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Jharkhand High Court · body

2020 DIGILAW 970 (JHR)

Pradeep Kumar v. State of Jharkhand

2020-10-07

DEEPAK ROSHAN

body2020
JUDGMENT : Heard learned counsel for the parties through V.C. 2. The instant application has been preferred for the following relief : “For issuance of an appropriate writ/order/direction in the nature of ‘Certiorari’ for quashing the order dated 14.04.2013 passed by the Disciplinary Authority (Resp No.4), the order dated 16.08.2013 passed by the Appellate Authority (Resp No.3) during pendency of the instant writ application by which the Appellate Authority without considering the contentions of the Petitioner affirm the order of Disciplinary Authority i.e. punishment of dismissal from the services; And/Or For issuance of an appropriate writ/order/direction in the nature of ‘Mandamus’ commanding upon the Respondents to reinstate the Petitioner after quashing the order of dismissal and allow the Petitioner to continue on the post from the date he has been stopped from working with all consequential benefits in accordance with law; And/Or During pendency of final hearing of the instant writ application, the Petitioner be allowed to continue in service and he be released the currency salary and allowances; And/Or Pass any other order/writ/direction as Your Lordship may deem fit & proper in the facts and circumstances of the case and accordance with law.” 3. The facts relevant for disposal of the instant application is that on 15.5.2008, the petitioner was served with a charge sheet in which it has been alleged that he had submitted forged pass certificate of intermediate. The petitioner filed a reply denying and disputing the charges leveled against him. However, the same was not considered and a Departmental Proceeding bearing No. 25/2008 was initiated against him. The Enquiry Officer found the petitioner guilty of the charges leveled against him. Thereafter, second show-cause notice was issued to the petitioner to which he replied but the same was not considered and the order of dismissal was passed by the Disciplinary Authority. The petitioner also preferred appeal but the same was rejected. 4. Mr. Shrestha Gautam, learned counsel for the petitioner primarily submits that the petitioner has not done anything intentionally. Thereafter, second show-cause notice was issued to the petitioner to which he replied but the same was not considered and the order of dismissal was passed by the Disciplinary Authority. The petitioner also preferred appeal but the same was rejected. 4. Mr. Shrestha Gautam, learned counsel for the petitioner primarily submits that the petitioner has not done anything intentionally. He further submits that the minimum educational qualification required for appointment on the post of Constable, as per the relevant advertisement, was 7th standard pass and the petitioner has taken a specific stand before the Enquiry Officer as well as the Disciplinary Authority that the minimum educational qualification required in the advertisement was 7th standard pass and the petitioner could have submitted only 7th standard pass certificate, but since he is intermediate pass, as such he submitted the matriculation as well as intermediate certificate. Learned counsel for the petitioner contended that this ground, that the certificate which has been alleged to be forged was not the basis of the appointment and the petitioner submitted the intermediate certificate knowing the same to be correct and he did not have any bad intention and he himself had not committed any fraud, was taken by the petitioner right from the very beginning; but the same have not been considered by the Disciplinary Authority and the Disciplinary Authority has passed the order in just two lines that since it is a case of fraud, the petitioner is dismissed. Petitioner further relied upon the judgment passed in the ORYX FISHERIES PRIVATE LIMITED Versus UNION OF INDIA AND OTHERS reported in (2010) 13 SCC 427 , wherein at Paragraph 36, 37 the Hon’ble Apex Court has held that merely by saying that the show-cause reply was unsatisfactory will not serve the purpose and a speaking order is to be passed. 5. Learned counsel for the respondent State vehemently opposed the prayer of the petitioner and submits that the appellate order has been passed taking into consideration the aforesaid issue and since it is a case of fraud, there is no need to discuss each and every ground and admittedly, an enquiry was conducted after the report was called for from the Bihar Intermediate Examination Board, from which it transpired that the certificate was forged. In this view of the matter, no interference is warranted in this case. In this view of the matter, no interference is warranted in this case. Even the Appellate forum has rejected the appeal of the petitioner and further there is no procedural irregularity in this case. Learned counsel for the State relied upon the decision passed by the Hon’ble Apex Court in UNION OF INDIA AND OTHERS Versus AMAR SINGH reported in (2007) 12 SCC 621 , Paragraph 14. 6. Having heard learned counsel for the parties and after going through the materials available on record, it appears that the minimum qualification required for appointment on the post of Constable, as per the advertisement of 2004, was 7th standard pass. Further, from the said advertisement it also transpires that there was no weightage for any higher qualification. As such, submitting a false certificate of Intermediate pass would not have otherwise helped the petitioner in getting the appointment. Moreover, it is not the case of the respondents that the pass certificate of matriculation or the 7th pass certificate was forged; rather, it is a specific case of the respondents that the certificate submitted by the petitioner, in which he was shown as intermediate pass, is found forged on the basis of the report sent by the Bihar Intermediate Examination Board. From records it also appears that the petitioner had taken specific stand that he was bona-fide and he had no knowledge that the relevant certificate was forged. He has also taken a specific stand that only by submitting 7th pass and 10th pass certificate, he could have easily procured the job, but since as per his knowledge, he was intermediate pass, he had submitted the intermediate pass certificate. This specific stand of the petitioner was neither considered in the Enquiry Report nor by the Disciplinary Authority. In this view of the matter, I hold the order of the Disciplinary Authority as a non-speaking one, being passed without discussing the grounds taken by the petitioner. In the case of KRANTI ASSOCIATES PRIVATE LIMITED AND ANOTHER Versus MASOOD AHMED KHAN AND OTHERS reported in (2010) 9 SCC 496, at Para 47, certain guidelines have been mentioned. Relevant para of the said decision is quoted as under: “47. (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. Relevant para of the said decision is quoted as under: “47. (a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. (b) A quasi-judicial authority must record reasons in support of its conclusions. (c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. (d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. (e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations. (f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. (g) Reasons facilitate the process of judicial review by superior courts. (h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice. (i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants’ faith in justice delivery system (j) Insistence on reason is a requirement for both judicial accountability and transparency. (k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. (l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or ‘rubber-stamp reasons’ is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. A pretence of reasons or ‘rubber-stamp reasons’ is not to be equated with a valid decision-making process. (m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain, EHRR, at p. 562, para 29 and Anya v. University of Oxford, wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, ‘adequate and intelligent reasons must be given for judicial decisions’. (o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of ‘due process.” It further transpires from record that the Appellate authority had considered the grounds taken by the petitioner. However, in Paragraph No. 41 of the decision in ORYX FISHERIES (Supra), the Hon’ble Apex Court has held as under: “41. In the instant case the appellate order contains reasons. However, absence of reasons in the original order cannot be compensated by disclosure of reason in the appellate order.” Admittedly, the ground with respect to criteria in getting the job was taken by the petitioner right from the very beginning, but for the reason best known the Enquiry Officer as well as the Disciplinary Authority, the same was not considered and the order of dismissal was passed. Therefore, as held by the Hon’ble Apex Court in the ORYX FISHERIES (Supra), absence of reasons in the original order cannot be compensated by disclosure of reason in the appellate order. 7. In view of the aforesaid findings, the impugned Order dated 14.04.2013 passed by the Disciplinary Authority (Respondent No. 4) and Order dated 16.08.2013 passed by the Appellate Authority (Respondent No.3) are hereby, quashed and set aside. The matter is remitted back to the Disciplinary Authority-Respondent No.4, to pass a fresh order after discussing each and every ground/contention raised by the petitioner in his second show cause notice and pass a fresh order. The matter is remitted back to the Disciplinary Authority-Respondent No.4, to pass a fresh order after discussing each and every ground/contention raised by the petitioner in his second show cause notice and pass a fresh order. The entire exercise must be complete within a period of three months from the date of receipt/production of a copy of this order, failing which the petitioner shall be reinstated in service. 8. With the aforesaid observation and direction, the instant writ application is disposed of.