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Jharkhand High Court · body

2019 DIGILAW 1924 (JHR)

Man Mohan Prasad v. State of Jharkhand

2019-11-28

S.N.PATHAK

body2019
ORDER : 1. The petitioner has approached this Court for quashing of the order dated 13.05.2015 contained in Memo No. 4280 (Annexure-25) issued by the Deputy Secretary, Personnel, Administrative Reforms and Rajbhasa Department, Govt. of Jharkhand, whereby and whereunder, the petitioner has been awarded with punishment of withholding of three increments without cumulative effect, without taking into consideration the fact that earlier on the basis of the same charge mentioned in Prapatra K' dated 06.01.2009, the petitioner has been discharged from all the charges. Further, for a direction upon the respondents to grant the petitioner all the increments after quashing the aforesaid order dated 13.05.2015. Further, prayer has been made for a direction upon the respondent not to give effect to the order dated 13.05.2015 contained in Memo No. 4280 Further prayer has been made for quashing of Resolution dated 20.12.2012 contained in Memo No.13920 (Annexure- 14) issued by the Deputy Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Govt. of Jharkhand. 2. The case of the petitioner lies in a narrow compass. In the year, 2008 the petitioner was posted as B.D.O, Churchu and in the same year one Tapas Soren has committed self immolation at Charhi Chowk and after that incident, the Deputy Commissioner, Hazaribagh vide order dated 02.07.2008 has directed Additional Collector, Land H.B, Hazaribagh, to conduct an enquiry and submit the report within a week. However, on the next day i.e. on 03.07.2008 vide letter No.01-Camp., the Deputy Commissioner, Hazaribagh wrote a letter to the Secretary, Rural Development Department, Govt. of Jharkhand for taking administrative action against the petitioner with recommendation for putting him under suspension. Pursuant thereto, the matter was discussed among the senior officials of the personnel department and after obtaining consent from Hon'ble the Chief Minister, suspension order vide Memo No. 4040 dated 03.07.2008 was issued under pen and signature of the Joint Secretary, Department of Personnel, Administrative Reforms and Rajbhasha with regard to incidence of self immolation of one Tapas Soren ignoring the fact that on 02.07.2008, a direction was issued to Addl. Collector by the same Deputy Commissioner to conduct an enquiry and to submit the report within one week and on 03.07.2008, there was no report of Addl. Collector, which was submitted before the Deputy Commissioner. It is further the case of the petitioner that on 05.07.2008, vide Letter No. 7 Bhu.Ha., the Addl. Collector by the same Deputy Commissioner to conduct an enquiry and to submit the report within one week and on 03.07.2008, there was no report of Addl. Collector, which was submitted before the Deputy Commissioner. It is further the case of the petitioner that on 05.07.2008, vide Letter No. 7 Bhu.Ha., the Addl. Collector, after enquiry submitted a detailed enquiry report to Deputy Commissioner wherein, petitioner was fully discharged from the allegation leveled against him. Further, the matter was enquired by the Ministry of Rural Development, New Delhi and in the said enquiry also, the petitioner was discharged from the charges leveled against him, which is evident from the report dated 30.10.2008. Subsequently, the Deputy Commissioner Hazaribagh vide order dated 08.07.2008, has appointed five Administrative Officers for conducting physical verification of the Well which were being constructed in Churchu Block ignoring the fact that all the Officers were not the Technical officer. Thereafter, they submitted physical verification report to Deputy Commissioner and after being dissatisfied with the work, the Deputy Commissioner, Hazaribagh prepared Prapatra 'K' and forwarded to the State Government vide Memo No. 27 dated 06.01.2009. 3. It is further the case of the petitioner that after the confirmation of the Prapatra 'K', vide Resolution dated 28.04.2009, the Joint Secretary, Personnel, Administrative Reforms and Rajbhasha Department, issued notification for conducting Departmental Proceeding against the petitioner. The Commissioner, North Chotanagpur Division, Hazaribagh was appointed as the Conducting Officer and on 03.08.2010, the petitioner submitted his written statement/reply to him Subsequently, vide order dated 09.09.2010 contained in Memo NO. 5434 issued by the Deputy Secretary, Personnel, Administrative Reforms and Rajbhasha, the suspension of the petitioner was vacated. On 07.05.2012, the Conducting Officer submitted the enquiry report to the Principal Secretary, Personnel, Administrative Reforms and Rajbhasha Department, wherein petitioner has been exonerated from the charges leveled against him. Subsequently, on 12.07.2012, vide Memo No. 8119, second show cause notice has been issued to the petitioner. Pursuant thereto, petitioner submitted his reply to the Department on 06.08.2012 and 18.08.2012 Thereafter, after being unsatisfied to the reply of the petitioner, Deputy Secretary, Personnel, Administrative Reforms and Rajbhasha Department vide Resolution dated 20.12.2012 contained in Memo No. 13920 awarded the punishment of three increments with cumulative effect without considering the reply of the petitioner Aggrieved by the same, the petitioner preferred an Appeal before His Excellency, the then Governor of Jharkhand. Thereafter, the Deputy Secretary directed the Deputy Commissioner to conduct an enquiry and submit his report. Pursuant thereto, the Deputy Commissioner after enquiry submitted his report and after being satisfied by the said report, the Principal Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Govt. of Jharkhand observed that the petitioner has not been found guilty of the charges leveled against him and therefore, his case may be considered and punishment awarded to him may be set aside and the Appeal preferred by the petitioner be allowed and as such, with this observation, file was forwarded for the consent of Hon'ble the Chief Minister. Thereafter, the Chief Minister, after certain queries to the Department, has given his consent and therefore, the Appeal preferred by the petitioner was allowed and punishment imposed upon the petitioner has been set aside vide Extract of File dated 02.05.2014. 4. It is further case of the petitioner that surprisingly his file was reopened for review of the order of Hon'ble the Chief Minister dated 02.05.2014, wherein the petitioner has been discharged from all the charges and it was sent to Hon'ble the Chief Minister for review with forwarding note of the Principal Secretary. Pursuant thereto, vide Noting dated 30.07.2014, Hon'ble the Chief Minister returned back the file to the Personnel Department with observation that 'aforesaid proposal is against the earlier decision of the government and for this whether a new fact has come Again, the Deputy Secretary, forwarded the file for review the earlier order of Hon'ble the Chief Minister through the Principal Secretary. Pursuant thereto, the Hon'ble Chief Minister has observed in the said file that whether frequent change in the punishment order would not have adverse effect on administrative discipline and with this note, the file has been sent back vide noting dated 31.01.2015. However, on the basis of the same fact on which the petitioner has been exonerated earlier and by manipulating the same facts as mentioned in Papatra 'K', the matter was placed before Hon'ble the Chief Minister and on 09.04.2015, Hon'ble the Chief Minister approved the same. On the basis of above mentioned notings, the petitioner has been awarded with the punishment of withholding of three increments without cumulative effect and same has been notified through Resolution dated 13.05.2015 contained in Memo No. 4280 issued by Deputy Secretary, Personnel, Administrative Reforms and Rajbhasha Department. On the basis of above mentioned notings, the petitioner has been awarded with the punishment of withholding of three increments without cumulative effect and same has been notified through Resolution dated 13.05.2015 contained in Memo No. 4280 issued by Deputy Secretary, Personnel, Administrative Reforms and Rajbhasha Department. Aggrieved by the same, the petitioner has been constrained to knock the door of this Court for redressal of his grievances. 5. Mr. Rajendra Krishna, learned counsel assisted by Mr. Amit Sinha, learned counsel appearing on behalf of the petitioner submits that the action of the respondents in issuing the impugned orders is arbitrary, malafide and without jurisdiction as on the basis of the same set of charge in which the petitioner was exonerated earlier, the petitioner has been punished. The action of the respondents for imposing punishment for a charge in which most of the Committees have given clean chit to the petitioner and review of the charge leveled against him in Papatra K dated 06.01.2009 is against the settled principle of law of the departmental proceedings. Reopening of file without having any iota of evidence against the petitioner in the department proceedings or in the enquiry report or in the report of other Committees to which the matter has been referred for conducting an enquiry reflects the malicious intention of the respondents for imposing punishment. Learned counsel further submits that as the Enquiry Officer has exonerated the petitioner from all the charges and in the Appeal also, punishment order has been quashed and set aside, the respondents with malafide intention issued the punishment order, which is not tenable in the eyes of law. Learned counsel further submits that when the matter was looked into by His Excellency the Governor, can Deputy Secretary act as a Superior Appellate Authority to review the said order. The Disciplinary Authority cannot travel beyond the Charge-sheet and also cannot pick up any other ingredient, which is not part of the enquiry. The Disciplinary Authority has to pass the order only on the basis of the material collected by the enquiry officer and in the instant case, Enquiry Officer has submitted that there is no evidence against the petitioner and exonerated him from the charges. Mr. Krishna, further argues that the petitioner has been punished for an allegation which could not be proved by the Conducting Officer in the departmental proceedings. 6. Mr. Krishna, further argues that the petitioner has been punished for an allegation which could not be proved by the Conducting Officer in the departmental proceedings. 6. Learned counsel places heavy reliance upon several reported Judgment of the Hon'ble Apex Court such as in case of Punjab National Bank & Ors. Vs. Kunj Behari Misra, reported in (1998) 7 SCC 84 , in case of Punjab National Bank & Ors. Vs. K.K. Verma, reported in (2010) 13 SCC 494 and in case of Ram Kishan Vs. Union of India & Ors., reported in (1995) 6 SCC 157 and submits that the case of the petitioner is squarely covered by aforesaid judgments. 7. Per contra, counter-affidavit has been filed. Mr. Anup Agarwal, learned counsel appearing on behalf of the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that reasons have been assigned in the second show cause and on being unsatisfied with the reply of petitioner, the punishment order has been passed. Justifying the punishment order, learned counsel further submits that already the respondents have considered his case and lesser punishment has been awarded. Learned counsel further submits that in the enquiry report, the Conducting Officer came to the conclusion that though the petitioner could not be held guilty directly for the charges, but being the in-charge of the implementation of the Welfare Schemes in the block being a BDO, the allegation of lack of supervision of implementation of Schemes on his part is proved against him. The charges levelled against the petitioner, his defence statement and inquiry report was reviewed and analyzed by the Department and it was found that the petitioner is guilty for charge No. (a) (i) and (a) (ii). The Block Development Officer is directly responsible for selection of the place for the schemes and beneficiaries thereof and the petitioner is directly found guilty for the irregularities committed in this regard, so disagreeing with the findings of the Conducting Officer, the penalty of stoppage of three increments has been passed. As the appeal of the petitioner was reviewed and it was found that the implementation of the Schemes in the Block was not being properly supervised by him, which led to faulty implementation of the Schemes and it resulted into the death of the beneficiary late Tapas Soren, and wastage of amount of Government money. As the appeal of the petitioner was reviewed and it was found that the implementation of the Schemes in the Block was not being properly supervised by him, which led to faulty implementation of the Schemes and it resulted into the death of the beneficiary late Tapas Soren, and wastage of amount of Government money. If the implementing agency like the Junior Engineer and the Panchayat Sewak had been penalized for faulty implementation of the Schemes, the petitioner, as a BDO, being the monitoring and supervising authority of the implementation of the Schemes in the block could not been absolved of the charges completely. So, it was proposed to award the penalty of stoppage of three increments with non-cumulative effect to the petitioner for the charges proved against him and this proposal was approved by Hon'ble the Chief Minister and as such, penalty is imposed upon the petitioner after following the procedures of law. 8. Be that as it may, having gone through the rival submissions of the parties and on perusal of the records, this Court is fully satisfied that the case of the petitioner needs consideration. It has been empathically argued by the learned counsel for the respondents that a lenient view has been taken by the respondent-State and a lesser punishment has been awarded to the petitioner. Any punishment awarded has to be inconsonance with the charges levelled against the petitioner and should be in accordance with law, no punishment can be awarded dehors the Rules. In the instant case, admittedly, the petitioner has been exonerated by the Enquiry Officer, the Disciplinary Authority is at liberty to differ with the findings of the Enquiry Officer but simultaneously he has to assign reason and before imposing any punishment, a reasonable opportunity has also to be afforded to the delinquent to get his stand on the proposed punishment. But the Disciplinary Authority have not assigned any reasons for differing with the enquiry report and as such, punishment inflicted against the petitioner is nonest in the eyes of law. While imposing the punishment against the petitioner, the Disciplinary Authority has also travelled beyond the charges, which is not tenable in the eyes of law. But the Disciplinary Authority have not assigned any reasons for differing with the enquiry report and as such, punishment inflicted against the petitioner is nonest in the eyes of law. While imposing the punishment against the petitioner, the Disciplinary Authority has also travelled beyond the charges, which is not tenable in the eyes of law. The law is very clear on this point that Disciplinary Authority has to pass an order on the basis of material collected by the Enquiry Officer and as the Enquiry Officer has exonerated the petitioner from the charges as there was no iota of evidence against the petitioner. 9. The Hon'ble Supreme Court in the case of Punjab National Bank Vs. Kunj Behari Misra, reported in (1998) 7 SCC 84 , in paragraph no.19 has held thus: 19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer. The Hon'ble Supreme Court in the case of Ram Kishan Vs. Union of India, reported in (1995) 6 SCC 157 , in paragraph no.10 has held thus: 10. The next question is whether the show-cause notice is valid in law. It is true, as rightly contended by the counsel for the appellant, that the show-cause notice does not indicate the reasons on the basis of which the disciplinary authority proposed to disagree with the conclusions reached by the inquiry officer. The next question is whether the show-cause notice is valid in law. It is true, as rightly contended by the counsel for the appellant, that the show-cause notice does not indicate the reasons on the basis of which the disciplinary authority proposed to disagree with the conclusions reached by the inquiry officer. The purpose of the show-cause notice, in case of disagreement with the findings of the inquiry officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the inquiry officer for the reasons given in the inquiry report or he may offer additional reasons in support of the finding by the inquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show cause on the basis of which the findings of the inquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the inquiry officer. In the absence of any ground or reason in the show-cause notice it amounts to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the disciplinary authority cannot cure the defect. But, on the facts in this case, the only charge which was found to have been accepted is that the appellant had used abusive language on the superior authority. Since the disciplinary authority has said that it has agreed partly to that charge, the provisional conclusion reached by the disciplinary authority in that behalf even in the show-cause notice, cannot be said to be vague. Therefore, we do not find any justification to hold that the show-cause notice is vitiated by an error of law, on the facts in this case. 11. Further, the Hon'ble Apex Court in case of M.V. Bijlani Vs. Union of India, reported in (2006) 5 SCC (L& S) 919, in paragraph No.25, has held thus: 25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. 11. Further, the Hon'ble Apex Court in case of M.V. Bijlani Vs. Union of India, reported in (2006) 5 SCC (L& S) 919, in paragraph No.25, has held thus: 25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with. Further, the Hon'ble Supreme Court in the case of Punjab National Bank Vs. K.K. Verma, reported in (2010) 13 SCC 494 , in paragraph Nos.32 &34 has held thus: 32. Thus the right to represent against the findings in the enquiry report to prove one’s innocence is distinct from the right to represent against the proposed penalty. It is only the second right to represent against the proposed penalty which is taken away by the 42nd Amendment. The right to represent against the findings in the report is not disturbed in any way. In fact, any denial thereof will make the final order vulnerable. 34. It was then submitted that non-supply of enquiry report is inconsequential if the employee does not show as to how he is prejudiced thereby. Karunakar, S.K. Singh v. Central Bank of India and Haryana Financial Corpn. v. Kailash Chandra Ahuja were relied upon in support. There cannot be any grievance with respect to the proposition. In the present case, however, we are concerned with a situation where the finding of the enquiry officer on a charge has been reversed by the disciplinary authority, which was not the case in any of the three cases. v. Kailash Chandra Ahuja were relied upon in support. There cannot be any grievance with respect to the proposition. In the present case, however, we are concerned with a situation where the finding of the enquiry officer on a charge has been reversed by the disciplinary authority, which was not the case in any of the three cases. Besides, by not giving the enquiry report and the adverse order of the disciplinary authority, the respondent was denied the opportunity to represent before the finding of guilt was arrived at and thereby he was certainly prejudiced. 13. As a sequel to the aforesaid rules, guidelines and judicial pronouncements, it is crystal clear that without application of mind, the order of punishment has been inflicted. The respondents, while inflicting punishment of withholding of three increments without cumulative effect has not taken into consideration the findings of the Enquiry Officer, who exonerated the petitioner from the charges. No man should be put twice in parity for same offence meaning thereby person, who has been previously acquitted on the same charge on which he is being prosecuted earlier, he would not be punished twice and as such, impugned order dated 13.05.2015 contained in Memo No. 4280 (Annexure-25) and Resolution dated 20.10.2012 contained in Memo No.13920 (Annexure-14) are liable to be quashed and set aside and are hereby, quashed and set aside. 14. As a result of the quashment of the impugned orders, the petitioner is entitled for all the consequential benefits. Accordingly, writ petition stands allowed.