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2023 DIGILAW 1129 (JHR)

Jai Prakash Singh v. State of Jharkhand

2023-09-11

RAJESH SHANKAR

body2023
JUDGMENT : The present writ petition has been filed for quashing the order as contained in memo No. 36 dated 13.02.2001 (Annexure-6 to the writ petition) issued under the signature of the respondent No.3 by the order of the respondent No.4 imposing following punishments upon the petitioner:- (i) Verification of up-to-date distribution of Red Cards/deposited amount as well as recovery of undistributed Red Cards be done and the collected amount which has not been deposited by the petitioner, be recovered from him with 12% interest and the same be deposited in the treasury. (ii) Since the charges levelled against the petitioner regarding indiscipline, arbitrariness and negligence in distribution of Red Cards/deposit of collected amount have been proved, his two increments with non-cumulative effect are being withheld. (iii) Period of unauthorized absence of the petitioner be treated as without salary. (iv) Nothing will be paid to the petitioner, except subsistence allowance during the period of suspension. (v) The petitioner’s suspension is being revoked with direction to enter all the remarks in his service-book. 2. Learned counsel for the petitioner submits that the petitioner, after being transferred from Block Office, Hazaribagh, was posted as Panchayat Sewak at Chauparan Block since September, 1996, however, his LPC and service-book were not sent due to which his salary remained withheld since September, 1996. He while having charge of Dadpur Village Panchayat, was put under suspension w.e.f. 03.07.1999 and was served a memo of charge in ‘’Prapatra K” issued under the joint signatures of the respondent Nos. 4, 5 & 6 alleging that he was handed over 87 Red Cards for distribution, however, the same were not distributed by him till 03.07.1999. It was further alleged that the petitioner was found unauthorizedly absent during the visit of the respondent No.5 at Chouparan Block Office on 03.07.1999 and some persons of the aforesaid Panchayat had also made complaint regarding dereliction of duty on his part. Thereafter, Ram Suchit Sharma, Executive Magistrate, Barhi was appointed as enquiry officer vide memorandum as contained in memo No. 166 dated 08.11.1999 issued by the respondent No.4. 3. Thereafter, Ram Suchit Sharma, Executive Magistrate, Barhi was appointed as enquiry officer vide memorandum as contained in memo No. 166 dated 08.11.1999 issued by the respondent No.4. 3. The petitioner submitted his reply before the enquiry officer on 18.12.1999 against the charges levelled against him whereafter the enquiry officer submitted his report dated 28.03.2000 to the respondent No.4 stating that the allegations levelled against the petitioner were not found proved and thus departmental proceeding initiated against him might be dropped by revoking his suspension. However, the respondent No.4 did not accept the said enquiry report observing that the same was superficial and that the enquiry officer exonerated the petitioner with prejudiced mind. 4. Thereafter, another enquiry officer namely, Kailash Mishra, Executive Magistrate, Hazaribagh was appointed by the order of the respondent No.4 vide memo No. 262 dated 17.08.2000 issued under the signature of the respondent No.3. The respondent No.6 was also assigned the work of the presenting officer vide aforesaid order mentioning that the said authority did not properly perform the entrusted responsibility of the presenting officer in the said departmental proceeding and he was warned to properly perform his duty by presenting all evidences before the enquiry officer. The petitioner as well as the presenting officer were issued notices by the 2nd enquiry officer. The petitioner however stated before the 2nd enquiry officer that his earlier reply might be accepted whereafter he submitted the enquiry report on 29.12.2000 stating that the charges levelled against the petitioner were found proved and also observing that the petitioner showed apathy, negligence and dereliction of duty. Thereafter, the impugned order dated 13.02.2001 was passed against the petitioner on the direction of the respondent No.4. 5. It is further submitted that no show cause notice was served to the petitioner by the respondent No.4 asking him to respond to his tentative points of difference with the finding of the 1st enquiry officer. The enquiry report submitted by the 2nd enquiry officer was also not served to the petitioner so as to give him an opportunity to counter the observations made in the same. Moreover, the respondent No.4 committed serious illegality in appointing the 2nd enquiry officer without any cogent reason. 6. The enquiry report submitted by the 2nd enquiry officer was also not served to the petitioner so as to give him an opportunity to counter the observations made in the same. Moreover, the respondent No.4 committed serious illegality in appointing the 2nd enquiry officer without any cogent reason. 6. Per-contra, learned counsel for the respondents submits that the petitioner remained absent from duty and did not participate in several weekly meetings as mentioned in the memo of charge (‘’Prapatra K’’) without taking any leave or seeking permission and thus he was in habit of remaining absent without leave. Moreover, it was a matter of subjective satisfaction of the respondent No.4 to re-appoint another conducting officer and there was no need to supply copy of the enquiry report submitted by the 1st enquiry officer which was not found satisfactory by the respondent No.4. 7. Heard learned counsel for the parties and perused the relevant materials available on record. The primary argument of learned counsel for the petitioner is that since the 1st enquiry report was in favour of the petitioner, he was entitled to be served a show cause notice by the respondent No.4 against his tentative points of difference with the finding of the enquiry officer. However, the respondent No.4, without providing any opportunity of hearing to the petitioner, differed with the finding of the 1st enquiry officer and appointed the 2nd enquiry officer. 8. To appreciate the said contention of learned counsel for the petitioner, I have perused the judgment rendered by the Hon’ble Supreme Court in the case of Punjab National Bank & Ors. Vs. Kunj Behari Misra reported in (1998) 7 SCC 84 , wherein it has been held as under:- “17. These observations are clearly in tune with the observations in Bimal Kumar Pandit case [ AIR 1963 SC 1612 ] 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 [ (1993) 4 SCC 727 ] 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. If the enquiry officer had given an adverse finding, as per Karunakar case [ (1993) 4 SCC 727 ] 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, 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. 18. Under Regulation 6, the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of enquiry as explained in Karunakar case [ (1993) 4 SCC 727 ]. 19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). 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.” 9. In the case of Lav Nigam Vs. Chairman & MD, ITI Ltd. & Anr. reported in (2006) 9 SCC 440 , the Hon’ble Supreme Court framed the question to be decided as to whether the appellant was entitled to be served a notice from the disciplinary authority to show cause against his tentative points of difference with the finding of the enquiry officer. Their Lordships, after citing the judgment of Kunj Behari Misra (Supra), held as under:- “13. Their Lordships, after citing the judgment of Kunj Behari Misra (Supra), held as under:- “13. We have already quoted the extracts from the show-cause notice issued by the disciplinary authority. It is clear that no notice at all was given before the disciplinary authority recorded its final conclusions differing with the finding of fact of the inquiry officer. The notice to show cause was merely a show-cause against the proposed punishment. In view of the long line of authorities, the decision of the High Court cannot be sustained. The appeal is accordingly allowed and the decision of the High Court is set aside.” 10. It is well settled that if the enquiry report is in favour of the delinquent employee, he deserves to be served a notice from the disciplinary authority to show cause against his tentative points of difference with the finding of the enquiry officer. Thus, the decision of the respondent No.4 to differ with the finding of the 1st enquiry officer without providing an opportunity of hearing to the petitioner is in the teeth of the judgments referred hereinabove. The petitioner has also challenged appointment of the 2nd enquiry officer by the respondent No.4 contending that the same has been done by the said disciplinary authority without any cogent reason. 11. In the present case, it appears that the respondent No.4 had a preconceived notion with regard to the observation made by the respondent No.5 during his visit to Chouparan Block about the alleged irregularities committed by the petitioner and hence he did not accept the enquiry report submitted by the 1st enquiry officer. The said aspect suggests that there was a perception in the mind of the respondent No.4 that the 1st enquiry officer acted in a prejudiced manner and inquired the matter superficially. The respondent No.4 was expecting that the enquiry report of the 1st enquiry officer would be against the petitioner, however, having found the same not as per his expectation, he appointed another enquiry officer. 12. In the case of Vijay Shankar Pandey Vs. Union of India & Anr. reported in (2014) 10 SCC 589 , the Hon’ble Supreme Court has held that the report submitted by the enquiry officer which is not acceptable to the disciplinary authority, is not a ground to completely brush aside the enquiry report and to order a second enquiry. 13. In the case of Vijay Shankar Pandey Vs. Union of India & Anr. reported in (2014) 10 SCC 589 , the Hon’ble Supreme Court has held that the report submitted by the enquiry officer which is not acceptable to the disciplinary authority, is not a ground to completely brush aside the enquiry report and to order a second enquiry. 13. This Court is of the considered view that there was no good reason with the respondent No.4 to appoint 2nd enquiry officer. Even if it is assumed that the enquiry report of the 1st enquiry officer was not appropriate, the respondent No.4 could have pointed out the deficiencies in the said enquiry report and directed the 1st enquiry officer to submit further report on the points highlighted by him. 14. Otherwise also, it is evident that subsequent to the second enquiry, the enquiry report was not served to the petitioner and the respondent No.4 straightway passed the impugned order of punishment. 15. 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. 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.” 16. 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 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. 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. [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. 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. 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. 17. 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. 17. 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.” 18. 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.” 19. It may thus be construed that though the second show-cause notice with respect to proposed punishment as mentioned in Article 311(2) of the Constitution of India has been dispensed with by the 42nd amendment, the disciplinary authority is still required to serve the enquiry report to the delinquent employee before passing the order of punishment so as to provide an opportunity to him/her to represent against the finding given in the enquiry report. 20. In the present case, the respondent No.4, by not serving copy of the second enquiry report to the petitioner before passing the impugned order of punishment, also violated the principles of natural justice. The manner in which the respondent No.4 proceeded to decide the allegations levelled against the petitioner suggests that he acted prejudicially as well as by-passed the settled principles of law laid down by the Hon’ble Supreme Court which is highly reprehensible. A bundle of errors has been committed by the respondent No.4 while passing the impugned order of punishment. 21. An authority of the State, who is empowered to act as a disciplinary authority, is required to act fairly, objectively and correctly. A bundle of errors has been committed by the respondent No.4 while passing the impugned order of punishment. 21. An authority of the State, who is empowered to act as a disciplinary authority, is required to act fairly, objectively and correctly. An officer like Deputy Commissioner of a district must not lower down the credibility of the public office, rather he must maintain trust and confidence in the public office which is imperative for good governance. His primary duty is to sustain the trust reposed in him in the best possible manner. The principle of reasonableness and non-arbitrariness in governmental action is the core of the Constitutional scheme as well as the administrative structure. 22. Undoubtedly, the present writ petition has been filed after about 15 years of passing of the impugned order of punishment, however, this Court finds it appropriate to ignore the said delay for doing substantial justice to the petitioner as grave injustice has been caused to him due to arbitrary procedure adopted by the respondent No.4 in conducting the disciplinary proceeding against him. 23. In view of the aforesaid discussions, the impugned order as contained in memo No. 36 dated 13.02.2001 issued under the signature of the respondent No.3 by the order of the respondent No.4 is hereby quashed. Since it is evident from the conduct of the respondent No.4 that his intention was to somehow punish the petitioner, this Court does not think it appropriate to remand the matter to the disciplinary authority to consider the matter afresh that too after two decades as the same will be a futile exercise. 24. The present writ petition is, accordingly, allowed.