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2013 DIGILAW 1273 (JHR)

Manjushree Paul v. State of Jharkhand

2013-11-26

SHREE CHANDRASHEKHAR

body2013
ORDER 1. Aggrieved by the dismissal order dated 29.12.2012, the petitioner has approached this Court by filing the present writ petition. 2. The brief facts of the case are that, the petitioner was appointed as Clerk-cum-Typist on 04.12.1971. She was subsequently promoted to the post of Anudeshak (Instructor) by order dated 15.07.2002. She applied for casual leave for two days and she proceeded on leave on 26.03.2007. By order dated 28.03.2007 the petitioner was put under suspension. A charge-sheet was served to the petitioner on 16.05.2007 on various allegations of unauthorized absence, illegal withdrawal of salary, financial irregularity, dis-obedience etc. An enquiry was conducted into the matter and the enquiry report was submitted on 22.05.2008. The Disciplinary Authority passed the order of dismissal on 19.06.2008 which was challenged by the petitioner by filing W.P.(S) No. 3375 of 2008. This Court by order dated 25.04.2012 quashed the order of dismissal dated 19.06.2008 and remanded the matter to the Disciplinary Authority in the following terms : “I have heard learned counsel for the parties. In the instant case, it is an admitted fact that the memorandum of charge was issued to the petitioner consisting of five articles of charges. The petitioner had denied the charges. The enquiry officer, thereafter, had inquired into the charges and on considering the facts, materials and evidences on record, had found the charges not proved. The disciplinary authority, thereafter, without informing the reason for disagreement with the finding of the enquiry authority and without giving any opportunity to the petitioner to file representation against the said finding, has passed the impugned order awarding punishment of dismissal. The disciplinary authority has tried to justify his conclusion by adding one new charge in his order after competition of the proceeding/enquiry. The said charge is clearly mentioned in Paragraph 12 of the impugned order with the clear note that the same was not served on the delinquent. The said conclusion of the disciplinary authority is based on the said consideration though the charge added in the order of punishment was never served on the petitioner and no opportunity was given to the petitioner to meet the same. The said conclusion of the disciplinary authority is, thus, tainted with arbitrariness and illegality and the same is violative of the principles of natural justice and renders the impugned order nullity. In view of the above, this writ petition is allowed. The said conclusion of the disciplinary authority is, thus, tainted with arbitrariness and illegality and the same is violative of the principles of natural justice and renders the impugned order nullity. In view of the above, this writ petition is allowed. The impugned order dated 19.6.2008 (Annexure-11) passed by the Commissioner, Civil Defence, Jharkhand, Ranchi is quashed. The matter is remitted to the disciplinary authority to proceed with the same afresh from the stage of receipt of the enquiry report.” 3. After remand, the impugned order dated 29.12.2012 was passed by the respondent no. 2 which has been challenged by the petitioner in the present proceeding. In the mean-time, the respondent no. 2 by order dated 29.06.2012 withheld the retiral benefits of the petitioner till the conclusion of the disciplinary proceeding. The petitioner approached this Court by filing W.P.(S) No. 4150 of 2012 which was allowed by order dated 31.08.2012 holding thus: “......In the opinion of this Court, respondent no. 2 has exceeded his jurisdiction by withholding PPF, G.P.F., Leave Encashment and other benefits over and above the actual pension. Therefore, the present writ petition is disposed of with direction that the petitioner shall be paid all the retiral benefits except the actual pension, payment of which shall be subject to the final outcome of the disciplinary proceeding. Disciplinary proceedings shall be concluded in any case on or before 31.12.2012.” 4. Heard learned counsel for the parties and perused the documents on record. 5. The learned counsel appearing for the petitioner submits that inspite of order passed by this Court on 25.04.2012 neither a copy of the enquiry report was served to the petitioner nor a second show-cause notice was issued and therefore, the impugned order is liable to be quashed on this ground alone. He has further submitted that on earlier occasions this Court held that the respondent no. 2 passed orders which were illegal and without jurisdiction nonetheless, the respondent no. 2 has passed the impugned order ignoring the mandate of this Court and therefore, his conduct warrants censure. 6. As against the above, the learned counsel appearing for the respondents submits that since the order of punishment would adequately disclose the reasons for disagreeing with the findings recorded by the Enquiry Officer, there was no necessity to give an opportunity to the petitioner to put her defence and therefore, second show-cause notice was not issued to her. 6. As against the above, the learned counsel appearing for the respondents submits that since the order of punishment would adequately disclose the reasons for disagreeing with the findings recorded by the Enquiry Officer, there was no necessity to give an opportunity to the petitioner to put her defence and therefore, second show-cause notice was not issued to her. 7. On a perusal of the documents on record, I find that in the writ petition the petitioner has specifically taken the following plea : 21. “ That the petitioner states that it is pertinent to mention here that upon perusal of the order dated 19.06.2008, the petitioner came to know that the enquiry officer had been pleased to exonerate the petitioner of all the charges levelled against her, but the respondent no. 2 disagreed from the findings of the enquiry officer without giving any opportunity to the petitioner of second show cause and inflicted punishment of dismissal upon the petitioner. …................................................................................ .................................................................................. 34. That after the said enquiry report was submitted by the enquiry officer before the disciplinary authority, no notice or copy of the enquiry report was given or served upon the petitioner and no opportunity to defend her case or no notice or no date for hearing ever fixed by the disciplinary authority. …................................................................................ .................................................................................. 36. That before passing of the impugned order dated 29.12.2012 the disciplinary authority has not issued any notice or given any opportunity of hearing to the petitioner neither a copy of the enquiry report was served upon the petitioner.” 8. In the counter affidavit, the respondent no.2 has contended as under: 8. “That in reply to the statement made in Clause (g) of para 2 of the writ petition, it is humbly submitted that the reasons for disagreeing to with the report of the enquiry officer have been adequately explained in the order of dismissal as contained in Memo no. 313 dated 29.12.2012. The opportunity of hearing the petitioner or giving the petitioner as a second show cause in case of disagreement with the findings of the Inquiry officer by the disciplinary authority i.e. respondent no. 2 has long since been dispensed with” 9. In “Punjab National Bank and Others Vs. 313 dated 29.12.2012. The opportunity of hearing the petitioner or giving the petitioner as a second show cause in case of disagreement with the findings of the Inquiry officer by the disciplinary authority i.e. respondent no. 2 has long since been dispensed with” 9. In “Punjab National Bank and Others Vs. Kunj Behari Misra” reported in (1998)7 SCC 84 , the Hon'ble Supreme Court has held as under: 17.”........When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority. 18. “........... When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of enquiry as explained in Karunakar case.” 10. The respondent no. 2 has taken a stand that there was no necessity of issuing any second show-cause notice to the petitioner as, such practice has since long been dispensed with. I am of the view that such a statement on oath has been made in utter disregard to various pronouncements and the Constitution Bench judgment of the Hon'ble Supreme Court. In a departmental enquiry the disciplinary authority, while disagreeing with the findings recorded by the enquiry officer, is required to furnish detailed grounds of disagreement with the findings recorded by the Enquiry Officer. Besides not serving the second show-cause notice, the disciplinary authority has failed to follow the mandatory direction passed by this Court on 25.04.2012 in the present case. In a departmental enquiry the disciplinary authority, while disagreeing with the findings recorded by the enquiry officer, is required to furnish detailed grounds of disagreement with the findings recorded by the Enquiry Officer. Besides not serving the second show-cause notice, the disciplinary authority has failed to follow the mandatory direction passed by this Court on 25.04.2012 in the present case. This Court in order dated 25.04.2012 had issued a specific direction to the disciplinary authority to proceed afresh in the matter, from the stage of receipt of the enquiry report. The order passed by this Court has been ignored by the respondent no. 2 with impunity. Further, in complete disregard to the law of the land, an affidavit has been filed on behalf of the respondent no. 2 which indicates that respondent no. 2 has passed the impugned order knowingly disobeying the order passed by this Court. The affidavit filed on behalf of the respondent no. 2 would demonstrate that the impugned order has not been passed under any misconception of law. 11. In “Commissioner, Karnataka Housing Board Vs. C. Muddaiah” reported in (2007) 7 SCC 689 , the Hon'ble Supreme Court has held as under: 32. “We are of the considered opinion that once a direction is issued by a competent court, it has to be obeyed and implemented without any reservation. If an order passed by a court of law is not complied with or is ignored, there will be an end of the rule of law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected. 33. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. The argument of the Board, therefore, has no force and must be rejected. 33. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the court may issue necessary directions in the larger interest of justice keeping in view the principles of justice equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a court of law. The court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The court, in the circumstances, directs the authority to extend all benefits which he would have obtained had he not been illegally deprived of them. It is open to the authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged.” 12. In “S. Nagaraj and others Vs. State of Karnataka and another” reported in 1993 Supp. (4) SCC 595, the Hon’ble Supreme Court has observed as under, 12.”...Law on the binding effect of an order passed by a court of law is well settled. Nor there can be any conflict of opinion that if an order had been passed by a court which had jurisdiction to pass it then the error or mistake in the order can be got corrected by a higher court or by an application for clarification, modification or recall of the order and not by ignoring the order by any authority actively or passively or disobeying it expressly or impliedly. Even if the order has been improperly obtained the authorities cannot assume on themselves the role of substituting it or clarifying and modifying it as they consider proper. In Halsbury's Laws of England (Fourth Edn., Vol. Even if the order has been improperly obtained the authorities cannot assume on themselves the role of substituting it or clarifying and modifying it as they consider proper. In Halsbury's Laws of England (Fourth Edn., Vol. 9 p. 35, para 55) the law on orders improperly obtained is stated thus: “The opinion has been expressed that the fact that an order ought not to have been made is not a sufficient excuse for disobeying it, that disobedience to it constitutes a contempt and that the party aggrieved should apply to the court for relief from compliance with the order.” Any order passed by a court of law, more so by the higher courts and especially this court whose decisions are declarations of law are not only entitled to respect but are binding and have to be enforced and obeyed strictly. No court much less an authority howsoever high can ignore it. Any doubt or ambiguity can be removed by the court which passed the order and not by an authority according to its own understanding.” 13. In view of the aforesaid, the impugned order is quashed, with cost of Rs. 10,000/-(ten thousand) imposed upon the respondent no. 2, to be deposited with the Jharkhand State Legal Services Authority within a period of six weeks. 14. Let a copy of the order be sent to the Chief Secretary, Government of Jharkhand for taking appropriate action. Ordered accordingly.