Research › Search › Judgment

Jharkhand High Court · body

2023 DIGILAW 1043 (JHR)

Brahmeshwar Ojha v. State of Jharkhand

2023-08-17

RAJESH SHANKAR

body2023
JUDGMENT : The present writ petition has been filed for quashing the order as contained in memo No. 304 dated 31.07.2012 (Annexure-4 to the writ petition) passed by the respondent No.4 in Force Order No. 1528 of 2012 concerning Departmental Proceeding No. 16/2011 whereby the petitioner has been inflicted punishment of two black marks equivalent to withholding of one increment with non-cumulative effect as well as an amount of Rs.72,511/- has been ordered to be recovered from him by deducting Rs.4,000/- per month from his salary. Further prayer has been made for quashing the order as contained in memo No. 48 dated 08.01.2013 (Annexure-6 to the writ petition) passed by the respondent No.3 in Force Order No. 32 of 2013 whereby the appeal preferred by the petitioner has been rejected. 2. Learned counsel for the petitioner submits that the petitioner was appointed as a Constable in Bihar Military Police on 21.03.1986 in Muzaffarpur district of erstwhile State of Bihar and after bifurcation, he was allocated Jharkhand Cadre. At the time of filing of the present writ petition, he was posted at IRB-02, Chaibasa, Camp-Musabani, East Singhbhum. It is also submitted that an anonymous complaint was made before the respondent No.2 against the petitioner on 26.04.2011 alleging misappropriation of fund collected for medical expenses of injured Police Constable No. 275-Binod Ram. Subsequently, a complaint regarding the same was also made by Binod Ram himself before the respondent No.4. A preliminary enquiry was conducted by the Deputy Superintendent of Police, Jharkhand Armed Police-9, Sahebganj wherein the allegation made against the petitioner was found true. The petitioner represented against the said finding of the Deputy Superintendent of Police, JAP-9, Sahebganj, however, a departmental proceeding vide Departmental Proceeding No. 16 of 2011 was initiated against him and a chargesheet was served to him by the respondent No.4 vide memo No. 1027 dated 21.06.2011 alleging that he did not pay Rs.1.25 Lacs collected by the members of the Police Men’s Association to the injured police, namely, Binod Ram which amounts to indiscipline and dereliction of duty. Thereafter, the petitioner filed reply to the said show cause notice on 30.06.2011 denying the charges levelled against him, however, the Deputy Superintendent of Police, Jharkhand Armed Police-9, Sahebganj being the enquiry officer submitted the report holding the petitioner guilty of the charges levelled against him. 3. Thereafter, the petitioner filed reply to the said show cause notice on 30.06.2011 denying the charges levelled against him, however, the Deputy Superintendent of Police, Jharkhand Armed Police-9, Sahebganj being the enquiry officer submitted the report holding the petitioner guilty of the charges levelled against him. 3. It is further submitted that the respondent No.4 wholly relied upon the report of the enquiry officer and passed the impugned order of punishment of two black marks equivalent to withholding of one increment of the petitioner with non-cumulative effect as well as an amount of Rs.72,511/- was ordered to be recovered from his salary. The respondent No.4 did not serve a copy of the enquiry report to the petitioner so as to provide him an opportunity to controvert the finding of the enquiry officer and straightway passed the impugned order of punishment dated 31.07.2012 which is violative of the principles of natural justice. Aggrieved with the said order, the petitioner preferred an appeal before the respondent No.3 which was registered as Force Order No. 32 of 2013, however, the same was also rejected vide the impugned order dated 08.01.2013. The petitioner thereafter filed memorial of appeal before the respondent No.2, however, he is not aware of the decision taken in the same. 4. According to the petitioner, he has not used even a single penny out of the total collected money for his own benefit. On the oral instruction of the then Commandant, Jharkhand Armed Police-9, Sahebganj and collective decision of all the members of the Police Men’s Association, the collected money was used for construction of Police Men’s Association Building and hence the charge of misappropriation of money by the petitioner is false. Another delinquent, namely, Mukesh Kumar Singh has been exonerated of the charges whereas the petitioner has been made scapegoat and has been awarded major punishment along with recovery of money to the tune of Rs.72,511/- which he had never misappropriated. 5. Learned counsel for the respondents submits that Police Constable No. 275- Binod Ram, JAP-9, Sahibganj met with an accident and contributory amount of Rs.72,511/- was collected for his treatment by the petitioner being the President of Police Men’s Association as well as by others, however, the said amount was not given to Binod Ram. 5. Learned counsel for the respondents submits that Police Constable No. 275- Binod Ram, JAP-9, Sahibganj met with an accident and contributory amount of Rs.72,511/- was collected for his treatment by the petitioner being the President of Police Men’s Association as well as by others, however, the said amount was not given to Binod Ram. On the written complaint of Binod Ram as well as other members of JAP-9, a preliminary enquiry was conducted wherein evidences were collected and thereafter a recommendation for taking necessary action against the petitioner and one Mukesh Kumar Singh was made. On the basis of the said report, the petitioner was served a show cause notice as to why a departmental proceeding be not initiated against him and after finding his reply to be not satisfactory, the same was initiated. The petitioner was given sufficient opportunity of hearing by the enquiry/conducting officer to explain the allegations levelled against him and the impugned order dated 31.07.2012 has been passed after considering his reply as well as on the basis of available evidences and records. Hence, due compliance of the principles of natural justice has been made in the present case. Several witnesses were examined during enquiry, who supported the allegations levelled against the petitioner. He was also provided a copy of the punishment order in which the findings of the conducting officer was already mentioned and hence no prejudice was caused to him. The petitioner was not inflicted punishments in the nature of dismissal, removal or reduction in rank and as such his revision application filed under Rule 853-A of the Bihar Police Manual was not maintainable. Thus, the memorial of appeal preferred by him was also rejected as not maintainable vide order dated 02/03.12.2014. 6. Heard learned counsel for the parties and perused the relevant materials available on record. The petitioner has challenged the order of the disciplinary authority whereby punishment of two black marks has been inflicted upon him equivalent to withholding of one increment with non-cumulative effect as well as for recovery of an amount of Rs.72,511/- has been passed. He has also challenged the appellate order passed by the respondent No.3 whereby his appeal has been rejected. 7. He has also challenged the appellate order passed by the respondent No.3 whereby his appeal has been rejected. 7. The main argument advanced by learned counsel for the petitioner is that the enquiry report submitted by the enquiry/conducting officer was not served to the petitioner by the disciplinary authority before passing the impugned order of punishment so as to afford him an opportunity to controvert the finding of the enquiry officer and on this score alone, the impugned order of punishment is vitiated in law. The appellate authority has also failed to appreciate the said aspect and as such the order passed in appeal is also liable to be set aside. On the other hand, learned counsel for the respondents has contended that the impugned order of punishment has been passed after due compliance of the principles of natural justice. 8. Though the respondents have not denied the claim of the petitioner with regard to non-supply of the enquiry report, yet they have tried to contend that the observation made in the enquiry report was already mentioned in the impugned order of punishment. Moreover, Article 311(2) of the Constitution of India has been amended by the 42nd Amendment and as such there is no need to serve second show cause notice to the delinquent employee before passing the order of punishment. 9. A Bench of this Court vide order dated 27.03.2023, has framed following issues to be adjudicated: (i) Whether the petitioner was prejudiced by non-serving of copy of the enquiry report though a full-fledged departmental enquiry was held and he participated in the same? (ii) Whether in the facts and circumstance and whether before infliction of punishment which is a major punishment as per the petitioner, 2nd show-cause notice was served to petitioner? (iii) Whether this Court should interfere in the punishment order which has been affirmed up to the highest authority i.e. the Director General of Police? 10. All these issues are mixed question of facts and law and as such the same are being decided by this Court conjointly. 11. In the case of Union of India & Ors. Vs. Mohd. Ramzan Khan reported in (1991) 1 SCC 588 , the Hon’ble Supreme Court has held as under: “15. 10. All these issues are mixed question of facts and law and as such the same are being decided by this Court conjointly. 11. In the case of Union of India & Ors. Vs. Mohd. Ramzan Khan reported in (1991) 1 SCC 588 , the Hon’ble Supreme Court has held as under: “15. Deletion of the second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the Forty-second Amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendation, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-second Amendment has not brought about any change in this position.” 12. In the case of Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors. reported in (1993) 4 SCC 727 , a Constitution Bench of the Hon’ble Supreme Court has held as under: “30. The Forty-second Amendment has not brought about any change in this position.” 12. In the case of Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors. reported in (1993) 4 SCC 727 , a Constitution Bench of the Hon’ble Supreme Court has held as under: “30. Hence the incidental questions raised above may be answered as follows: [i] Since the denial of the report of the enquiry officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject. [ii] The relevant portion of Article 311(2) of the Constitution is as follows: “(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.” Thus the article makes it obligatory to hold an inquiry before the employee is dismissed or removed or reduced in rank. The article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311(2) applies only to members of the civil services of the Union or an all-India service or a civil service of a State or to the holders of the civil posts under the Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded and when the enquiry officer is not the disciplinary authority the delinquent employee will have the right to receive the enquiry officer's report notwithstanding the nature of the punishment. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded and when the enquiry officer is not the disciplinary authority the delinquent employee will have the right to receive the enquiry officer's report notwithstanding the nature of the punishment. [iii] Since it is the right of the employee to have the report to defend himself effectively and he would not know in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the report or not, the report has to be furnished to him. [iv] In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the enquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan case should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the enquiry officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly. [v] The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. Hence question (iv) is answered accordingly. [v] The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an “unnatural expansion of natural justice” which in itself is antithetical to justice. 31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.” 13. In the case of Punjab National Bank & Ors. Vs. That will also be the correct position in law.” 13. In the case of Punjab National Bank & Ors. Vs. K.K. Verma reported in (2010) 13 SCC 494 , the Hon’ble Supreme Court has held as under: “32. Thus, the right to represent against the findings in the enquiry report to prove one's innocence is distinct from the right to represent against the proposed penalty. It is only the second right to represent against the proposed penalty which is taken away by the 42nd Amendment. The right to represent against the findings in the report is not disturbed in any way. In fact, any denial thereof will make the final order vulnerable.” 14. In the case of State Bank of India & Ors. Vs. Mohammad Badruddin reported in (2019) 16 SCC 69 , the Hon’ble Supreme Court has held as under: “22. Thus, the requirement of the second show-cause notice of proposed punishment has been dispensed with. The mandate now is only to apprise the delinquent of the inquiry officer's report. There is no necessity of communicating proposed punishment which was specifically contemplated by clause (2) of Article 311 prior to the 42nd Amendment.” 15. The law laid down in the aforesaid cases are summarized as under: (i) The disciplinary authority is obliged to serve enquiry report to the delinquent employee before passing the order of punishment and to provide an opportunity to the delinquent employee to represent against the finding given in the inquiry report. (ii) Even though the second stage of the inquiry mentioned in Article 311(2) of the Constitution has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charges are established and the delinquent has been held guilty of such charges. (iii) Supply of a copy of the inquiry report along with recommendation, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to get the supply of a copy thereof even if the statutory rules do not permit furnishing of the report or are silent on the subject. (iv) The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished and the same would depend upon the facts and circumstance of a particular case. (v) If the report of the enquiry officer is not furnished to the delinquent employee, the Court or Tribunal should cause the copy of the report to be furnished to the aggrieved employee and give the employee an opportunity to satisfy to the Court/Tribunal as to what prejudice has been caused to him due to non-supply of the enquiry report. (vi) If only furnishing of the report would have made a difference to the result in the case, the order of punishment is to be set aside and matter is to be remanded back to the disciplinary authority to continue the proceeding against the delinquent from the stage of furnishing him the report of the enquiry officer. 16. In the present case, the respondents have produced a copy of the enquiry report by filing the second supplementary counter affidavit dated 21.07.2023. On bare perusal of the same, it appears that the enquiry officer has also given his opinion based on the enquiry conducted by him observing inter alia that the charge against the petitioner was for misappropriation of Rs.1,25,000/- whereas on the basis of all evidences and records, it was found that Rs.72,511/- was collected and the said amount was used by him for construction of the Association Building without consent of the other officers of the Association. The enquiry officer has finally observed that the petitioner has been found guilty of the allegation made in the chargesheet. The disciplinary authority while holding the petitioner guilty of the alleged charge, has also relied upon the opinion of the enquiry officer. Thus, this Court is of the view that non-supply of a copy of the enquiry report has seriously prejudiced the petitioner. The appellate authority has also failed to take into consideration the factum of non-supply of a copy of the enquiry report to the petitioner and has decided the appeal preferred by him by primarily relying on the observations made in the enquiry report. 17. The appellate authority has also failed to take into consideration the factum of non-supply of a copy of the enquiry report to the petitioner and has decided the appeal preferred by him by primarily relying on the observations made in the enquiry report. 17. Under the aforesaid facts and circumstances, the impugned order as contained in memo No. 304 dated 31.07.2012 passed by the respondent No.4 in Force Order No. 1528 of 2012 as well as the order as contained in memo No. 48 dated 08.01.2013 passed by the respondent No.3 in Force Order No. 32 of 2013 cannot be sustained in law and the same are hereby quashed. The matter is remanded to the disciplinary authority to issue a fresh show cause notice along with the enquiry report calling upon the petitioner to file his reply on the finding/observation of the enquiry officer in his report and thereafter to pass a final reasoned order after considering the petitioner’s reply. It goes without saying that while taking the said decision, the disciplinary authority will not be prejudiced by his earlier order or the order passed by the appellate authority. 18. The present writ petition is, accordingly, disposed of.