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2021 DIGILAW 238 (JHR)

Neeraj Kumar v. State of Jharkhand

2021-02-24

DEEPAK ROSHAN

body2021
JUDGMENT : Heard learned counsel for the parties through V.C. 2. The instant writ application has been preferred by the petitioner praying therein for quashing the order as contained in Memo No.1348 dated 09.05.2013 (Annexure11), whereby the petitioner has been dismissed from service and also the order as contained in Memo No.4433 dated 25.12.2013 (Annexure-12), whereby the appeal of the petitioner has been rejected and the order of the dismissal has been affirmed. 3. The facts relevant to decide the instant writ application is that the petitioner was appointed to the post of Constable on 02.09.1999 and was transferred from Ranchi to Chatra district by order dated 11.06.2011 and pursuance thereto, he was relieved to join Chatra District. While the petitioner was posted at Chatra, he proceeded for casual leave for twenty five days on 07.06.2012 and he was supposed to join duty on 03.07.2012. However, during leave period the petitioner had developed some problem and was treated by one Dr. Ashok Kumar Prasad. However, when his condition subsequently deteriorated, he was referred to the specialist Dr. K. K. Sinha. Thus, though the petitioner was to report on his duty on 03.07.2012; he was advised to take rest and consequently, he could not report on duty. Ultimately, a departmental proceeding was initiated against this petitioner and he was suspended on 24.12.2012 and a charge-sheet was handed over to him on 29.12.2012 and thereafter the petitioner was transferred from Chatra to Godda on 31.12.2012. 4. Mr. Rajendra Krishna learned counsel for the petitioner submits that due to this transfer the petitioner faced difficulties in making his appearance in the departmental proceeding, inasmuch as, the proceeding was initiated and continued at Chatra, whereas he was posted at Godda. Mr. Krishna further submits that the instant writ application should be allowed only on one score that the enquiry report has never been handed over or sent to this petitioner which he specifically stated in para-34 of the writ application. However the same has not been replied. He concluded his argument by submitting that the instant writ application may be disposed of, after quashing the impugned orders; remitting the case back to the disciplinary authority to continue the proceeding after serving the enquiry report and strictly following the principles of natural justice. 5. Mr. However the same has not been replied. He concluded his argument by submitting that the instant writ application may be disposed of, after quashing the impugned orders; remitting the case back to the disciplinary authority to continue the proceeding after serving the enquiry report and strictly following the principles of natural justice. 5. Mr. Abhijeet kumar learned counsel for the respondent-State submits that as per Rule 853 of the Bihar Police Manual the petitioner is having alternative remedy as such he should have filed revision. He further relied upon the statement made in paragraph 19 of the counter affidavit and submits that in view of the judgment passed in the case of State of Punjab Vs. Ram Singh reported in 1992 (4) SCC 54 , it has been held by the Hon’ble Apex Court that in such type of cases no sympathy should be granted with the employee. He further referred to the case of State of Utter Pradesh Vs. Ramakant Yadav reported in 2002 (6) SLR 300 , wherein the Hon’ble Apex Court has held that the charge of sleeping on duty amounts to misconduct and for that charge, dismissal is proper. He concluded his argument by submitting that no interference is required; however, he could not demonstrate by any letter in the counter affidavit that enquiry report was actually served to the petitioner. 6. Having heard learned counsel for the parties and after going through the documents annexed and averments made in the respective affidavits; it appears that there is specific assertion in paragraph no.34 of the writ application that non-supply of enquiry report has greatly prejudice the petitioner. This categorical statement has not been controverted by the respondents in any manner in their counter affidavit. 7. In the case of Managing Director, ECIL, Hyderabad and Ors. Vs. B. Karunakar & Ors. reported in (1993) 4 SCC 727 the Hon’ble Apex Court has decided the issue with regard to supply of enquiry report. For better appreciation para-24 and 26 is quoted herein below:- “24. Since the Government of India Act, 1935 till the Forty-second Amendment of the Constitution, the Government servant had always the right to receive the report of the enquiry officer/authority and to represent against the findings recorded in it when the enquiry officer/authority was not the disciplinary authority. For better appreciation para-24 and 26 is quoted herein below:- “24. Since the Government of India Act, 1935 till the Forty-second Amendment of the Constitution, the Government servant had always the right to receive the report of the enquiry officer/authority and to represent against the findings recorded in it when the enquiry officer/authority was not the disciplinary authority. This right was however, exercisable by him at the second stage of the disciplinary proceedings viz., when he was served with a notice to show cause against the proposed penalty. The issuance of the notice to show cause against the penalty necessarily required the furnishing of a copy of the enquiry officer's report since, as held by the Courts, the right to show cause against the penalty also implied the right to represent against the findings on the charges. This was considered to be an essential part of the ‘reasonable opportunity’ incorporated earlier in Section 240(3) of the GOI Act and later in Article 311(2) of the Constitution as originally enacted. The right to receive the enquiry officer's report and to show cause against the findings in the report was independent of the right to show cause against the penalty proposed. The two rights came to be confused with each other because as the law stood prior to the Forty-second Amendment of the Constitution, the two rights arose simultaneously only at the stage when a notice to show cause against the proposed penalty was issued. If the disciplinary authority after considering the enquiry officer's report had dropped the proceedings or had decided to impose a penalty other than that of dismissal, removal or reduction in rank, there was no occasion for issuance of the notice to show cause against the proposed penalty. In that case, the employee had neither the right to receive the report and represent against the finding of guilt nor the right to show cause against the proposed penalty. The right to receive the report and to represent against the findings recorded in it was thus inextricably connected with the acceptance of the report by the disciplinary authority and the nature of the penalty proposed. The right to receive the report and to represent against the findings recorded in it was thus inextricably connected with the acceptance of the report by the disciplinary authority and the nature of the penalty proposed. Since the Forty-second Amendment of the Constitution dispensed with the issuance of the notice to show cause against the penalty proposed even if it was dismissal, removal or reduction in rank, some courts took the view that the Government servant was deprived of his right to represent against the findings of guilt as well. The error occurred on account of the failure to distinguish the two rights which were independent of each other. 26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it.” 8. Subsequently, in the case of Sohan Lal Gupta & Ors. Vs. Asha Devi Gupta (SMT) & Ors. reported in (2003) 7 SCC 492 , the Hon’ble Apex Court has reiterated the ratio with regard to non-supply of enquiry report in paragraph nos. 31 and 32 which are reproduced herein below:- “31. In M.C. Mehta v. Union of India [ (1999) 6 SCC 237 ] this Court held that in a case of natural justice upon admitted or indisputable factual position, only one conclusion is possible, a writ of certiorari may be issued. 32. 31 and 32 which are reproduced herein below:- “31. In M.C. Mehta v. Union of India [ (1999) 6 SCC 237 ] this Court held that in a case of natural justice upon admitted or indisputable factual position, only one conclusion is possible, a writ of certiorari may be issued. 32. In State of U.P. v. Harendra Arora [ (2001) 6 SCC 392 : 2001 SCC (L&S) 959] this Court followed, inter alia, Managing Director, ECIL v. B. Karunakar [ (1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704 : AIR 1994 SC 1074 ] and State Bank of Patiala v. S.K. Sharma [ (1996) 3 SCC 364 : 1996 SCC (L&S) 717] and held that an order passed in a disciplinary proceeding cannot ipso facto be quashed merely because a copy of the enquiry report has not been furnished to the delinquent officer, but he is obliged to show that by non-furnishing of such a report he has been prejudiced, would apply even to cases where there is requirement of furnishing a copy of enquiry report under the statutory rules.” 9. By going through the aforesaid judgments and the admitted facts of the case that no enquiry report was handed over to the petitioner and by non-furnishing of enquiry report the petitioner has been prejudiced; the instant writ application deserves to be allowed. The judgments referred by the Respondents are not applicable in the facts and circumstances of this Case. Further, since the case is of 2014 and seven years had lapsed; the ground of alternative remedy in the facts of this case is not accepted. 10. Consequently, the impugned order of punishment dated 09.05.2013 as contained in Memo No.1348 (Annexure-11) and order passed by the appellate authority as contained in Memo No.4433 dated 25.12.2013 (Annexure-12) are, hereby, quashed and set aside. The matter is remitted back to the disciplinary authority to start the proceeding from the stage of serving of enquiry report and proceed in the matter after following the principles of natural justice. 11. It goes without saying that the petitioner shall be reinstated in service and the respondents shall proceed from the stage of serving enquiry report to the petitioner and continue the departmental proceeding. 12. With the aforesaid terms, the instant writ application stands partly allowed.