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2005 DIGILAW 572 (JHR)

Arjun Ram v. State Of Jharkhand

2005-08-04

SUDHANSU JYOTI MUKHOPADHAYA

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JUDGMENT S.J. Mukhopadhaya, J. 1. The writ petition was initially preferred by the petitioner against the letter, contained in Memo No. 166, dated 14th February, 2004, whereby and where under, one Executing Magistrate-cum-Equiry Officer, Giridih asked the petitioner to appear for fresh enquiry. The petitioner has also challenged the order dated 8th June, 2004, whereby the said Enquiry Officer has asked the petitioner to appear and submit show cause reply. 2. The main plea taken by the petitioner is that he having already been exonerated by the Enquiry Officer, after second show cause stage, it was not open to the disciplinary authority to appoint another Enquiry Officer to conduct fresh enquiry. 3. During the Pendency of the writ petition, the Enquiry Officer submitted a fresh enquiry report on 12th October, 2004, wherein after, the disciplinary authority missed another show cause notice vide Memo No. 2227, dated 17th November, 2004. Thereafter, final order was issued vide Memo No. 450, dated 17th April, 2005, whereby full Pension of the petitioner has been forfeited and it has been ordered to recover Pension already received by him. Certain more amounts have also been ordered to be recovered from the petitioner. The petitioner has also challenged the said order by filing the amendment petition. 4. As the case can be disposed of on a short point, it is not necessary to discuss all the facts except the relevant one. While in service, the petitioner was suspended by an order issued vide Memo No. 173, dated 5th September, 1999. A departmental proceeding was initiated and charge-sheet was communicated, vide Memo No. 110, dated 30th May, 2001. Altogether 8 (eight) charges were levelled against the petitioner and one Enquiry Officer was appointed. The Enquiry Officer vide his report dated 23rd October, 2002 held all the eight charges not proved. In spite of the same, the Deputy Commissioner who is the disciplinary authority without differing with the findings of the Enquiry Officer, forwarded a copy of the enquiry report to the petitioner, vide Memo No. 253, dated 3rd February, 2004 and asked him to file show cause reply. It was not made clear therein as to why a show cause reply was asked for when the petitioner was exonerated of all the charges by the Enquiry Officer. It was not made clear therein as to why a show cause reply was asked for when the petitioner was exonerated of all the charges by the Enquiry Officer. Later on, after receipt of the reply, the Deputy Commissioner, vide Memo No. 1590, dated 6th June, 2003 differed with the finding and issued a second show cause notice and also ordered for fresh enquiry. This was challenged by the petitioner before this Court in W.P. (S) No. 3059 of 2003. A Bench of this Court vide order dated 11th November, 2003, having noticed the decisions of the Supreme Court in the case of K.R. Deb v. The Collector of Central Excise, Shillong, and the case of Bhupinder Pal Singh v. Director General of Civil Aviation, reported in 2003 (2) Supreme Today 493, held the notice illegal and set aside the notice. However, liberty was given to the disciplinary authority to proceed from the stage of second show cause notice and to conclude the departmental proceeding in accordance with law. Thereafter, while the Deputy Commissioner issued a second show cause notice, vide Memo No. 349, dated 11th February, 2004 simultaneously appointed Treasury Officer, Giridih as the Enquiry Officer to conduct fresh enquiry. 5. Admittedly, there is no law laid down by the State to appoint any Enquiry Officer at the time of issuance of a second show cause notice. That is also not permissible under the law. Though it is always open for the disciplinary authority to order for further enquiry if one or other evidence has not been taken into consideration by the Enquiry Officer or fresh material comes to his notice, the authority cannot order for fresh enquiry. 6. The procedure for conclusion of a departmental enquiry having not been followed and at the time of second show cause notice another Enquiry Officer having appointed to hold fresh enquiry, the petitioner has raised the question of legality and propriety of notice, as contained in Memo No. 349, dated 11th February, 2004. 7. Learned counsel for the petitioner has rightly pointed out that the Deputy Commissioner, Giridih had no jurisdiction to engage/appoint another Enquiry Officer at the time of second show cause notice nor such Enquiry Officer had any jurisdiction to make a fresh enquiry and to submit any fresh report as submitted on 12th October, 2004. 7. Learned counsel for the petitioner has rightly pointed out that the Deputy Commissioner, Giridih had no jurisdiction to engage/appoint another Enquiry Officer at the time of second show cause notice nor such Enquiry Officer had any jurisdiction to make a fresh enquiry and to submit any fresh report as submitted on 12th October, 2004. Such (second) enquiry report dated 12th October, 2004 being without jurisdiction, it was not open to the Deputy Commissioner, Giridih to issue again a so-called second show cause notice nor he had jurisdiction to pass penal order on the basis of such report. The total proceeding as has been followed being illegal, this Court has no option, but to set aside all the subsequent order passed by the Deputy Commissioner, Giridih, including the order contained in Memo No. 349, dated 11th February, 2004; enquiry report dated 12th October, 2004; subsequent second show cause notice; and the impugned order contained in Memo No. 450, dated 17th February, 2005. They are, accordingly, set aside. The respondents are directed to pay the petitioner, the retirement benefits in accordance with law. 8. Further, this Court having noticed that the petitioner has already superannuated from service on 31st January, 2002 and after his superannuation, no order of punishment can be passed and any order under Rule 43(b) of the Pension Rules can be passed only by the State and in spite of giving opportunity to the Deputy Commissioner, Giridih, he failed to avail such opportunity and the enquiry officer held the petitioner not guilty of all the charges, this time no liberty is given to the respondents for making further enquiry. 9. The wit petition is allowed with the aforesaid observations and directions. However, in the facts and circumstances of the case, there shall be no order as to costs.