Research › Search › Judgment

Jharkhand High Court · body

2013 DIGILAW 90 (JHR)

Shambu Saran v. State of Jharkhand

2013-01-16

APARESH KUMAR SINGH

body2013
Order Heard learned counsel for the parties. 2. The petitioner is aggrieved by the order dated 1.3.2004 passed by the respondent no. 2, the Commissioner-cum-Secretary, Land Reform Department, Government of Jharkhand by which the punishment of stoppage of three increments and penalty of censure with a direction to be reflected in his ACR has been passed against the petitioner. 3. According to the learned counsel for the petitioner, the said punishment order has been imposed without issuance of any second show cause notice or without showing reasons for differing with the enquiry report, when enquiry officer has completely exonerated the petitioner from charges alleged against him. Learned counsel for the petitioner submits that the punishment order is wholly vitiated in law and in teeth of the judgment rendered by the Hon'ble Supreme Court of India in the case of Managing Director, ECIL, Hyderabad and Ors. Vs. B. Karunakar and Ors., reported in (1993)4 SCC 727 and reiterated further in the case of Punjab National Bank and Ors. Vs. Kunj Behari Mishra reported in (1998) 7 SCC 84 . Learned counsel for the petitioner, further, submits that the aforesaid principle laid down by the Hon'ble Supreme Court has again been followed in the case of Lav Nigam vs. Chairman & MD. ITI Ltd. and Anr. reported in (2006) 9 SCC 440 . 4. The brief facts of the case as per the petitioner are that while he was posted as Circle Inspector, Garhwa in the year 2002, on the basis of the complaint by one Shanti Devi of Village-Uchari, P.S. Garhwa, departmental proceedings were initiated against him vide order no. 5458 dated 10.12.2002 and he was placed under suspension. The petitioner was served charge-sheet vide Memo No. 353 dated 28.8.2003 (Annexure-1) alleging that the said lady complained against the petitioner that he demanded illegal gratification for Mutation of land purchased by her and certain other charges. The petitioner, thereafter, filed his reply denying the charges. The enquiry officer, thereafter, submitted enquiry report with clear finding that no charges were found to be proved against the petitioner. It is further submitted that in respect of plot no. The petitioner, thereafter, filed his reply denying the charges. The enquiry officer, thereafter, submitted enquiry report with clear finding that no charges were found to be proved against the petitioner. It is further submitted that in respect of plot no. 26 Khata No. 55, a Public Land Encroachment Case No. 8 of 2001-02 was initiated by the Circle Officer directing the said lady complainant to remove the encroachment from the Gair Mazarua Malik Land and thereafter, action was taken for removal of the encroachment when she failed to remove the same. It is further submitted that the enquiry officer found that the petitioner had already been relieved from the charges on 13.2.2002 and transferred to Palamau while the Mutation application was rejected on 14.6.2002 and, therefore, no charges were proved against him. It is the case of the petitioner that no second show cause was issued to the petitioner thereafter by the disciplinary authority, i.e. the respondent no. 2, the Commissioner-cum-Secretary, Land. Reform Department, Government of Jharkhand and straightway, the impugned order dated 1.3.2004 has been passed vide Annexure-5 imposing the aforesaid punishment of stoppage of three increments and penalty of censure with a direction to be reflected in his ACR. Learned counsel for the petitioner, therefore, assailed the impugned order that the impugned order has been passed wholly in violation of the principle of natural justice without following the mandate of law as required under the provisions of Article 311 of the Constitution of India and also in the teeth of the judgments referred hereinabove. 5. Respondents have appeared and filed their counter affidavit. The categorical statements made in paragraph nos. 12 and 13 of the writ petition that no show cause notice was issued after submission of the enquiry report and obviously no reasons for differing with the enquiry report was indicated before passing of the impugned order have not been denied in their reply made at para-15 of the counter affidavit. It appears that the respondents have taken stand that on appraisal of the enquiry report, the disciplinary authority found that it was not necessary to ask for show cause before passing the impugned order. Therefore, the respondents have justified the issuance of the impugned order. 6. I have heard learned counsel for the parties and gone through the relevant materials on record. Therefore, the respondents have justified the issuance of the impugned order. 6. I have heard learned counsel for the parties and gone through the relevant materials on record. The sole legal question involved in the present case is whether the disciplinary authority is required to give reasons for differing with the enquiry report of the enquiry officer, who has exonerated the delinquent by issuance of second show cause alongwith enquiry report before passing the impugned order. This instant issue is no longer res integra in view of the decision rendered by Hon'ble Supreme Court of India in the case of Managing Director, ECIL, Hyderabad and in the case of Punjab National Bank and Ors. and followed in the case• of Lav Nigam (supra). It has been categorically held therein that the disciplinary authority is required to indicate its tentative reasons for differing with the enquiry report and give to the delinquent officer an opportunity to represent against the proposed punishment and to defend himself on the reasons indicated in the second show cause issued by the disciplinary authority. The relevant opinion of the Honoble Supreme Court contained in para-19 in the judgment of Punjab National Bank and Ors. Vs. Kunj Behari Mishra reported in (1998) 7 SCC 84 is illuminative, which is quoted herein-below:- "19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before. It records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer." 7. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer." 7. From the facts which are not in dispute, it is apparent that impugned order has been passed without issuance of second show cause and also not .disclosing any reason for differing with the enquiry report of the enquiry officer exonerating the petitioner. before passing the impugned order, which is not only violative of the principle of natural justice and in the teeth of the judgments rendered by the Hon'ble Supreme Court (supra), but also in contravention of the provisions under Articles 309 to 311 of the Constitution of India. Accordingly, the impugned order is quashed. 8. It will, however, open to the respondent authorities to take a decision after issuance of proper second show cause to the petitioner in accordance with law giving adequate opportunity to him to defend himself. 9. Accordingly, this writ petition is allowed in the aforesaid terms.