Research › Search › Judgment

Jharkhand High Court · body

2020 DIGILAW 267 (JHR)

Usha Minj (Tigga) v. State of Jharkhand

2020-02-10

S.N.PATHAK

body2020
JUDGMENT : 1. Heard the parties. 2. Petitioner has approached this Court with a prayer for quashing the appellate order dated 30.07.2018 (Annexure-8), passed by respondent No. 3, whereby the appellate authority without considering the materials on record, has rejected the appeal preferred by the petitioner by a non-speaking order. Petitioner has further prayed for quashing the punishment order dated 16.06.2017 (Annexure-7), whereby, the petitioner has been imposed with a major punishment of compulsory retirement and it was further held that petitioner shall not be entitled for any payment except subsistence allowance for the period of suspension. It has also been prayed for quashing the inquiry report dated 22.08.2016, as the same is not based on any inquiry or evidence, rather, the same is based on surmises and conjectures. Petitioner has further prayed for a direction upon the respondents to immediately and forthwith reinstate the petitioner in service with all consequential benefits. 3. The facts of the case lies in a narrow compass. The petitioner was appointed to the post of Rajaswa Karamchari, after following the dues process of law. After her joining, the petitioner was discharging the duties assigned to her to the best of her abilities and to the satisfaction of the respondent-authorities. It is the case of the petitioner that while she was posted as Revenue Karmchari, Circle Office, Kanke a complaint was made against the petitioner by one Ashok Kumar Son that she has initiated Jamabandi of Govt. Land having an area of 20 acres out of 80 acres, situated at Khata No. 84, Plot No. 189 in Khalari Circle in the name of Sri Ramanand Tikmani and issued rent receipt in this regard. Upon such complaint, a departmental proceeding was initiated against the petitioner, in which vide memo dated 26.04.2016, memo of charge was issued against the petitioner and she was asked to reply in her defense. It is the further case of the petitioner that for the same charges, a vigilance case being Vigilance P.S. Case No. 18 of 2016 (Spl. Case No. 20 of 2016) was also lodged and as such, petitioner requested for keeping the departmental proceeding in abeyance. Thereafter, enquiry was conducted and report was submitted wherein without considering the reply submitted by the petitioner, it was observed that the allegations levelled against the petitioner are proved. Case No. 20 of 2016) was also lodged and as such, petitioner requested for keeping the departmental proceeding in abeyance. Thereafter, enquiry was conducted and report was submitted wherein without considering the reply submitted by the petitioner, it was observed that the allegations levelled against the petitioner are proved. It is the specific case of the petitioner that the enquiry report is not based on any evidence of sustainable materials inasmuch as during the enquiry, the person who had levelled complaint against the petitioner was not examined and as such, the petitioner was not offered any opportunity to cross-examine him. After submission of enquiry report, the respondents have issued second show-cause notice dated 24.10.2016 but petitioner was not given the copy of enquiry report along with second show-cause notice. Upon objection being raised, the petitioner was provided with the copy of enquiry report vide memo No. 1585(ii) dated 02.12.2016. Subsequently, petitioner submitted her reply to the second show-cause vide letter dated 16.12.2016, denying all the allegations levelled against her. It is the further case of the petitioner that respondent-Deputy Commissioner, Ranchi, without considering the reply given by the petitioner, passed final order as contained in memo No. 698 (ii) dated 16.06.2017, whereby he has inflicted a major punishment of compulsory retirement of the petitioner from the service. 4. Being aggrieved by the order of punishment, petitioner preferred an appeal, which was dismissed on 30.07.2018. It is the contention of the petitioner that the said order was a non-speaking order and the same has been passed in most cmechanical manner. Hence, the petitioner has been constrained to knock the door of this Court. 5. Mrs. Ritu Kumar, learned counsel appearing for the petitioner, vociferously argues that order of punishment as well as appellate order has been passed mechanically without considering the materials on record and as such, fit to be quashed and set aside. It has been further argued by learned counsel for the petitioner that the entire case against the petitioner is based on the complaint of one Ashok Kumar, who made an omnibus allegation but the said complainant was never examined neither opportunity was given to the petitioner to cross-examine the said complainant. It has been further argued by learned counsel for the petitioner that the entire case against the petitioner is based on the complaint of one Ashok Kumar, who made an omnibus allegation but the said complainant was never examined neither opportunity was given to the petitioner to cross-examine the said complainant. Further, it has been argued that the petitioner issued rent receipts creating Jamabandi in favour of Sri Ramanand Tikmani, which finds strength from Annexure-3, which is an order of competent authority which shows that Jamabandi, was fully justified. Further, it has been argued that for the last three years, petitioner has not been granted the monetary benefits and also the order of compulsory retirement by way of punishment has been passed. It has been further argued that mutation does not create any right, it merely certifies possession of land and it is always open to aggrieved party to get the title decided by the competent Court of civil jurisdiction. 6. Per contra, counter-affidavit has been filed. Learned counsel appearing for the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that on a complaint made against the petitioner, the matter was referred to the Commissioner, South Chhotanagpur Division, Ranchi and thereafter, a Three Member Enquiry Team was set-up by the Commissioner. On the basis of enquiry report, the Board of Revenue, Jharkhand, Ranchi requested the Cabinet (Vigilance Department) for vigilance enquiry in the matter. Thereafter, Shri Sakaldeo Ram, Police Inspector-cum-Investigating Officer, Anti-Corruption Bureau, Chaibasa investigated the matter and submitted his report dated 05.07.2015 to the Superintendent of Police, Anti-Corruption Bureau, Ranchi. Thereafter, the Superintendent of Police requested the Deputy Commissioner, Ranchi to accord permission to lodge FIR against the petitioner for creating illegal Jamabandi in Register-II and issuance of rent receipt thereafter. Subsequently, a departmental proceeding was initiated against the petitioner, in which petitioner was found guilty of the charges levelled against her. On the basis of enquiry report and on the basis of reply to the second show-cause submitted by the petitioner, the Deputy Commissioner, Ranchi passed the punishment order, whereby petitioner was made to compulsorily retire w.e.f. 01.07.2017 under Rule 14(ix) Vol. V of Jharkhand Govt. Servant (Classification, Control & Appeal), Rules, 2016. Thereafter, petitioner preferred appeal which also stood dismissed. Learned counsel accordingly submits that for the aforesaid facts, the instant writ application is not maintainable and liable to be dismissed. V of Jharkhand Govt. Servant (Classification, Control & Appeal), Rules, 2016. Thereafter, petitioner preferred appeal which also stood dismissed. Learned counsel accordingly submits that for the aforesaid facts, the instant writ application is not maintainable and liable to be dismissed. 7. Be that as it may, on a consideration of the facts and circumstances of the case as also the submissions made across the bar, this Court is of the considered view that the case of the petitioner needs consideration. Admittedly, the entire departmental proceeding which was based on the complaint of one Ashok Kumar, who was never examined in the departmental proceeding amounts to malafide and fit to be set aside. Further, it appears from Annexure-3 of the writ petition that the Jamabandi issued in favour of the petitioner finds supports as the competent Court of civil jurisdiction has justified the same. It is a settled law that mutation does not create right. It is always open to the parties to move the competent Court of civil jurisdiction for adjudication of right and title in question. 8. This Court in case of Ramjee Prasad Vs. State of Jharkhand & Ors., reported in 2012 SCC Online Jhar. 1351, took a similar view and quashed the impugned order of that case. Further, the Hon’ble Apex Court incase of Kuldeep Singh Vs. Commissioner of Police, reported in (1999) 2 SCC 10 as well as in case of Commissioner of Police, Delhi Vs. Jai Bhagwan, reported in (2011) 6 SCC 376 held that non-examination of the complainant during the enquiry has denied the petitioner of his right of cross-examination. Therefore, punishment imposed in the absence of examination of the complainant should be set aside. In the instant case, neither the complainant was examined nor any opportunity was given to cross-examine him and as such, the punishment imposed on the petitioner cannot be sustained in the eyes of law. 9. As a sequitur to the aforesaid observations, rules, guidelines and legal propositions, the punishment order dated 16.06.2017 (Annexure-7) and appellate order dated 30.07.2018 (Annexure-8) are hereby quashed and set aside. Respondents are directed to reinstate the petitioner with all consequential benefits within a period of eight weeks from the date of receipt/production of a copy of this order. 10. With the aforesaid observations and directions, the writ petition stands allowed.