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2020 DIGILAW 302 (JHR)

Birju Prasad v. State of Jharkhand

2020-02-14

S.N.PATHAK

body2020
JUDGMENT : Heard the parties. 2. Petitioner has approached this Court with a prayer for quashing the order of punishment as contained in memo dated 30.04.2015 (Annexure-8), passed by respondent No. 3, whereby the said respondent after differing with the finding submitted by the Conducting Officer, passed the order of punishment by stopping the increment of the petitioner for 2 years, which is equivalent to 3 black marks. Further prayer has been made for a direction upon the respondents to pay the salary of the petitioner for the period between 07.06.2014 to 30.04.2015, i.e. the period of suspension. Petitioner has also prayed for a direction upon the respondents to implement the order of promotion in the cadre of Inspector (Armed) and to pass order to give his joining at I.R.B.-4, Lasliganj, Palamau. 3. The facts of the case in short is that petitioner joined as Constable on 17.02.1977 and from time to time, he was promoted to higher posts and at the relevant time, the petitioner was posted as Sub-Inspector (Armed) in Jharkhand Armed Force-2, Wing Tatisilway, Ranchi and was on deputation in D. Company. It is the case of the petitioner that an allegation was levelled against him that 100 ltrs. of diesel provided to run the generator has been tried to be sell-out but because of the protest and agitation made by the constables, the petitioner could not succeed in the same. Other allegations were also levelled against him. Thereafter, respondent No. 5, Sri Anand Prakash, Dy. Superintendent of Police-cum-Inquiry Officer conducted enquiry on 24.05.2014 and found the petitioner guilty of the said charges. Then, the respondent No. 3, Commandant, JAP-2, Tatisilway, Ranchi vide order dated 19.06.2014 (Annexure-1), suspended the petitioner with immediate effect fixing his headquarter at Jharkhand Armed Police-2, Tatisilway and held that during the period of suspension, the petitioner will get the subsistence allowance only. Subsequently, on 20.06.2014 (Annexure-2), the respondent No. 3 framed charges for the allegations levelled against the petitioner. The petitioner submitted his clarification on 14.07.2017 (Annexure-3), wherein, he had denied the charges levelled against him. It is the specific case of the petitioner that the clarification given by him has not been accepted by the respondents and disciplinary proceeding was initiated against him. The petitioner submitted his clarification on 14.07.2017 (Annexure-3), wherein, he had denied the charges levelled against him. It is the specific case of the petitioner that the clarification given by him has not been accepted by the respondents and disciplinary proceeding was initiated against him. It is the further case of the petitioner that in the disciplinary proceeding initially respondent No. 5 was appointed as Conducting Officer, who recorded the statements of the witnesses. However, considering the fact that respondent No. 3 having not found justified in allowing him to be an Enquiry Officer, appointed Smt. Amelda Ekka, Sr. Dy. S.P. (respondent No. 4) as Enquiry Officer. Thereafter, respondent No. 4, vide her letter dated 30.01.2015 (Annexure-5), asked the petitioner to submit explanation in defence by 12.02.2015, in response to which, the petitioner through application dated 12.02.2015 (Annexure-6) submitted his explanation to the respondent No. 4. The Enquiry Officer (respondent No. 4), after perusal of the statements made by the witnesses and upon going through the explanation submitted by the petitioner has submitted a detailed finding dated 19.03.2015 (Annexure-7), holding the petitioner innocent. The respondent No. 3, disciplinary authority, after perusal of the inquiry report and findings submitted by respondent No. 4, differed with the same and hold the petitioner guilty of the charges levelled against him and inflicted punishment of stoppage of 2 increments vide order dated 30.04.2015 (Annexure-8). 4. Aggrieved by the order of punishment issued by respondent No. 3, the petitioner preferred Appeal before the respondent No. 2 requesting to quash and set aside the order of punishment, as the same was passed in utter violation of principle of nature justice inasmuch as before inflicting any punishment, an opportunity of hearing was required. However, the appeal preferred by the petitioner also stood dismissed. Hence, the petitioner has knocked the door of this Court for redressal of this grievances. 5. Mr. Deepak Kumar, learned counsel appearing for the petitioner submits that the order of punishment and the order of appellate authority are highly illegal and against the materials available on records and suffers from inherent illegality, which are fit to be quashed and set aside. 5. Mr. Deepak Kumar, learned counsel appearing for the petitioner submits that the order of punishment and the order of appellate authority are highly illegal and against the materials available on records and suffers from inherent illegality, which are fit to be quashed and set aside. The disciplinary authority may differ with the finding of Conducting Officer but for that, he has to assign reason for differing with the findings of the Conducting Officer, which has not been done by the respondent No. 3 and as such, the order of punishment is not sustainable in the eyes of law. Learned counsel further argues that the respondent No. 3, while differing with the finding of the enquiry officer, ought to have issue show-cause notice to the petitioner, before inflicting any punishment. Learned counsel further submits that the order of punishment is against the provisions enshrined under Rule-834 of Jharkhand Police Manual, which prohibits infliction of punishment of more than one black marks in one departmental proceeding. Learned counsel further submits that the appellate authority also without hearing the petitioner, merely on the basis of the finding of the respondent No. 3, dismissed the appeal preferred by the petitioner, which is a glaring example of highhandedness. The respondents have also failed to take into consideration that during the entire service tenure i.e. about 37 years, there is no complaint of any kind whatsoever against the petitioner and he has already been promoted to the cadre of Inspector by the Department, which has not been given effect to due to order of punishment. 6. Per contra, counter-affidavit has been filed. Learned counsel appearing for the respondent-State vehemently opposes the contention of the learned counsel for the petitioner and submits that the disciplinary authority while differing with the findings recorded by the Enquiry Officer, has carefully considered the entire records of the case and then came to the conclusion that the petitioner is guilty of the charges levelled against him. Further, the appeal preferred by the petitioner also stood dismissed and the appellate authority found the punishment proportionate to the gravity of charges. Learned counsel further submits that the appellate authority is not under obligation to give opportunity of hearing before passing the appellate order. 7. Further, the appeal preferred by the petitioner also stood dismissed and the appellate authority found the punishment proportionate to the gravity of charges. Learned counsel further submits that the appellate authority is not under obligation to give opportunity of hearing before passing the appellate order. 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. The impugned orders are not tenable in the eyes of law and are fit to be quashed and set for the following facts and reasons : (I) The disciplinary authority has differed with the findings of the Enquiry Officer without issuance of any show-cause notice to the petitioner and without assigning any reasons (II) Before inflicting a punishment, it was incumbent upon the disciplinary authority to issue notice to the petitioner to put his stand but the same was not done. (III) The punishment is not in consonance with Rule 834 of the Jharkhand Police Manual, which prohibits punishment for more than one black mark in one departmental proceeding. (IV) The appellate authority passed the impugned order in mechanical manner without applying his own mind and without assigning reasons for affirming the order of the disciplinary authority. (V) Neither the disciplinary authority nor the appellate authority has taken into consideration the unblemished 37 long years’ service career of the petitioner and further his promotion to the post of Inspector of Police. (VI) The disciplinary authority has not assigned any reasons for differing from the report of Enquiry Officer. Law is well settled and the Hon’ble Apex Court in case of Managing Director, ECIL & Ors. v. B. Karunakar & Ors., reported in (1993) 4 SCC 727 has held that: “26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer’s findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it.” The Hon’ble Apex Court in case of K.R. Dev Vs. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it.” The Hon’ble Apex Court in case of K.R. Dev Vs. The Controller of Central Excise, Shillong, reported in AIR 1971 SC 1447 , has held that: “In case of some defect in the enquiry conducted by the Enquiry Officer, the disciplinary authority can direct the Enquiry Officer to conduct further enquiry in respect of the matter, but it cannot direct a fresh enquiry to be conducted by some other officer.” The same view was reiterated by this Court in case of Prem Chand Ram Vs. State of Bihar & Ors., reported in (2000) 2 PLJR 918. The Hon’ble Apex Court in case of Punjab National Bank & Ors. v. Kunj Behari Misra, reported in (1998) 7 SCC 84 , has held that: “Whenever the disciplinary authority disagrees with the enquiring authority on any article of charge then before it records its 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 office containing its findings will have to be conveyed and the delinquent office will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice 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.” Further in paras-17 & 19 of the judgment passed in case Punjab National Bank & Ors. v. Kunj Behari Misra (supra), the Hon’ble Apex Court has held that: “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. 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. 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 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.” (VII) In the case in hand, the Enquiry Officer was changed without assigning any reason and a fresh enquiry was held, holding the petitioner guilty of the charges. 8. As a cumulative effect of the aforesaid rules, guidelines, judicial pronouncements and legal propositions, this Court is of the view that the impugned order dated 30.04.2015 is not tenable in the eyes of law and as such, the same is hereby quashed and set aside. The respondents are directed to extend all consequential benefits to the petitioner from the date, the petitioner was legally entitled for the same, within a period of four weeks from the date of receipt/ production of a copy of this order. As nothing has been brought on record to show that petitioner was gainfully employed or not, in absence of said averments, petitioner is entitled for 25% back wages only. 9. Resultantly, the writ petition stands allowed.