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2012 DIGILAW 1650 (JHR)

State of Jharkhand v. Rameshwar Jha

2012-11-26

JAYA ROY, PRAKASH TATIA

body2012
JUDGMENT By Court : Heard learned counsel for the parties. 2. This appeal has been preferred by the State against the judgment dated 30th August, 2011, passed in W.P (S) No.3612/2009, whereby the writ petition of the petitioner-respondent has been allowed and the order passed in the departmental proceedings of compulsory retirement of the petitioner-respondent dated 13th May, 2009 has been quashed and the respondent-appellant has been directed to reinstate the writ petitioner with all consequential benefits and back wages. 3. It appears that the petitioner was served with the chargesheet containing nine allegations. It is the case of the writ petitioner that initially a preliminary enquiry was conducted by the S.D.O, Hazaribagh and he found nothing adverse against the writ petitioner. Thereafter another enquiry was conducted and the Enquiry Officer opined that charge nos.2, 3, 4, 6 and 9 are not proved and for remaining charges also, no definite opinion can be given. However, the Enquiry Officer in the report dated 21st January, 2009, mentioned that the petitioner is guilty in respect of “few” and for charge nos.4, 5 and 7 petitioner is partially found guilty. The petitioner then was served with second show cause notice and according to the petitioner, the said second show cause notice was issued because of the advice given by the Advisor to the Governor, which is apparent from the note dated 25th April, 2009, a copy of which has been placed on record by the writ petitioner. It is also submitted by the writ petitioner that a decision was taken by the Advisor to the Governor to compulsorily retire the writ petitioner and that was only followed but without following the procedure of law for any departmental enquiry. It is submitted that the petitioner was not even given copy of the list of witnesses. Furthermore, whatever evidence was recorded at the back of the writ petitioner, that has been considered without affording any opportunity to cross-examine to the writ petitioner. It is also submitted that when the guilt of charge of corruption is levelled, burden of proving the same is heavier upon the Department, as has been held by the Hon'ble Supreme Court in the case of Union of India & Ors. Vs. Gyan Chandra Chattar reported in (2009) 12 SCC 78 . 4. It is also submitted that when the guilt of charge of corruption is levelled, burden of proving the same is heavier upon the Department, as has been held by the Hon'ble Supreme Court in the case of Union of India & Ors. Vs. Gyan Chandra Chattar reported in (2009) 12 SCC 78 . 4. Learned Single Judge has held in the present matter that there was no fair enquiry at all and the enquiry is only an eyewash and influenced by the observations made by the Advisor to the Governor and the petitioner was not given opportunity to cross-examine the witnesses. 5. Learned counsel for the appellant vehemently submitted that even in a case of not affording opportunity to cross-examine the witnesses, unless prejudice is caused the Court may not interfere with the decision given in the departmental proceedings. Learned counsel for the appellant relied upon the judgment rendered in the case of A. Sudhakar Vs. Postmaster General, Hyderabad & Anr. Reported in (2006) 4 SCC 348 . It is submitted that the petitioner could not show as to what prejudice was caused because of non-following of the procedures of law for departmental enquiry regarding cross-examination of witnesses as well as non-furnishing of list of witnesses to the writ petitioner. Learned counsel for the appellant-State tried to justify the order by submitting that in Prapatra Ka there is mention of the names of the persons who were the witnesses. 6. We considered the submissions of the learned counsel for the parties and perused the materials on record. We also perused the detailed reasons given by the Advisor to the Governor, who has opined that the petitioner has lowered down the prestige of the Department and therefore, in view of the serious allegation, he may be compulsorily retired. The said note-sheet has influenced the departmental proceedings seriously and prejudiced the petitioner, which is apparent from the subsequent notes, which indicates that all steps were taken to see, how the petitioner can be compulsorily retired. Therefore, learned Single Judge is right in observing that the order is influenced by the note-sheets of the Advisor to the Governor. 7. It is not disputed that at no point of time, the petitioner was given any opportunity to cross-examine any of the witnesses. Therefore, learned Single Judge is right in observing that the order is influenced by the note-sheets of the Advisor to the Governor. 7. It is not disputed that at no point of time, the petitioner was given any opportunity to cross-examine any of the witnesses. In addition to the above, we are of the considered opinion that the disciplinary authority, which has passed the order of compulsory retirement of the petitioner, itself has not considered the evidence for reaching to the conclusion independently. 8. In view of the above reasons, we are of the considered opinion that the learned Single Judge has not committed any error in allowing the writ petition and there is no reason to interfere with the impugned judgment passed by the learned Single Judge. This appeal, having no merit, is dismissed and the stay petition is also dismissed.