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2020 DIGILAW 383 (JHR)

Mukteshwar Pandey v. State of Jharkhand

2020-02-25

S.N.PATHAK

body2020
JUDGMENT : 1. The petitioner has approached this Court with a prayer for quashing of the order as contained in Memo No.3/Ch, Stha.-3/11-929 dated 06.03.2012 (Annexure-10), whereby and whereunder, the respondent No.2 dismissed the revision application filed by the petitioner and affirmed the appellate order dated 29.11.2010. Further, prayer has been made for quashing the order as contained in Memo No. 382 dated 29.11.2010 (Annexure-9) and also Order No.33 dated 15.09.2009 (Annexure-8). Further prayer has been made for a direction upon the respondents to pay the arrears of salary w.e.f. 01.10.2006 to 16.12.2008 and further from 01.03.2009 to 15.09.2009 for the suspension period on the basis of last pay certificate and other consequential benefits. 2. The case of the petitioner lies in a narrow compass. The petitioner was working as a Steno in the Office of the Regional Chief Conservator of Forest, Dumka Circle, Dumka and was transferred on 30.12.2006 to the Office of Forest Conservator, Santhal Pargana, Circle Deoghar and as such, he was relieved on 09.01.2007. On 17.01.2007, he gave his joining in the Office of the respondent No.7, but joining of the petitioner was not accepted as there was no vacant post of steno at the relevant time. Accordingly, he came back to head office i.e. Office of the Respondent No.5 and informed vide application dated 19.01.2007 that his joining has not been accepted, but the respondent No.5 did not take any action over the application of the petitioner and as such, he remained idle waiting for his posting. However, the petitioner challenged the said transfer order dated 30.12.2006, by filing a writ petition being W.P.(S) No.3569 of 2007 on the ground that the petitioner was earlier transferred to Santhal Pargana Circle of Deoghar on 29.04.2004, which was challenged by the petitioner by filing writ petition being W.P.(S) No.5147 of 2004. This Court, by order dated 28.09.2004, disposed of the said writ petition being giving liberty to the petitioner by representing his case before the concerned authority i.e. before the Principal Chief Conservator of Forest, Jharkhand, Ranchi. This Court, by order dated 28.09.2004, disposed of the said writ petition being giving liberty to the petitioner by representing his case before the concerned authority i.e. before the Principal Chief Conservator of Forest, Jharkhand, Ranchi. It is further the case of the petitioner that pursuant to order passed in W.P.(S) No.5147 of 2004, this Court vide order dated 22.08.2007 disposed of W.P.(S) No.3569 of 2007 with an observation that when the matter was being dealt with by the Principal Chief Conservator of Forest, Ranchi the petitioner should not have been transferred to Deoghar by order as contained in Annexure-8. Accordingly, the petitioner after waiting for long time for his posting without pay, sought information under the RTI Act, 2005 on 21.06.2008 regarding his place of posting and from where he shall draw his salary. However, no information was given to him. Consequently, vide letter dated 04.12.2008, the petitioner was informed from the office of respondent No.5 that the petitioner went to join on 17.01.2007 at Deoghar but his joining was not accepted by the respondent No.7. However, contrary to this, the respondent No.7 informed the respondent No.5 vide Memo No. 1482 dated 23.10.2008 that the petitioner never gave his joining in the office of Respondent No.7. It is further stated that the petitioner never informed this office about non-acceptance of his joining and he did nothing except filing of cases before the Hon’ble High Court. So if the petitioner wants to join, he should give his joining in the office of the respondent No.5. Pursuant thereto, the petitioner gave his joining in the office of Respondent No.5 on 17.12.2008, which was duly accepted. Thereafter, on 11.02.2009, the petitioner made a representation before the respondent No.5 to release his salary for the period from 01.10.2006 to 16.12.2008 on the basis of his last pay certificate. However, the respondent No. 7 issued an order as contained in Order No.9 dated 30.01.2009 that the petitioner was absent from the duty from 10.01.2007 to 16.12.2008 i.e. for total 707 days, therefore allowed him leave without pay for the said period. Thereafter, the petitioner was served a show cause notice cum-charge dated 02.02.2009 as contained in Order No. 10, wherein he was directed to submit his clarification within fifteen days. Pursuant thereto, he filed his clarification on 02.05.2009. 3. Thereafter, the petitioner was served a show cause notice cum-charge dated 02.02.2009 as contained in Order No. 10, wherein he was directed to submit his clarification within fifteen days. Pursuant thereto, he filed his clarification on 02.05.2009. 3. It is further the case of the petitioner that petitioner was suspended vide letter dated 02.03.2009 alleging therein that after joining the petitioner whimsically performed his duty and he was on unauthorized leave and during suspension period, his head office was fixed at Dumka. Accordingly, Departmental Proceeding was initiated and after conducting thorough Enquiry by the Enquiry Officer, he was exonerated from the charges levelled against him and final report was submitted to the Disciplinary Authority. The Disciplinary Authority did not agree with the Enquiry Report and without giving any show cause, vide Office order dated 15.09.2009, passed the order of punishment of withholding of three increments and other punishments, holding him guilty of not joining the office of respondent No.7 for nine months. Aggrieved by the same, the petitioner preferred an Appeal before the respondent No.4, which was disposed of vide order dated 29.11.2010, modifying the punishment order. Again, the petitioner dissatisfied with the said order passed by the Appellate Authority, preferred a Revision before the respondent No.2. Thereafter, the respondent No.2, without considering the case of the petitioner vide order dated 06.03.2012 affirmed the order passed by the Appellate Authority. Aggrieved by the aforesaid orders, the petitioner has been constrained to knock the door of this Court. 4. Mrs. Ritu Kumar, learned counsel for the petitioner submits that the Appellate Authority as well as Revisional Authority failed to consider the case of the petitioner and without giving an opportunity of hearing to the petitioner, the Appellate Authority as well as the Revisional Authority awarded the punishment against him, ignoring the fact that the Enquiry Officer has exonerated the petitioner from the charges, which is complete violation of principle of natural justice. She further submits that the transfer order dated 30.12.2016 was challenged before this Court in W.P.(S) No.3569 of 2007 and this Court disposed of the said writ petition with an observation that ‘when the matter was being dealt with by the Principal Chief Conservator of Forest, Ranchi the petitioner should not have been transferred to Deoghar by order as contained as Annexure-8. and with a direction to dispose of the representation of the petitioner, within a period of four weeks’ from today by a reasoned order, in accordance with law. However, if the order of transfer of the petitioner has not been given effect to, the same shall be kept in abeyance for one month only and as such, no charge is made out against the petitioner. She further submits that from the order of this Hon’ble Court passed in W.P.(S) No. 3569 of 2007 it appears that transfer order dated 30.12.2006 is bad in law and should not be forced upon the petitioner. The respondents are themselves responsible as they were compelling the petitioner not to give his joining and as such there is no fault on the part of the petitioner. Learned counsel further argues that it is settled principle of law that if the Disciplinary Authority differs from the finding recorded in the Enquiry Report, it is necessary to issue show cause with specific reason as to why he differs from the enquiry report, however, the Disciplinary Authority without applying his mind, awarded the punishment against the petitioner. On the aforesaid grounds, learned counsel prays for quashing of the impugned orders. 5. Per contra, counter-affidavit has been filed. 6. Mr. Sunil Kumar, learned counsel appearing on behalf of the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that the petitioner was transferred from Dumka Circle to Santhal Pargana Circle, Deoghar on 30.12.2006, but did not join at the transferred place and absented himself from duty for 707 days. As the petitioner did not obey the transfer order of Regional Chief Conservator of Forest, Dumka, punishment order was passed, which was affirmed by the Revisional Authority. He further submits that as the petitioner was absent from duty and to regularize his service, Leave Without Pay was granted to him and as such, his salary was not paid on the basis for the aforesaid period. He further submits that as the petitioner was absent from duty and to regularize his service, Leave Without Pay was granted to him and as such, his salary was not paid on the basis for the aforesaid period. Learned counsel further submits that three Letters, submitted by the Conservator of Forest Santhal Pargana Circle, Deoghar were not put before the Enquiry Officer in which it was clearly mentioned that petitioner had never joined his office and never contacted him for joining the duty and also even he did not sent his joining by registry or by other means and as such, in absence of aforesaid letters, Enquiry Officer exonerated the petitioner from the charges leveled against him and that is why, Disciplinary Authority differed with the Enquiry Report and passed an order of punishment against the petitioner. He further submits that the Appellate Authority by taking sympathetic view in the appeal, reduced some of the punishments awarded by the Disciplinary Authority. Justifying the impugned orders, learned counsel submits that instant writ petition is devoid of any merit and is liable to be dismissed. 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. Admittedly, the petitioner was exonerated from the charges by the Enquiry Officer, which were not proved during the course of enquiry. ii. It is settled principles of law that before parting with the Enquiry Report, it was incumbent upon the Disciplinary Authority to issue show cause notice to the petitioner as to on what ground it has differed from the said Enquiry Report and ask the petitioner to file reply thereof. iii. From the facts of the case and the documents brought on record, it appears that Disciplinary Authority erred in law, by neither issuing show cause notice to the petitioner nor assigning any cogent reasons for differing with the enquiry report. iv. The issue fell for consideration before the Hon’ble Apex Court in case of The Hon'ble Supreme Court in the case of Punjab National Bank Vs. Kunj Behari Misra, reported in (1998) 7 SCC 84 , wherein at paragraph no.19 it has been held that: 19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). Kunj Behari Misra, reported in (1998) 7 SCC 84 , wherein at paragraph no.19 it has been held that: 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. v. The Hon'ble Supreme Court in the case of Ram Kishan Vs. Union of India, reported in (1995) 6 SCC 157 , at 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 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 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. vi. Further, the Hon'ble Apex Court in case of M.V. Bijlani Vs. Union of India, reported in (2006) 5 SCC (L& S) 919, at 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. vii. 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. vii. Further, the Hon'ble Supreme Court in the case of Punjab National Bank Vs. K.K. Verma, reported in (2010) 13 SCC 494 , at 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. 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. viii. The aforesaid fact as well as legal aspects were not considered neither properly appreciated by the Appellate Authority as well as Disciplinary Authority. There are several lacunas in the Departmental Proceedings, which were also not considered either by the Disciplinary Authority or the Appellate Authority. ix. It is also well settled law that if the departmental proceedings itself is full of follies and where the due procedures have not been followed, such proceedings itself are fit to be quashed and set aside. 8. There are several lacunas in the Departmental Proceedings, which were also not considered either by the Disciplinary Authority or the Appellate Authority. ix. It is also well settled law that if the departmental proceedings itself is full of follies and where the due procedures have not been followed, such proceedings itself are fit to be quashed and set aside. 8. As a logical sequitur to the aforesaid reasons, the impugned orders dated 06.03.2012 and 29.11.2010 are liable to be quashed and set aside and are hereby quashed and set aside. Since the petitioner has duly participated in the enquiry proceeding and ample opportunity was given to him, but the factual aspect and the legal aspect were not properly appreciated by the authorities, it would be proper to remit the matter back to the respondent-Appellate Authority for reconsideration of the case of the on the quantum of punishment and as such, matter is remitted back to the Appellate Authority to take a fresh decision on the quantum of punishment, within a period of twelve weeks’ from the date of receipt of a copy of this order. 9. With the aforesaid observations and directions, instant writ petition stands disposed of.