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2016 DIGILAW 173 (JHR)

Md. Kalimuddin v. State of Jharkhand

2016-01-21

PRAMATH PATNAIK

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JUDGMENT : PRAMATH PATNAIK, J. 1. In the accompanied writ application, the petitioner has inter-alia prayed for issuance of writ of certiorari for quashing the impugned order dated 25.05.2012 issued under the signature of District Superintendent of Education, Godda pertaining to major punishment of dismissal from services and for issuance of writ/direction in the nature of mandamus commanding upon the respondents to reinstate the petitioner on the post of Assistant Teacher with all consequential benefits. 2. The factual matrix, as has been delineated in the writ application, in a nutshell is that on the recommendation of the Jharkhand Public Service Commission Ranchi and on the basis of Elementary Teacher Selection Examination, 2007 the petitioner was appointed to the post of Assistant Teacher, Dhami Bazar, Urdu Anchal, Sundar Pahari, Godda vide order dated 13.10.2009 issued by the District Superintendent of Education, Godda. In pursuance to the said appointment order the petitioner submitted his joining on 16.10.2009. That on 16.11.2011 during surprise inspection of schools by the Deputy Commissioner, Godda and District Superintendent of Education, Godda, the petitioner was found absent from school because he had proceeded on casual leave and since it was a single unit teacher’s school. The explanation was called for from the petitioner vide letter dated 17.11.2011 and the petitioner was also placed under suspension. The petitioner submitted his explanation clarifying the illness which prevended him to attend the school and after recovering from the illness he joined the school on 17.11.2011. The explanation of the petitioner was supported by application for leave and medical certificate of the doctor. The charges were served upon the petitioner and Range Education Officer, Godda was appointed as enquiry officer. The District Superintendent of Education vide office order dated 02.02.2012 appointed another enquiry officer namely Sri Dhirendra Prasad, Block Education Extension Officer, Mehrama and In-charge, Range Education Officer, Mahgama and second enquiry was started against this petitioner on the same set of charges. without serving copy of the enquiry report or second show cause, the order of dismissal has been passed against the petitioner as contained in memo dated 25.05.2012 issued by the District Superintendent of Education, Godda. without serving copy of the enquiry report or second show cause, the order of dismissal has been passed against the petitioner as contained in memo dated 25.05.2012 issued by the District Superintendent of Education, Godda. Being aggrieved by order of dismissal the petitioner preferred appeal before the Divisional Commissioner cum appellate authority, Dumka and the appellate authority rejected the appeal of the petitioner vide order dated 23.11.2015 during pendency of the writ application confirming the order of the disciplinary authority. Being aggrieved by the order of disciplinary authority as well as the appellate authority, left with no alternative, efficacious and speedy remedy, the petitioner has approached this Court under Article 226 of the Constitution of India, invoking extraordinary jurisdiction of this Court for redressal of his grievance. 3. Heard Mr. Bhanu Kumar, learned counsel appearing for the petitioner as well as Mr. D.K. Dubey, Sr. S.C.I., appearing for the respondents. 4. Learned counsel for the petitioner vehemently submits that the impugned order of punishment of dismissal of the petitioner vide order dated 25.05.2012 and the order of the appellate authority vide order dated 23.11.2015 are ex facie illegal, since the same have been passed without supplying the copy of the enquiry report and without providing second show cause notice. Learned counsel for the petitioner further submits that the impugned order of punishment and the appellate order have been passed without initiation of any departmental enquiry as provided under Rule 8 of the Bihar State National Elementary School Teachers (Transfer and Disciplinary Action) Rules 1994, which has been duly adopted by the State of Jharkhand. Learned counsel for the petitioner further submits that the impugned order of dismissal being confirmed by the appellate authority are not legally sustainable because the same has been passed by conducting second enquiry by second enquiry officer on same set of charges because earlier enquiry report was in favour of petitioner and the order of punishment of dismissal is totally vitiated. Learned counsel further submits that the order of major punishment of dismissal on the ground of unauthorized absence from school, that too on the application of casual leave is directly hit by the doctrine of proportionality. On the question of appointment of second enquiry officer, learned counsel for the petitioner has referred to the judgment of the Hon’ble Apex Court reported in Union of India vs. K.D. Pandey and Anr. On the question of appointment of second enquiry officer, learned counsel for the petitioner has referred to the judgment of the Hon’ble Apex Court reported in Union of India vs. K.D. Pandey and Anr. (2002) 10 SCC 471 and on the question of unauthorized absence the learned counsel for the petitioner has referred to the judgment of the Hon’ble Apex Court reported in Krushnakant B. Parmar vs. Union of India and Anr. (2012) 3 SCC 178 and also on the question of doctrine of proportionality the learned counsel for the petitioner has referred to the judgment of the Hon’ble Apex Court reported in Chairman, All India Railway Recruitment Board & Anr. vs. K. Shyam Kumar & Ors. 2010 (6) SCC 614 . 5. Per contra, counter affidavit has been filed on behalf of the respondents controverting the averments made in the writ application. In the counter affidavit, it has been inter-alia stated that the petitioner was an Assistant Teacher in the Primary School, Dhamni Bazar, Urdu Block, Sunderpahari, District Godda. The school inspection had been done by the then District Superintendent of Education, Godda on 26.03.2011 on the basis of villager’s complaint letter and the petitioner was found absent without information, therefore, District Superintendent of Education, Godda issued a letter vide memo dated 26.03.2011to the petitioner to submit his explanation within three days of the receipt of the letter. The Primary School, Dhamin Bazar, Urdu Block, Sunderpahari was found closed at the time of inspection dated 16.11.2011 held by the Deputy Commissioner, Godda and the petitioner was found absent without information. The villagers and Panchayat Mukhiya complained to Deputy Commissioner, Godda against the petitioner and thereafter the then District Superintendent of Education, Godda issued a letter vide memo dated 17.11.2011and suspended the petitioner. It has further been submitted that the charge sheet has been framed by the then District Superintendent of Education, Godda vide office letter dated 29.11.2011. The then District Superintendent of Education, Godda has deputed the Area Education Officer-cum-enquiry officer and the Block Education Extension Officer, Sunderpahari-cum-Conducting Officer to enquire into the above matter and submit the detailed report. The matter was enquired and the report was submitted vide memo dated 23.12.2011. The then District Superintendent of Education, Godda has deputed the Area Education Officer-cum-enquiry officer and the Block Education Extension Officer, Sunderpahari-cum-Conducting Officer to enquire into the above matter and submit the detailed report. The matter was enquired and the report was submitted vide memo dated 23.12.2011. Since the report was found to be illegal without any proof, a fresh enquiry was directed to be conducted vide letter dated 02.02.2012 and after completion of the enquiry it was found that the petitioner has not been discharging his duty and the enquiry officer has recommended for punishment of dismissal of the petitioner. 6. After hearing learned counsel for the respective parties and on perusal of the records, it appears that the petitioner has been able to make out a case for interference due to the following facts, reasons and judicial pronouncements: (i) In the instant case, the impugned order of punishment of dismissal which has been affirmed by the appellate authority has been passed by the respondents in gross violation of principles of natural justice. Moreover, the copy of the enquiry report has not been supplied to the petitioner nor the second show cause notice has been issued to the petitioner prior to infliction of major punishment. On that score, the impugned order of punishment and order of appellate authority are assailable. (ii) Moreover, in the instant case, second enquiry has been directed which is not permissible in view of the decision of the Hon’ble Apex Court reported in Union of India vs. K.D. Pandey and Anr. (2002) 10 SCC 471 wherein the Hon’ble Apex Court in paragraph 5 of the aforesaid judgment has been pleased to hold as hereunder: “5. Learned counsel for the appellant contended that in this case the Board had examined the material on record and come to the conclusion that four of the six charges could be proved on the available material, which had not been properly examined in the earlier inquiry. In fact from the order made by the Railway Board as well as from that part of the file where the inquiry report made earlier is discussed, it is clear that specific findings have been given in respect of each of the charges after discussing the matter and, if that is so, we fail to understand as to how there could have been a remit to the inquiry authority for further inquiry. Indeed this resulted in second inquiry and not in a further inquiry on the same set of charges and the material on record. If this process is allowed the inquiries can go on perpetually until the view of the inquiry authority is in accord with that of the disciplinary authority and it would be abuse of the process of law. In that view of the matter we think that the order made by the High Court affirming the order of the Tribunal is just and proper and, therefore, we decline to interfere with the same. The appeal is dismissed accordingly.” (iii) In the instant case the charges against the petitioner is unauthorized absence. The Hon’ble Apex Court in the case of Krushnakant B. Parmar vs. Union of India and Another, (2012) 3 SCC 178 in paragraph 17 and 18 has been pleased to hold: “17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behavior unbecoming of a government servant. 18. In a departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct.” 7. On cumulative effect of the facts, reasons and judicial pronouncements, the impugned order of punishment of dismissal dated 25.05.2012 passed by District Superintendent of Education, Godda (respondent no. 5) and the order dated 23.11.2015 passed by the appellate authority (respondent no.6) are not legally sustainable and are accordingly quashed. However, the matter is remitted to the respondent authorities to start the proceeding afresh by giving a second show cause along with the copy of the enquiry report and conclude the proceeding in accordance with law, preferably within a period of four months from the date of receipt/production of a copy of the order. 8. With the aforesaid direction, the writ petition stands, disposed of.