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2016 DIGILAW 580 (JHR)

Ashok Kumar Singh v. State of Jharkhand

2016-04-07

SHREE CHANDRASHEKHAR, VIRENDER SINGH

body2016
ORDER : 1. Challenging order dated 02.04.2008 whereby, the appellant-writ petitioner (hereinafter referred to as petitioner) was dismissed from service, the petitioner approached the Writ Court in WP (S) No. 2559 of 2008 which stands dismissed vide order dated 02.12.2014, aggrieved thereof, the petitioner has preferred the present Letters Patent Appeal. 2. Heard the learned counsel for the parties and perused the documents on record. 3. Mr. Rahul Kumar, the learned counsel for the petitioner, submits that the complainant namely, Sheela Kumari had written several love-letters to the petitioner, copies of which were produced by the petitioner along with his reply to the second show cause notice, however, the plea taken by the petitioner that in face of those letters the allegation of harassing the said complainant seeking sexual favours stands disproved, was not considered by the disciplinary authority. The learned counsel further submits that the wife of the petitioner had, in fact, replied to the message (SMS) sent by the said complainant however, the disciplinary authority did not consider the same and, on the basis of vague enquiry report inflicted the penalty of dismissal from service. 4. The learned counsel for the respondent-State of Jharkhand, raising a plea of limitation on the power of judicial review of the orders passed by the departmental authorities, contends that this Court in exercise of power under Article 226 of the Constitution of India cannot substitute its own opinion to the decision of the departmental authorities. It is contended that the gravity of misconduct committed by the petitioner warranted penalty of dismissal from service and, the disciplinary authority has rightly accepted the enquiry report and inflicted the penalty of dismissal from service upon the petitioner. 5. Having heard the learned counsel for the parties and after perusing the materials on record, we are of the opinion that the Letters Patent Appeal does not merit acceptance. 6. The petitioner after his transfer from Middle School, Badia, Musabani to Balak Middle School, Jugsalai in the year 2001 held the post of In-charge Principal on 26.07.2006. At that time, the complainant Sheela Kumari was an Assistant Teacher in the said School. The said Assistant Teacher was transferred on 22.06.2007 to another school on her complaint that the petitioner had been harassing her for sexual favours. At that time, the complainant Sheela Kumari was an Assistant Teacher in the said School. The said Assistant Teacher was transferred on 22.06.2007 to another school on her complaint that the petitioner had been harassing her for sexual favours. On 09.07.2007, the Executive Magistrate, Dhalbhum issued notice to the petitioner to appear on 13.07.2007 in connection with the complaint lodged by the said lady Assistant Teacher and he was handed over a copy of the said complaint on 30.07.2007. The petitioner denied the allegations contained in the complaint dated 28.06.2007 by filing a reply on 17.07.2007. The petitioner was again issued a notice dated 24.07.2007 seeking his explanation to the short message sent through his mobile to the complainant namely, Sheela Kumari on 23.02.2007. The petitioner, thereafter, was suspended vide order dated 31.07.2007 issued by the District Superintendent of Education, Singhbhum East and he was issued a Charge-Memo in Form-'Ka' dated 06.08.2007. 7. In the departmental proceeding, the petitioner was issued a show cause notice on 11.10.2007, which was replied by the petitioner on 23.10.2007 claiming exoneration from the charges framed against him. During the departmental proceeding, the petitioner was issued supplementary charge-memo to which he again submitted his reply. A perusal of the charge-memo contained in Form-'Ka' discloses that the charges were framed on the basis of the preliminary enquiry conducted by the Executive Magistrate on the complaint of the Assistant Teacher namely, Sheela Kumari. Before the Executive Magistrate the District Deputy Superintendent of Education namely, Ravindar Kumar Singh and one Sanjay Kumar Singh, Block Education Officer stated about improper behavior of the petitioner with Sheela Kumari. There was a specific charge framed against the petitioner of harassing the said Assistant Teacher for sexual favours. The petitioner admits that in the night of 23.02.2007, a short message was sent from his mobile to the Assistant Teacher. The said message was highly improper and explicit. The plea taken by the petitioner is that he had no knowledge of the said message sent through his mobile as the said message was sent on 23.02.2007 whereas, the charges were framed on 06.08.2007. Before the Enquiry Officer the petitioner took another plea of raising doubt over the character of the said Assistant Teacher. The plea taken by the petitioner is that he had no knowledge of the said message sent through his mobile as the said message was sent on 23.02.2007 whereas, the charges were framed on 06.08.2007. Before the Enquiry Officer the petitioner took another plea of raising doubt over the character of the said Assistant Teacher. The petitioner produced copies of letters written by the said Assistant Teacher to another Principal namely, Shri Shivanand Singh and In-charge Principal namely, Shri Harendra Singh and copy of the complaints filed by her against them. 8. The plea taken by the petitioner during the departmental enquiry has been rejected by the Enquiry Officer and in our opinion, rightly so. By producing letters allegedly written to him by the said Assistant Teacher, the petitioner admits his relationship with the said Teacher. The claim of the petitioner that the said Teacher was trying to trap him in her love stands disproved from the conduct of the petitioner inasmuch as the petitioner never complained of the alleged misconduct of the said teacher. The improper conduct of the petitioner has been witnessed by other persons, who deposed against him. If one reads the short message sent through the mobile of the petitioner to the complainant, one finds that a part of the message “tum kisi ke pyar nahi ban sakti ho” has rightly held by the Enquiry Officer not an expression of anger by a wife. The Enquiry Officer has concluded that the message sent on 23.02.2007 to the complainant was sent by the petitioner. The petitioner has, in fact, not denied that the said message was not sent through his mobile phone nor he has produced any evidence to, prima facie, establish that it was not written by him. The letters allegedly written by Sheela Kumari to other teachers were not produced by the petitioner in the first instance, that is, during the enquiry proceeding, when the petitioner could have confronted the complainant with the letters allegedly written by her. The Disciplinary authority has rightly ignored the plea based on of those letters. 9. The learned Single Judge has held that the disciplinary authority after perusing the enquiry report concurred with the findings recorded by the Enquiry Officer and therefore, the disciplinary authority was not required to write a detailed judgment. In “State of Andhra Pradesh & Ors. Vs. The Disciplinary authority has rightly ignored the plea based on of those letters. 9. The learned Single Judge has held that the disciplinary authority after perusing the enquiry report concurred with the findings recorded by the Enquiry Officer and therefore, the disciplinary authority was not required to write a detailed judgment. In “State of Andhra Pradesh & Ors. Vs. S. Shree Rama Rao” reported in AIR 1963 SC 1723 , the Hon’ble Supreme Court held that High Court has no power under Article 226 to interfere with the finding of misconduct recorded during the departmental enquiry. In para-7 the Hon’ble Supreme Court has observed as under:- “7. The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence.” 10. In “State of Andhra Pradesh and Others Vs. Chitra Venkata Rao” reported in (1975) 2 SCC 557 , the Hon’ble Supreme Court has held that the High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against the public servant. The Hon’ble Supreme Court has observed as under:- “The departmental authorities are, if the enquiry is otherwise properly held, the sole judges o facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.” 11. In so far as, the contention of the learned counsel for the petitioner that the punishment awarded to the petitioner is excessive and disproportionate to the misconduct alleged, we find that this Court has very limited power to enter into that aspect of the matter. In “Union of India & Anr. Vs. G. Ganayutham” reported in (1997) 7 SCC 463 , the Hon’ble Supreme Court has held that “in the matter of penalty imposed in a disciplinary case, unless the Court/Tribunal opines in its secondary role that the administrator was on the material before him irrational, the punishment cannot be quashed.” In “Apparel Export Promotion Council Vs. A.K. Chopra” reported in (1999) 1 SCC 759 , the Hon’ble Supreme Court has held:- “22. The High Court should not have substituted its own discretion for that of the authority. What punishment was required to be imposed, in the facts and circumstances of the case, was a matter which fell exclusively within the jurisdiction of the competent authority and did not warrant any interference by the High Court. The entire approach of the High Court has been faulty. The impugned order of the High Court cannot be sustained on this ground alone……” 12. When judged, in the context of the aforesaid propositions laid down by the Hon’ble Supreme Court, challenge to the penalty order dated 02.04.2008 has rightly been rejected by the learned Writ Court. We find no infirmity in the impugned order dated 02.12.2014 passed in WP (S) No. 2559 of 2008, warranting interference in the present Appeal. Resultantly, the Letters Patent Appeal warrants dismissal. Ordered accordingly.