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Jharkhand High Court · body

2022 DIGILAW 1439 (JHR)

Md. Noor Hassan v. State of Jharkhand

2022-12-22

S.N.PATHAK

body2022
JUDGMENT : Heard the parties. 2. By way of instant writ application, the petitioner has prayed for quashing the order dated 28.08.2015, whereby the petitioner has been held guilty and awarded punishment of censure and withholding of two increments with cumulative effect. Petitioner has further prayed for quashing the order dated 22.12.2015, passed by respondent No. 3. 3. As per the factual matrix, petitioner is a Junior Engineer under Road Construction Department, Ranchi. It is the case of the petitioner that vide order dated 28.06.2013, a departmental proceeding was initiated against the petitioner for his alleged involvement in rate estimate and negotiation, in which the Enquiry Officer after adducing the evidence and detailed enquiry submitted his report exonerating the petitioner from the charges levelled against him. Thereafter, on 11.05.2015, the Disciplinary Authority issued a 2nd show-cause notice without assigning any reason for differing with the report of the Enquiry Officer, in response to which the petitioner submitted his reply denying the charges levelled against him. However, without considering the reply to the 2nd show-cause notice, vide order dated 28.08.2015, the respondent-authority awarded punishment of censure and withholding of two increments with cumulative effect. Against the said order of punishment, the petitioner preferred review which also stood dismissed vide order dated 22.12.2015. 4. In the instant writ petition, the petitioner has thrown challenge to the aforesaid orders. 5. Mr. Gaurav Abhishek, learned counsel appearing for the petitioner vociferously argues that the punishment order is not tenable in the eyes of law. Learned counsel submits that factually petitioner cannot be slapped with the order of punishment since he had no role to play in the entire episode. Learned counsel submits that petitioner is a Junior Engineer and the work and duties of the Junior Engineer has been defined under Rule-51 A, 51 B and 51 C of P.W.D. Code, from which it can be comfortably inferred that petitioner had no role to play. It has been further argued that the petitioner, an obedient government servant, duly participated in the departmental proceeding and none of the charges were proved against him. The Enquiry Officer has exonerated the petitioner from the charges and it was only the Disciplinary Authority, who has inflicted punishment on the ground that enquiry report should be based on evidences and not on conjectures and surmises. The Enquiry Officer has exonerated the petitioner from the charges and it was only the Disciplinary Authority, who has inflicted punishment on the ground that enquiry report should be based on evidences and not on conjectures and surmises. Learned counsel further submits that no evidence has been brought on record by the Disciplinary Authority to prove the involvement of the petitioner in the aforesaid episode. Learned counsel further submits that merely by levelling allegations based on conjectures and surmises, the Disciplinary Authority has deviated from the settled principle of law that without any evidence no charges can be proved. Learned counsel further argues that it is a case of no evidence. Learned counsel further argues that the Disciplinary Authority before differing with the enquiry report ought to have noticed and sought explanation before imposing major penalty. In the aforesaid circumstances, the impugned order is not tenable in the eyes of law and fit to be quashed and set aside. To strengthen his argument, learned counsel for the petitioner places heavy reliance on the judgment of Hon’ble Apex Court in case of M.V. Bijlani Vs. Union of India & Ors., reported in (2006) 5 SCC 88 . 6. Per contra, counter-affidavit has been filed. Mr. Munna Lal Yadav, learned SC (L&C) assisted by Mr. Ashok Kr. Singh, learned counsel appearing for the respondent-State vehemently opposes the contention of learned counsel for the petitioner and submits that petitioner has been found guilty of the charges and as such, rightly he has been awarded punishment. Demonstrating the enquiry report, learned counsel submits that since the enquiry report was based on conjectures and surmises, the Disciplinary Authority was right in annulling the enquiry report and coming with its own finding. Learned counsel submits that punishment of censure and withholding of two increments with cumulative effect is fully justified and no interference is warranted in the impugned order and writ petition being devoid of any merit is fit to be dismissed. 7. Having heard learned counsel for the parties across the bar, this Court is of the considered view that impugned orders warrant interference for the following facts and reasons: (I) The Enquiry Officer has fully exonerated the petitioner from the charges levelled against him. (II) The Disciplinary Authority while differing with the enquiry report has not assigned cogent reasons, rather, his findings are based on conjectures and surmises. (II) The Disciplinary Authority while differing with the enquiry report has not assigned cogent reasons, rather, his findings are based on conjectures and surmises. (III) It was incumbent upon the Disciplinary Authority to assign cogent reason and before inflicting major punishment, he ought to have sought reply from the petitioner as to why not a major punishment be inflicted. 8. The Hon’ble Apex Court in case of Managing Director, ECIL & Ors. v. B. Karunakar & Ors., reported in (1993) 4 SCC 727 has held that: “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.” Further, in case of M.V. Bijlani Vs. Union of India & Ors. (supra) has held that : 25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial 7 i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with. 9. From the ratio laid down by the Hon’ble Apex Court, it can comfortably be inferred that the Disciplinary Authority proceeded on a wrong premises. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with. 9. From the ratio laid down by the Hon’ble Apex Court, it can comfortably be inferred that the Disciplinary Authority proceeded on a wrong premises. Nothing was found against the petitioner and it was a case of no evidence but finding fault with the enquiry report by which the petitioner was exonerated from the charges, the Disciplinary Authority held the petitioner is guilty of the charges and as such, the impugned orders cannot be said to be tenable in the eyes of law. 10. The Hon’ble Apex Court in case of Punjab National Bank & Ors. v. Kunj Behari Misra, reported in (1998) 7 SCC 84 , has held as under: “17. These observations are clearly in tune with the observations in Bimal Kumar Pandit case8 quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the enquiry officer had given an adverse finding, as per Karunakar case the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority. Further the Hon’ble Apex Court in case Apparel Export Promotion Council v. A.K. Chopra, reported in (1999) 1 SCC 759 has observed that, “The order of the Appellate Authority demonstrates total non-application of mind. The Appellate Authority, when the Rules required application of mind on several factors and serious contentions had been raised, was bound to assign reasons so as to enable the writ court to ascertain as to whether he had applied his mind to the relevant factors which the statutes required him to do.” Further, the Hon’ble Apex Court in case of Narinder Mohan Arya Vs. United India Insurance Co. Ltd. & Ors., reported in (2006) 4 SCC 713 has observed that suspicion or presumption cannot take place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain cases. 11. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the impugned orders dated 28.08.2015 and 22.12.2015 are hereby quashed and set aside. 12. Resultantly, the writ petition is allowed with all consequential benefits.