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2015 DIGILAW 112 (JHR)

Harkhen Kumar v. State of Jharkhand

2015-01-27

APARESH KUMAR SINGH, VIRENDER SINGH

body2015
JUDGMENT : Virender Singh, J. I.A. No. 7278 of 2013 1. Applicant-appellant being aggrieved of the judgment/order dated 6.9.2011, whereby his writ petition (W.P.[S] No. 3627 of 2005), challenging the order of retiring him compulsorily stands dismissed, has filed the accompanied Letters Patent Appeal (LPA No. 257 of 2013) wherein there is delay of 661 days, condonation thereof has been prayed for through the instant application which has faced strong opposition by the learned Advocate General. 2. Mr. S.N. Pathak, learned Senior Advocate, appearing for the applicant/appellant submits that undoubtedly there is a huge delay in filing the accompanied appeal, but on merits the applicant-appellant has a very strong case, for the reason that the order retiring him compulsorily is not sustainable in the eyes of law on account of a legal flaw in as much as, before passing the order of compulsory retirement, applicant-appellant was not served with enquiry report and the second show cause notice, which is sine qua non and that vital aspect has not been taken into consideration by the learned Writ Court. Mr. Pathak submitted that in case the aforesaid delay in filing the accompanied appeal is not condoned, it would cause grave prejudice to the applicant-appellant, who, otherwise has a very strong case on merits. 3. Mr. Pathak fairly states that in the event of the accompanying Letters Patent Appeal being allowed, the applicant-appellant is ready and willing to forego considerable part of his back wages, may be to the extent of half of the back wages on account of the aforesaid delay in filing the accompanied appeal. He makes this statement at the bar after taking instructions from the applicant-appellant. 4. Keeping in view the peculiar facts of the case, where the entire controversy revolves around a legal issue and the aforesaid statement made by Mr. Pathak at the bar, we hereby condone the delay of 661 days in filing the accompanied Letters Patent Appeal and take the main appeal on board for hearing it on merits. 5. I.A. No. 7278 of 2013 stands disposed of accordingly. L.P.A. No. 257 of 2013 6. Appellant-writ petitioner (for short 'petitioner') when slapped with an order no. Pathak at the bar, we hereby condone the delay of 661 days in filing the accompanied Letters Patent Appeal and take the main appeal on board for hearing it on merits. 5. I.A. No. 7278 of 2013 stands disposed of accordingly. L.P.A. No. 257 of 2013 6. Appellant-writ petitioner (for short 'petitioner') when slapped with an order no. 260 dated 11.7.2003, whereby he was made to retire compulsorily, knocked the door of the writ Court through the medium of the writ petition (W.P.[S] No. 3627 of 2005), which now stands dismissed vide judgment/order dated 6.9.2011 of learned Single Judge. Hence the instant Letters Patent Appeal. 7. The allegation which became subject matter of inquiry conducted by Deputy Superintendent of Police is that petitioner had taken a sum of Rs.2500/-from Deo Kumar Singh and a sum of Rs.5000/-from Gopal Prasad Sinha (both retired persons), giving them some assurance that he would do the needful in the matter relating to grant of pension to them. A notice was issued to the petitioner, whereupon representation was submitted by him, which was found to be unsatisfactory and ultimately Deputy Superintendent of Police submitted his report on 23.6.2003 holding the petitioner guilty of the charge. The matter was then taken up by the Commandant( Disciplinary Authority), who passed an order contained in Memo no. 260 dated 11.7.2003, retiring the petitioner compulsorily. He, being aggrieved of the said order, filed an appeal before the Deputy Inspector General of Police, which also met the same fate vide order dated 28th September, 2004. These two orders were challenged by the petitioner in the writ petition. 8. The learned writ Court while taking into account of the factual aspect of the matter and after discussing the evidence of the witnesses to some extent produced against the petitioner, ultimately held that the inquiry report holding the petitioner guilty was based on complete evidence, therefore order no. 260 dated 11.7.2003 retiring him compulsorily did not suffer from any infirmity. 9. Heard Mr. S.N. Pathak, learned Senior Advocate, appearing for the petitioner, Mr. R.S. Mazumdar, learned Advocate General, appearing for the State and gone through the impugned judgment and the relevant writ Court record. 10. Mr. 260 dated 11.7.2003 retiring him compulsorily did not suffer from any infirmity. 9. Heard Mr. S.N. Pathak, learned Senior Advocate, appearing for the petitioner, Mr. R.S. Mazumdar, learned Advocate General, appearing for the State and gone through the impugned judgment and the relevant writ Court record. 10. Mr. Pathak submitted that the petitioner in one of his grounds of main writ petition has specifically averred that no show cause notice along with inquiry report was ever served upon the petitioner after inquiry was conducted by the Deputy Superintendent of Police; whereas the learned writ Court has not returned any finding on that aspect. According to Mr. Pathak, it is a case of major penalty, therefore, before passing the order of major penalty, supply of copy of the inquiry report along with the second show cause notice is a must and this legal issue is no more res-integra. Learned Senior Counsel submitted that this is a sine qua non for a valid, fair and just procedure for the delinquent to defend himself effectively and efficaciously. 11. Mr. Pathak submitted that against the order dated 28th September, 2004 passed by the Deputy Inspector General of Police, the petitioner, no doubt, had filed a revision petition before the Inspector General of Police in terms of Rule 853 of Jharkhand Police Manual and the said revision was also dismissed vide order dated 9th November, 2006 during the pendency of the main writ petition wherein only the aforesaid two orders dated 11.7.2003 and 28.9.2004, have been questioned, but it would not make any difference on account of aforesaid fundamental legal flaw crept in the basic order whereby compulsorily retiring the petitioner. He submitted that any subsequent order(s) would fall on the ground automatically. 12. In support of his submission, Mr. Pathak has relied upon the judgment rendered by Hon'ble Supreme Court in the case of Managing Director, ECIL, Hyderabad and ors. Vs. B. Karunakar, reported in (1993) 4 SCC 727 and referred to Paras 25, 28 and 29 wherein it is held: “25. 12. In support of his submission, Mr. Pathak has relied upon the judgment rendered by Hon'ble Supreme Court in the case of Managing Director, ECIL, Hyderabad and ors. Vs. B. Karunakar, reported in (1993) 4 SCC 727 and referred to Paras 25, 28 and 29 wherein it is held: “25. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment. 28. The position in law can also be looked at from a slightly different angle. Article 311(2) says that the employee shall be given a “reasonable opportunity of being heard in respect of the charges against him”. The findings on the charges given by a third person like the enquiry officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. What is further, when the proviso to the said Article states that “where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed”, it in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee’s reply to the enquiry officer’s report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the Forty-second Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer’s report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges. 29. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer’s report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee’s right to defend himself against the charges levelled against him. A denial of the enquiry officer’s report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.” 13. Learned Advocate General, after perusing the entire records made available to him by his Assistant Counsel, fairly states that after the initial enquiry was held against the petitioner by Dy. SP and before imposing major punishment of retiring him compulsorily, neither second show cause notice nor the copy of the enquiry report was served upon him. Learned Advocate General, after perusing the entire records made available to him by his Assistant Counsel, fairly states that after the initial enquiry was held against the petitioner by Dy. SP and before imposing major punishment of retiring him compulsorily, neither second show cause notice nor the copy of the enquiry report was served upon him. He, however, submitted that the case of the petitioner has been rejected by Inspector General of Police in a Revision filed by the petitioner, which order has not been challenged by him before any Court, therefore, the petitioner is not entitled to any relief. Learned Advocate General further submitted that the case of the petitioner, on its own individual facts, has already been tested by the learned Writ Court and it has been held that the enquiry, went against the petitioner, was based on cogent evidence and for this reason, the order of compulsorily retiring the petitioner was not interfered with by the learned Writ Court. 14. We find substance in the submissions made by Mr. Pathak, learned Senior Counsel appearing for the petitioner and are of the view that the case of the petitioner is squarely covered by the ratio of Supreme Court judgment rendered in Managing Director, ECIL's Case (Supra). 15. In Managing Director, ECIL, Hyderabad (Supra), after the matter was placed before a Larger Bench on account of conflict in two decisions of Hon’ble Supreme Court viz. Kailash Chander Asthana Vs. State of U.P. [ (1988) 3 SCC 600 ] and Union of India Vs. Mohd. Ramzan Khan [ (1991) 1 SCC 588 , both delivered by three Judges Bench of Hon’ble Supreme Court, the Hon’ble Supreme Court formulated the following questions for its decision : (i) Whether the report should be furnished to the employee even when the statutory rules laying down the procedure for holding the disciplinary inquiry are silent on the subject or are against it? (ii) Whether the report of the enquiry officer is required to be furnished to the delinquent employee even when the punishment imposed is other than the major punishment of dismissal, removal or reduction in rank? (iii) Whether the obligation to furnish the report is only when the employee asks for the same or whether it exists even otherwise? (iv) Whether the law laid down in Mohd. (iii) Whether the obligation to furnish the report is only when the employee asks for the same or whether it exists even otherwise? (iv) Whether the law laid down in Mohd. Ramzan Khan case [ (1991) 1 SCC 588 ] will apply to all establishments — Government and non-Government, public and private sector undertakings? (v) What is the effect of the non-furnishing of the report on the order of punishment and what relief should be granted to the employee in such cases? (vi) From what date the law requiring furnishing of the report, should come into operation? (vii) Since the decision in Mohd. Ramzan Khan case [ (1991) 1 SCC 588 ] has made the law laid down there prospective in operation, i.e., applicable to the orders of punishment passed after November 20, 1990 on which day the said decision was delivered, this question in turn also raises another question, viz., what was the law prevailing prior to November 20, 1990? 16. All the aforesaid seven questions formulated are answered in Para 30, as follows : 30. Hence the incidental questions raised above may be answered as follows: [i] Since the denial of the report of the enquiry officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject. [ii] The relevant portion of Article 311 (2) of the Constitution is as follows: “(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.” Thus the article makes it obligatory to hold an inquiry before the employee is dismissed or removed or reduced in rank. The article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. The article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311(2) applies only to members of the civil services of the Union or an all-India service or a civil service of a State or to the holders of the civil posts under the Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded and when the enquiry officer is not the disciplinary authority the delinquent employee will have the right to receive the enquiry officer’s report notwithstanding the nature of the punishment. [iii] Since it is the right of the employee to have the report to defend himself effectively and he would not know in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the report or not, the report has to be furnished to him. [iv] In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the enquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan case should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the enquiry officer before the disciplinary authority records its findings on the charges leveled against him. Hence question (iv) is answered accordingly. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the enquiry officer before the disciplinary authority records its findings on the charges leveled against him. Hence question (iv) is answered accordingly. [v] The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an “unnatural expansion of natural justice” which in itself is antithetical to justice. 17. We have tested the present case on its individual facts within the parameters, as contained in answer to Question No.(v) in Managing Director, ECIL's Case (Supra) and find that non-furnishing of the enquiry report along with the show cause notice before imposing the major penalty of 'Compulsorily Retirement' has caused prejudice to the petitioner. 18. 17. We have tested the present case on its individual facts within the parameters, as contained in answer to Question No.(v) in Managing Director, ECIL's Case (Supra) and find that non-furnishing of the enquiry report along with the show cause notice before imposing the major penalty of 'Compulsorily Retirement' has caused prejudice to the petitioner. 18. One Deo Kumar Singh, a retired employee of Jharkhand Armed Police and also one Gopal Prasad Sinha, ex-Havildar had made their written complaints alleging therein that the petitioner had taken money from them on the plea of doing needful in the matter of grant of pension to them. When aforesaid Deo Kumar Singh appeared during the course of departmental enquiry, he made a statement that he had given a sum of Rs.2,500/- to the petitioner by way of loan and when he asked the petitioner to return the money, he stated that the money was spent for his work related to grant of pension. He, however, stated that he succeeded in getting the pension sanctioned of his own effort. The evidence given by other witness namely Gopal Prasad Sinha is different. He stated that a sum of Rs.5,000/- was given to the petitioner with regard to pension to be released in his favour, but he did not do anything and when he asked the petitioner to return the money, he refused and said that he could go wherever he wanted to go. Both these witnesses, in their cross examination conducted during the departmental enquiry, stated that they have nothing to do with the petitioner and they had put their signatures on the applications which were brought by some unknown person. No doubt, the enquiry went against the petitioner, but what appears to us is that, all what was made the basis of holding a departmental enquiry against the petitioner turned out to be somewhat shaky. In this factual backdrop of the case, had the petitioner been afforded an opportunity of putting forth his stance before the disciplinary authority after issuing a show cause notice to him for the purpose of imposing major penalty, the disciplinary authority could arrive at a different conclusion with regard to quantum of punishment. This, in turn, has caused prejudice to him. This, in turn, has caused prejudice to him. Therefore, non-issuance of second show cause notice along with the report of departmental enquiry before taking a decision of retiring him compulsorily by the disciplinary authority amounts to denial of reasonable opportunity and a breach of principles of natural justice. Accordingly, order dated 11.7.2003 passed by Commandant (Disciplinary Authority) and the order dated 28.9.2004 passed by the Deputy Inspector General of Police (Appellate Authority) deserve to be quashed. Ordered accordingly. 19. The revisional order dated 9th November, 2006 passed by the Inspector General of Police loses its effect automatically on account of quashing of the aforesaid two orders. 20. However, it will be open to the respondents to initiate proceedings against the petitioner from the stage of issuance of second show cause notice along with the report of enquiry already held against the petitioner by Dy. S.P. 21. So far as the consequential benefits which would flow towards the petitioner on account of quashment of the order of major penalty (compulsory retirement), in our considered view, except 50% of the back wages due to him, he shall be entitled to all other consequential benefits. 22. Net result is that the impugned judgment of learned Single Judge is set aside by allowing the appeal on hand. Resultantly, the Writ Petition (Service) No.3627 of 2005 filed by the petitioner also stands allowed.