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2013 DIGILAW 219 (JHR)

Kishore Kumar v. State of Jharkhand

2013-02-12

APARESH KUMAR SINGH

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JUDGMENT: Heard counsel for the parties. 2. The petitioner has challenged the order of his dismissal contained at Annexure-13 dated 7.10.2005 passed by the Deputy Commissioner, Hazaribag by which he has been dismissed from service. 3. The short fact of the case as per the petitioner are that he was appointed as Assistant/ Clerk on 27.6.1983 in Collectorate and served on different post in the district of Hazaribag. He was placed under suspension on 12.9.1995 by the Deputy Commissioner, Hazaribag (Annexure-1) and after 2 years he was served with chargesheet on 1.3.1997 alleging 7 charges inter-alia (1) without giving full charge on transfer went on casual leave and avoided to receive the order for handing of charge, charge No. (2),(3) also relates to refusal of the petitioner or his absence in handing over the charge and key of the office of which he was in-charge, charge no.(4) relates to not maintaining proper order sheet of the records,charge no.(5) relates to unauthorized absence, charge no. (6)relates to forged signature made by the petitioner for getting payments for the period for which he was absent and charge no. (7) relates to his indulgence in corrupt practice by issuing copy of judgment of D.C.L.R. and S.D.O in doubtful Jamabandi case no. 5 of 1994. The petitioner furnished his reply to the charges vide Annexure-3 dated 27.5.1997. After the first Inquiry Officer was transferred, the second Inquiry Officer was appointed on 11.9.1998 who was directed to submit Inquiry report within 6 weeks. The said Inquiry Officer submitted his Inquiry report on 15.5.1999 (Annexure 4/1) by which he found that the charge no. 1 to 5 were not proved and charge no. 6 & 7 related to matter which are subjudice due to pendency of the criminal case being Barhi P.S. Case No. 43 of 1996. Petitioner has remained under suspension till September, 2000. In the meantime,the Deputy Commissioner, Hazaribag appointed third Inquiry Officer after submission of the Inquiry report by the second Inquiry Officer. The petitioner appeared in the said departmental proceeding also on notice while stating that he had not been given any notice for conducting fresh Inquiry by the third Inquiry Officer. The third Inquiry Officer submitted his report on 3.5.2001(Annexure-7) by which he held the petitioner guilty of the charges levelled against him. It is submitted that he was found guilty of charge no. The third Inquiry Officer submitted his report on 3.5.2001(Annexure-7) by which he held the petitioner guilty of the charges levelled against him. It is submitted that he was found guilty of charge no. 1 to 3, 6 & 7 by the third Inquiry Officer. The petitioner was, therefore, issued second show cause on 21.6.2002 by the Deputy Commissioner, Hazaribag enclosing the second Inquiry report vide Annexure 8. He furnished his reply vide Annexure8/1. Thereafter, Deputy Commissioner, Hazaribag proceeded to pass order of dismissal from service dated 6.9.2002 acting upon the second Inquiry report furnished by third Inquiry Officer and held that on guilt being established against the petitioner, the punishment was commensurate to the charges found to be established against the petitioner. In appeal before the Commissioner, North Chhotanagpur Divison, Hazaribag being appeal no. 96 of 2002, the Commissioner reduced the punishment of dismissal from service and directed his reinstatement, however 5 increment was withheld with cumulative effect as also a censure was awarded to be entered in his service book. It was further directed that petitioner will not be paid any remuneration for the period in which he has not worked. Thereafter, petitioner joined his service on 18.3.2003. In the meantime, the Deputy Commissioner, Hazaribag preferred a Service Revision before the Member, Board of Revenue being Service Revision No. 34/2003. The said revision was however decided by Member, Board of Revenue vide order dated 14.3.2005(Annexure-11) quashing the order of the Deputy Commissioner as well as Divisional Commissioner and the matter was remanded to the Deputy Commissioner to pass a fresh order in accordance with the Rules and prescribed procedures. The ground for quashing the aforesaid order were that it was not open for the Disciplinary Authority after submission of the first Inquiry report to appoint another Inquiry Officer in his place and, thereafter, to act upon the report of the subsequent Inquiry Officer. It was also observed that in case the Deputy Commissioner differed with the Inquiry report of the Inquiry Officer who had exonerated the petitioner, it was open for the Deputy Commissioner to issue second show cause differing with the Inquiry report and asking the petitioner to furnish his reply as to why the proposed punishment should not be imposed upon him. However, after remand the impugned order contained at Annexure-13 has been passed by the Deputy Commissioner on 7.10.2005, which is under challenge. 4. However, after remand the impugned order contained at Annexure-13 has been passed by the Deputy Commissioner on 7.10.2005, which is under challenge. 4. It is contended by the counsel for the petitioner that the Deputy Commissioner, after remand has issued show cause on 14.5.2005 (Annexure-12) where he has once again relied upon the same second Inquiry report submitted by third Inquiry Officer by which he has found the petitioner guilty. It is submitted that the Member, Board of Revenue had categorically held that it was not open for the Deputy Commissioner to constitute the second Inquiry for the same set of charges and to act upon the Inquiry report of the third Inquiry Officer. Petitioner has, therefore, assailed the impugned order on the aforesaid grounds that the Deputy Commissioner acted contrary to the well settled principle for conduct of the Departmental Proceeding as has been held by the Hon'ble Supreme Court rendered in the case of K.R. Deb Vrs. The Collector of Central Excise, Shillong reported in A.I.R 1971 SC 1447 and in the case of Bhupinder Pal Singh Vrs. The Director General of Civil Aviation & Ors. reported in 2003(2) Supreme To-day SC.493. According to the petitioner the aforesaid principle that the Disciplinary Authority cannot act upon the second Inquiry report after submission of the first Inquiry report have also been followed by this Court in the case of Arjun Ram Vrs. State of Jharkhand & others in W.P.S. No. 3059 of 2003 dated 11.11.2003. Again in the case of the same person, wherein the same second Inquiry report was once again relied upon by the Disciplinary Authority it was impugned and decided in W.P.S. No. 4826 of 2004 vide judgment dated 4.8.2005 quashing the impugned order of punishment there under on the same ground. It is further contended on behalf of counsel for the petitioner that the Trial Court has acquitted the petitioner and found him innocent vide judgment dated 29.8.2009 rendered by Judicial Magistrate, 1st Class, Hazaribag in G.R. Case No. 450 of 1996 / T.R. No.528 of 2009. The said judgment in appeal has further been affirmed by the A.D.J., F.T.C.-1, Hazaribag in Criminal Appeal No. 181/2009/S. No. 1 of 2010. As such, petitioner has been fully exonerated of the alleged charges against him. 5. Counsel for the respondent- State has appeared and filed their counter affidavit. The said judgment in appeal has further been affirmed by the A.D.J., F.T.C.-1, Hazaribag in Criminal Appeal No. 181/2009/S. No. 1 of 2010. As such, petitioner has been fully exonerated of the alleged charges against him. 5. Counsel for the respondent- State has appeared and filed their counter affidavit. The fact that the Deputy Commissioner has acted upon the second Inquiry report once again dismissing the petitioner from service by the impugned order, herein has not been disputed by the respondent. However, the impugned order has been sought to be justified by the respondents on the ground that the petitioner had been given enough opportunity to furnish his reply by serving him the second show cause, however his reply was not found satisfactory in respect of the grave charges and, therefore, order of dismissal has been passed. 6. I have heard counsel for the parties at length and gone through the relevant materials on record including the impugned order. It appears that the short legal question involved in the present writ application is that the action of the Deputy Commissioner, Hazaribag in passing an order of dismissal based upon the findings of the second Inquiry report submitted by the third Inquiry Officer, wherein petitioner was found to be guilty of all the charges is legal or not. It is not in dispute that the in the first Inquiry report submitted earlier the petitioner has been exonerated of the charges from 1 to 5 while for the rest of charges, the Inquiry Officer has observed that they related to allegations which are subject matter of criminal proceeding which were pending at that point of time. Law in this regard is well settled that the Disciplinary Authority cannot constitute a second Inquiry for the same set of charges after conclusion of the first Inquiry . In case the Inquiry Officer has found the delinquent not guilty of the charges it is open to the Disciplinary Authority to differ with the Inquiry report giving his reasons for such difference and issue second show cause notice along with the inquiry report giving opportunity to the delinquent employee to submit his reply against the proposed punishment. In case the Inquiry Officer has found the delinquent not guilty of the charges it is open to the Disciplinary Authority to differ with the Inquiry report giving his reasons for such difference and issue second show cause notice along with the inquiry report giving opportunity to the delinquent employee to submit his reply against the proposed punishment. In this case, even after the remand by the Member, Board of Revenue vide its order contained at Annexure-11, the Deputy Commissioner proceeded to act relying upon the second Inquiry report and issued second show cause notice based upon the same Inquiry report. Hence, the illegality has been perpetuated once again. In the meantime petitioner has been acquitted of the charges by the Trial Court and the same has further been confirmed in appeal, as aforesaid. 7. In the facts and circumstances of the case, the impugned order dated 7.8.2007 contained at Annexure-13 being in teeth of judgment rendered by the Hon'ble Supreme Court in the case of K.R. Deb Vrs. The Collector of Central Excise, Shillong (Supra) and in the case of Bhupinder Pal Singh Vrs. The Director General of Civil Aviation & Ors. (Supra) as also the judgmnent rendered by this court following the decision of the Hon'ble Supreme Court in the case of Arjun Ram Vrs. State of Jharkhand & others (supra), is set aside. Since, the petitioner has been acquitted by the Trial Court and, thereafter, affirmed by the Appellate Court, now no purpose would be served if the matter is remanded to the Disciplinary Authority once again, more so in view of the fact that petitioner has been suffering the proceedings from 1995 onwards. In that view of the matter, respondent- authorities are directed to give the consequential benefits to the petitioner, such as continuity of service, seniority and benefit of pay revisions. However the petitioner will only be entitled for 50% of the back wages for the period for which he has remained out of service. 8. The writ petition is allowed in the aforesaid terms.