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2014 DIGILAW 714 (JHR)

State of Jharkhand v. Kishore Kumar

2014-07-09

P.P.BHATT, R.BANUMATHI

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JUDGMENT By Court-This Letters Patent Appeal is preferred against the order dated 12.02.2013, passed in W.P.(S) No. 2527 of 2006, allowing the writ petition by setting aside the order of punishment of dismissal of the respondent and directing the appellants to reinstate the respondent with continuity of service, seniority and benefit of pay revision and further directed the appellants to pay 50% of the back wages for the period for which the respondent remained out of service. 2. The respondent was appointed as an Assistant/Clerk in Collectorate, District Hazaribagh on 27.6.1983. On the charges of making forged signature of the Sub-Divisional Officer, Barhi, committing forgery in issuance of certified copies and disobeying order of higher officers during his deputation in the office of the Sub-Divisional Officer, Barhi and other charges, the respondent was suspended from service vide memo no. 543/Estt. Dt. 12.09.1995. 3. On the above charges, the respondent submitted his reply and being not satisfied with his reply, a departmental proceeding was initiated against the respondent and a criminal case was also registered against him vide Barhi P.S. Case No.43/1996. After the transfer of the first Inquiry Officer, the disciplinary authority appointed the second Inquiry Officer on 11.9.1998 (Annexure-4 to the writ petition). The second Inquiry Officer submitted first enquiry report finding that the charges nos. 1 to 5 were not proved and charge nos. 6 & 7 related to the matter, which were sub-judice due to pendency of the criminal case being Barhi P.S. Case No. 43 of 1996. The Disciplinary Authority being not satisfied with the enquiry report of the second Inquiry Officer had appointed another Inquiry Officer i.e. third Inquiry Officer to enquire into the matter afresh. The third Inquiry Officer submitted his enquiry report on 3.5.2001 (Annexure-7 to the writ petition), in which the respondent was found guilty of the charges 1 to 3, 6 & 7 levelled against him. Based on the report of the third Inquiry Officer, the Disciplinary Authority after issuing the second show cause notice to the respondent, vide order dated 6.9.2002 (Annexure-1 to the appeal), passed the order of punishment dismissing the respondent from service. 4. Aggrieved by the said dismissal order, the respondent preferred an appeal being Service Appeal No. 96/2002 before the Commissioner, North Chhotanagpur Division, Hazaribagh. 4. Aggrieved by the said dismissal order, the respondent preferred an appeal being Service Appeal No. 96/2002 before the Commissioner, North Chhotanagpur Division, Hazaribagh. Vide order dated 15.2.2003 (Annexure-2 to the appeal), the Commissioner, North Chhotanagpur Division, Hazaribagh, has modified the order of the Deputy Commissioner and directed the reinstatement of the respondent with certain modifications. Pursuant to the order dated 15.2.03, on 18.3.2003, the respondent was reinstated. 5. The Disciplinary Authority-the Deputy Commissioner, Hazaribagh preferred a Revision before the Member, Board of Revenue, Jharkhand being Service Revision No.34 of 2003, who set aside the order passed by the Disciplinary Authority and also the Appellate Authority by order dated 14.3.2005 and directed the Disciplinary Authority to pass a fresh order. The Member, Board of Revenue, Jharkhand has observed that in case if the Deputy Commissioner differed with the first enquiry report of the second Inquiry Officer, who had exonerated the respondent, the Deputy Commissioner, Hazaribagh ought to have issued the second show cause notice differing with the report of the Inquiry Officer and calling upon the respondent to furnish his reply as to why proposed punishment should not be imposed against him. Pointing out, such well settled procedure was not followed, the Member, Board of Revenue directed the Deputy Commissioner to consider the matter afresh. 6. The Deputy Commissioner, Hazaribagh issued fresh show cause notice to the respondent and again the Deputy Commissioner passed the order of dismissal on 7.10.2005 ( Annexure-4 to the appeal) relying upon the enquiry report of the 3rd Inquiry Officer. 7. Challenging the order of dismissal dated 7.10.2005 (Annexure-4 to the appeal), the respondent has filed W.P.S. No. 2527 of 2006. The learned Single Judge allowed the writ petition holding that the Deputy Commissioner proceeded to act upon the second enquiry report and issued a second show cause notice based upon the said enquiry report and hence the illegality has been perpetuated once again. It is also pointed out that the respondent in the meanwhile has been acquitted of the charges by the trial court and the same was affirmed in the appeal also. The learned Single Judge set aside the order of dismissal and directed the appellants to give all the consequential benefits to the respondent, such as continuity of service, seniority and benefit of pay revisions etc. The learned Single Judge set aside the order of dismissal and directed the appellants to give all the consequential benefits to the respondent, such as continuity of service, seniority and benefit of pay revisions etc. The learned Single Judge also directed the appellants to pay 50% of the back wages to the respondent for the period, for which the respondent has remained out of service. 8. Heard the learned counsel appearing for the appellants-Mr. Jalisur Rahman, JC to G.P. III and learned counsel for the respondent-Mr. Saibal Mitra. 9. Learned counsel for the appellants submitted that after the matter was remitted back by the Member, Board of Revenue, the Deputy Commissioner was at liberty to pass any order after issuance of second show cause to the respondent. The learned counsel further submitted that if the learned Single Judge was of the view that the Deputy Commissioner was not right in relying upon the second enquiry report of the third Inquiry Officer, the learned Single Judge ought to have remitted the matter back to the Deputy Commissioner for consideration of the matter afresh and ought not to have directed for reinstatement of the respondent. Learned counsel further submitted that the respondent was out of service for a long period from 1995 till 2003 (except the periods from 18.3.2003 to 7.10.2005) hence the writ Court was not right in ordering 50% back wages. 10. The main contention of the counsel for the appellants is that the writ Court ought to have remanded the matter back to the Disciplinary Authority to pass a fresh order in accordance with law after giving an opportunity to the respondent. 11. Supporting the order passed by the writ Court, the learned counsel for the respondent submitted that even after remittance of the matter by the Member, Board of Revenue, the Deputy Commissioner again proceeded to rely upon the second enquiry report, which was illegal by its initiation and therefore the learned Single Judge rightly set aside the order of punishment of dismissal from service. The learned counsel further submitted that since the respondent has been acquitted in the criminal case, which was also affirmed in the appeal, no useful purpose will be served by remitting the matter to the Disciplinary Authority. 12. The learned counsel further submitted that since the respondent has been acquitted in the criminal case, which was also affirmed in the appeal, no useful purpose will be served by remitting the matter to the Disciplinary Authority. 12. While allowing the writ petition, the learned Single Judge elaborated upon the illegality perpetuated by the Disciplinary Authority in relying upon the second enquiry report submitted by the third Enquiry Officer. We may usefully refer to the findings of the learned Single Judge: "It is not in dispute that 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 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." 13. As rightly pointed out by the learned Single Judge, if the Disciplinary authority differs with the report of the first enquiry report of the second Inquiry Officer, the Disciplinary Authority ought to have issued show cause to the respondent specifically stating the reasons for taking a different view from that of the report of the Inquiry officer. Instead of adopting that procedure, the Disciplinary Authority proceeded to appoint another Inquiry Officer to conduct a fresh enquiry, which is not permissible in law. Instead of adopting that procedure, the Disciplinary Authority proceeded to appoint another Inquiry Officer to conduct a fresh enquiry, which is not permissible in law. Therefore, any reliance to be placed upon the second enquiry report submitted by the third Inquiry Officer is not in accordance with the well settled principle. 14. The learned Single Judge rightly pointed out that the Deputy Commissioner proceeded to act relying upon the second enquiry report and issued the second show cause based upon the same enquiry and thereby perpetuated the illegality once again. The finding of the learned Single Judge does not suffer from any infirmity, warranting interference. 15. In so far as the contention of the appellants that the matter ought to have been remitted back to the Disciplinary Authority for fresh consideration, it is to be pointed out that the respondent has been fighting disciplinary proceeding for nearly 19 years. The criminal case lodged against the respondent in Bahri P.S. Case No. 43 of 1996 also ended in acquittal on 29.8.2009 and the order of acquittal was also affirmed in the appeal preferred by the State. 16. Since the criminal case ended in acquittal and considering the long period for which the respondent has been fighting out the matter, we are of the view that no useful purpose would be served by remitting the matter to the Disciplinary Authority for fresh consideration. In the facts and circumstances of the case and taking note of the order of acquittal, the learned Single Judge rightly set aside the order of punishment of dismissal and directed the appellant to reinstate the respondent. In so far as the consequential benefits, the learned Single Judge rightly directed the appellants to give all the consequential benefits to the respondent such as continuity of service, seniority and benefit of pay revisions. 17. The only question remains to be considered is the payment of back wages to the respondent for the period during which he has remained out of service. 18. The respondent was under suspension from 12.9.1995 till 18.3.2003 and no material was placed on record as to whether any subsistence allowance was paid to the respondent for this period. Payment of subsistence allowances or otherwise for the period from 12.9.1995 to 18.3.2003 shall be paid to the respondent as per the rule, if not already paid. 18. The respondent was under suspension from 12.9.1995 till 18.3.2003 and no material was placed on record as to whether any subsistence allowance was paid to the respondent for this period. Payment of subsistence allowances or otherwise for the period from 12.9.1995 to 18.3.2003 shall be paid to the respondent as per the rule, if not already paid. In so far as the period from 7.10.2005 till the date of reinstatement, in the facts and circumstances of the case, we are of the view that since the respondent was not doing the work, the respondent be paid 25% of the back wages for the period from 7.10.2005 till the date of reinstatement. 19. While affirming the order of the learned Single Judge passed in W.P.S. No. 2527 of 2006 regarding the reinstatement, benefit of continuity of service, seniority and benefits of pay revision, the payment of back wages for the period from 7.10.2005 till the date of reinstatement, is reduced to 25% from that of 50%. 20. This Letters Patent Appeal is partly allowed to the extent mentioned above. 21. The appellants are directed to comply with the order within a period of six weeks from the date of receipt of a copy of the order. 22. It is made clear that the period of suspension and other period shall not be treated as break up in service and shall be treated as continuity of service for calculating the other benefits to the respondent.