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2016 DIGILAW 1434 (JHR)

Nezamuddin v. State of Jharkhand

2016-09-29

PRAMATH PATNAIK

body2016
Order : In the accompanied writ application, the petitioner has inter-alia prayed for quashing the order as contained in memo dated 19.12.2008 (Annexure-7) issued by the respondent no.3 pertaining to the punishment of recovery of Rs.3,37,263/- alongwith interest 12% per annum, withholding of two annual increments with cumulative effect, further withholding of promotion for the period of 3 years from the due date and it has been directed that all the punishment will be entered in the service book of the petitioner and the petitioner has further prayed for appropriate direction upon the respondents to forthwith release entire arrears of difference of salary alongwith interest. 2. The facts as emanated from the writ application, in nutshell is that the petitioner was initially appointed as Assistant Teacher in the States Subsidized High School, Khunti in the year 1995. From the date of joining in the said post, the petitioner has discharged his duties to the utmost satisfaction of his authorities. In the year 2004-05, various school of the State of Jharkhand were selected to be developed as model schools in order to bring them as per national standard. Amount of Rs.18,65,00000/- was granted for the aforesaid work. The petitioner being the junior most teacher in the school was assigned work of development in the question. Petitioner purchased furniture and other materials for construction work of the school, material which were purchased lying in the premises of the school and were stolen and reported the matter to the police with respect of stealing of the goods. Thereafter, the petitioner was transferred from the said school to the Scheduled Caste High School, Bhalubasa, Jamshedpur, Thereafter the petitioner was communicated with the order dated 09.03.2007 whereby the petitioner was put under suspension in contemplation of a departmental proceeding for the allegation that the petitioner has not completed the work assigned to him which resulted in the theft of the materials and it was ordered that the petitioner was entitled to subsistence allowance only. During the continuation of suspension, the petitioner submitted representation for requesting to invoke the suspension and also to pay subsistence allowance as evident from Annexure-4 to the writ application. Thereafter, on 29.05.2007 the memorandum of charge, three allegations were furnished to the petitioner to enable the petitioner to file his reply. During the continuation of suspension, the petitioner submitted representation for requesting to invoke the suspension and also to pay subsistence allowance as evident from Annexure-4 to the writ application. Thereafter, on 29.05.2007 the memorandum of charge, three allegations were furnished to the petitioner to enable the petitioner to file his reply. After receipt of the said charge, the petitioner submitted a detailed representations annexing relevant documents to enable him to file reply to the charges as evident from Annexure-6 to the writ application. Due to non-payment of subsistence allowance, the petitioner was compelled to file being W.P.(S) No.4072 of 2007 which was disposed of on 16.08.2007, thereafter, another W.P.(S) No.1951 of 2008 was filed for disposal of the departmental proceeding since the impugned order was passed on 19.12.2008. The said writ petition became infructuous. Finally, the disciplinary authority passed the order dated 19.12.2008. Being aggrieved and dissatisfied with the order dated 19.12.2008 (Annexure-7) to the writ application the petitioner left with no other alternative efficacious and speedy remedy, has approached this Court invoking extra-ordinary jurisdiction under Article 226 of the Constitution of India for redressal of his grievances. 3. Mr. Saurabh Shekhar, learned counsel for the petitioner has vehemently submitted that the impugned order of punishment dated 19.12.2008 (Annexure-7) to the writ application is assailable on the ground, no copy of the inquiry report was supplied to the petitioner which has caused prejudice to the petitioner. Learned counsel for the petitioner further submits that despite writing to the respondent authority for supply of the relevant documents, the same was not provided to the petitioner nor the petitioner was given opportunity to cross examine the material witnesses. Learned counsel further submits that the copy of the second show cause notice has not been issued to the petitioner which is another infirmity which has materially affected the outcome of the departmental proceeding. Learned counsel for the petitioner further submits that non-supply of the inquiry report has caused prejudice because the petitioner was not able to know about inquiry report and the supply of the inquiry report is a sine-qua-non for just and fair disciplinary proceeding. In the instant case, non-supply of the same has vitiated the proceeding thereby causing prejudice to the petitioner and therefore, the impugned order of punishment is liable to be set aside. In the instant case, non-supply of the same has vitiated the proceeding thereby causing prejudice to the petitioner and therefore, the impugned order of punishment is liable to be set aside. In order to butress his submissions learned counsel for the petitioner has referred to the decision of the Hon'ble Apex Court reported in (1993) 4 SCC 727 in the case of Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors. 4. Per-contra, a counter-affidavit has been filed by the respondents controverting the averments made in the writ application. Mr. Rishikesh Giri, learned counsel for the respondents-State, J.C to G.P.II has reiterated the submissions made in the counter-affidavit. Learned counsel for the State has assiduously submitted that the impugned order have been passed after observing the formalities and there is absolutely no irregularities for non-supply of the inquiry report and second show cause notice but have not materially affected outcome of the disciplinary proceeding. Learned counsel for the State further submits that the punishment which have been inflicted upon the petitioner are just and appropriate which does not warrant any interference by this Court. 5. After hearing learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the petitioner has been able to make out a case for interference due to the following facts and reasons stated hereinbelow: (i) In the case in hand, just after on receipt of the charges the petitioner submitted representation to the respondent authorities for supply of the necessary documents and the documents asked by the petitioner was never supplied however the petitioner submitted his reply denying the charges. But in the instant case the infliction of punishment is a major punishment, the copy of the inquiry report has not been supplied to the petitioner which has grossly prejudiced to the petitioner and averments made in the writ petition have not been controverted by the State. Non-supply of the inquiry report deprived the petitioner to know about the findings against him thereby causing prejudice to the petitioner. Therefore, non-supply of the inquiry report is breach of the proper and fair departmental proceeding. Non-supply of the inquiry report deprived the petitioner to know about the findings against him thereby causing prejudice to the petitioner. Therefore, non-supply of the inquiry report is breach of the proper and fair departmental proceeding. Another infirmity which has been raised by learned counsel for the petitioner, not controverted by the learned counsel for the State is that the second show cause notice prior to imposition of major punishment has not been issued, which has also an another instance of procedural irregularities to render the impugned order of punishment vide Annexure-7 assailable and nugatory. The view of this Court thus gets fortified as reported (1993) 4 SCC 727 in the case of Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors and also reported in (1998) 7 SCC 84 in case of Punjab National Bank Vs. Kunj Behari Mishra. 6. In view of the reasons stated in the foregoing paragraphs the impugned order of punishment vide Annexure-7 dated 19.12.2008 to the writ application being not legally sustainable is hereby quashed and set aside and the matter is remitted to the disciplinary authority to start proceeding afresh from the stage of supply of the inquiry report and by giving to the petitioner an opportunity of being heard and conclude the proceeding as expeditiously as possible preferably within a period of six months from the date of receipt of a copy of this order. With the aforesaid direction, the writ petition stands allowed.