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2014 DIGILAW 111 (JHR)

Shyam Sunder Singh v. State of Jharkhand

2014-01-17

SHREE CHANDRASHEKHAR

body2014
JUDGMENT 1. Aggrieved by order dated 04.03.2013 appointing an inquiry officer for conducting a fresh inquiry into the allegations contained in charge-memo dated 07.01.2011, the petitioner has approached this Court. 2. Heard learned counsel appearing for the parties and perused the documents on record. 3. An inquiry was conducted and inquiry report dated 28.07.2012 was submitted finding the charges leveled against the petitioner, not proved. Thereafter, by the impugned order dated 04.03.2013 another inquiry officer has been appointed for conducting a fresh inquiry into the allegations contained in charge-memo dated 07.01.2011. 4. A counter-affidavit has been filed stating as under:- 6. “That it is stated that a Departmental proceeding was initiated vide Departmental Resolution No. 254 dated 12.01.11 against the petitioner for his alleged irregularities during his posting as Sub-Divisional Officer, Building Division No.-I, Ranchi and a charge memo was issued against him. In this context Vigilance Case No. 29/1999 was also instituted against the petitioner alongwith others. In this case, sanction of prosecution has already been accorded vide order No. 23/J dated 02.06.2010 at the level of the Law (Justice) Department, Jharkhand Ranchi. 7. That it is stated that the report submitted by the Conducting proceeding with respect to departmental proceeding against the petitioner and other relevant documents were thoroughly examined. It was found the Law (Justice) Department after critically examining the case has found Mr. Singh involved in irregularities and has accorded the sanction of prosecution in view of this fact and evidence on record available in the matter it was found imperative to reject the enquiry report submitted by Mr. Lal and get the departmental proceeding conducted by another officer. In the aforesaid circumstances, the report of the Conducting Officer was not accepted and it was decided to make afresh enquiry against the petitioner by appointing an another Conducting Officer.” 5. The learned counsel appearing for the petitioner has submitted that once the inquiry officer found the charges against the petitioner not proved, it was open to the respondent-authority to issue show-cause notice to the petitioner indicating the ground on which the disciplinary authority decided to disagree with the findings recorded in the departmental proceeding however, it was not open to the respondents to conduct a fresh inquiry into the allegations contained in charge-memo dated 07.01.2011. It was open to the disciplinary authority to pass order of punishment after complying with the requirements of the principle of natural justice however, it was not open to the respondent-authority to conduct a fresh inquiry into the matter. Relying on the decision in “K.R. Deb v. the Collector of Central Excise, Shillong”, reported in (1971) 2 SCC 102 and “Nand Kumar Verma v. State of Jharkhand and Others”, reported in (2012) 3 SCC 580 , the learned counsel appearing for the petitioner has submitted that in the present case the impugned order dated 04.03.2013 is liable to be quashed. 6. As against the above, Mr. Anshuman Kumar, the learned counsel appearing for the respondents has submitted that, since the Government decided to disagree with the findings recorded by the inquiry officer, by order dated 04.03.2013 another inquiry officer was appointed for conducting a fresh inquiry into the allegations contained in charge-memo dated 07.01.2011. 7. A perusal of the impugned order dated 04.03.2013 indicates that the Government decided to disagree with the inquiry report and therefore, another inquiry officer was appointed for conducting a fresh inquiry. No reason except that, the Government decided to disagree with the finding recorded by the inquiry officer, has been indicated in the impugned order. I do not find any force in the contention raised by the learned counsel appearing for the respondents that, since the inquiry officer failed to consider material facts, the Government decided to institute a fresh inquiry. The law on this issue is settled by a catena of judgments of the Hon'ble Supreme Court. It has been categorically held that only in cases, where the inquiry report suffers from some technical lacuna, a denovo inquiry can be instituted. In all other cases, only a further inquiry can be conducted into the matter and not a fresh inquiry altogether. 8. In “K.R. Deb v. the Collector of Central Excise Shilling” reported in (1971) 2 SCC 102 , the Hon'ble Supreme Court has held as under:- 12. In all other cases, only a further inquiry can be conducted into the matter and not a fresh inquiry altogether. 8. In “K.R. Deb v. the Collector of Central Excise Shilling” reported in (1971) 2 SCC 102 , the Hon'ble Supreme Court has held as under:- 12. “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 inquiries 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.” 9. In “Nand Kumar Verma v. State of Jharkhand and Others”, reported in (2012) 3 SCC 580 , the Hon'ble Supreme Court has held as under:- 26. “On general principles, there can be only one enquiry in respect of a charge for a particular misconduct and that is also what the rules usually provide. If, for some technical or other good ground, procedural or otherwise, the first enquiry or punishment or exoneration is found bad in law, there is no principle that a second enquiry cannot be initiated. Therefore, when a completed enquiry proceedings is set aside by a competent forum on a technical or on the ground of procedural infirmity, fresh proceedings on the same charges is permissible.” 10. I further find that the contention raised by the respondents in the counter-affidavit cannot be considered in the present proceeding. In view of judgment of the Hon'ble Supreme Court in “Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others”, reported in (1978) 1 SCC 405 , it is not open to the respondents to support the impugned order by supplementing reasons through counter-affidavit filed in the present proceeding. 11. In view of the aforesaid, this writ petition is allowed. The impugned order dated 04.03.2013 is hereby quashed. 11. In view of the aforesaid, this writ petition is allowed. The impugned order dated 04.03.2013 is hereby quashed. It would be open to the respondents to pass fresh order in the matter, in accordance with law.