S.-Chaibasa, District- West Singhbhum. 4.The District Education Officer-cum-Inquiry Officer, Chaibasa, having office at Chaibasa, P.O & P.S.-Chaibasa, District-West Singhbhum. … ... Respondents with W.P. (S) No. 1083 of 2014 ------- Sheoji Goswami son of late Ramanand Goswami, resident of Village-Sohandih, P.O-Sini, P.S. Saraikela, District-Saraikela- Kharsawan. ... Petitioner Vs. 1.The State of Jharkhand through the Secretary/Principal Secretary, Human Resources Development Department, having office at Project Building, Dhurwa, P.O & P.S.-Dhurwa, Town and District-Ranchi. 2.The Director, Secondary Education-cum-Special Secretary, Human Resources Development Department, having office at near Project Building, Dhurwa, P.O & P.S.-Dhurwa, Town and District- Ranchi. 3.The Regional Deputy Director of Education (RDDE), Kolhan Division, having office at Chaibasa, P.O & P.S.-Chaibasa, District- West Singhbhum. 4.The District Education Officer-cum-Inquiry Officer, Chaibasa, having office at Chaibasa, P.O & P.S.-Chaibasa, District-West Singhbhum. … ... Respondents ------ CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ------ For the Petitioner : Mr. Manoj Tandon & Ms. Kumari Rashmi, Advocates For the Resp-State : J.C to S.C. (L &C). ------ 04/ Dated:
27. h September, 2016. Per Pramath Patnaik, J.:
2. Since the relief sought for in both the writ applications are more or less identical, with the consent of the respective counsels, both the writ petitions are heard together and are being disposed of by this common order.
2. In the accompanied writ applications, the petitioners have inter alia prayed for quashing part of order dated 24.01.2014, whereby punishment of (a).Censor, (b).stoppage of three increments with cumulative effect and (c).no work no pay during which the petitioner remained out of service have been imposed and further prayed for direction upon the respondents to pay the full salary to the petitioner during the period of suspension i.e. 24.05.2008 to 20.12.2010 as also from the date of dismissal i.e. 21.12.2010 to the date of reinstatement i.e. 24.01.2014 with interest @ 12 % per annum.
3. Bereft of unnecessary details, the facts as delineated in the writ applications are that while the petitioners were holding the post of Head Clerk/Clerk in the office of District Superintendent of Education, Chaibasa, some teachers were transferred from one place to another in the month of January, 2008. Pursuant thereto, the respective teachers joined their respective schools but the Director, Primary Education cancelled such transfer order vide order dated 17.07.2008, which was challenged by way of filing W.P. (S) 3731 of 2008 and analogous cases, which were disposed of vide a common order dated 16.10.2008 quashing the order of transfer of teachers. However, the petitioners were put under suspension vide order dated 24.05.2008 for the transfer took place in the month of January, 2008 because of the reason that on account of such 3 transfer, about 100 school had become without regular teacher, which caused adverse affect on Mid-Day-Meal Scheme. Pursuant thereto, charge was framed against the petitioners vide memo dated 28.03.2009 enclosing Prapatra-Ka. Thereafter, inquiry officer was appointed by the disciplinary authority, who submitted its report vide memo dated 01.04.2010, wherein none of the two charges levelled against the petitioner was found proved. However, differing with the findings recorded by the inquiry officer, the disciplinary authority imposed the punishment of dismissal from services under the Provisions of Civil Services (Classification, Control and Appeal) Rules and Jharkhand Service Code vide order dated 21.12.2010. Being dissatisfied, the petitioners preferred appeal, which was disposed of vide order dated 24.01.2014, which is impugned before this Court.
4. Learned counsel for the petitioners submitted that charges levelled against the petitioners are not specific and absolutely vague. It has further been submitted that the whole charge is based on letter dated 12.01.2009 and has been referred to as the evidence against the petitioner in memo of charge dated 28.03.2009, but, the petitioner was suspended on 24.05.2008 i.e. 10 months prior to this documents, which is said to be the evidence against the petitioner. Learned counsel for the petitioners further submitted that before imposing major punishment, no full-dressed enquiry has been conducted. However, basing on the documents available on record, the enquiry officer though exonerated the petitioners from the charges but the disciplinary authority differing with the findings recorded by the inquiry officer imposed the punishment of 4 dismissal from services but before differing with the findings recorded by the inquiry officer no notice have been issued to the petitioners to enable them to give their suitable reply. In this context learned counsel for the petitioners referred to a decision rendered in the case of Punjab National Bank & Ors Vs. Kunj Behari Misra as reported in (1998) 7 SCC84 Learned counsel for the petitioners submitted with vehemence that even the transfer order does not contain the signatures of the petitioners and on that very ground the inquiry officer exonerated the petitioners from the charges levelled against them. It has further been submitted that even before imposing impugned punishment no second show cause notice has been served the petitioners rendering the entire proceeding vitiated in the eye of law. Learned counsel for the petitioner further submitted that the impugned order has been passed under Civil Services (Classification, Control & Appeal) Rules, which is not at all applicable in the case of petitioners. Learned counsel for the petitioners further submitted that the petitioners were all along ready and willing to discharge their duties but it is the respondents who compelled them not to attend their duties. It has further been submitted that once the dismissal order has been set aside by the appellate authority, the petitioners are entitled to get full salary for the interregnum period i.e during the period of suspension as also in between the date of dismissal till the date of reinstatement. In support of his submission, learned counsel for the petitioners referred to a judgment rendered in the case of Baijnath Ram Vs. The State of Jharkhand & Ors passed in W.P. (S) No. 4410 of 2010, wherein this Court in view of the decision 5 rendered in the case of State of Punjab Vs. Rafiq Masih & Ors has quashed the impugned order of recovery.
5. Per contra, counter affidavit has been filed by the respondents controverting the averments made in the writ application. It has been submitted that petitioners while working as the head clerk and clerk in the office of District Superintendent of Education, West Singhbhum, Chaibasa was responsible for preparing list for transfer and posting of teachers, but the petitioners failed to discharge their duties with great responsibility, hence, the Regional Deputy Director of Education South Chhotanagpur, Ranchi suspended them and departmental proceeding was initiated against them, in which, though the enquiry officer submitted its report and recommended for revocation of suspension of the petitioner but the disciplinary authority came to the bona fide conclusion that petitioner has kept the District Education Establishment Committee in dark and succeeded in getting illegal transfer and posting of teachers and imposed the punishment of dismissal from services, which has been reduced by the appellate authority vide its order dated 24.01.2014. Learned counsel for the respondents-State further submitted that it is true that the petitioners are not the authority to take a decision of transfer of teachers but the petitioners were the key persons while preparing the list of transfer as they were the custodian of relevant records and documents related to transfer-posting. Learned counsel for the State further submitted that since the petitioners have not worked for the period of suspension and during 6 the dismissal period, as per the settled principles of law they are not entitled to get salary for the aforesaid period.
6. After hearing learned counsel for the parties at length and on perusal of the documents available on record, I am of the considered view that the petitioners have been able to make out a case for interference for the following facts, reasons and judicial pronouncements: (i).Basing on the charge that the petitioners, being the Head Clerk and Clerk in the office of D.S.E., Chaibasa, have put their signature on the illegal transfer order of teachers against the provsions of law and further there is involvement of the petitioners in those illegal transfer, departmental proceeding was initiated against the petitioners and they were put under suspension. The enquiry officer though exonerated the petitioners from the charges levelled against them but the disciplinary authority, differing with the findings recorded by the enquiry officer, without issuing any notice to the petitioner, imposed the major punishment of dismissal from services in utter violation of principles laid down by Hon'ble Apex Court in the case of Kunj Behari Misra (Supra). (ii).Furthermore, before imposing major punishment no second show cause notice was served upon the petitioners rendering the entire proceeding vitiated in the eye of law. Hence, from initiation of departmental proceeding till its culmination, there is complete violation of principles of natural justice. Hence, on that score, the impugned orders are liable to quashed and set aside. 7 (iii).Before coming to a conclusion on the issue of payment of interregnum period of suspension and dismissal from service, it would be apposite to refer Rule 97 of The Jharkhand Service Code, 2001, which is quoted herein below:
97. 1)When a Government servant who has been dismissed, removed, or suspended, reinstated, the authority competent to order the reinstatement shall consider and make specific order- (a)regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty, and (b)whether or not the said period shall be treated as a period spent on duty. (2)Where the authority mentioned in sub-rule (1), is of opinion that the Government servant has been fully exonerated, or in the case of suspension, that it was wholly unjustified, the Government servant shall be given full pay and allowance to which he would have been entitled has he not been dismissed, removed, or suspended, as the case may be. (3)....... (4)...... (5)...... XXX XXXX XXXX XXX (iv).So far as payment for the period of suspension is concerned, it is pertinent to mention here that suspension ought to have been resorted to in case where the charges are so grave so as to entail infliction of major punishment. But from the charges, it would appear that it does not appear to be so grave so as to warrant placing the delinquents under suspension. Therefore, in view of the fact that suspension order was uncalled for and is unjustified and furthermore during the said period the petitioners were on duty, I am of the opinion that the petitioners are entitled to get full salary for the period of suspension i.e. 24.05.2008 to 20.12.2010. (v).On close scrutiny of the documents available on record, in particular enquiry report dated 1.04.2010 it appears that the enquiry officer was of the opinion that on the basis of evidences 8 available on record, it is not fully proved that the delinquents are fully responsible for the transfer in question and since there is no signature of the petitioners on the transfer list, hence, the delinquents cannot be held fully responsible for such transfer. Further, after the order of dismissal from services has been passed by the disciplinary authority on 21.12.2010, it is petitioners, who knocked the wrong door for preferring the appeal and took about two years to approach the right forum. Hence, I am of the considered view that the petitioners are not entitled to get salary for the interregnum period of dismissal from services till reinstatement.
7. In view of the reasons stated in the foregoing paragraphs and logical sequitur to the aforesaid discussions, the impugned order i.e. part of order dated 24.01.2014 is hereby quashed and set aside and petitioners are entitled to get full salary for the period of suspension. However, in the facts and circumstances of the case, the petitioners are not entitled to get salary for the interregnum period of dismissal from services till reinstatement. It is made clear that the admissible dues be paid to be petitioners within a period of three months from the date of receipt/production of copy of this order.
8. To this extent, the writ petition stands allowed. (Pramath Patnaik, J.) Alankar/-