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2015 DIGILAW 1427 (JHR)

Shambhoo Singh v. State of Jharkhand

2015-11-19

RONGON MUKHOPADHYAY

body2015
ORDER : In this writ application, the prayer of the petitioner is for quashing the order as contained in Memo No. 277(S) dated 16.01.2012 passed by the respondent No. 4 by which punishment of recovery of Rs. 3,20,000/-, stoppage of three increments with cumulative effect and non-entitlement for any other amount except what has been paid under Rule 97 of the Jharkhand Service Code has been imposed upon the petitioner. 2. The facts which arise from the averments made in the writ application is that the petitioner was appointed as Junior Engineer in the State of Bihar and after bifurcation the services of the petitioner was finally allocated to the State of Jharkhand. When the petitioner was posted as Junior Engineer, Road Section, Netarhat under Road Division, Gumla in the Financial Year 2008-2009, the petitioner was put under suspension in terms of Office Order as contained in Memo No. 257(S) dated 04.09.2009. The petitioner was handed over a memo of charge on 10.02.2010 in which various charges were formulated against the petitioner with respect to various work orders. 3. The Chief Engineer, Highway Wing, Road Construction Department had submitted his enquiry report dated 12.09.2011 which was forwarded to the Government vide letter dated 13.09.2011. The Special Secretary, Road Construction Department issued a second show cause notice to the petitioner to which the petitioner had duly submitted his explanation and subsequent thereto the Engineer-in-Chief being the disciplinary authority passed an order of punishment against the petitioner as contained in Memo No. 277(S) dated 16.01.2012 in which the petitioner was inflicted with three punishments. An appeal was preferred but the same was not disposed of and ultimately the petitioner has filed the present writ application. 4. Heard Mr. Manoj Tandon, learned counsel appearing for the petitioner and learned J.C. to A.A.G. 5. It has been submitted by the learned counsel for the petitioner that the Enquiry Officer had found the charges levelled against the petitioner as not proved and without giving an opportunity to the petitioner to disprove the findings recorded by the Special Secretary, Road Construction Department who had differed with the findings of the Enquiry Officer a second show cause notice was issued. It has further been submitted that the petitioner was thus deprived from putting forward his case and the Special Secretary, Road Construction Department did not give any opportunity to the petitioner to explain the enquiry report which had been submitted in his favour. 6. Learned J.C. to A.A.G., on the other hand, has stated that the second show cause notice issued to the petitioner was not as a matter of course, rather the authority had differed with the enquiry report on each and every point and, therefore, it cannot be said that the second show cause notice issued to the petitioner was in a whimsical manner. It has also been submitted that with respect to the irregularities committed by the petitioner Gumla P.S. Case No. 47 of 2010 was also instituted in which sanction for prosecution was also accorded vide Departmental Memo No. 6752 dated 11.10.2011. In such circumstance, therefore, it has been prayed that the principles of natural justice having been followed and the petitioner having been given an opportunity to explain his stand the writ application deserves to be dismissed. 7. The main crux of the argument of the learned counsel for the petitioner seems to revolve around the fact that the petitioner was never given an opportunity to explain his case when the authority had disagreed with the enquiry report when in fact it was incumbent upon the authority concerned before issuing a second show cause notice to enable the petitioner to submit an explanation or to defend his stand with respect to his being absolved in the departmental proceedings. 8. In the case of Punjab National Bank and Others vs. Kunj Behari Misra reported in (1998) 7 SCC 84 it was held as follows:- “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 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.” 9. It is, therefore, a settled proposition of law that before the disciplinary authority disagrees with the findings recorded by the Enquiry Officer on any of the charges levelled against the delinquent employee it has to give its tentative reasons and allow an opportunity to the delinquent employee before a finding is recorded. 10. In the present case as has been discussed above, the Enquiry Officer had submitted his report categorically indicating therein that none of the charges recorded against the petitioner were found proved. The Special Secretary, Road Construction Department did not record any tentative reasons and did not give any opportunity to the petitioner to explain his stand which had led the Enquiry Officer to record a finding absolving the petitioner of the charges levelled against him. Straightway by differing with the findings of the Enquiry Officer a second show cause notice was issued to the petitioner detailing the proposed punishment to be imposed which thus sidelines the issue of opportunity of hearing to the petitioner before issuance of such second show cause notice. 11. In such circumstance, therefore, the order of punishment as contained in Memo No. 257(S) dated 16.01.2012 passed by the respondent No. 4 is not in consonance or in conformity with the principle of natural justice and in such circumstance, therefore, the impugned order deserves to be quashed and set aside. Accordingly, the order as contained in Memo No. 277(S) dated 16.01.2012 passed by the respondent No. 4 is quashed and the matter is remitted back to the respondent No. 4 to start the proceeding by giving an opportunity to the petitioner to explain his stand with respect to the order of the competent authority differing with the findings of the Enquiry Officer and thereafter proceed in the matter. 12. 12. The entire exercise is directed to be concluded within a period of six weeks from the date of receipt/production of a copy of this order. 13. This writ application is disposed of in terms aforesaid.