Gaus Md. Ansari, son of Late Amruddin Ansari v. State of Jharkhand
2017-02-09
PRAMATH PATNAIK
body2017
DigiLaw.ai
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 order dated 28.06.2008 (Annexure-8) passed by the Commissioner, South Chotanagpur Division, Ranchi and also for order dated 01.12.2005 passed by the District Superintendent of Education, Ranchi vide Annexure-5 to the writ petition. 2. Shorn of unnecessary details, the short facts, as disclosed in the writ application, is that the petitioner was initially appointed on the post of Assistant Teacher in the year 1968. In the year 2001 the petitioner took personal loan. Thereafter, in the year 2004 the petitioner was placed under suspension for the alleged forging signature of the District Education Officer, Ranchi and using his seal in order to avail the loan. Vide order dated 24.11.2004 that was modified and the petitioner gave his joining to the headquarters during suspension. On 18.11.2005 vide Annexure-3 to the writ application, charge sheet was served to the petitioner and the petitioner on 26.11.2005 submitted his show cause reply, denying the allegations/charges levellled against him. Thereafter, the impugned order dated 01.12.2005 was imposed vide Annexure-5 to the writ application with the following punishment: (i) During his suspension period he would be entitled only for subsistence allowances; (ii) Three annual increments would be withheld with cumulative effect; (iii) He would be transferred from Urdu Primary School, Fulkatoli, Kanke to Primary School, Salehatu, Murhu; (iv) The loan taken from the Bank would be recovered in one installment. Being aggrieved by the order passed by the respondent authority, the petitioner preferred appeal before the appellate authority and the appellate authority vide order dated 28.06.2008 (Annexure-8 to the writ petition) has been pleased to confirm the order passed by the disciplinary authority. 3. Mr. Rajeev Kumar, learned counsel for the petitioner submitted with vehemence that the entire proceeding is vitiated on the ground of non supply of enquiry report. Since the order of punishment is a major punishment, principle of natural justice ought to have been followed. Learned counsel for the petitioner further submits that the appellate authority in a very cryptic and mechanical way has passed the order without any cogent and plausible reasons and the reply submitted by the petitioner has not been taken into account, therefore, the appellate order passed vide Annexure-8 is assailable.
Learned counsel for the petitioner further submits that the appellate authority in a very cryptic and mechanical way has passed the order without any cogent and plausible reasons and the reply submitted by the petitioner has not been taken into account, therefore, the appellate order passed vide Annexure-8 is assailable. Learned counsel for the petitioner further submits that the entire departmental proceeding is a sham one, since no opportunity has been given to the petitioner to examine or cross examine the witnesses, therefore, the punishment order passed by the disciplinary authority being confirmed by the appellate authority are nor justified and are liable to be set aside. 4. Controverting the averments made in the writ application, a counter affidavit has been filed on behalf of the respondents. In the counter affidavit it has been inter alia submitted that the petitioner being a Government employee took loan from the bank and it was mandatory to get salary statement from the Drawing and Disbursing Officer and signature of the concerned District Superintendent of Education on the loan form is also mandatory, being controlling and appointing authority of the petitioner. In the present case, contrary to the aforementioned provision, the petitioner has put false signature of District Education Officer, Ranchi on the loan form of the Syndicate Bank and also marked fake seal on it. In course of verification of the signature from the District Education Officer, it was informed vide letter dated 24.06.2008 that the signature on undertaking produced by the petitioner is forged and on the basis of the aforesaid ground petitioner was suspended vide memo dated 20.11.2014 and charge sheet was also issued on 18.11.2005 and enquiry was also conducted against the petitioner. On receipt of the enquiry report, suspension was vacated by the then District Superintendent of Education, Ranchi and vide memo dated 09.12.2005 petitioner has been awarded punishment. Learned J.C. to S.C (L & C) has more or less reiterated the submissions made in the counter affidavit. 5.
On receipt of the enquiry report, suspension was vacated by the then District Superintendent of Education, Ranchi and vide memo dated 09.12.2005 petitioner has been awarded punishment. Learned J.C. to S.C (L & C) has more or less reiterated the submissions made in the counter affidavit. 5. After hearing learned counsel for the respective counsels at bar and on perusal of the documents on record, I am of the considered view 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 case in hand, charges were initiated against the petitioner on 18.11.2005 and the petitioner submitted his reply on 26.11.2005 and the order of punishment has been passed on 01.12.2005. The assertion of the petitioner that the enquiry report was not supplied and infliction of punishment has been passed, has not been controverted in the counter affidavit and that assertion of the petitioner is accepted on the ground of doctrine of non traverse. In the counter affidavit, enquiry report has been annexed as Annexure-B and the enquiry officer has not found the petitioner guilty of the charges, and on that score, the petitioner is entitled to relief as has been sought for in the writ application. (II) Admittedly in the instant case, the order of punishment i.e. withholding of three annual increments with cumulative effect has been passed, which is a major punishment but the procedure of full dressed enquiry ought to have been followed have been given go by from the date of initiation till its culmination and, thereby rendering the impugned order of punishment by the disciplinary authority as well as the appellate authority nugatory. It is no more res integra that withholding of three annual increments with cumulative effect is a major punishment, as has been held by the Hon’ble Apex Court in the case of Kulwant Singh Gill vs. State of Punjab reported in 1991 Supp. (1) SCC 504.
It is no more res integra that withholding of three annual increments with cumulative effect is a major punishment, as has been held by the Hon’ble Apex Court in the case of Kulwant Singh Gill vs. State of Punjab reported in 1991 Supp. (1) SCC 504. (III) There is no gainsaying of the fact that supply of the enquiry report is a sine qua non for a fair departmental enquiry but due to non supply of the enquiry report, the petitioner has been grossly prejudiced as has been averred in the writ application, therefore, the impugned order of punishment vide Annexure-5 being confirmed by the appellate authority vide Annexure8 being not legally sustainable, are liable to be set aside. 6. In view of the reasons stated in the foregoing paragraphs and as a logical sequitur to the legal as well as factual position, the impugned order of punishment dated 01.12.2005 passed by the disciplinary authority vide Annexure-5 and the order of the appellate authority dated 28.06.2008 vide Annexure-8 are hereby quashed and set aside. Since, in the meantime more than 11 years have elapsed from the date of passing of the order by the disciplinary authority, it would not be proper to remit the matter to the disciplinary authority for de novo proceeding, so as to put the petitioner to rigor of disciplinary proceeding at this distance of time. Therefore, in the peculiar facts and circumstances, this Court is refraining from passing the order for remitting the matter to the disciplinary authority. 7. In view of the quashment of the impugned order of punishment vide Annexure-5 being confirmed by the appellate authority vide Annexure-8, the respondents are directed to extend all consequential service benefits to the petitioner flowing from the quashment of the said orders. 8. Accordingly, the writ application stands allowed.