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2012 DIGILAW 295 (JHR)

Yamuna Ram v. State of Jharkhand

2012-02-24

P.P.BHATT

body2012
Order Heard the learned counsel appearing for the petitioner as well as learned counsel appearing for the State-respondents. Perused the records. 2. The petitioner by way of filing this writ petition under Article 226 of the Constitution of India has prayed for quashing the order dated 10.10.2004 as contained in Annexure-3, order dated 19.1.2006 as contained in Annexure-4 as well as the order dated 5.8.2006 as contained in Annexure-5 by which services of the petitioner was' dismissed. It is further prayed that necessary order/direction may be issued for reinstatement of the petitioner with all consequential benefits from the date of dismissal till the date of reinstatement. 3. The learned counsel appearing for the petitioner submitted that the findings of the Inquiry Officer are perverse. It is submitted that the Inquiry Officer has proceeded on the basis of the service record i.e. service book of the petitioner which has been prepared by the officers of the respondent after joining the service. The petitioner was served with memo of charge alleging that as he was appointed on the basis of a forged certificate claiming to be Scheduled Caste whereas he belongs to general cadre. The learned counsel appearing for the petitioner submitted that caste certificate was never produced by him at any point of time. It is further submitted that the petitioner made specific averments in his petition with regard to his height and other parameters which were satisfied qua him against the appointment of general candidates, to which there is no specific answer by the respondents in the counter affidavit. It is further submitted that there is specific averment in paragraphs no. 14 and 15 in the petition that the Inquiry Officer did not furnish the required documents as well as the inquiry report. However, there is no specific averment in the counter affidavit to deal with said submission. The learned counsel appearing for the petitioner submitted that the disciplinary proceedings were conducted in clear contravention of principle of natural justice and therefore, on this count also the order of dismissal is required to be quashed/set aside. The learned counsel appearing for the petitioner further submitted that for the same set of charge a criminal case was also instituted against the petitioner and the learned Magistrate vide its order dated 29.4.2006 passed an order of acquittal by given benefit of, doubt. The learned counsel appearing for the petitioner further submitted that for the same set of charge a criminal case was also instituted against the petitioner and the learned Magistrate vide its order dated 29.4.2006 passed an order of acquittal by given benefit of, doubt. It is also submitted that during inquiry proceedings the petitioner requested the authorities to wait till outcome of the criminal case but the authority did not consider the request made by the petitioner, rather proceeded further in the departmental proceedings and passed an order of dismissal. The learned counsel appearing for the petitioner submitted that charge leveled against the petitioner in the inquiry proceedings as well as criminal proceeding, both are almost similar and therefore, it was desirable for the disciplinary authority as well as appellate authority respectively to wait till outcome of the criminal case. If they could have waited, they would have chance to appreciate and consider the findings given by the learned Magistrate in a criminal case. It is further submitted that the petitioner has rendered his service for almost 17 years and on the basis of the anonymous complaint the proceedings were initiated against the petitioner. It is further submitted that the petitioner ha been victimized at the instance of some unknown persons having some vested interest and therefore, on this count, both orders assed against the petitioner are required to be quashed/set aside. The learned counsel appearing for the petitioner requested that in the event of allowing this petition, the petitioner may be ordered to be reinstated at least with 50% back wages. It is further submitted that material witnesses were not examined and no fair opportunity was given to the petitioner during course of inquiry and disciplinary proceedings he learned counsel for the petitioner while referring paragraph 9 of the judgment given by the learned Magistrate in a, criminal case pointed out that there is a specific finding given by the learned Magistrate that there is no material, which goes to the root of the matter, could be traced out nor any material or important witnesses to support the case of the prosecution has been examined during courses of trial and therefore, the petitioner has been acquitted by the court below. There is specific finding given by the learned Magistrate that the Investigating Officer during course of investigation could not lay his hands or trace out any caste certificate. There is specific finding given by the learned Magistrate that the Investigating Officer during course of investigation could not lay his hands or trace out any caste certificate. The learned counsel appearing for the petitioner in support of his submission cited the following judgment in support of his agreements:- (2010)4 PLJR 945 (2006)5 SCC 446 (1999)3 SCC 679 (2002)3 JLJR 299 The learned counsel for the petitioner while referring aforesaid judgments submitted that the same are relevant and applicable to the case of the petitioner and in the light of the principle/ratio laid down in the aforesaid judgment the orders passed by the Disciplinary Authority as well as Appellate Authority may be quashed/set aside. 4. As against that, the learned counsel appearing for the State while referring the counter affidavit submitted that there are concurring findings of fact and therefore, this court should not entertain this petition as there is no procedural lacuna while conducting inquiry proceeding. It is further submitted that even Disciplinary Authority as well as Appellate Authority followed all the requisites procedure and thereafter after careful consideration of the material on records, passed an order of dismissal and it should not be disturbed by this Court. The learned State Counsel while referring the findings of the inquiry officer submitted that in a service book maintained by the respondent the petitioner has submitted affidavit/declaration with regard to caste certificate and it was signed by the petitioner and on the basis of the service record the Inquiry Officer as well as Disciplinary Authority have proceeded further and decided to dismiss the petitioner from service, which according to the State Counsel, is just, legal and valid and no interference is called for by this court. The learned counsel appearing for the State while referring the order passed by the Appellate Authority submitted that the Appellate Authority also considered all the points raised by the present petitioner in his appeal and passed detail reason order while confirming the order passed by the Disciplinary Authority and therefore, no interference is called for by this Court. It is lastly submitted that the order passed by the learned Magistrate in a criminal case is not binding on the Disciplinary Authority. The inquiry proceeding and the criminal case both are independent proceeding and therefore, according to him, submissions made by this petitioner should not be accepted. It is lastly submitted that the order passed by the learned Magistrate in a criminal case is not binding on the Disciplinary Authority. The inquiry proceeding and the criminal case both are independent proceeding and therefore, according to him, submissions made by this petitioner should not be accepted. The learned counsel appearing for the State submitted that the aforesaid judgments cited by the petitioner are not applicable to the facts and circumstances of the present case. Accordingly, this writ petition deserves to be dismissed as the Inquiry Officer, Disciplinary Authority, Appellate Authority as well as Revisional Authority have passed reason orders after following due process of law. The learned counsel appearing for the State submitted that in the event of allowing this petition, the petitioner's prayer with regard to reinstatement with 50% back wages should not be entertained by this Court as he has been dismissed from service long back and no work has been done during the intervening period, even he cannot claim his salary during intervening period as a matter of right as the petitioner is out of service. 5. Considering the aforesaid rival sub. missions and on perusal of the materials available on record it transpires that the petitioner has been dismissed from services after rendering about 17 years of service. It appears that inquiry proceedings were initiated on the basis of anonymous complaint and simultaneously criminal case was instituted against the petitioner for the same set of charge. The criminal case was decided by the learned Magistrate vide its order dated 29.4.2006 and in that case the petitioner has been acquitted by giving benefit of doubt. On perusal of the documents it appears that the orders were passed by the Disciplinary Authority as well as Appellate Authority on 10.10.2004 and 19.1.2006 respectively i.e. before the outcome of the criminal case which was decided on 29.4.2006 meaning thereby the factum of the acquittal in a criminal case as well as findings given by the Magistrate in criminal case were not considered at all by any of these Authorities. It appears that specific request was made by the present petitioner to wait till outcome of the criminal case but the same was not responded by the Disciplinary Authority as well as the Appellate Authority. It appears that specific request was made by the present petitioner to wait till outcome of the criminal case but the same was not responded by the Disciplinary Authority as well as the Appellate Authority. It appears that against the said orders, the petitioner preferred revision before the Director General of Police which was also rejected on 5.8.2006 i.e. subsequent to the decision taken by the learned Magistrate on 29.4.2006. Thus, the Inquiry Officer, Disciplinary Authority, Appellate Authority as well as the Revisional Authority did not consider the factum of acquittal and findings given in the judgment of criminal case were not at all considered. It is pertinent to note that on the same set of facts charge was framed in criminal case as well departmental inquiry. On perusal of paragraph 9 of the judgment given in a criminal case by the learned Magistrate it transpires that the caste certificate, which was the basis of the entire proceeding, could not be produced at any point of time and during course of investigation. Inquiry proceedings were proceeded on the basis of the service record which was always prepared by the respondent authority subsequent to joining of service of an employee. It also appears that contention raised by the present petitioner with regard to non-supply of' inquiry report has not dealt with by the respondent in the counter affidavit and therefore, there is reason to believe that there is substance in the arguments advanced by the learned counsel appearing for the petitioner that departmental proceedings were conducted in clear contravention of principle of natural justice. 6. On perusal of the judgment reported in 2010(4) PLJR 945 cited by the learned counsel appearing for the petitioner it appears that similar situation is also prevailing in the present case as the respondents have completely failed to produce any material to establish that the petitioner has wrongly represented himself as scheduled caste candidate for getting benefits of appointment in service. Neither any caste certificate was produced in the inquiry by the respondents nor any caste certificate submitted by the petitioner before the respondents at any point of time has been produced on the records of this case. Neither any caste certificate was produced in the inquiry by the respondents nor any caste certificate submitted by the petitioner before the respondents at any point of time has been produced on the records of this case. Another judgment cited by the learned counsel for the• petitioner reported in 2002(3) JLJR 299 is also relevant for the purpose of deciding this matter as it has been held in the said case that when for the same set of charges a criminal proceeding was pending before a competent court, the disciplinary authority should have waited for the decision of the court. Respondent having acquitted by the criminal court, the appellate/revisional authority should have recalled the order of punishment. In the present case, as discussed hereinabove, disciplinary authority as well as appellate authority did not wait till outcome of the criminal case. Disciplinary Authority ought to have waited till the but come of the criminal case when the criminal prosecution for the same set of charge was pending against the delinquent petitioner. In another judgment reported in (2006)5 SCC 446 , it has been held that when departmental inquiry and criminal proceedings were based on same set of facts, charges, evidence and witnesses and if there is no evidence against employee to hold him guilt and when the appellant is acquitted in criminal case during pendency of proceeding challenging dismissal and when the finding to contrary recorded in departmental proceedings in such case are unjust, unfair and oppressive. The Apex Court held that when the prosecution failed to prove the charges levelled against the appellant and when the said order of the trial court is not further challenged by the State, becomes final and conclusive. In the present case also there is nothing on record to show that the order of acquittal has been challenged by the State. Thus, it becomes final and conclusive as held by the Hon'ble Apex Court. As discussed herein above, the Inquiry Officer, Disciplinary Authority, Appellate Authority as well as Revisional Authority have not waited till outcome of the criminal case and passed the order of dismissal without availing an opportunity of considering the findings recorded by the learned Magistrate in a criminal case although the charge in the departmental proceeding as well as in the criminal case are almost similar. 7. 7. Thus, in the light of the aforesaid facts and circumstances of the present case and in view of the principles laid down in the judgments referred above which are applicable to the facts of the present case, the order dated 10.10.2004 as contained in Annexure-3, order dated 19.1.2006 as contained in Annexure-4 as well as the order dated 5.8.2006 as contained in Annexure-5 are ordered to be quashed. The petitioner is ordered to be reinstated in service without any back wages within a period of one month from the date of receipt of this order. 8. This petition is allowed accordingly.