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2022 DIGILAW 34 (JHR)

State of Jharkhand v. Saroj Bala Sinha

2022-01-05

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. CWJC No. 1422 of 1995 was filed by the respondent (who has been substituted by his legal heirs vide order dated 6th September 2016) against the order dated 12th August 1983 by which he was dismissed from service. The writ Court vide order dated 23rd February 2004 set-aside the order of dismissal on the ground that necessary documents were not provided to the charged officer and remitted the matter back to the department for initiating a fresh inquiry by making available necessary documents to him. 2. In WP (S) No. 4676 of 2007, the learned Single Judge of this Court held that inspite of a specific direction passed in CWJC No. 1422 of 1995 necessary documents were not supplied to the charged officer and therefore the order of dismissal dated 21st September 2005 has been passed in breach of the rules of natural justice. A direction was issued to the respondent-State to calculate pensionary benefits of the writ petitioner counting the period between the order of dismissal and the date of his superannuation from service. 3. The State of Jharkhand is in appeal against the order dated 26th November 2014 passed in WP (S) No. 4676 of 2007. 4. In the order dated 26th November 2014, the learned writ Court has held as under: “27. Thus, on the basis of the said judicial pronouncement and on the basis of the basic principle of service jurisprudence a delinquent employee is entitled to be given sufficient opportunity of hearing. Admittedly, in the instant case the earlier order dated 12.8.1983 has been quashed on the ground that the petitioner has not been provided with sufficient and adequate opportunity and the relevant documents have not been provided to him but again the same thing has been repeated by the respondent authorities. However, they have not challenged the order passed in CWJC No. 1422 of 1995 and thereby the order which was passed on 12.8.1983 has been directed to remain as same in the impugned order. However, the respondent authority has exercised the power under section 168(D) of the Bihar Board Miscellaneous Rules but the said rule is not applicable with respect to the petitioner because the same deals with the charges of discharge of temporary Government servant. In the entire pleading the respondent authority has not taken the plea that the petitioner was temporary Government servant. 28. In the entire pleading the respondent authority has not taken the plea that the petitioner was temporary Government servant. 28. In the backdrop of the facts stated herein above, the impugned order dated 21.9.2005 is not sustainable in the eyes of law and as such the same is quashed. Since the petitioner has already superannuated from service, no direction can be given for his reinstatement. However, the intervening period, during which the petitioner was out of service, will be counted for the purpose of pension. So far as claim of back wages is concerned, the State Exchequer cannot be burdened for passing any direction in this regard, but however considering the fact that the petitioner has been put to unnecessary harassment for such a long period and he has been forced to attain age of normal superannuation, hence in peculiar facts of this case, the respondents are directed to pay lump-sum compensation of Rs. Two Lacs to the petitioner within four months from the date of receipt/production of a copy of this order.” 5. In the departmental proceeding, the original respondent (for short, respondent) was served a charge memo containing the following charges: (i) Petitioner while holding post of Ex. Arms Clerk issued a Gun Licence No. 8/75 to Sri Parmanand Upadhya without the orders of the competent authority after forging the signature of District Arms Magistrate Sri R.P. Mukherjee. (ii) Petitioner made interpolation in Col. 5 of Page 92 of Arms Register Vol. 1 by making some entry and forged the initial of the District Arms Magistrate. (iii) Petitioner was the custodian of all arms records, Registers, etc. as Arms Clerk he did not make over the charge of case records of the above Licence No. 276/74 after he was transferred to Keredari. On 23.6.7195 when he was availing E.L. at Hazaribag he was called and ordered to trace out the record in question but he could not trace out the record in question. It was therefore alleged that petitioner deliberately concealed the record in question as he had issued fake licence without obtaining orders of the competent authority. (iv) On 18.1.1975 several arms licences were put for signature of the District Arms Magistrate in the licence Register Vol. 1 which were all signed and returned to office by the District Arms Magistrate. Petitioner managed to get the initial of District Arms Magistrate in Col. (iv) On 18.1.1975 several arms licences were put for signature of the District Arms Magistrate in the licence Register Vol. 1 which were all signed and returned to office by the District Arms Magistrate. Petitioner managed to get the initial of District Arms Magistrate in Col. 8 of Page 92 of the Licence Register by entering subsequently the forged licence of Shri Parmanand Upadhya. Thereby he misguided the District Arms Magistrate and obtained his initial in the above Register fraudulently. (v) Petitioner made false entry in the Arms Act Register against serial 276/74 when there was no such orders of Deputy Commissioner, Hazaribagh. 6. The inquiring officer submitted the inquiry report holding that all the charges were proved. By an order dated 12th August 1983, the respondent was dismissed from service. 7. As noticed above, by an order dated 23rd February 2004 passed in CWJC No. 1422 of 1995 the order of dismissal from service was quashed with the following directions: “8. Taking into consideration the entire facts and circumstances of the case, I am of the opinion that because of non supply of documents to the petitioner, non examination of witnesses and non production of relevant records and also impropriety vitiated the entire departmental proceeding. Consequently, the order of removal of the petitioner from service cannot be sustained in law. 9. For the reasons aforesaid, this writ application is allowed and the impugned order of removal of the petitioner from the service is quashed. The matter is remitted back to the Disciplinary Authority to proceed afresh after supplying the entire relevant documents demanded by the petitioner. 10. It is made clear that because of gravity of the charges petitioner shall not be entitled to salary merely because the order of removal is quashed by this Court. The Disciplinary Authority shall conclude the departmental proceeding within a period of Four months from the date of receipt of copy of this order.” 8. In the fresh departmental proceeding which started pursuant to the aforesaid direction of the writ Court the respondent participated and again sought supply of the documents which he had previously asked for through his letter dated 16th April 2004. 9. The respondent demanded supply of the following documents in the departmental proceeding: 1. In the fresh departmental proceeding which started pursuant to the aforesaid direction of the writ Court the respondent participated and again sought supply of the documents which he had previously asked for through his letter dated 16th April 2004. 9. The respondent demanded supply of the following documents in the departmental proceeding: 1. Copy of entire gun license No. 8/75 along with all the relevant entries mentioned therein including the copy of signature and date of Sri R.P. Mukherjee. 2. Copy of Page 92 of Arms Register, Vol. 1 along with all the entries as shown in allegation No. 2. 3. Copy of the transit register showing the movements of records to D.C. along with particulars entry indicating that the record in question was submitted to D.C. for approval. 4. Copy of the day to day petition register in which the entry about the application of the licensee Sri Parmanand Upadhyay stands recorded. 5. Copy of the case register showing the entry about the record of Case No. 276/74. 6. Copy of representation filed by me for cancellation of my transfer order to Keredari along with office notes with endorsement of the officer......final orders of DC thereon. 7. Copy of license register Page 92 Col. 8 of Vol. 1 alleging about containing the signatures of the Arms Magistrate as shown in allegation No. 4. 8. Copy of the observations of P.P. Hazaribagh and of the Arms Magistrate, Hazaribagh about institution of a criminal case against me with notes submitted by the office with final orders. 9. Copy of letter No. 652 dated 21.7.1975 from the Anchal Adhikari, Hazaribagh addressed to the D.C. Hazaribagh and its reply sent to him by the B.D.O. 10. Copy of the inspection notes recorded by Sri A.U. Sharma, I.A.S. Commissioner, N.C. Dn. Hazaribagh of General Section, Hazaribagh. 11`. 9. Copy of letter No. 652 dated 21.7.1975 from the Anchal Adhikari, Hazaribagh addressed to the D.C. Hazaribagh and its reply sent to him by the B.D.O. 10. Copy of the inspection notes recorded by Sri A.U. Sharma, I.A.S. Commissioner, N.C. Dn. Hazaribagh of General Section, Hazaribagh. 11`. Copy of notice case records with relevant order about the issue of licences to the following persons: (a) Case No. 1/75 Rifle - Sri S.K. Mukherjee (b) Case No. 8/75 Rev - Sri Naresh Deo (c) Case No. 7/75 - Sri Upendra Jha (d) B.L. Gun - Sri Sheo Pukar Tewari Koderma (e) S.P. letter regarding cancellation gun licence of Sri Sheo Pukar Tewari (f) Case No. 12/75 Gun - Sri T.K. Dey (g) Case No. 2/75 Rifle - Sri T.K. Dey (h) Case No. 39/74 Rifle - Sardar Raj Winder Singh (i) Case No. 326/75 Gun - Udai Narain Mishra (j) Case No. 10/74 Rifle - Prem Chand Sharma (k) Case No. 358/74 Gun - S.K. Mishra (l) Case No. 17/74 B.L. - Sri T.K. Lahiri (m) Case No. 307/74 Gun - R.B. Pathak, Ichak (n) Case No. 19/74 Gun - B.B. Choudhary, Bishungarh (o) Copy of case record issuing trade license in form will to Sri B.U. Roy, Hazaribagh 12. Copy of adverse remarks if any in my character roll. 13. Copy of inspection notes of District Arms Section recorded by Sri R.P. Mukherjee, Deputy Collector. 14. Copy of my relieving letter from General Section to Keradari Anchal. 15. Copies of entire case records relating to the issue of Arms Licence No. 6/74, 7/74, 9/71, 10/74 and 11/74 Hazaribagh. 10. The inquiry report dated 06th August 2005 records that the respondent participated in the departmental inquiry and vide letter dated 30th March 1976 he was asked to collect documents. It further appears that in the meantime a criminal case was instituted against respondent and he was taken into custody. 11. Mr. Manish Mishra, the learned GP-V appearing for the State of Jharkhand submits that the respondent was afforded sufficient opportunity to defend himself and the stand taken by him that necessary documents were not provided to him was nothing but a pretension, inasmuch as, the respondent himself was custodian of those documents. 11. Mr. Manish Mishra, the learned GP-V appearing for the State of Jharkhand submits that the respondent was afforded sufficient opportunity to defend himself and the stand taken by him that necessary documents were not provided to him was nothing but a pretension, inasmuch as, the respondent himself was custodian of those documents. The learned State counsel further submits that not only that, the respondent was offered opportunity to collect the documents which he did not collect and before the writ Court took a false stand that those documents were not supplied to him. 12. The disciplinary proceeding against the respondent was governed by the Civil Services (Classification, Control and Appeal) Rules, 1930. 13. Rule 55 of the 1930 Rules reads as under: “Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, no order of dismissal, removal, compulsory retirement or reduction shall be passed on a member of a Service (other than an order based on facts which have led to his conviction in a Criminal Court or by a Court-Martial) unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so direct an oral inquiry shall be held. At that inquiry oral inquiry shall be held as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer, conducting the inquiry may, for special and sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. This rule shall not apply where the person concerned has absconded or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may, in exceptional cases, for special and sufficient reasons to be recorded in writing be waived, where there is a difficulty in observing exactly the requirement of the rule and those requirements can be waived without injustice to the person charged. The full procedure prescribed in this rule need not be followed in the case of a probationer discharged in the circumstances described in Explanation II to rule 49. In such cases, it will be sufficient if the probationer is given an opportunity to show cause in writing against the discharge after being apprised of the grounds on which it is proposed to discharge him and his reply duly considered before orders are passed.” 14. In a departmental proceeding, what is of the utmost importance is that the charged officer must be afforded reasonable opportunity to defend himself. The charged officer may produce his own evidence or may show from the materials produced by the department that on a preponderance of probability it cannot be said the charges are proved against him. It is not in dispute that the respondent did not make a written request for leading oral evidence as indicated under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 nor did he ask the department to produce the Arms Magistrate or the handwriting expert for cross-examination. The whole case of the respondent revolves around a list of documents annexed with letter dated 16th April 2004 by which he allegedly demanded supply of the documents mentioned therein. The inquiry report dated 06th August 2005 categorically records that opportunity was given to the respondent to receive the documents. We further find that one of the charges against the respondent was that he did not handover custody of the documents to any other officer of the department and this charge has also been found proved by the inquiring officer. 15. We further find that one of the charges against the respondent was that he did not handover custody of the documents to any other officer of the department and this charge has also been found proved by the inquiring officer. 15. We have carefully examined the writ Court's record and find that the stand taken by the writ petitioner was not substantiated by any material except the so called letter dated 16th April 2004 written by him to the Ex-Magistrate-cum-Conducting Officer, Hazaribagh. 16. Therefore, the finding recorded by the learned writ Court that as directed by the order dated 23rd February 2004 passed in CWJC No. 1422 of 1995 necessary documents were not provided to the writ petitioner is not supported by the materials on record rather the inquiry report dated 06th August 2005 clearly indicates that the directions issued by the writ Court vide order dated 23rd February 2004 were complied by the department. 17. The learned writ Court has taken pains to refer to various judgments of the Hon'ble Supreme Court on supply of documents to a charged officer. In our opinion, the judgments in Tirlok Nath vs. Union of India and Others, (1967) 1 SLR 759, State of Uttar Pradesh and Others vs. Saroj Kumar Sinha, (2010) 2 SCC 772 and Shaughnessy vs. United States, 197 L Ed 956 are not applicable in the fact situation of the present case, inasmuch as, an opportunity was given to the respondent to receive the documents. 18. By now it is well-settled that a charged employee has no unfettered right to ask for any document on which the department does not intend to place reliance - in many cases the procedure adopted by the department is that the charge officer is permitted to inspect the records. 19. In U.P. State Textile Corporation Ltd. vs. P.C. Chaturvedi, (2005) 8 SCC 211 , the Hon’ble Supreme Court has observed that in absence of showing how the alleged non-supply of documents caused prejudice to workman the same cannot by itself vitiate the enquiry. 20. In SBI vs. Bidyut Kumar Mitra, (2011) 2 SCC 316 , the Hon’ble Supreme Court has observed as under: “40......By now, the legal position is well settled and defined. It was incumbent on the respondent to plead and prove the prejudice caused by the non-supply of the documents. 20. In SBI vs. Bidyut Kumar Mitra, (2011) 2 SCC 316 , the Hon’ble Supreme Court has observed as under: “40......By now, the legal position is well settled and defined. It was incumbent on the respondent to plead and prove the prejudice caused by the non-supply of the documents. The respondent has failed to place on record any facts or material to prove what prejudice has been caused to him.” 21. A bare look at the charges framed against the respondent would disclose that he issued various arms licence by forging signature and fabricating documents. It is well settled that in a departmental proceeding the strict rules of evidence are not followed. It would satisfy the rules of evidence where a reasonable procedure has been adopted by the inquiring officer. Moreover, in a departmental proceeding it is not every error of procedure which would invite interference by the writ Court. It is also well settled that the findings recorded in a departmental proceeding are not open to challenge in a writ proceeding unless it is proved that such findings are perverse. 22. In Syed Yakoob vs. K.S. Radhakrishnan, AIR 1964 SC 477 explaining the power of judicial review of the writ Court under Article 226 of the Constitution of India, the Hon'ble Supreme Court has held that only in cases where penalty has been inflicted upon the delinquent officer either in breach of the rules of natural justice or in breach of the extant rules a writ of certiorari shall lie. It has been further held that if it is found that an authority legally vested with jurisdiction has arrived at a conclusion which is reasonably supported by the evidence laid during the departmental enquiry, the High Court would not exercise its jurisdiction in a manner as if it is a Court of Appeal. 23. In paragraph-7 of the reported judgment, it has been held as under: “7.......A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. 23. In paragraph-7 of the reported judgment, it has been held as under: “7.......A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be......” 24. On the quantum of punishment, we are satisfied the punishment awarded to the respondent was not excessive nor disproportionate to the charges found proved against him. 25. The later developments in service jurisprudence are that the Court can apply Wednesbury test to the order of punishment and if it is found that the penalty order suffers from arbitrariness or irrationality the Court can interfere with the same. In Ranjit Thakur vs. Union of India, (1987) 4 SCC 611 , the Hon'ble Supreme Court has observed that the punishment order should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. 26. The Hon'ble Supreme Court has observed as under: “25......The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review....” 27. Irrationality and perversity are recognised grounds of judicial review....” 27. In State of Meghalaya vs. Mecken Singh N. Marak, (2008) 7 SCC 580 , the Hon'ble Supreme Court has observed as under: “14. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of the High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review.....” 28. In view of the aforesaid discussions, we are unable to uphold the order dated 26th November 2014 passed in WP (S) No. 4676 of 2007 and, accordingly, it is quashed. 29. LPA No. 674 of 2015 is allowed.