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2020 DIGILAW 772 (JHR)

Basanti Tirkey v. State of Jharkhand

2020-08-17

DEEPAK ROSHAN

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JUDGMENT : Heard, Mr. Rajendra Krishna, learned counsel for the petitioner and Ms. Darshana Poddar Mishra, AAG-I for the respondents through V.C. 2. The instant application has been preferred by the petitioner for following reliefs : (i) For issuance of an appropriate writ(s)/order(s)/direction(s) or a writ in nature of certiorari for quashing the Notification No.2521 dated 21.08.2014 (Annexure-9) issued under the signature of Respondent No.3 by which punishment of withholding of one increment has been imposed upon the petitioner with non-cumulative effect due to violation of Section 65 (2) of the Standards of Weights and Measures (Enforcement) Act, 1985 (here-in-after to be referred as the Act). (ii) For issuance of an appropriate writ(s)/order(s) /direction(s) or a writ in nature of Mandamus commanding upon the respondents to release the increment which has already been withheld due to the present impugned notification dated 21.08.2014 since the petitioner did not violate any Provision of the Act in the Lok Adalat held in the District Court of Deoghar in which a case committing offence under section 22 of the Act has been compromised/settled. 3. The facts as narrated in the instant application is that the petitioner was served with a complain given by the Citizen Council of India represented by its Founder Secretary Birendra Kumar Sinha, and the petitioner was asked to reply to the allegations leveled against him by the said Birendra Kumar Sinha vide forwarding letter no.31 dated 12.12.2012 (Annexure-1 series). In the said complaint, some allegations have been leveled including the allegation of violation of section 65(2) of the Act, in relation to M/s Shrraf Metal Works, Deoghar. The petitioner has submitted her reply in which she has categorically stated that the allegation relating to M/s Shrraf Metal Works, Deoghar is a false allegation, since the prosecution report which was prepared by Inspector Legal Meteorology, namely, Vrind Kumar Singh, which has been approved by Mr. Krishan Chandra Chowdhary, the then deputy Controller (Weight & Measures) Dumka, and the prosecution report has been filed by the aforesaid Inspector Sri Vrind Kumar Singh before the learned court of Chief Judicial Magistrate, Deoghar. Thereafter, the Deputy Secretary, Department of Agriculture and Sugarcane Development vide its letter no.3473 dated 1.12.2012 has written to the Joint Agriculture Director cum Controller (Weight and Measures), Jharkhand at Ranchi for holding an enquiry over the complaint (Annexure-3). Pursuant to the aforesaid letter, Mr. Thereafter, the Deputy Secretary, Department of Agriculture and Sugarcane Development vide its letter no.3473 dated 1.12.2012 has written to the Joint Agriculture Director cum Controller (Weight and Measures), Jharkhand at Ranchi for holding an enquiry over the complaint (Annexure-3). Pursuant to the aforesaid letter, Mr. Krishna Chandra Choudhary has submitted his report vide his letter no.06 dated 12.6.2013 and the said report as given to the petitioner vide forwarding letter no.2073 dated 22.06.2013 (Annexure-4 series). The petitioner vide letter No.99 dated 29.06.2013 submitted her reply upon the enquiry report wherein she has categorically stated that she is not at all responsible for compromise/settlement held in the Lok Adalat relating to the case of M/s Sharraf Metal Works, Deoghar; since the inquiry officer himself issued a letter no.33 dated 06.06.2006 to M/s Sharraf Metal Works, Deoghar for compromise of the offence under Section 22 of the Act, 1985. Thereafter, the Deputy Secretary after considering the entire relevant records, upon which the internal enquiry was made, recommended in the file on 15.07.2013 that the explanation submitted by the petitioner can be accepted. 4. Thereafter, the file reached to the Secretary (Respondent No.2) who asked the opinion of Mr. Choudhary (Joint Secretary) over the explanation submitted by the petitioner. The Joint Director cum Controller (Weight and Measure), Jharkhand has submitted his opinion vide letter no.14 dated 30.11.2013 in which he has supported the allegations made in the enquiry report. 5. Thereafter, the impugned order as contained in Annexure-9 has been passed whereby punishment of withholding of one increment has been imposed upon the petitioner with non cumulative effect due to noncompliance of the provision as enshrined under Section 65 (2) of the Standard of Weight and Measure (Enforcement) Act, 1985. 6. Learned counsel for the petitioner submits that the impugned order has been passed without application of mind and totally on the basis of opinion given by the Joint Director-cum-Controller (Weight and Measure), Jharkhand and did not utter a single word on its own. He further contended that though the Deputy Secretary after considering the entire relevant records, upon which the internal enquiry was made, recommended in the file on 15.07.2013 that the explanation submitted by the petitioner can be accepted. He further contended that though the Deputy Secretary after considering the entire relevant records, upon which the internal enquiry was made, recommended in the file on 15.07.2013 that the explanation submitted by the petitioner can be accepted. But the said opinion has been brushed aside and the impugned order has been passed on the opinion of the Joint Secretary without giving his own reasoning and the impugned order is completely passed on non application of mind. He further submits that the noting of the file dated 15.07.2013 has been obtained by the petitioner under Right to Information Act (RTI) dated 19.08.2014, therefore, the said document is being enclosed (Annexure-6). The said noting transpires that in the enquiry report, Mr. Krishna Chandra Choudhary has also written that the earlier offence committed by M/s Sharraf Metal Works, Deoghar, has been compounded by the petitioner which is an incorrect statement for the reason that the said first offence has been compounded by the then Controller (Weight and Measures) Mr. Jaishankar Bhagat. He further contended that the petitioner was not given the list of cases before the Lok Adalat which was held on that day i.e. on 28.08.2010, therefore, the petitioner was not even knowing about the cases listed before the said Lok Adalat for the purpose of compromise/settlement. Besides that, the file which was available in the Lok Adalat relating to M/s Sharraf Metal Works, Deoghar does not disclose that the case was of second offence and hence the compromise was reached (Annexure-5 series). The respondent No.2 has finally accepted the guilt of the petitioner for violating Section 65(2) of the Act, in the case of M/s Sharraf Metal Works, Deoghar. He further contended that the respondent No.2 failed to appreciate that any matter which has been compromised in the Lok Adalat should not be questioned as misconduct. Besides that in the record of concerned file maintained in the District Court of Deoghar, there is no document showing that the prosecution in question is the second offence committed by M/s Sharaf Metal Works, Deoghar, and therefore, there was no impediment in getting the said compromise. 7. Besides that in the record of concerned file maintained in the District Court of Deoghar, there is no document showing that the prosecution in question is the second offence committed by M/s Sharaf Metal Works, Deoghar, and therefore, there was no impediment in getting the said compromise. 7. Learned counsel for the respondent reiterated the statement made in the counter affidavit and submits that as per the enquiry report, the allegation made against the petitioner has been proved and even a show cause notice was issued to the petitioner vide letter dated 22.06.2013 to which the petitioner had submitted her reply which was forwarded to the Joint Agriculture Director cum Controller (Weight and Measure), Jharkhand for his opinion. She further contended that there is no procedural irregularity in the impugned order and looking to the entire facts and circumstances of the case no interference is required in the instant writ application. 8. Having heard Mr. Rajendra Krishna, learned counsel for the petitioner and Ms. Darshana Poddar Mishra, AAG-I for the respondents-State and after perusing the materials available on record, it appears that there was a complaint made by one Citizen Council of India and the petitioner was asked to reply to the allegation leveled against him. From the complaint it transpires that some allegations have been leveled including violation of Section 65(2), of the Act in relation to M/s Sharraf Metal Works, Deoghar. It further transpires that in the internal enquiry a show cause was asked from the petitioner who submitted a detailed reply consisting of 20 pages. Thereafter, the said reply was forwarded to the Deputy Secretary, who after going through the relevant records of the case recommended that the explanation submitted by the petitioner can be accepted. This statement has been made in para 12 of the writ application which has not been controverted in the counter affidavit, as such, the same is taken as accepted. 9. From perusal of the impugned order as annexed in Annexure-9 it clearly transpires that the Disciplinary Authority has not applied his own mind rather he is simply accepted the opinion of his subordinates. At the cost of repetition, the petitioner has filed reply for about 20 pages raising several grounds in support of her defense; but unfortunately, none of the grounds as raised by the petitioner has been considered by the Disciplinary Authority. At the cost of repetition, the petitioner has filed reply for about 20 pages raising several grounds in support of her defense; but unfortunately, none of the grounds as raised by the petitioner has been considered by the Disciplinary Authority. In the case of Raj Kumar Mehrotra verus State of Bihar and others reported in (2005) 12 SCC 256 wherein para 5 the Hon’ble Apex Court has held as under : “5. Without going into other issues raised, we are of the view that impugned order of the respondent authority imposing punishment on the appellant cannot be sustained. Even if we assume that Rule 55-A which pertains to minor punishment was applicable and not Rule 55 which relates to major punishments, nevertheless Rule 55-A requires that the punishment prescribed therein cannot be passed unless the representation made pursuant to the show-cause notice, has been taken into consideration before the order is passed. There is nothing in the impugned order which shows that any of the several issues raised by the appellant in his answer to the show-cause notice were, in fact, considered. No reason has been given by the respondent authority for holding that the charges were proved except for the ipse dixit of the disciplinary authority. The order, therefore, cannot be sustained and must be and is set aside.” 10. In the case in hand, the impugned order passed by the disciplinary authority though refers to the receipt of the show-cause reply submitted by the petitioner, yet not a single point raised by the petitioner in the said reply has been considered by the Disciplinary Authority. It was the duty of the Disciplinary Authority to consider all the relevant points raised by the petitioner in her reply. From the reply submitted by the petitioner (Annexure-5 to the writ petition), it would be evident that several points were raised by the petitioner in support of her defense. However, not a single point raised by the petitioner was taken note of by the disciplinary authority while passing the order of punishment dated 21.08.2014. 11. From the reply submitted by the petitioner (Annexure-5 to the writ petition), it would be evident that several points were raised by the petitioner in support of her defense. However, not a single point raised by the petitioner was taken note of by the disciplinary authority while passing the order of punishment dated 21.08.2014. 11. In view of the settled proposition of law and the law laid down in the case of Raj Kumar Mehrotra (supra), the impugned order as contained in notification no.2521 dated 21.08.2014 issued under the signature of the respondent No.3, whereby the punishment of withholding one increment has been imposed upon the petitioner with non cumulative effect, is hereby quashed and set aside and the matter is remitted back to the respondent No.2 to pass a fresh order after considering the entire contention raised by the petitioner in her reply to the show cause notice as annexed in Annexure-5 series within a period of 4 months from the date of receipt of the copy of the order. 12. With the aforesaid observation and direction, the instant writ application is allowed and disposed of.