Research › Search › Judgment

Jharkhand High Court · body

2006 DIGILAW 463 (JHR)

Ran Vijay Prasad Yadav v. State Of Jharkhand

2006-04-25

N.N.TIWARI, SUDHANSU JYOTI MUKHOPADHAYA

body2006
ORDER 1. This appeal has been preferred by the writ petitioner-appellant against the order dated 12.10.2004 passed in W.P(S).No. 5486/2004 whereby his writ application has been dismissed. 2. The writ application was filed seeking the following reliefs : (i) For quashing the order passed by the respondent No. 3 as contained in Memo No. 889/Estb./dated 15.6.04 (Annexure-15) whereby the petitioner was reverted from the post of Company Commandant to the Initial post of Nayak when the petitioner was about to retire. (ii) For quashing the order passed by the respondent No. 2 as contained in Memo No. 1277/Estb./dated 24.8.04 (Annexure-19) whereby the petitioners appeal was summarily rejected. (iii) For a direction to the respondents for payment of his salary for the months of July and September 2003 and also for the month of June 2004 including the arrears of enhanced D.A. 3. The brief facts giving rise to this case are that the appellant-petitioner was posted as Company Commandant at Garhwa and was given charge w.e.f 1.4.03. However, the key of the Almirah was not handed over to him and the same was with one Mithilesh Kr. Sinha. On 2.9.03 the appellant found one cheque No. 523800 missing from the cheque book. He immediately issued a letter by Memo No. 250/2.9.03 to the said Mithilesh Kr. Sinha asking him as to how the said cheque was missing from the cheque book which was in his custody. On the same day the appellant issued another letter to the concerned Bank requesting them to stop payment of the said cheque. He also communicated the same to the police station and to the Superintendent of Police, Garhwa. When the District Commandant, Garhwa resumed his duty on 8.8.93 after availing leave, the appellant immediately informed him also about the same. On that basis, the District Commandant lodged an F.I.R dated 11.9.03 being Garhwa P.S. Case No. 204/03. Though the appellant had detected the said illegality and informed all those concerned and on the basis of his information the said case was instituted, yet surprisingly the appellant was immediately put under suspension by order dated 24.9.03 issued by respondent No. 3 alleging that the appellant was also involved in the illegal withdrawal of the money. However, no proceeding was initiated against him. However, no proceeding was initiated against him. The appellant then moved this Court against the said order in W.P(S) No. 1502/04, which was disposed of by order dated 17.2.04 with a direction to the respondents to initiate a departmental proceeding and conclude the same within four months. Thereafter a departmental proceeding being No. 1/04 was initiated against the appellant and a Memo containing article of charges was served on him. The respondent No. 5 was appointed enquiry officer. He directed the appellant to submit his written reply within one week. For filing an effective reply the petitioner demanded several relevant documents by his representation dated 24.3.04, but all the requisite papers were not supplied to him. The petitioner, as directed, filed his reply. In course of the enquiry, the department examined five witnesses. Ram Naresh Pd., Deputy Manager-cum-Passing Officer, S.B.I, Garhwa was also examined as one of the witnesses who stated that there was no evidence on record to show that withdrawal was done on the basis of forged signature. On the same day i.e. on 17.5.04 defence witnesses were examined and without supplying a copy of enquiry report, the respondent No. 5 directed the petitioner to submit his last show cause reply. The petitioner filed the same on 21.5.04. The petitioner had denied all the charges and stated that none of the charges could be proved against him. However, without considering the appellants reply and without any material to substantiate the charges, he was awarded major punishment by reverting him to the initial post of Nayak. The petitioner preferred an appeal, but that was also summarily rejected. 4. It has been submitted that learned Single Judge without appreciating the points raised in the writ application, dismissed the same by the impugned order. It has been submitted that the appellant initially joined his service as Nayak, the post, which has now been abolished. He has been reverted to the corresponding post of Sipahi and thereby has been downgraded to two lower ranks. The said punishment is harsh and arbitrary, inasmuch as, it amounts to double punishment coupled with forfeiture of all incentives earned during the entire service period which would also go to affect his pensionary and other retiral benefits as the appellant was to retire on 31.10.04 (since retired). The said punishment is harsh and arbitrary, inasmuch as, it amounts to double punishment coupled with forfeiture of all incentives earned during the entire service period which would also go to affect his pensionary and other retiral benefits as the appellant was to retire on 31.10.04 (since retired). By another letter being Memo No. 935/23.6.04 the period of suspension from 24.9.03 to 10.6.04 has been sought to be adjusted against the period of earned leave on half pay and the appellants salary for the period of suspension has been denied. According to the appellant, the said orders are wholly illegal, arbitrary and violative of principles of natural justice inasmuch as neither the enquiry report was supplied to him nor he was given proper opportunity of hearing. 5. The respondents had contested and denied the appellants allegation made In the writ application by filing their counter affidavit. It was contended, inter alia, that though copy of enquiry report was not served on the appellant, no prejudice was caused to him on account of non-service of copy of the enquiry report. All the relevant records were within his knowledge and the punishment was awarded after he was held guilty in the departmental enquiry. The appellant preferred a departmental appeal which was also dismissed as there was no convincing ground to set aside the punishment. The appellant was given ample opportunity to defend himself. 6. Learned Counsel for the appellant emphatically urged that the impugned orders are wholly arbitrary as there was flagrant violation of the principles of natural justice. He relied on the decision of the Supreme Court in the case of Union of India and Ors. v. Md. Ranjan Khan and also placed reliance on the decision of the Apex Court in the case of Managing Director, ECIL, Hyderabad and Ors. v. B. Karunakar and Ors. . Learned Counsel submitted that the Supreme Court in the said decisions has held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officers report before the disciplinary authority arrives at its conclusion with regard to the guilt or innocence of the employee regarding the charges levelled against him. That right is a part of the employees right to defend himself against the charges levelled against him. That right is a part of the employees right to defend himself against the charges levelled against him. A denial of the enquiry officers report, before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice. Learned Counsel submitted that the appellants case is squarely covered by the said decisions of the Honble Supreme Court and he has been denied his valuable right to receive a copy of the enquiry officers report and his right to defend himself before the disciplinary authority took the impugned decision of awarding him unconscionably severe punishment. The appellate authority also mechanically dismissed his appeal. The said orders are thus nullity and liable to be quashed. 7. Learned Government Pleader appearing on behalf of the respondents, on the other hand, submitted that non-supply of a copy of the enquiry report itself is not violative of the principles of natural justice and it depends on the extent of prejudice caused to the delinquent and in the facts and circumstances of a particular case. Learned Counsel relied on the decisions of the Supreme Court rendered in U.P. State S.P.G Co. Ltd. v. R.S. Pandey reported in (2005) 8 SCC 264 and also on the decision in Managing Director, ECIL, Hyderabad, (supra). Learned Counsel further submitted that in the case of Divisional Manager, Plantation Division A & N Islands v. Munnu Barrick the Supreme Court has held that though, compliance of the principles of natural justice is necessary, but the same can not be put in a straitjacket formula and must be viewed with flexibility and the employee must show sufferance of prejudice thereby. Learned Counsel submitted that the same principle was laid down by the Supreme Court in State of U.P. v. Harendra Arora and S.K. Singh v. Central Bank of India . 8. After hearing the parties and considering their submissions as also the materials appearing on record, we find that the appellant has been awarded major punishment and before taking that decision by the disciplinary authority, he was not given the copy of enquiry officers report. The appellants grievance is that he had no occasion to know the contents of the enquiry report and to properly defend himself in the last show-cause reply and that he has been seriously prejudiced. The appellants grievance is that he had no occasion to know the contents of the enquiry report and to properly defend himself in the last show-cause reply and that he has been seriously prejudiced. There has been thus violation of principle of natural justice. The respondents have admitted that the enquiry report was not served on the petitioner. He had admittedly no opportunity to know the contents and the basis on which the impugned punishment was awarded by reverting him back to the initial post and downgrading him by two ranks which is a major punishment causing heavy financial loss as well as down gradation to the initial post. The petitioner was then working as a Company Commandant in the scale of 5500- 9000 and he has been reverted to the initial post of Nayak which has now been abolished and the corresponding post of Sipahi has the scale of 3050-4590. All his promotions earned during service tenure have been taken away for the indefinite period. He has also been denied salary for the suspension period by only allowing subsistence allowance. The period of suspension has been adjusted against the period of earned leave on half pay. The appellant has thus made a clear cut case of prejudice and violation of principles of natural justice to the satisfaction of this Court. In the case of Md. Ramjan Khan, supra, it has been held by the Apex Court that the enquiry report is an adverse material if the enquiry officer records a finding of guilt and proposes a punishment against the delinquent and in a quasi-judicial matter, if the delinquent is being deprived of knowledge of the material against him though the same is made available to the punishing authority in the matter of reaching its conclusion. The same is violative of the rules of natural justice. The said view was reiterated by a Constitution Bench of the Supreme Court in the case of Managing Director, supra, which affirms the said decision in Ramjan Khans case. In the case of Managing Director the Supreme Court has extended the said rule to all establishments, government, non-government, public and private sector undertakings irrespective of whether statute provides for or delinquent asks for the same or not. In the case of Managing Director the Supreme Court has extended the said rule to all establishments, government, non-government, public and private sector undertakings irrespective of whether statute provides for or delinquent asks for the same or not. It has been further held that delinquent employee has a right to receive a copy of the enquiry officers report before the disciplinary authority arrived at its conclusion with regard to the guilt or innocence of the employee regarding the charges levelled against him and the denial of enquiry officers report before the disciplinary authority takes a decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principle of natural justice. In the factual compass of this case, the decisions of the Supreme Court rendered in the cases of U.P State S.P.G Co. Ltd. or Divisional Manager or State of U.P or S.K. Singh, supra, relied on by the respondents, have no application. 9. In view of the above discussion, we hold that the order dated 15.6.04 passed by the disciplinary authority-respondent No. 3 whereby the appellant was awarded the said punishment as also the order dated 24.8.04 (Annexure-19) passed by the appellate authority-respondent No. 2 are violative of principles of natural justice as also Articles 14, 16 & 21 of the Constitution of India and the same are hereby quashed. This appeal is allowed. The impugned order dated 12.10.04 passed in W.P(S) No. 5486/04 passed by learned Single Judge is set aside. However, there is no order as to costs.