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2020 DIGILAW 499 (JHR)

Ram Prakash Mandal v. State of Jharkhand

2020-05-14

S.N.PATHAK

body2020
JUDGMENT : S.N. PATHAK, J. 1. Heard the parties. 2. Petitioner has approached this Court with a prayer for quashing the order of punishment, contained in Memo No. 1433 dated 16.02.2017, whereby the petitioner has been awarded punishment of stoppage of three increments with cumulative effect. 3. As per the factual matrix, the petitioner was initially appointed as Assistant in Home Department in the year 1984, by the erstwhile State of Bihar. After bifurcation of the States, the services of the petitioner was allocated to the State of Jharkhand. Thereafter, on being found suitable, petitioner was promoted to the post of Section Officer and then to the post of Under Secretary. At present, the petitioner is holding the post of Under Secretary in the Agriculture, Animal Husbandry and Co-operative Department, Govt. of Jharkhand, Ranchi. It is the case of the petitioner that while he was posted as Under Secretary, Urban Development and Housing Department, Govt. of Jharkhand, Ranchi, the petitioner was assigned a file pertaining to absorption/regularization of employees of Mines Board, Hazaribagh. The said file was allotted to the petitioner only for giving his opinion/noting to recommendation sent by the Deputy Commissionercum- Chairman, Mines Board, Hazaribagh, with respect to absorption/regularization of 56 persons in different Urban Local Bodies. The petitioner has given his opinion that out of the said 56 persons, 5 persons have already been superannuated and 1 person has been declared as absconder and as such, cases of only 50 employees may be considered for their absorption/regularization, in accordance with law. Thereafter, the said file with the noting/opinion of the petitioner was placed before the Joint Secretary and then before the Departmental Secretary, who had directed to mention names of those employees, whose absorption is not possible. It is the further case of the petitioner that after about one year from the date of relieving from the Urban Development and Housing Department, the petitioner was served with the memo of charge dated 09.05.2016, alleging therein that the petitioner had added the names of six non-recommended persons by removing the names of six recommended employees. In the said charge memo it has also been mentioned that on being asked, petitioner submitted that names were included on the verbal direction of Hon’ble Minister-in-Charge, however, the said Minister has denied any such order. 4. It is the further case of the petitioner that one Sri. In the said charge memo it has also been mentioned that on being asked, petitioner submitted that names were included on the verbal direction of Hon’ble Minister-in-Charge, however, the said Minister has denied any such order. 4. It is the further case of the petitioner that one Sri. Ehtashamul Haque, was appointed as Enquiry Officer to conduct the enquiry against the petitioner and on noticed, the petitioner filed his detailed reply dated 20.07.2016 along with supporting documents, before the said Enquiry Officer. However, to the utter surprise of the petitioner, in the midst of the enquiry, the respondent-authorities have replaced the earlier Enquiry Officer, Sri. Ehtashamul Haque with another Enquiry Officer, Sri. Binod Chandra Jha vide order dated 08.09.2016. It is the specific case of the petitioner that the order dated 08.09.2016, was issued by the Under Secretary, Department of Personnel, Administrative Reforms and Rajbhasa, Govt. of Jharkhand, who is junior to the present petitioner and has no power or jurisdiction to issue such order. The newly appointed Enquiry Officer conducted the enquiry and submitted his report as contained in Memo No. 147 dated 28.11.2016, holding therein that the charges against the petitioner is found to be proved. Thereafter, vide Memo No. 10810 dated 21.12.2016, second show-cause along with copy of enquiry report was issued to the petitioner, asking therein to submit his reply as to why the major punishment of stoppage of three increments with cumulative effect, be not inflicted upon him. 5. Aggrieved by the same, the petitioner filed W.P. (S) No. 777 of 2017, with a prayer to quash the second show-cause notice as contained in memo No. 10810 dated 21.12.2016. However, during the pendency of the said writ petition, the respondents have passed the order as contained in memo No. 1433 dated 16.02.2017, whereby the petitioner has been awarded punishment of stoppage of three increments. The petitioner filed Interlocutory Application seeking liberty to challenge the said punishment order. However, the writ petition was dismissed as withdrawn with a liberty to the petitioner to challenge the order of punishment before the appropriate authority. 6. Hence, this writ application has been filed by the petitioner for redressal of his grievance. 7. Mr. The petitioner filed Interlocutory Application seeking liberty to challenge the said punishment order. However, the writ petition was dismissed as withdrawn with a liberty to the petitioner to challenge the order of punishment before the appropriate authority. 6. Hence, this writ application has been filed by the petitioner for redressal of his grievance. 7. Mr. Sachin Kumar, learned counsel appearing for the petitioner submits that the impugned order dated 16.02.2017 is illegal, arbitrary and bad in law, as the order of punishment is based on perverse findings and the departmental proceeding was conducted in an illegal and arbitrary manner. Learned counsel further argues that the respondents have violated the principles of natural justice, inasmuch as the respondents have erred in appreciating the fact that the petitioner has not made any addition in the list, rather, the same was done on the direction of the Minister-in-Charge. Learned counsel further argues that the respondents have violated the principles of Articles 14 and 21 of the Constitution of India by not providing an opportunity to the petitioner to adduce material evidence/ witnesses in his defense, causing serious prejudice to the petitioner in the departmental proceeding. Learned counsel further argues that changing of Enquiry Officer, in the midst of the enquiry and too by an Officer, who is junior to the petitioner, is not permissible in the eyes of law. 8. 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. Learned counsel argues that Sri. Ehtashamul Haque was substituted with Sri. Binod Chandra Jha only because of re-allocation of the departments among four departmental Enquiry Officers. To this effect a letter dated 30.08.2016 was written by Sri. Ehtashamul Haque, whereby he had handed over all the records relating to departmental inquiries allocated to him. Learned counsel further argues that the newly appointed Enquiry Officer conducted the enquiry in accordance with law and submitted his report. The respondents have perused the enquiry report and thereafter, issued second show-cause asking reply from the petitioner as to why not a punishment of withholding of three increment with cumulative effects be imposed upon the petitioner. Learned counsel further submits that order of punishment dated 16.02.2017 is in accordance with the provisions of law. The respondents have perused the enquiry report and thereafter, issued second show-cause asking reply from the petitioner as to why not a punishment of withholding of three increment with cumulative effects be imposed upon the petitioner. Learned counsel further submits that order of punishment dated 16.02.2017 is in accordance with the provisions of law. No principle of natural of justice has been violated by any of the Authorities while conducting the enquiry against the petitioner and the petitioner has been provided with ample opportunity to defend his case and as such, the punishment awarded to the petitioner is as per Rule and in proportionate to the charges levelled against him. Learned counsel lastly submits that petitioner has admitted his guilt and has not submitted reply to the second show-cause. To strengthen his arguments, learned counsel places heavy reliance on paras-28 and 29 of the judgment passed in case of Managing Director, ECIL, Hyderabad vs. B. Karunakar and Others, (1993) 4 SCC 727 . 9. 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 opinion that no case is made out for interference. From perusal of the documents brought on record and upon hearing counsel for the parties, it appears that petitioner has admitted his guilt as he has not replied to the 2nd show-cause notice issued to him on 21.12.2016. 10. Law is well settled that in a departmental proceeding, the Court interferes only when the enquiry report is perverse and the impugned order has been passed mechanically and in complete violation of the principles of natural justice. None of aforesaid ingredient has been pointed out in arguments advanced by the learned counsel for the petitioner nor has a case been made out regarding procedural laches in the departmental proceeding. On the other hand, charges have been proved by the Enquiry Officer. 11. The Hon’ble Apex Court in case of State of Andhra Pradesh vs. S. Sree Rama Rao, AIR 1963 SC 1723 , has held thus: “The High Court is not constituted in a proceeding under Article 226 of the Constitution as a Court of Appeal over the decision of the authorities holding a departmental enquiry against a public servant. 11. The Hon’ble Apex Court in case of State of Andhra Pradesh vs. S. Sree Rama Rao, AIR 1963 SC 1723 , has held thus: “The High Court is not constituted in a proceeding under Article 226 of the Constitution as a Court of Appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent Officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence.” Further, the Hon’ble Apex Court in case of A.N. D'Silva vs. Union of India, AIR 1962 SC 1130 has held that: “...........neither the conclusion on the evidence nor the punishment which the enquiring authority may regard as appropriate is binding upon the punishing authority.” The same view has been reiterated by the Hon’ble Apex Court in case of Union of India vs. H.C. Goel, AIR 1964 SC 364 , wherein their Lordships have held that: “.............The Government may agree with the report or may differ, either wholly or partially, from the conclusions recorded in the report. .........If the report makes findings in favour of the public servant and the Government disagrees with the said findings and holds that the charges framed against the public servant are prima facie proved, the Government should decide provisionally what punishment should be imposed on the public servant and proceed to issue a second notice against him in that behalf.” 12. Thus, any interference by this Court amounts to overstepping its jurisdiction under Article 226 of the Constitution of India. It also appears that petitioner has not availed the alternative remedy of Appeal and has directly approached this Court. 13. As a sequitur of the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, no case is made out for interference in the instant writ application. 14. Resultantly, the writ petition merits dismissal and the same is hereby dismissed.