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Jharkhand High Court · body

2008 DIGILAW 380 (JHR)

Harinandan Rajak v. State of Jharkhand

2008-03-31

N.N.TIWARI

body2008
Order In this writ petition, the petitioner has prayed for quashing of the order being Memo No. 203 dated 11.8.2003, issued by the Deputy Secretary, Department of' Road Construction, Government of Jharkhand, whereby the petitioner has been held liable for defalcation of the Government fund and refund of a sum of Rs. 28,79,904.10. paise along with other punishment. 2. During pendency of this writ petition, the respondents have modified the said order dated 11.8.2003 (Annexure-9) and passed an office order being Memo No. 241 dated 2.9.2003, whereby instead of recovery of the total sum of Rs. 28,79,904.10 paise at one lump sum, recovery at first instance shall be of Rs. 14,39,952/- and the rest by way of monthly instalment from the petitioner's salary. 3. The petitioner filed an application (IA. No. 2036 of 2003) for amendment in the writ petition and for addition of the prayer seeking quashing of the said order dated 2.9.2003, as well. The amendment was allowed after hearing the parties. 4. The petitioner's case is that while he was posted as Junior Engineer, Churchu Block, Hazaribagh. a memorandum of charge was issued to the petitioner and on that basis, a departmental proceeding was initiated and the Enquiry Officer was appointed to enquire into the same. The Enquiry Officer, after thorough enquiry, submitted the detailed enquiry report giving a finding that the charges against the petitioner could not be established by the Department and in view of the finding, no further proceeding is justified against the delinquent officer. 5. After submission of the said report by the Enquiry Officer, there was no order of the Disciplinary Authority/Appointing Authority of any disagreement from the finding to the petitioner. No such notice was issued to the petitioner. Suddenly, the impugned order (Annexure-9) was issued awarding multiple punishments and holding the petitioner liable for refund of Rs. 28,79,904.10 paise. which was modified by order dated 2.9.2003, as aforesaid. In addition to the same, the petitioner was awarded punishment of withholding of two increments and censor. He was also held not entitled to get salary for the suspension period. 6. The petitioner has assailed the said order of punishment on, amongst others, the ground of violation of principles of natural justice. In addition to the same, the petitioner was awarded punishment of withholding of two increments and censor. He was also held not entitled to get salary for the suspension period. 6. The petitioner has assailed the said order of punishment on, amongst others, the ground of violation of principles of natural justice. It has been stated that after submission of the enquiry report giving clear finding that the charges against the petitioner could not be established by the Department, there were only two alternative before the Disciplinary Authority/ Appointing Authority either to accept the said enquiry report and exonerate the petitioner of the charges or to differ with the findings of the enquiry officer and inform the petitioner the point of such difference. affording him proper opportunity of repro sentation. It has been submitted that the Disciplinary Authority has passed the said impugned order without complying with the said legal requirement and principles of natural justice. The order of punishment is, thus, vitiated in law and is liable to be quashed. 7. The respondents have contested this Writ petition. In the counter affidavit filed by the respondents, it has been stated, inter alia, that after the enquiry officer submitted the report, the matter was examined by the Disciplinary Authority. He found the petitioner along with Assistant Engineer and Executive Engineer responsible for the defalcation of fund. The Disciplinary Authority has examined all the materials and came to the conclusion that the charges against the petitioner were proved and he is guilty of defalcation of fund. However, the punishment against the petitioner is minor, namely, withholding of two increments and that of censor. So far as the recovery of defalcated amount is concerned, it is not by way of punishment, recovery has been ordered to make good of the loss. The punishment awarded is minor in nature. It is not necessary to issue a second show cause notice to the petitioner in such case. 8. Learned counsel for the petitioner submitted that It is the demand of the principles of natural justice that the authority, which proposes to decide against the delinquent officer, must give an opportunity of hearing to him by informing the point of difference. Having not done so, the petitioner has been condemned unheard, which is not permissible by law. The said impugned order is thus wholly illegal and without jurisdiction. Having not done so, the petitioner has been condemned unheard, which is not permissible by law. The said impugned order is thus wholly illegal and without jurisdiction. He referred to and relied on the decision of the Supreme Court in 'Punjab National Bank & Drs. vs. Kunj Behari Misra, reported in (1998)7 SCC 84 '. He has further relied on a decision of this Court in 'Baeheha Prasad Pathak vs. State of Jharkhand & Drs., reported in 2003(3) J.C.R. 55 (Jhr.) [ : 2003(2) JLJR 367 ]. 9. Learned J.C. to G.P.-II, appearing on behalf of the State-respondents, on the other hand, submitted that the Disciplinary Authority has not, in fact, differed with the finding given by the Enquiry Officer, rather he has come on his own conclusion on the basis of the material and evidence collected in course of the enquiry and, as such, there is no question for giving any notice to the petitioner on the point of difference, as claimed by him. It has been submitted that there has been no violation of principles of natural justice and the petitioner was given ample opportunity of explaining the charges against him. 10. I have heard learned counsel for the parties and considered the facts and materials brought on record as also the submissions made by them. I have also perused the enquiry report produced by the petitioner, which is on record as Annexure-11. 11. On perusal of the enquiry report (Annexure-11), it is evident that the Enquiry Officer has clearly mentioned that the charges against the petitioner could not be established and in view thereof, no further proceeding against the petitioner is justified. The Enquiry Officer has dealt with the facts and the materials on record in its long enquiry report of 11 pages. Admittedly, thereafter, no notice was issued to the petitioner informing him about the disagreement of the Disciplinary Authority from the enquiry report. 12. In Punjab National Bank & Drs. (supra), the Hon'ble Apex Court, after having considered several earlier decisions, held that in a disciplinary enquiry, the first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, the enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose pen alty on the basis of its conclusions. The second stage begins when the disciplinary authority decides to impose pen alty on the basis of its conclusions. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The Apex Court further held that the principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, that report has to be served on the delinquent officer, in order to afford him an opportunity to make representation before the disciplinary authority takes further decision. When the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, the authority must give the delinquent officer an opportunity of being heard before taking any decision against him. Otherwise he would be condemned unheard. 13. h Bachcha Prasad Pathak (supra), this Court quashed an order of punishment, which was passed against the delinquent without informing the point of difference by the disciplinary authority. It was held that when the charges are not proved but the disciplinary authority has differed, the point of difference must be communicated to the delinquent. The order of punishment without giving notice on the point of difference by the Disciplinary Authority is not sustainable. 14. The facts of the instant case squarely fall within the four corners of the principles laid down in the said decisions. Admittedly, in the instant case, the Enquiry Officer has submitted its report holding that the Department failed to substantiate the charges against the petitioner and no further action is required, the impugned order imposing punishment by way of further action is clear disagreement of the Disciplinary Authority from the Enquiry Officer. There is no substance in the submission that the Disciplinary Authority has not differed with the finding of the enquiry officer and no notice was required to be served on the petitioner on the point of difference. 15. For the reasons aforesaid, it is held that the punishment awarded by the impugned orders, contained in Annexures9 & 10 without giving any opportunity to the petitioner to represent on the point of difference of the disciplinary authority is violative of principles of natural justice and is wholly arbitrary, illegal and unsustainable in law. The impugned orders are, hereby, quashed. 16. This writ petition is, accordingly, allowed.