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Jharkhand High Court · body

2013 DIGILAW 260 (JHR)

Jaishree Jha v. State of Jharkhand

2013-02-21

N.N.TIWARI

body2013
Judgment 1. The petitioner has prayed for quashing the order issued vide Memo No.3759 dated 19th April, 2012 (Annexure15), whereby punishment of censor has been awarded to the petitioner. The petitioner has also prayed for declaration that the enquiry report submitted against the petitioner in the year 2002, being not supported by any material on record, is wholly frivolous. 2. The said order has been challenged alleging that the same is wholly arbitrary, unjust and violative of principle of natural justice. The proceeding against the petitioner has been deliberately used for impeding legitimate promotional opportunity to the cadre of Indian Administrative Service. 3. This case has a chequered background. 4. The petitioner is a member of State Administrative Service. While she was posted as Block Development Officer in Bero Block, she had given certain advance to the beneficiaries/agencies for carrying out the project works in the said Block. 5. According to the petitioner, though the said advance was given on the direction of the higher authorities and she had no decisive role, a memo of charge was framed, alleging that she committed irregularity in disbursement of the said advance and the amount was not properly adjusted. 6. The memo of charge was issued to the petitioner by Memo No.4048 dated 17th April, 1996 and the Enquiry Officer was appointed. 7. Enquiry was initiated, but no material could be produced in support of the charges. 8. After prolonging the period without any progress, Enquiry officer was changed. 9. Second Enquiry Officer was appointed on 23rd September, 1997. 10. The said Enquiry Officer proceeded and asked the Department to produce documents/evidences in support of the charges. Nothing was produced nor anybody appeared to support the charges. 11. When a considerable time lapsed and no material or evidence could be produced, that Enquiry Officer was also changed. 12. Third Enquiry Officer was appointed by resolution dated 31st August, 1998. The Enquiry Officer asked the Presenting Officer to file his comments and produce evidences. Nothing was brought on record. 13. Ultimately, he submitted his sketchy report. Though there was no evidence or material to prove the charges, he concluded that the petitioner has been found guilty of the charges. 14. It is relevant to mention here that the petitioner had challenged the entire proceeding in writ petition, being W.P.(S) No.1367 of 2003, before this Court. 15. 13. Ultimately, he submitted his sketchy report. Though there was no evidence or material to prove the charges, he concluded that the petitioner has been found guilty of the charges. 14. It is relevant to mention here that the petitioner had challenged the entire proceeding in writ petition, being W.P.(S) No.1367 of 2003, before this Court. 15. The Disciplinary Authority then sought comments from the Presenting Officer. He clearly stated that no allegation could be substantiated against the petitioner. 16. The matter was placed before the Chief Secretary. He, after considering the facts and materials, recorded his finding dated 6th September, 2005 that no charge is established against the petitioner and entire incident is required to be reviewed. 17. Instead of reviewing the matter, second show cause notice was issued to the petitioner dated 29th August, 2006, asking her to reply as to why punishment should not be imposed for the charges. 18. The petitioner filed her reply dated 16th September, 2006, stating, inter alia, that the charges are malicious, frivolous and not based on any material on record. No charge has been proved by any evidence and the conclusion of the Enquiry Officer is not supported by any evidence and is perverse. The petitioner deserves to be exonerated from the charges. 19. The Principal Secretary, Department of Personnel and Administrative Reforms, Government of Jharkhand, after perusal of the entire record, endorsed the opinion of Chief Secretary on th January, 2007 adding that there appeared some technical error in discharge of duty by the petitioner and there was no element of guilt. 20. The matter was, thereafter, again placed before the Chief Secretary. 21. It is pertinent to mention that there was no addition or fresh material after the findings/observations of Presenting Officer; Principal Secretary, Department of Personnel and Administrative Reforms; and the Chief Secretary, by order dated 1st March, 2007 the Chief Secretary, without recording any reason for differing with the earlier findings/observations, held the petitioner guilty of the charges and awarded punishments of withholding of three increments (noncumulative) and censor with retrospective effect. 22. Since the aforesaid writ petition [W.P.(S) No.1367 of 2003] was pending, the petitioner incorporated the said subsequent development and the punishment order on record by way of amendment in the writ petition and also challenged the order of punishment. 23. 22. Since the aforesaid writ petition [W.P.(S) No.1367 of 2003] was pending, the petitioner incorporated the said subsequent development and the punishment order on record by way of amendment in the writ petition and also challenged the order of punishment. 23. This Court, after hearing both the parties, allowed the said writ petition by order dated 6th January, 2012 and quashed the order of punishment, observing as follows: “From perusal of Annexure17, it appears that the said order is vague and virtually nonspeaking. It is only mentioned that against the petitioner some charges were proved. It is not mentioned, how many charges were (sic) framed against the petitioner and out of those charges for how many charges she was (sic) found guilty for which charges. This shows that the competent authority has not applied his independent mind on the materials available on record. Thus, the aforesaid order cannot be sustained, being violative of principle of natural justice and suffer from arbitrariness.” 24. Against the said order, the respondents filed appeal, being L.P.A. No.103 of 2012. The said appeal was disposed of by order dated 28th March, 2012 with the following observations: “However, we are of the considered opinion that there is no illegality in the order passed by the learned Single Judge dated 6.1.2012, as the impugned order, which is placed on record as Annexure17, clearly indicates that the order is not only an order without assigning any reason, but has passed only after narrating the facts of the case and without even holding that Disciplinary Authority has concurred with the findings recorded by the inquiry officer and straight away order of punishment has been passed after stating that in view of the inquiry report punishment is inflicted.” 25. On the submission of learned Advocate General that opportunity should be given to the Disciplinary Authority to pass a fresh order, in accordance with law. The said appeal was disposed of by modifying the order of the learned Single Judge dated 6th January, 2012 to the extent that though the punishment order (Annexure17 as annexed to the said writ petition) remains set aside, the RespondentState shall be at liberty to pass appropriate order, in accordance with law. The impugned order dated 19th April, 2012 (Annexure15) is said to have been passed in view of the liberty given in the said order in L.P.A. No.103 of 2012. 26. The impugned order dated 19th April, 2012 (Annexure15) is said to have been passed in view of the liberty given in the said order in L.P.A. No.103 of 2012. 26. The petitioner has assailed the impugned order on the ground that the order suffers the same infirmity of the order dated 1st March, 2007, which was quashed by this Court. No reason whatsoever has been assigned for discarding the report of the Presenting Officer dated 30th March, 2005, conclusion of the Chief Secretary dated 6th September, 2005 and the view of the Principal Secretary, Department of Personnel and Administrative Reforms dated 24th January, 2007 and taking contrary view for holding the petitioner guilty of the charges. The order is again silent regarding the basis of the charges, materials and evidences available on record in support of the charge, numbers of charges and numbers of proved charges. 27. Learned counsel for the petitioner submitted that earlier order of punishment was quashed by this Court in view of the said infirmities and illegalities. The respondents have repeated the same illegality in the impugned order dated 19th April, 2012 (Annexure15). 28. Learned counsel submitted that there is no evidence or material on record to support any of charges against the petitioner. The proceeding was protracted from the year 1996 to 2012. Enquiry Officers were changed, but no material could be produced in support of the charges. When the third Enquiry Officer asked the Presenting Officer to submit his comment dated 30th March, 2005, the Presenting Officer fairly conceded that no allegation could be substantiated. 29. Learned counsel submitted that in absence of any evidence and clear concession of the Presenting Officer, no charge was made out or proved against the petitioner. There was absolutely no basis for awarding punishment to the petitioner. But the Disciplinary Authority had held the petitioner guilty of the charges and awarded punishment. He had not assigned any reason for holding the charges proved. For that laconic and cryptic approach, the Disciplinary Authority was deprecated by this Court in order dated 6th January, 2012 passed in W.P.(S) No.1367 of 2003 and the order passed by the Appellate Court in L.P.A. No.103 of 2012. Yet the same error has been repeated and the respondents again passed a nonspeaking, mechanical, cryptic and laconic order. 30. For that laconic and cryptic approach, the Disciplinary Authority was deprecated by this Court in order dated 6th January, 2012 passed in W.P.(S) No.1367 of 2003 and the order passed by the Appellate Court in L.P.A. No.103 of 2012. Yet the same error has been repeated and the respondents again passed a nonspeaking, mechanical, cryptic and laconic order. 30. Learned counsel submitted that the events narrated by the petitioner in the writ petition and not controverted by the respondents in the counter affidavit clearly go to substantiate her contention that the departmental proceeding was deliberate and initiated for the purpose of putting a stumbling block to impede the petitioner's promotional opportunity to the Indian Administrative Service Cadre. Other officers of the petitioner’s batch and even juniors to her were considered and promoted to the cadre of Indian Administrative Service (IAS), while the petitioner was discarded/superseded on the plea of pendency of the departmental enquiry/plea of punishment in the departmental enquiry. 31. Learned counsel submitted that the petitioner is a lady officer and she deserves to be fairly and equally treated. She has been put to unnecessary loss and harassment, mental agony and denigration by protracting an unfounded departmental enquiry and ultimately awarding punishment without any legal basis. She deserves proper justice and redressal of sufferings. 32. The writ petition has been opposed by the respondents by filing counter affidavit. It has been, inter alia, stated that there was no arbitrariness and mala fide against the petitioner. The charges were framed on the basis of materials available on record. Full opportunity was given to the petitioner by serving charge sheet on the petitioner and allowing her to take part in the proceeding. The Enquiry Officer had recorded his conclusion on the basis of materials available on record. He found the petitioner guilty of the charges. The Disciplinary Authority, on the basis of the enquiry report, passed the impugned order of punishment. 33. Learned counsel submitted that though the impugned order is not happily worded, it clearly speaks that the charges against the petitioner is of serious nature and after scrutiny misconduct was proved against her and she has been held guilty and awarded punishment under Rule 49 of the Civil Services (Classification, Control & Appeal) Rules, 1930. She has been given minor punishment of censor. 34. She has been given minor punishment of censor. 34. Learned counsel submitted that due caution was taken by the Disciplinary Authority, the second time in awarding punishment. In place of earlier two fold punishments i.e. withholding three annual increments with cumulative effect and censor, this time punishment of censor has been only awarded and proper justice has been done to the petitioner. 35. I have heard learned counsel for the parties at length and considered the facts and materials on record. From the record, it is evident that earlier order of punishment against the petitioner was quashed by this Court on the ground that it was mechanical and nonspeaking. It did not mention the nature and number of charges, material available in support of the charges, number of charges proved and number of charges not proved. The order was quashed due to the said infirmity in W.P.(S) No.1367 of 2003. The respondents challenged the said order in L.P.A. No.103 of 2012. The Appellate Court, while upholding the said order, further held that the Disciplinary Authority had not even mentioned whether he has agreed or disagreed with the report and he has also not given reasons for differing with the same. 36. However, on the respondents’ prayer, one more opportunity was given by the Appellate Court to pass appropriate order, taking care of all those infirmities. But the impugned order has been passed with the same illegality. 37. On perusal of the impugned order contained in Memo No.3759 dated 19th April, 2012 (Annexure15), I find that more than two pages have been devoted in recording the background of the proceeding and development thereof. The finding and conclusion is in the last paragraph, which reads as under: “SHRIMATI JHA KE VIRUDH PRATIVEDIT AAROP ASPAST AVAM GAMBHIR PRAKRITI KE HAI. SAMIKSHOPARANT INKE VIRUDH KARTAVYAHINTA, YOJANAON KE KARYANVAYAN ME BAHAYA AAPURTIKARTAON KO NIHIT SWARTHVASH ANUCHIT LABH PAHUCHANE TATHA SARKARI NIRDESHON KE VIRUDH MANMANE RUP SE KARYA KAR SARKARI KOSH KA GABAN AVAM DURUPAYOG KARNE KA AAROP PRAMANIT HOTA HAI. ISLIYA SHRIMATI JHA KO KARTAVYAHINTA AVAM VITIYA ANIYAMITATA KA DOSHI MANTE HUYE CIVIL SEVAYEN (VARGIKARAN, NIYANTRAN AVAM APIL) NIYAMAVALI 1930 KE NIYAM 49 KE ANTARGAT NINDAN KI SAJA DI JATI HAI JO AADESH NIRGAT KI TITHI SE PRABHAVI HOGA AVAM VIBHAGIYA KARYAWAHI KO BAND KARNE KA NIRNAY LIYA JATA HAI.” 38. ISLIYA SHRIMATI JHA KO KARTAVYAHINTA AVAM VITIYA ANIYAMITATA KA DOSHI MANTE HUYE CIVIL SEVAYEN (VARGIKARAN, NIYANTRAN AVAM APIL) NIYAMAVALI 1930 KE NIYAM 49 KE ANTARGAT NINDAN KI SAJA DI JATI HAI JO AADESH NIRGAT KI TITHI SE PRABHAVI HOGA AVAM VIBHAGIYA KARYAWAHI KO BAND KARNE KA NIRNAY LIYA JATA HAI.” 38. I find that the conclusion of awarding punishment of censor to the petitioner has been recorded on surmises and without discussing any evidence or material on record to support the charges. 39. The order is completely silent about the nature of charges, materials in support of charges and evidences on record to substantiate the charges. There is not even a whisper regarding several reports and the findings including that of the Deputy Commissioner, the Chief Secretary and the Principal Secretary, Department of Personnel and Administrative Reforms, contending that there was no material on record to substantiate the charges against the petitioner. 40. Earlier order of the respondents, holding the petitioner guilty, was quashed by this Court due to the said infirmities. The manner of the order was deprecated and the matter was remitted to the respondents to pass a fresh order, in accordance with law. The respondents have again passed laconic and nonspeaking order, making mockery of the said direction of this Court. 41. Learned counsel for the petitioner submitted that there was no sufficient material for initiating any departmental proceeding against the petitioner nor there was any evidence to substantiate the same, but the proceeding was deliberately initiated at the instance of some interested persons to deprive the petitioner's right of her consideration for promotion to the cadre of Indian Administrative Service (IAS) and to supersede her in order to facilitate promotion of the person of choice. It has been submitted that the persons, who were similarly situated and even juniors to the petitioner, were considered for promotion and the petitioner was discarded on the plea of pendency of the departmental proceeding. The petitioner is entitled for due consideration of promotion to IAS Cadre on the same date, when similarly situated persons were considered, and is entitled for consequential reliefs as well. The petitioner is also entitled to be duly indemnified for her undue harassment, mental agony, denigration and humiliation for long 16 (sixteen) years in a frivolous departmental proceeding. 42. The petitioner is entitled for due consideration of promotion to IAS Cadre on the same date, when similarly situated persons were considered, and is entitled for consequential reliefs as well. The petitioner is also entitled to be duly indemnified for her undue harassment, mental agony, denigration and humiliation for long 16 (sixteen) years in a frivolous departmental proceeding. 42. Having gone through the record, I find reasonable ground made out for the said claims of the petitioner. The proceeding has been protracted for more than one and half decade, ignoring the reports and the findings of the higher authorities, which clearly indicated that there was no material in support of the proceeding. 43. Undue prolonging of departmental proceeding for years and years is contrary to law and Government Circulars and policy decision. The circulars clearly provide for concluding the departmental proceeding expeditiously preferably within three months from the date of its initiation. 44. In the instant case, not only that the proceeding against the petitioner was dragged for a period over 16 years, the proceeding has been concluded by the impugned order dated th April, 2012 (Annexure15), which is based on no evidence or material on record. The impugned order has been passed in the same manner, which was deprecated by this Court while setting aside the earlier order and remitting the matter to the respondents for passing a fresh order, in accordance with law. 45. The impugned order, being mechanical, cryptic and violative of principle of natural justice, suffers the same infirmities, which render the order nonest and void. The impugned order is, accordingly, quashed. The writ petition is allowed with a cost of Rs.60,000/(rupees Sixty Thousand only) to be paid by the respondents to the petitioner within four weeks from the date of receipt/production of a copy of this order. 46. The petitioner is also held entitled for other consequential benefits, including consideration of her promotion on the date when other similarly situated officers were considered and granted promotion and the petitioner was deprived of the same on the plea of pendency of the departmental proceeding/ court case. 47. If the petitioner is found entitled to be considered for promotion, she shall be placed at appropriate rank and place. 48. 47. If the petitioner is found entitled to be considered for promotion, she shall be placed at appropriate rank and place. 48. If any similarly situated officer, junior to the petitioner, has been given promotion to IAS Cadre during pendency of the said departmental proceeding, the petitioner shall be similarly considered for the same within four weeks from the date of receipt/production of a copy of this order. 49. Since the petitioner's claim of compensation for harassment etc. requires factual adjudication, it is not possible to assess the same in extra ordinary writ jurisdiction of this Court. However, the petitioner is at liberty to seek such relief before appropriate legal forum.