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2021 DIGILAW 521 (JHR)

Amarjeet Kumar Sahu v. State of Jharkhand

2021-07-14

S.N.PATHAK

body2021
ORDER : S.N. Pathak, J. Heard the parties. 2. The present writ petition has been filed for quashing the disciplinary order dated 5.1.2014 contained in Memo No. 29 passed by Deputy Commissioner, Giridih, whereby the petitioner has been inflicted the punishment of Censure and withholding of two increments with cumulative effect, as also for quashing of appellate order dated 1.10.2018, whereby the Divisional Commissioner, North Chotanagpur Division, Hazaribag affirmed the penalty order. 3. Shorn of unnecessary details, the material facts of the present writ are that a revenue camp was organized on 20.4.2011 at Village-Chapuadih, Bengabad Circle. In the said camp, the presence of higher officials of the Block level was essentially required, but they did not appear. The petitioner, being the Revenue Karamchari, attended the camp on the verbal direction of the higher officials. As the camp was organized after effective publicity through notice, newspaper and banners, a large number of villagers attended the camp. Since all the revenue registers were kept on table in public place and the petitioner being busy with receiving mutation applications, someone took away Volume-I and Volume-II of the Revenue Register-II. Upon roving search when no clue was found whereabouts the records, a certificate to this effect was issued by the village representatives. The petitioner also submitted a written information to the concerned police station regarding the said incident. On the same day i.e. 20.4.2011, the petitioner informed the Circle Officer about the incident in details through the Circle Inspector vide Annexure-1. Upon transfer, the petitioner while handed over the charge to his successor Sri Avinash Kumar, clearly stated in the charge report that Volume-I and II of Register-II of Village-Chapuadih got lost in revenue camp. Thereafter the matter was reported to the Addl. Collector, Giridih and in turn, the Addl. Collector issued a show cause notice to the petitioner on the point of missing of the said documents and not giving proper information to Circle Officer to the effect. The petitioner replied to the show cause notice in detailed, as stated above. 4. On the basis of the aforesaid incident, the petitioner was subjected to departmental proceeding pursuant to memo of charge served upon him by order contained in Memo No. 246 dated 8.2.2013, whereby Inquiry Officer and Presenting Officer were appointed. The petitioner explained the unfortunate circumstances prevailing at the revenue camp in his reply dated 13.3.2013. 4. On the basis of the aforesaid incident, the petitioner was subjected to departmental proceeding pursuant to memo of charge served upon him by order contained in Memo No. 246 dated 8.2.2013, whereby Inquiry Officer and Presenting Officer were appointed. The petitioner explained the unfortunate circumstances prevailing at the revenue camp in his reply dated 13.3.2013. The Presenting Officer being the Circle Officer submitted his comments to the Inquiry Officer denying the grounds taken by the petitioner in the show cause. After exhaustive enquiry, the Enquiry Officer submitted his findings vide Memo No. 5653 dated 27.8.2013 to the Disciplinary Authority. The Enquiry Officer in its enquiry report duly recorded the finding that soon after the incident of missing the documents in revenue camp, the petitioner reported the matter first to the local police, as also to the village representatives and thereafter to the Circle Officer. Even on charge report, the petitioner has clearly mentioned all these incidents. The Enquiry Officer held that missing of said revenue documents from crowded camp is only a circumstantial incident, in which, the petitioner has no conspiratorial role and he has not suppressed the incident and therefore, recommended for minor punishment. Though a second show cause notice was issued on 19.11.2013, which the petitioner replied, but the Disciplinary Authority imposed the major punishment, as above, vide Memo No. 29 dated 5.1.2014. Thereafter, the appeal that was preferred by the petitioner before the Divisional Commissioner, North Chotanagpur Division, Hazaribag was also dismissed by order dated 1.10.2018. Being aggrieved, the petitioner has knocked the door of this Court. 5. Learned counsel for the petitioner strenuously argues that the disciplinary order as also the appellate are neither sustainable in law nor on facts, inasmuch as, the enquiry officer on evaluation of the evidences has clearly held that missing of revenue records is a circumstantial incident and there is no conspiratorial role of the petitioner in the incident and therefore, recommended for stern warning against the petitioner. Learned counsel submits that without considering the points raised by the petitioner, the disciplinary authority has inflicted the punishment of stoppage of two increments that too with cumulative effect, which is not commensurate to the nature of misconduct. Learned counsel placing reliance upon the decision of the Hon'ble Apex Court in the case of Punjab National Bank & Ors. Vs. Learned counsel submits that without considering the points raised by the petitioner, the disciplinary authority has inflicted the punishment of stoppage of two increments that too with cumulative effect, which is not commensurate to the nature of misconduct. Learned counsel placing reliance upon the decision of the Hon'ble Apex Court in the case of Punjab National Bank & Ors. Vs. Kunj Bihari Mishra, reported in (1998) 7 SCC 84 submits that whenever the disciplinary authority disagrees with the findings arrived at by the enquiry officer, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent an opportunity to represent. Learned counsel accordingly submits that it is a fit case in which the orders passed by the disciplinary authority, as affirmed by the appellate authority be quashed and set aside by this Court on the ground that they are arbitrary, discriminatory, contrary to law and violative to the principles of natural justice. 6. On the other hand, learned counsel representing the respondents, has opposed the prayer of the petitioner and submits that the impugned order of punishment, as affirmed by the appellate authority, are just and reasonable. The petitioner was afforded reasonable opportunity and after adhering to the principles of natural justice, the departmental proceeding culminated into the punishment upon the petitioner, and as such, there was no procedural irregularity. Learned counsel submits that missing / loss of revenue records is a serious misconduct and there is reasonable doubt about involvement of the petitioner in the incident, which cannot be ruled out. Learned counsel submits that the Presenting Officer in his comments dated 11.6.2013 has specifically stated that the petitioner did not inform the higher officials soon after the incident and the petitioner might have caused disappearance of the records. Learned counsel submits that in view of the deliberate negligence for keeping the revenue records in safe custody, the punishment awarded to the petitioner is too meagre, rather, it ought to be a major one. 7. Be that as it may, having heard the learned counsel for the parties across the Bar, this Court is of the considered view that the case of the petitioner needs consideration. 7. Be that as it may, having heard the learned counsel for the parties across the Bar, this Court is of the considered view that the case of the petitioner needs consideration. Admittedly, a revenue camp was organized in the village, flashing notice/news into the concerned area, in which the presence of the higher officials of the Block, including the Circle Officer was necessary, but due to some reasons, they did not appear. The petitioner, being the Revenue Karamchari of the concerned area, faced the situation and did the work related to him, wherein the unfortunate incident occurred. The enquiry officer on appreciation of the entire materials on record specifically held that missing of revenue documents is a circumstantial incident and no conspiratory role was played by the petitioner. The petitioner with the help of local village representatives searched the records and then reported it to the concerned police station as also to the Circle Officer on the same day vide letter dated 20.4.2011. Therefore, the enquiry officer recommended for warning to the petitioner, but the disciplinary authority without differing with the findings arrived at by the enquiry officer and recording its own tentative finding and providing opportunity to the petitioner to defend on such finding/charge, imposed the penalty of stoppage of two increments with cumulative effect, which was also affirmed by the appellate authority in its order dated 1.10.2018. Stoppage of two increments with cumulative effect is a major punishment in the service Rules, whereby the service conditions of the petitioner are governed. In the present case, the disciplinary authority has acted in a mechanical way without going through the enquiry report. 8. The Hon'ble Apex Court in plethora of judicial pronouncements held that law is equally well settled and the scope of judicial review against the findings given by the enquiry officer and the punishment imposed in the disciplinary proceeding is very limited. The only question that is required to be seen is whether the disciplinary proceeding has been conducted in a fair manner, and in accordance with law. The Hon'ble Supreme Court in the case of Bank of India & Anr. Vs. Degala Suryanarayana's, reported in 1999 (3) SCR 824 , held as under: "10. The law is well settled. The Disciplinary Authority on receiving the report of the Enquiry Officer may or may not agree with the findings recorded by the latter. The Hon'ble Supreme Court in the case of Bank of India & Anr. Vs. Degala Suryanarayana's, reported in 1999 (3) SCR 824 , held as under: "10. The law is well settled. The Disciplinary Authority on receiving the report of the Enquiry Officer may or may not agree with the findings recorded by the latter. In case of disagreement, the Disciplinary Authority has to record the reasons for disagreement and then to record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the Enquiry Officer for further enquiry and report." 9. The Hon'ble Apex Court in Kunj Behari Misra's case (supra) held as under: "19.....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." 10. As a sequel to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the impugned order dated 5.1.2014 passed by the Disciplinary Authority, imposing the punishment of stoppage of two increments with cumulative effect, as contained in Annexure-9 series to the writ petition, as well as the order dated 1.10.2018 passed by the Appellate Authority, dismissing the appeal of the petitioner, as contained in Annexure-10 to the writ petition, are hereby, quashed and set aside. 11. However, the fact remains that though no conspiracy in the incident was proved in the enquiry report against the petitioner, but it is an admitted fact that the petitioner, being the custodian of the revenue record, cannot escape from his responsibility. 11. However, the fact remains that though no conspiracy in the incident was proved in the enquiry report against the petitioner, but it is an admitted fact that the petitioner, being the custodian of the revenue record, cannot escape from his responsibility. Therefore, the matter is remitted back to the disciplinary authority to take a fresh decision on the quantum of the punishment against the petitioner in view of the enquiry report. 12. This writ petition is accordingly disposed of with the above directions and observations.