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Jharkhand High Court · body

2013 DIGILAW 1213 (JHR)

Md. Shahid v. State of Jharkhand

2013-11-12

APARESH KUMAR SINGH

body2013
ORDER 1. Heard learned counsel for the parties. 2. The petitioner has been imposed with a punishment of compulsory retirement by the impugned order contained at memo no. 1427 dated 26.5.2012(Annexure-7) passed by the Commandant, Jharkhand Armed Police(JAP)-10, Hotwar, Ranchi in a departmental proceeding bearing no. 5 of 2012 initiated against him for certain alleged misconduct. The petitioner's appeal against the said order of punishment has also been rejected by the Appellate Authority cum Deputy Inspector General of Police, JAP, Ranchi vide order contained at memo no. 1351 dated 10.10.2012(Annexure-8) which is also impugned herein. The petitioner has consequently prayed for his reinstatement and full salary for the period he was out of service. 3. According to the learned counsel for the petitioner he was proceeded against under the charges issued on 18.2.2012 contained at memo no. 469 by the Commandant, JAP-10 (Annexure-3) with the allegation that he had indulged in duping 28 persons by assuring job to them and in the process received approximately Rupees 7 lakhs from them. A preliminary inquiry conducted earlier had prima-facie found the petitioner involved in such misconduct for which he was placed under suspension by the said order at Annexure-3 and the departmental proceeding was initiated. The petitioner furnished show cause in response to the said initiation of the departmental proceeding vide Annexure-4 dated 28.2.2012. There after the departmental proceeding was conducted by the Inquiry Officer who found the charges against the petitioner established and submitted his inquiry report on 10.5.2012 vide Annexure-6 holding the petitioner guilty of the said misconduct for having duped 28 persons in the name of getting government job. 4. In the background of the aforesaid facts, which need not be gone into in much detail in the present writ petition, the sole ground to challenge the impugned orders by the petitioner is that the order of punishment has been passed without serving the copy of the inquiry report and second show cause to him. It is submitted by learned counsel for the petitioner that this infirmity goes to the root of the conduct of the departmental proceeding and vitiates the same. A categorical statement has been made in para 18 and 45 of the writ petition that the impugned order of punishment was passed without issuance of second show cause notice. It is submitted by learned counsel for the petitioner that this infirmity goes to the root of the conduct of the departmental proceeding and vitiates the same. A categorical statement has been made in para 18 and 45 of the writ petition that the impugned order of punishment was passed without issuance of second show cause notice. The said categorical assertion made by the petitioner have not been denied by the respondents in their counter affidavit as would appear from para 20 of the said counter affidavit. As a matter of fact, the respondents have stated at para 20 of the counter affidavit that in case of compulsory retirement the requirement of second show cause is not mandatory. This is required in case of dismissal from service under Rule 828(B) of the Police Manual. 5. Learned counsel for the petitioner in support of his aforesaid submissions to assail the impugned orders have relied upon the celebrated judgment rendered by the Hon'ble Supreme Court in the case of Union of India & others Vrs. Mohd. Ramzan Khan reported in AIR 1991 SC 471 . It is submitted on behalf of learned counsel for the petitioner by referring to the said judgment that requirement of serving second show cause after conclusion of the inquiry proceeding together with the copy of the inquiry report is read to be an essential requirement of Principle of Natural Justice to be followed in the conduct of the departmental proceeding as conceived under Article 311 of the Constitution of India when the order of punishment is to be passed. Para 15 of the said judgment has been relied upon by the petitioner. In such circumstances, the impugned order of punishment as well as Appellate order are said to be vitiated in law and, therefore, deserves to be quashed. 6. Learned counsel for the respondent- State has however supported the impugned orders. He has relied upon the contents of the inquiry report, impugned orders as also the averments made in the counter affidavit to submit that serious charge of duping about 28 persons in name of assuring government job and receiving approximately Rs.7 lakhs has been found to be established against the petitioner. Witnesses were examined but petitioner chose not to cross examine many of the witnesses. In these background the impugned order of punishment has been passed after giving due opportunity to the petitioner. Witnesses were examined but petitioner chose not to cross examine many of the witnesses. In these background the impugned order of punishment has been passed after giving due opportunity to the petitioner. However, learned counsel for the respondent-State is not able to dispute the specific contention of the petitioner that before passing the order of punishment no second show cause together with the copy of the inquiry report was served upon the petitioner which is sine qua non in the conduct of departmental proceeding before imposition of punishment. 7. I have heard counsel for the parties and gone through the relevant materials on record including the impugned orders. The factual details as are necessary to determine the sole question raised in the present writ application have already been indicated in the earlier part of the judgment. The impugned orders have been assailed on the sole ground that it suffers from violation of Principles of Natural Justice for failing to serve the second show cause and copy of the inquiry report before passing the impugned order of punishment. The law in respect of conduct of the departmental proceeding is now well settled. The order of compulsory retirement imposed upon the petitioner in the present case was based upon the charge for certain alleged misconduct in respect of which petitioner was proceeded against and disciplinary inquiry was held. 8. The present case is not one of those in which an order of compulsory retirement has been passed in the nature of removing the dead wood from the organization in respect of an employee, who has outlived the utility for the employer. The impugned order of compulsory retirement has been passed on the basis of Disciplinary Proceeding initiated on the basis of a charge-sheet against the petitioner for some misconduct. In such circumstances, whenever the order of compulsory retirement is passed in the nature of a punishment the essential attributes for conduct of the departmental proceeding is to be followed. The said opinion has been squarely laid by the Hon'ble Supreme Court in the Case of Union of India & others Vrs. Mohd. Ramzan Khan(supra). In such circumstances, whenever the order of compulsory retirement is passed in the nature of a punishment the essential attributes for conduct of the departmental proceeding is to be followed. The said opinion has been squarely laid by the Hon'ble Supreme Court in the Case of Union of India & others Vrs. Mohd. Ramzan Khan(supra). Para 15 of the said said judgment is quoted herein below for better appreciation:- “Deletion of the second opportunity from the scheme of Art. 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Art. 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the 42nd amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-Second Amendment has not brought about any change in this position”. 9. It is apparent from the statement made at para 18 of the writ petition and its response at para 20 of the counter affidavit that the respondents appear to be labouring under the misconception that in the matter of imposition of a punishment of compulsory retirement in a departmental proceeding there is no requirement of furnishing second show cause. This however is totally contrary to the legal position. This however is totally contrary to the legal position. As a matter of fact the relevant Rules of the Police Manual 828(B) also lays down that no order of dismissal, removal, compulsory retirement or reduction shall be passed on any police officer unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself. In that view of the matter, the decision making process in imposing the punishment of compulsory retirement has seriously suffered. 10. Accordingly, the impugned order of punishment contained at memo no. 1427 dated 26.5.2012 (Annexure-7) and Appellate order contained at memo no. 1351 dated 10.10.2012 (Annexure-8) are quashed. The respondent- authorities are directed to proceed with the matter afresh from the stage of serving copy of the inquiry report and second show cause notice to the petitioner in the said departmental proceeding and take appropriate decision in accordance with law. 11. The writ petition is allowed in the aforesaid manner.