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2020 DIGILAW 1092 (JHR)

Anil Kumar v. State of Jharkhand

2020-11-24

DEEPAK ROSHAN

body2020
JUDGMENT : Heard learned counsel for the parties through V.C. 2. The instant writ application has been preferred by the petitioner praying for quashing and setting aside the resolution as contained in Memo No. 5205 dated 10.06.2015 (Annexure-9) issued under the signature of Respondent No.2, whereby the petitioner has been found guilty in the departmental proceeding and thereupon he has been inflicted punishment of Censor and Stoppage of three increments with cumulative effect. 3. Mr. Sumeet Gadodia, learned counsel for the petitioner draws attention of this Court towards the enquiry report (Annexure-5) and contended that the petitioner has been punished by considering charge no. I and III as proved, whereas the Inquiry Officer has categorically given benefit of doubt with respect to the said charges. He further draws attention towards the second show cause notice issued to the petitioner wherein it has been stated that charge no. I and III have been proved, admittedly, which is an error apparent on record. 4. Learned counsel further draws attention of this Court by referring Annexure-6 which is an internal opinion/ enquiry which had been done behind back of the petitioner and in that report the charges no. I and III has been said to be proved and the said report was also placed before the Chief Minister for approval and thereafter, for mere formality, the second show-cause notice was issued to the petitioner. As a matter of fact, the respondents have pre-decided the punishment which is against the settled principles of law. 5. Learned counsel further contended that it is a settled principle of law that the Disciplinary Authority has every right to differ with the view and recommendation of the Inquiry Officer, but while doing so, the disciplinary authority will have to give reasons for differing with the view of Inquiry Officer and issue a separate show cause to the petitioner/delinquent by giving such reasons for difference. He contended that from bare perusal of the second show cause notice it would transpire that no reason has been assigned by the disciplinary authority rather the internal report was only annexed with the second show cause notice. He reiterated that so called internal enquiry was held behind the back of the petitioner and in the said report the respondents have made-up their mind for punishment. 6. He reiterated that so called internal enquiry was held behind the back of the petitioner and in the said report the respondents have made-up their mind for punishment. 6. Learned counsel further contended that the impugned order is also fit to be quashed and set aside on the sole ground that the Disciplinary Authority has not applied his independent mind rather based his order on the opinion of the subordinate officers which is against the principles as laid down in the case of Punjab National Bank and Others Vs. Kunj Behari Misra as reported in (1998) 7 SCC 84 . 7. Learned counsel further contended that the impugned order is also bad in law, inasmuch as, the Disciplinary Authority has not acted in a true quasi judicial manner rather he has acted upon the dictates of his subordinates which is against the principle of service jurisprudence. He reiterated the fact that even assuming, but not admitting, that the internal enquiry was the proper enquiry then also the same has been conducted behind back of the petitioner and the action of the Disciplinary Authority is more administrative in nature rather a quasi judicial. He relied upon the judgment passed in the case Mohd. Yunus Khan Vs. State of Uttar Pradesh and Others as reported in (2010) 10 SCC 539 wherein paragraph no. 16 the Hon’ble Apex Court has held as under; “16. We have to proceed keeping in mind the trite law that holding disciplinary proceedings against a government employee and imposing a punishment on his being found guilty of misconduct under the statutory rules is in the nature of quasi-judicial proceedings. Though the technical rules of procedure contained in the Code of Civil Procedure, 1908 and the provisions of the Evidence Act, 1872 do not apply in a domestic enquiry, however, the principles of natural justice require to be observed strictly. Therefore, the enquiry is to be conducted fairly and reasonably and the enquiry report must contain reasons for reaching the conclusion that the charge framed against the delinquent stood proved against him. It cannot be an ipse dixit of the enquiry officer. Punishment for misconduct can be imposed in consonance with the statutory rules and principles of natural justice.” Relying upon the aforesaid contention and the judgments referred to hereinabove, learned counsel submits that the impugned order deserves to be quashed and set aside. 8. Mr. It cannot be an ipse dixit of the enquiry officer. Punishment for misconduct can be imposed in consonance with the statutory rules and principles of natural justice.” Relying upon the aforesaid contention and the judgments referred to hereinabove, learned counsel submits that the impugned order deserves to be quashed and set aside. 8. Mr. Apoorv Singh, learned counsel for the respondent-State supports the impugned order and submits that there is no procedural irregularity in the impugned order. He further submits that on perusal of Annexure-6, it is apparent that the same contains the comparative detail of each charge, opinion of enquiry officer pertaining to that charge and also opinion of the Deputy Commissioner on the same. He further defended the second show cause notice by submitting that the same was issued by annexing the copy of Annexure-6 which is the internal enquiry report; as such, it can be inferred that the same has been issued as per the settled principle of law. He reiterated that there is no procedural irregularity as such; the instant writ application deserves to be dismissed. 9. Having heard learned counsel for the parties and after going through the materials available on record, it appears that the Inquiry officer in his enquiry report has categorically stated that in the absence of evidence, the petitioner has been given benefit of doubt with respect to charge no. I and III. However, from perusal of the second show cause notice, it appears that the Disciplinary Authority has stated that charge no. I and III have been proved. This is so because instead of the enquiry report pursuant to the enquiry proceedings where the petitioner duly participated was not considered by the Disciplinary Authority; rather, he relied upon the internal Opinion/enquiry which was conducted on his direction and the same has been referred in the second show cause notice and also enclosed with it. However, the law is very clear that the Departmental Authority is having every right to differ with the view of the Inquiry officer, but in doing so, he will have to give a show cause notice by recording reasons to differ, which is absent in the instant case. In the case of Punjab National Bank and Others Vs. Kunj Behari Misra (supra), wherein at paragraph no.17 & 19, the Hon’ble Apex Court has held as under; “17. In the case of Punjab National Bank and Others Vs. Kunj Behari Misra (supra), wherein at paragraph no.17 & 19, the Hon’ble Apex Court has held as under; “17. These observations are clearly in tune with the observations in Bimal Kumar Pandit case quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the enquiry officer had given an adverse finding, as per Karunakar case the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority. 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. 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.” 10. From the second show-cause notice it further transpires that the respondents have pre-decided their mind in imposing punishment, inasmuch as, the internal opinion/enquiry which was conducted behind back of the petitioner has already referred for proposed punishment and the same was also placed before the Chief Minister. This is against the settled principles of law. In this regard reference may be made to the judgment passed by the Hon’ble Apex Court in the case of Oryx Fisheries Private Limited Vs. Union of India and Others as reported in (2010) 13 SCC 427 wherein at paragraph no. 31 the Hon’ble Apex Court has held as under;. “31. It is of course true that the show-cause notice cannot be read hyper technically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show-cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the showcause notice and prove his innocence. If on a reasonable reading of a show-cause notice a person of ordinary prudence gets the feeling that his reply to the show-cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show-cause notice does not commence a fair procedure especially when it is issued in a quasi judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence.” 11. Further, from bare perusal of the impugned order of punishment it appears that the Disciplinary Authority has not applied his independent mind rather based his order on the opinion of the subordinate officers and had acted upon the their dictates which is against the principle of service jurisprudence. 12. In view of the cumulative facts and circumstances of the case and the judicial pronouncements referred to herein above, the impugned order as contained in Memo No. 5205 dated 10.06.2015 (Annexure-9), is hereby, quashed and set aside. The Disciplinary Authority would be at liberty to start the proceeding afresh from the stage of serving of the second show cause notice and after receiving the reply pass a fresh order. It is made clear that since the matter is very old, the entire exercise shall be completed within a period of four months from the date of receipt/production of copy of this order. It goes without saying that the petitioner shall fully cooperate in the proceeding. 13. With the aforesaid observations and directions the instant writ application stands disposed of.