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2020 DIGILAW 382 (JHR)

Bipin Kumar Singh v. State of Jharkhand

2020-02-25

S.N.PATHAK

body2020
JUDGMENT : 1. The petitioner has approached this Court with a prayer for quashing the order as contained in Memo No.1952 dated 24.07.2013, whereby and whereunder he has been dismissed from service w.e.f. the date of issuance of impugned order. 2. The case of the petitioner lies in a narrow compass. The petitioner joined as a Clerk in the office of Civil Surgeon, Dumka and was posted at Primary Health Centre, Nala. In December, 1992, he was posted at Primary Health Centre, Ramgarh, where he worked to the satisfaction of his Superior and the Department. However, on the flimsy ground, he was put under suspension from November, 2005 to March, 2008 and subsequently, he was reinstated in the service with full backwages as the charges against him could not be proved by the Enquiry Officer. It is further the case of the petitioner that after re-joining the services in the year, 2008 at P.H.C, Ramgarh, the petitioner was once again made In-charge Head Clerk/Establishment Clerk and continuing as such till date. Again on 20.08.2010, he was served with Prapatra ‘K’, whereunder five charges were leveled against him. Thereafter, on 04.08.2011, he filed reply, denying all the charges leveled against him. In the meantime, the petitioner was once again put under suspension on 26.02.2009, but the same was also revoked vide order dated 12.09.2011 pursuant to the orders of the Deputy Commissioner dated 27.08.2011. He has paid only subsistence allowance for the period he was put under suspension 3. It is further the case of the petitioner that vide Memo No. 1257 dated 25.04.2012, five charges were framed against the petitioner and also Enquiry Officer was appointed to conduct an Enquiry. Thereafter, the petitioner was issued another notice dated 25.04.2012, whereby and whereunder, he was asked to submit explanation /defence against the charges leveled against him. Pursuant thereto, he submitted his reply to the said show cause on 15.05.2012, denying all the charges levelled against him. Further, he wrote letter to the Civil Surgeon, who was the Disciplinary Authority stating therein that the Enquiry Officer as well as Presenting Officer have proceeded in the matter without giving any heed to the reply /defence submitted by the petitioner as per their wish. Further, he wrote letter to the Civil Surgeon, who was the Disciplinary Authority stating therein that the Enquiry Officer as well as Presenting Officer have proceeded in the matter without giving any heed to the reply /defence submitted by the petitioner as per their wish. Subsequently, vide order dated 18.12.2012, the Enquiry Officer-cum-Director D.R.D.A, Dumka held that the charges leveled against the petitioner stood proved though no findings have been given in relation to the charge Nos. 3 & 4 and without taking into consideration reply/ defence of the petitioner submitted before the Enquiry Officer. Thereafter, the respondent No. 2, the Deputy Commissioner, Dumka vide order as contained in Memo No. 1140/Conf. dated 14.06.2013 addressed to Civil Surgeon, Dumka, has stated that the misappropriated amount be recovered from the petitioner by way of certificate proceedings and an First Information Report be lodged against the petitioner with local police station and after issuing second show cause notice to the petitioner steps be taken to dismiss him from the services. Pursuant thereto, second show cause notice was issued to the petitioner vide Memo No. 1665 dated 20.06.2013, wherein petitioner was asked to file reply as to why recovery of the amount against the ANM Fund be not made and also additional second show cause notice as contained in Memo No.1683 dated 21.06.2013 was issued, wherein, it was asked as to why the petitioner be not dismissed from service. Accordingly, the petitioner submitted his reply on 03.07.2013 to both the second show cause. However, the respondent No.1, Civil Surgeon-cum-Chief Medical Officer vide impugned order dated 24.07.2013 as contained in Memo No. 1952, dismissed the petitioner from services in which it has been mentioned that petitioner has not replied to the 2nd show cause notice though the petitioner has already filed reply on 03.07.2013 itself, which was also sent through registered post but the Civil Surgeon-cum-Chief Medical Officer, Dumka has refused to accept the registry on 05.07.2013 and the same was returned. Hence, the petitioner has been constrained to knock the door of this Court, challenging the order dated 24.07.2013 and also Appellate Order dated 24.03.2017 as contained in Memo 15/Vivid which has been passed by the Director-in-Chief of Health, Medical Education and Family Welfare Department, Govt. of Jharkhand, during the pendency of this writ petition. 4. Mr. Hence, the petitioner has been constrained to knock the door of this Court, challenging the order dated 24.07.2013 and also Appellate Order dated 24.03.2017 as contained in Memo 15/Vivid which has been passed by the Director-in-Chief of Health, Medical Education and Family Welfare Department, Govt. of Jharkhand, during the pendency of this writ petition. 4. Mr. Rajesh Kumar, learned counsel for the petitioner strenuously urges that impugned order dated 24.07.2013 is not tenable in the eyes of law as the case of the petitioner has not been considered in right prospective. He further submits that the Enquiry Report is perverse, even the fact which has been raised by the petitioner has not been considered. The Defence taken by the petitioner was never considered by Enquiry Officer neither it was considered by the Disciplinary Authority. He further argues that after being found guilty of the charges, the petitioner preferred an Appeal before the Appellate Authority, but the Appellate Authority without considering factual aspect of the matter and contention raised by the petitioner rejected the appeal in a mechanical manner without assigning any reason. The Disciplinary Authority did not even considered his reply to the second show cause on the ground that same was submitted after the lapse of ten days from the expiry of last date of submission of second show cause. Learned counsel further argues that though the reply to the second show cause received by Disciplinary Authority after the lapse of 10 days, but admittedly before the passing of the impugned order and as such, same ought to have been considered by them, but from perusal of the Disciplinary Order, it appears that the reply to the second show cause was not considered at all and as such, impugned order is not tenable in the eyes of law. Learned counsel assailing the Appellate Order argues that same is non-speaking order and same has been passed without considering the defence/reply taken by the petitioner and as such, both the impugned orders are not sustainable in the eyes of law and are fit to be quashed and set aside. He further argues that the petitioner was suspended twice and after revocation of the same, he rejoined, but was not paid his salary for the period of suspension till date even after repeated representations and as such, prays for release of arrears of salary for the intervening period. 5. He further argues that the petitioner was suspended twice and after revocation of the same, he rejoined, but was not paid his salary for the period of suspension till date even after repeated representations and as such, prays for release of arrears of salary for the intervening period. 5. On the other hand, counter-affidavit has been filed. 6. Mr. Prabhat Kumar Sinha, learned counsel appearing on behalf of the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that ample opportunity was given to the petitioner and as the petitioner did not reply to the second show within time, rightly same was not considered by the respondents. He further submits that no new ground was taken before the Appellate Authority and as such, no consideration was shown and the order of the Disciplinary Authority was affirmed as no interference was warranted and the same has been passed, considering the every aspect of the matter. There is no illegality or infirmity in the impugned orders. 7. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration for the following facts and reasons: i. Provisions of natural justice has been violated by the Disciplinary Authority as well as Appellate Authority. Admittedly, the reply to the second show cause was filed much before the passing of the impugned order though belatedly, but the same ought to have been considered by the Disciplinary Authority before passing of the impugned order, which is not done in this case. ii. The Hon’ble Apex Court while dealing with similar fact has clearly held in case of Ranjeet Singh Vs. Union of India, reported in 2006 (4) SCC 153 in para Nos. 16, 17 & 18 as under: 16. It was further submitted that the disciplinary authority could have granted some time to the appellant to file his show-cause having regard to the fact that although he is said to have prepared his order on 8-4-1997, it was not dispatched from his office till then and in that view of the matter, it must be held that the principles of natural justice have been violated. 17. Mr. 17. Mr. T.S. Doabia, learned Senior Counsel appearing on behalf of the respondent, on the other hand, contended that the Executive Engineer of CBI was examined before the Deputy Commissioner for the purpose of proving his report on valuation of the residential building of the appellant and in that view of the matter, his report was admissible in evidence. It was contended that from the order of the Appellate Authority, it would appear that a portion of the building was not valued by MCD. 18. It is not disputed that the disciplinary authority had issued a show-cause notice. It is also true that pursuant to or in furtherance of the said notice, the appellant did not file any show-cause. However, it stands admitted that a show-cause was filed by the appellant herein prior to communication of the order. The disciplinary authority states that the appellant was communicated the order dated 21-3-1997 that no further time would be granted, but the appellant, on the other hand, contends that he did not receive the same. The Tribunal, before which the said contention was raised by the respondent for the first time, did not go into the same nor was it established by or on behalf of the disciplinary authority that the said communication dated 21-3-1997 reached the hands of the appellant before he made a request for grant of 3-4 days’ further time by letter dated 7-4-1997. iii. The Appellate Order is non-speaking order, nothing has been whispered about either the reply to the second show cause or the contentions raised by the petitioner. iv. The Hon’ble Apex Court in case of Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney, reported in (2009) 4 SCC 240 in para 8 & 9 has held as under: 8. The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in S.N. Mukherjee Vs. Union of India, reported in (1990) 4 SCC 594 , is that people must have confidence in the judicial or quasi –judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimizes the chances of arbitrariness. Union of India, reported in (1990) 4 SCC 594 , is that people must have confidence in the judicial or quasi –judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimizes the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi judicial order, even if it is an order of affirmation. 9. No doubt, in S.N. Mukherjee case (supra) it has been observed that : (SCC p.613, para 36) “36. … The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.” The above observation, in our opinion, really means that the order of affirmance need not contain an elaborate reasoning as contained in the order of the original authority, but it cannot be understood to mean that even brief reasons need not be given in an order of affirmance. To take a contrary view would mean that appellate authorities can simply dismiss appeals by one-line orders stating that they agree with the view of the lower authority. v. Further, the Hon’ble Apex Court in case of S. Ramanathan Vs. Chief Judicial Magistrate, Chengalpattu & Ors., reported in (2002) 10 SCC 473 in para 6 has held that : 6. …… We have no hesitation to come to the conclusion that the aforesaid appellate order cannot be held to be a speaking order and therefore, the same cannot be sustained in law. We therefore, set aside the appellate order so far as it relates to affirming the direction of the disciplinary authority directing recovery of Rs.12,07,529.30/- paise from the delinquent and remit the matter to the Appellate Authority for reconsideration of the same by passing a reasoned order thereon… vi. In the order of the Appellate Authority, it would have been reflected as to what was the material placed and on what ground the order of Disciplinary Authority was affirmed. 8. In view of the aforesaid reasons, the impugned orders passed by the Disciplinary Authority as well as the Appellate Authority are liable to be quashed and set aside and as such, impugned orders dated 24.07.2013 and 24.03.2017 are quashed and set aside. 8. In view of the aforesaid reasons, the impugned orders passed by the Disciplinary Authority as well as the Appellate Authority are liable to be quashed and set aside and as such, impugned orders dated 24.07.2013 and 24.03.2017 are quashed and set aside. However, the matter is remitted back to the Disciplinary Authority to proceed in the matter after the stage of enquiry, after giving ample opportunity to the petitioner, within a period of two months from the date of receipt of a copy of this order and to conclude the proceeding, within a period of three months thereafter. 9. Accordingly, instant writ petition stands disposed of.