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2018 DIGILAW 1920 (JHR)

State of Jharkhand v. Philbiyus Barla

2018-08-23

ANIRUDDHA BOSE, H.C.MISHRA

body2018
ORDER : 1. The writ petitioner was successful in having an order of minor punishment imposed against him invalidated by the learned First Court. The writ petitioner, at the material point of time, was posted as Deputy Collector Land Reforms, Chaibasa Sadar, when a memorandum of charges was issued against him under six heads on the allegations of certain irregularities committed by him in course of his official duty. The date of issue of the memorandum of charges is 04.08.2008. The writ petitioner’s reply to the memorandum of charges was considered by the competent authority and enquiry was conducted, in which, the writ petitioner participated. The enquiry report, however, was not given to him and minor punishment in the form of withholding one increment (non-cumulative) and censure were imposed upon him on 5th August, 2016. 2. The writ petitioner invoked the jurisdiction of this Court under Article 226 of the Constitution of India primarily on the ground that as the enquiry report was not supplied to him before imposition of penalty, there was violation of the principles of natural justice. In this regard, the decision of the Hon’ble Supreme Court of India in the case of Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors. (1993) 4 SCC 727 was relied upon by the learned First Court in allowing the writ petitioner’s plea against imposition of penalty. 3. Learned counsel for the appellants has relied upon Rules 24 and 25 of the Jharkhand Government Servant (Classification, Control and Appeal) Rules, 2016 to contend that there was appeal provision against an order of imposition of penalty and for that reason the learned First Court ought to have dismissed the writ petition. He has also drawn our attention to certain documents, by which, after imposition of punishment, the writ petitioner had asked for the enquiry report and the same was given to him. This fact goes undisputed. 4. In our opinion, there is no distinction between imposition of major penalty or minor penalty, so far as the question of making available the enquiry report to an alleged delinquent officer is concerned. Non-supply of such report would constitute violation of the principles of natural justice and under such circumstances, the writ petitioner could not have been non-suited on the ground of there being an alternative remedy. Non-supply of such report would constitute violation of the principles of natural justice and under such circumstances, the writ petitioner could not have been non-suited on the ground of there being an alternative remedy. To that extent, we do not find any flaw in the decision of the learned First Court. We, however, find that no liberty has been reserved for the employer to proceed further on the basis of the enquiry report. 5. Learned counsel for the writ petitioner submitted that substantial time has lapsed since the alleged occurrence of incident and any liberty conferred on the employer would prejudice his future chance of promotion, which stood held up for long eight years because of the pendency of the disciplinary proceeding. 6. Having considered this submission, we modify the order of the learned First Court with direction that it shall be open to the employer to continue with the disciplinary proceeding after service of the enquiry report. We, however, give this liberty subject to two conditions. The first one is that the proceeding should be completed within a period of four months from the date of communication of this order and if the authorities are unable to complete the proceeding, then the proceeding shall stand terminated on its own. Provided of course, the writ petitioner himself does not obstruct the proceeding, or the delay in conclusion is not on account of the writ petitioner only. The second condition is that in the event the writ petitioner’s name comes up for consideration of promotion to a superior post during this period, the same shall not be left unconsidered because of the pendency of the disciplinary proceeding, having regard to the long period of time taken to conclude the proceeding. 7. With these directions, the appeal shall stand disposed of. There shall be no order as to costs. As we have disposed of the appeal itself, all connected applications shall also stand disposed of.