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Jharkhand High Court · body

2013 DIGILAW 376 (JHR)

Madan Kumar v. State of Jharkhand

2013-03-15

SHREE CHANDRASHEKHAR

body2013
JUDGMENT The question involved in this writ petition is, 'whether the order of penalty is liable to be quashed on the ground that a copy of the enquiry report was not furnished to the petitioner. 2. The brief facts of the case are that the petitioner was appointed as Assistant Teacher on 12.04.1982 and he was promoted to the post of Headmaster on 04.11.1994. The petitioner was put under suspension by order dated 26.03.1998. The petitioner moved the High Court in C.W.J.C. No. 936 of 1998 (R) challenging the order of suspension. A grievance was also raised by the petitioner with respect to non-payment of any subsistence allowance to the petitioner during the period of suspension. By order dated 26.08.1998 the respondents were directed to make payment of subsistence allowance, if already not paid to the petitioner. The writ petition was finally disposed of on 20.07.1999 with a direction to the respondents to conclude the departmental proceeding within a period of two months failing which the order of suspension would stand revoked. A further direction was given to the respondents to pay entire amount of subsistence allowance with interest @ 18% p.a. As the departmental proceeding could not be completed within the time stipulated by the High Court, the order of suspension was revoked, however, departmental enquiry continued. On 04.09.1999, the enquiry officer submitted his report however, a copy of the said report was not furnished to the petitioner. It appears that another enquiry officer was appointed who conducted enquiry into the charges against petitioner and submitted his report on 03.12.1999. Again a copy of the second enquiry report was not furnished to the petitioner and the petitioner was asked to submit a show-cause. Finally, order of termination from service was passed on 08.08.2000. The petitioner moved the High Court in C.W.J.C. No. 2735 of 2000 (R) which was disposed of by order dated 03.01.2002 with direction to the respondents to supply a copy of the enquiry report to the petitioner and the petitioner was permitted to prefer an appeal. An appeal was preferred by the petitioner which was dismissed on 09.12.2003. In these circumstances the petitioner has approached this Court by filing the present writ petition. 3. The respondents have filed a counter-affidavit in which they have not denied that a copy of the enquiry report was not furnished to the petitioner. An appeal was preferred by the petitioner which was dismissed on 09.12.2003. In these circumstances the petitioner has approached this Court by filing the present writ petition. 3. The respondents have filed a counter-affidavit in which they have not denied that a copy of the enquiry report was not furnished to the petitioner. The respondents have simply stated that the statements made in paragraph Nos. 4-46 of the writ petition are either matter of record or are by way of submission and as such require no comments. However, a stand has been taken that the impugned orders are legal and proper. 4. Heard learned counsel for both the parties and perused the documents on record. Learned counsel for the petitioner has submitted that in view of the settled law that non-supply of enquiry report would make the order of penalty open to challenge, the impugned orders passed against the petitioner are liable to be quashed. The learned counsel for the petitioner has submitted that first an enquiry report was submitted on 04.09.1999 in which the charges against the petitioner were not found proved, however, a copy of the said enquiry report was not furnished to the petitioner. Again another enquiry officer was appointed who submitted a second enquiry report dated 03.12.1999, a copy of which was also not furnished to the petitioner. A copy of the second enquiry report was, of course, furnished to the petitioner only after the order passed in C.W.J.C. No. 2735 of 2000 (R). Learned counsel for the petitioner has submitted that the supply of the second enquiry report at the appellate stage is of no consequence as the petitioner has been denied of an opportunity to represent his case before the disciplinary authority, before the order of penalty was imposed upon him. He has further submitted that this has caused serious prejudice to the petitioner as the petitioner was entitled to rely upon the findings arrived at in the first enquiry report which was submitted on 04.09.1999. 5. In the case of “Managing Director, ECIL, Hyderabad and Others Versus B. Karunakar and Others”, reported in (1993) 4 SCC 727 , the Constitution Bench of the Hon'ble Supreme Court has held as under :- 26. 5. In the case of “Managing Director, ECIL, Hyderabad and Others Versus B. Karunakar and Others”, reported in (1993) 4 SCC 727 , the Constitution Bench of the Hon'ble Supreme Court has held as under :- 26. “The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it. 27. It will thus be seen that where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employee's right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings.” 6. In the case of “Punjab National Bank and Others Versus Kunj Behari Misra”, reported in (1998) 7 SCC 84 , the Hon'ble Supreme Court has held as under : 17. “These observations are clearly in tune with the observations in Bimal Kumar Pandit case quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. “These observations are clearly in tune with the observations in Bimal Kumar Pandit case quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the enquiry officer had given an adverse finding, as per Karunakar case the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. 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.” 7. In the writ petition, the petitioner has taken a specific stand in paragraph nos. 14,15, 21 and 33 which are extracted below : 14. “That it appears that by letter No. 692, dated 13.9.1999 the respondent No. 4 directed the respondent No. 5 to inquire into the matter afresh. It would not be out of place to mention here that the respondent no. 4 is not the disciplinary authority and, therefore, it was not proper on his part to reject the inquiry report submitted by the respondent No. 5 on 4.9.1999 nor he was justified to ask the respondent No. 5 to re-inquire the matter afresh. It would not be out of place to mention here that the respondent no. 4 is not the disciplinary authority and, therefore, it was not proper on his part to reject the inquiry report submitted by the respondent No. 5 on 4.9.1999 nor he was justified to ask the respondent No. 5 to re-inquire the matter afresh. Such direction as contained in letter No. 692, dated 13.9.1999 issued by the respondent No. 4 is wholly without jurisdiction and is unknown to settled principle of law. The respondent no. 4 completely violated the normal rules and procedures. 15. That the petitioner categorically states that he has not provided with copy of the inquiry report nor he has been provided with letter No. 692 dated 13.9.99 whereby the earlier inquiry report was sought to have been cancelled. 21. That be that as it may, the fact remains that the petitioner has not been provided a copy of the inquiry report allegedly submitted by the respondent no. 5 on 3.12.1999 in super session of his earlier report dated 4.9.1999. 33. That it is stated that the Disciplinary Authority could not have relied upon the second enquiry report without serving a copy of the same to the petitioner. In this connection, it is stated that no enquiry report whatsoever was served upon the petitioner nor any chargesheet was submitted, for which the petitioner was prejudiced. 8. In the counter-affidavit the respondents have taken a stand with respect to the aforesaid paragraphs which is as under : 12. “That with regard to the statements made in paragraphs 2, 4, 5, 6 to 46 of the writ petition, are either matter of record or are by way of submission and as such requires no comment. 9. It is a matter of record that in the first enquiry the charges against the petitioner were not found proved and admittedly before the order of penalty was passed, the petitioner had no occasion to make a representation to the Disciplinary Authority and he was denied an opportunity to defend himself referring to the findings arrived at in the enquiry report submitted on 04.09.1999. I am of the opinion that this has definitely caused serious prejudice to the petitioner. The petitioner has been denied an opportunity to defend himself, therefore, the order of penalty is liable to be quashed. 10. I am of the opinion that this has definitely caused serious prejudice to the petitioner. The petitioner has been denied an opportunity to defend himself, therefore, the order of penalty is liable to be quashed. 10. It is also an admitted position that during the period of suspension the petitioner was not paid any subsistence allowance. This is also a serious violation of the right of the petitioner to defend himself effectively. 11. The impugned orders are liable to be quashed for another reason, that a second enquiry into the same set of charges, is clearly barred in law. It is not the case of the respondents that on the representation of the petitioner alleging irregularities during the departmental proceedings or because principle of natural justice has been violated, at the instance of the petitioner himself the first enquiry report was scraped and another enquiry officer was appointed to conduct the departmental proceedings afresh. It is also not the case of the respondents that there were some procedural laspe during the first departmental enquiry and therefore, second enquiry was ordered. It appears from the penalty order dated 08.08.2000 that the first enquiry report was not accepted because it was considered a superficial report. I am of the view that for such superficial reason the enquiry report submitted on 04.09.1999 could not have been brushed aside. The disciplinary authority had the option to differ with the findings recorded therein but in no case a second enquiry could have been ordered in this case to enquire into the same set of charges. 12. In the case of “Union of India & Another Vs. Kunisetty Satya Narayana”, reported in (2006) 12 SCC 28 , the Hon'ble Supreme Court has observed : “if the charge which has been levelled under the Memo dated 23.12.2003 had earlier been enquired into a regular enquiry by a competent authority, and if the respondent had been exonerated on that very charge, a second enquiry would not be maintainable.” 13. In the case of “Kanailal Bera Vs. In the case of “Kanailal Bera Vs. Union of India & others”, reported in (2007) 11 SCC 517 , the Hon'ble Supreme Court interpreted Rule 27 of Central Reserve Reserve Police Force Rules, 1955, thus:- “The question as to whether a punishment of confinement to Civil Lines could have been directed or not should not detain us as we agree with the contention raised by learned counsel for the appellant that the purported order dated 05.04.1995 of the disciplinary authority was unsustainable in law. Rule 27 of the Central Reserve Police Force Rules, 1955, inter alia, lays down the procedure for conducting a departmental inquiry. Once a disciplinary proceeding has been initiated, the same must be brought to its logical end meaning thereby a finding is required to be arrived at as to whether the delinquent officer is guilty of charges levelled against him or not. In a given situation further evidences may be directed to be adduced but the same would not mean that despite holding a delinquent officer to be partially guilty of the charges levelled against him another inquiry would be directed to be initiated on the selfsame charges which could not be proved in the first inquiry.” 14. In the case of a Chief Judicial Magistrate who was demoted from the post of Chief Judicial Magistrate to the post of Munsif, the Hon'ble Supreme Court has held that; “having accepted the explanation and having communicated the same to the appellant, the High Court would not have proceeded to pass the order of initiating departmental proceedings and reverting the appellant from the post of Chief Judicial Magistrate to the post of Munsif.” The Hon'ble Supreme Court in the said case of “Nand Kumar Verma Vs. State of Jharkhand & Others”, reported in (2012) 3 SCC 580 , has held as under: 27. “In the present case, a charge memo was issued and served on the appellant. A reading of the charge memo does not contain any reference to the proceedings of the Standing Committee at all. It is also not found as to whether the earlier proceedings has been revived in accordance with the procedure prescribed. “In the present case, a charge memo was issued and served on the appellant. A reading of the charge memo does not contain any reference to the proceedings of the Standing Committee at all. It is also not found as to whether the earlier proceedings has been revived in accordance with the procedure prescribed. In fact, after receipt of the charge memo, the appellant, in his reply statement, had brought to the notice of the enquiry officer that on the same set of charges, a notice had been issued earlier and after receipt of his explanation dated 21.12.1994, the Standing committee, after accepting his explanation had dropped the entire proceedings and the same had been communicated to him by the Registrar General of the High Court by his letter dated 02.02.1995. In spite of his explanation in the reply statement filed, the enquiry officer has proceeded with the enquiry proceedings and after completion of the same, has submitted his report which has been accepted by the disciplinary authority. Therefore, in these circumstances, there is no justification for conducting a second enquiry on the very charges, which have been dropped earlier. Even though the principle of double jeopardy is not applicable, the law permits only disciplinary proceedings and not harassment. Allowing such practice is not in the interest of public service. In the circumstance, we cannot sustain the impugned order reverting the appellant to the lower post.” 15. In the case of “K.R. Deb Vs. The Collector of Central Excise, Shillong,” reported in AIR 1971 SC 1449, a Constitution Bench of the Hon'ble Supreme Court has held as under:- 13. “It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquires on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under rule 9”. 16. But there is no provision in Rule 15 for completely setting aside previous inquires on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under rule 9”. 16. On consideration of the materials on record, I find that the impugned orders dated 08.08.2000 and 09.12.2003 cannot be sustained in law and are therefore, hereby quashed. The petitioner has since superannuated from service on 30.11.2012, therefore, the order of reinstatement in service cannot be ordered. From the pleadings in the writ petition, I do not find that the petitioner has claimed that after his termination from service he was not gainfully employed. 17. In the case of “Hindustan Motors Ltd. Versus Tapan Umar Bhattacharya and Another”, reported in (2002) 6 SCC 41 , the Hon'ble Supreme Court has observed that since there was no pleading in the writ petition with respect to the employee remaining unemployed after his termination from service, payment of 50% backwages was just and proper. In the case of “Cantonment Executive Officer and Another Versus Vijay D.Wani and Others”, reported in (2008) 12 SCC 230 , the Hon'ble Supreme Court has observed as under : “17. So far as grant of back wages is concerned, it depends upon case to case. But in the present case as the respondent was found guilty by the Cantonment Board but the order of Cantonment Board was set aside because it suffered from bias it will be unfair to deny 50% back wages to the respondent (herein). The Division Bench also directed that more than 13 years have passed, therefore, it did not permit the respondent to proceed against the petition afresh. The Division Bench decided the matter on 10-1-2005 and now more than 16 years have lapsed. Therefore, it would not be fair to permit the respondent to proceed afresh in the matter. Consequently, we do not find any merit in this appeal and the same is dismissed. 18. The respondent be reinstated with the benefit of 50% back wages and continuity of service.” 18. Therefore, it would not be fair to permit the respondent to proceed afresh in the matter. Consequently, we do not find any merit in this appeal and the same is dismissed. 18. The respondent be reinstated with the benefit of 50% back wages and continuity of service.” 18. The Hon'ble Supreme Court has taken similar views in the case of “Bharat Coking Coal Ltd. Through Management versus National Coal Workers Congress”, reported in (2009) 7 SCC 160 and in the case of “State of Uttar Pradesh and Others versus Ram Daras Yadav”, reported in (2010) 2 SCC 236 , and has ordered payment of only 50% back wages to the employee. 19. In view of the aforesaid discussion, and the fact that there is no pleading in the writ petition that the petitioner was not gainfully employed after termination of his service, I hereby direct the respondents to pay the petitioner 50% back wages from the date of termination till 30.11.2012. 20. The Writ Petition is disposed of in the aforesaid terms.