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2023 DIGILAW 502 (JHR)

Raj Kishore Prasad v. State of Jharkhand

2023-04-11

RAJESH SHANKAR

body2023
ORDER : 1. The present writ petition has been filed for quashing the notification no. 8717(S) dated 23.09.2013 issued under the signature of the Deputy Secretary, Road Construction Department, Government of Jharkhand the respondent no. 4, whereby the petitioner has been inflicted punishment of censor and stoppage of three annual increments with cumulative effect. Further prayer has been made for quashing notification no. 6419(S) dated 28.08.2014 issued by the Under Secretary, Road Construction Department- respondent no. 3, whereby the order dated 23.09.2013 passed by the respondent no. 4 has been affirmed. 2. Learned counsel for the petitioner submits that the petitioner was appointed as Research Assistant in Road Construction Department, Supaul Division, Bihar on 7-7-1981 and he superannuated from service on 31.08.2016 from the post of Assistant Director, Quality Control, National Highway Division, Hazaribag. A departmental proceeding was initiated against the petitioner when he was posted as Assistant Director, Quality Control (Road Sub-Division), National Highway Division, Medininagar, Daltonganj as informed by the respondent no. 5 to the respondent no. 4 vide letter as contained in memo no. 2473 dated 20.12.2007, levelling various charges of irregularities committed by him while discharging the duty on the said post at Giridih with a recommendation to take disciplinary action against the petitioner. Accordingly, a memo of charge was also served to him by the respondent no. 4 on 28.01.2008, particularly, for not handing over some measurement books to his successor in post, for conspiring in disappearance of some articles from the laboratory, for submitting fabricated enquiry report for a certain period and also for unauthorized absence from the present place of posting. Thereafter, a departmental enquiry was initiated against the petitioner in which one Navin Kumar, In-charge Superintending Engineer, Advance Planning Circle, Road Construction Department, Ranchi was appointed as Conducting Officer and one Satrughan Mishra, the then Under Secretary, Road Construction Department was appointed as Presenting Officer. The Conducting Officer submitted inquiry report vide letter no. 628 dated 05.11.2012, however, the said inquiry report was kept in abeyance by the respondent no. 4 stating that the same was incomplete and vague. Thereafter, a direction was issued by the respondent no. 4 vide memo no. The Conducting Officer submitted inquiry report vide letter no. 628 dated 05.11.2012, however, the said inquiry report was kept in abeyance by the respondent no. 4 stating that the same was incomplete and vague. Thereafter, a direction was issued by the respondent no. 4 vide memo no. 745 (S) dated 29.01.2013 for conducting 2nd inquiry by appointing Pramod Kumar Singh, (Special Rationing Officer, Ranchi) as Conducting Officer and Ashok Kumar Thakur, Section Officer, Road Construction Department, Ranchi as Presenting Officer in terms with the order passed by the State Government. The petitioner submitted his reply on 07.08.2013, denying the charges levelled against him. However, 2nd inquiry report was submitted by the said Conducting Officer on 18.5.2013 in which the charges levelled against the petitioner were found true and, thereafter, vide notification no. 8717 (S) dated 23.09.2013 an order was passed against him inflicting punishment of censor and stoppage of three annual increments with cumulative effect. The petitioner then preferred an appeal on 20.03.2014 before the Governor of Jharkhand, through the respondent no. 2, however, the same was rejected vide notification no. 6419(s) dated 28.08.2014 issued under the signature of the respondent no. 3, affirming the order of punishment passed against him. 3. Learned counsel for the petitioner further submits that the impugned order dated 23.09.2013 is void ab-initio as the respondent no. 4 has imposed punishment by getting second departmental inquiry conducted by appointing another Inquiry Officer without passing any final order upon the first departmental inquiry report submitted vide letter no. 628 dated 05.11.2012. The impugned order of punishment is absolutely arbitrary, unjust and illegal, since both minor and major punishments were imposed against the petitioner under the same memo of punishment, which is violative of the rules of the departmental proceeding. The respondents have committed grave error in law by shifting onus upon the petitioner to disprove the charges levelled against him, whereas the disciplinary authority was duty bound to see as to whether the charges levelled against the delinquent employee (the petitioner) has duly been proved. Moreover, the 2nd inquiry report was not given to the petitioner, causing serious prejudice to him. 4. Per contra, learned counsel for the respondents contends that the respondent no. Moreover, the 2nd inquiry report was not given to the petitioner, causing serious prejudice to him. 4. Per contra, learned counsel for the respondents contends that the respondent no. 5 had submitted an inspection report recommending initiation of disciplinary proceeding against the petitioner with the allegation of not handing over some measurement books to his successor in post, for making conspiracy in disappearance of some articles from the laboratory, for submitting fabricated enquiry report to Building Division, Giridih and Special Division, Giridih vide several letters sent in the year 2003 and 2004 without depositing revenue as well as for unauthorized absence from the present place of posting. On the basis of said recommendation, a departmental proceeding against the petitioner was initiated in which enquiry report was submitted by the Conducting Officer. The disciplinary authority did not agree with the said enquiry report, since it was incomplete and vague. Thereafter, Pramod Kumar Singh, Special Rationing Officer, Ranchi was appointed as new Conducting Officer who submitted second inquiry report on 18.5.2013, mentioning that five charges out of six against the petitioner were found proved and rest one was partly proved. 5. It is also submitted that after considering the said inquiry report, a second show cause notice was issued to the petitioner by the respondent no. 4 along with a copy of inquiry report vide letter no. 6077 (S) WE dated 27.06.2013. The petitioner submitted his reply reiterating similar facts, which were already presented before the Conducting Officer in the departmental proceeding. As such, the disciplinary authority has rightly passed the impugned order of punishment as contained in notification dated 23.09.2013. The appeal preferred by the petitioner was also dismissed by the appellate authority vide order as contained in the notification dated 28.08.2014. 6. Heard the learned counsel for the parties and perused the materials available on record. The petitioner has challenged the impugned order of punishment primarily on two grounds; first is that the charges were not proved by the Conducting Officer in the first inquiry, however, the same was not accepted by the disciplinary authority without any cogent ground and ordered for conducting second enquiry by appointing another Conducting officer on whose report the punishment was inflicted upon the petitioner. The other ground is that the disciplinary authority has inflicted both major and minor punishments by the same impugned order, which is arbitrary, illegal and violative of the rules of departmental proceeding. 7. So far the first ground is concerned; the learned counsel for the petitioner puts reliance on the judgment rendered by a Co-ordinate Bench of this Court in the case of Swami Bibhu Deo vs. State of Jharkhand and Others, W.P. (S) No. 1248 of 2013. In the said case, the charges against the delinquent employee were not proved in the first inquiry report and, thereafter, a fresh inquiry was conducted by another officer and the order of punishment was passed on the basis of the subsequent inquiry report. It has been observed in the said judgment that no reason was recorded in the impugned order while disagreeing with the report of the first inquiry officer except that the government had decided to disagree with the finding recorded by the inquiry officer. It has been held that only in cases where the inquiry report suffers from some technical lacuna, a de novo inquiry can be conducted and in all other cases, only further inquiry can be conducted into the matter and not a fresh inquiry altogether. Learned Bench has also referred a judgment rendered by the Hon’ble Supreme Court in the case of Nand Kumar Verma vs. State of Jharkhand and Others, (2012) 3 SCC 580 , wherein it has been held that there can be only one inquiry in respect of a charge for a particular misconduct, however if for some technical or other good ground, procedural or otherwise, the first inquiry or punishment or exoneration is found bad in law, a second inquiry can be initiated. The Bench finally quashed the impugned order of punishment against the petitioner of that case. 8. The fact of the present case is similar to the case referred hereinabove. This Court is also in respectful agreement with the view taken by the Co-ordinate Bench in the aforesaid case. If in a particular case some technical lacuna or other such infirmity is found in the earlier enquiry, a de novo inquiry may be conducted. However, in all other cases, only further inquiry can be ordered if warranted. This Court is also in respectful agreement with the view taken by the Co-ordinate Bench in the aforesaid case. If in a particular case some technical lacuna or other such infirmity is found in the earlier enquiry, a de novo inquiry may be conducted. However, in all other cases, only further inquiry can be ordered if warranted. Mere dissatisfaction of the disciplinary authority with the enquiry report is not a sufficient ground to order de-novo inquiry, rather there has to be a strong ground for the same. If no restriction is put in ordering second inquiry, there will be every possibility that in those cases where the inquiry is in favour of the delinquent employee, the disciplinary authority will change the inquiry officer for making fresh enquiry and submitting another inquiry report as per his wish. Such practice will frustrate the principles of natural justice as also the fair procedure for awarding punishment in departmental proceeding. 9. Even if the claim of the respondents to the extent that the 1st inquiry report was incomplete and vague, is accepted as true, then also the same could have been a ground to order further inquiry by the same inquiry officer on certain aspects so as to submit inquiry report on additional issue, but certainly not to order for conducting second de novo inquiry that too by another enquiry officer. Thus, the impugned order vitiates on this score alone and there is no need to go into the second argument of learned counsel for the petitioner. 10. In view of the aforesaid discussions, the impugned order as contained in notification no. 8717(S) dated 23.09.2013 (Annexure-5 to the writ petition) issued under the signature of the respondent no. 4 as well as the order as contained in notification no. 6419(S) dated 28.08.2014 (Annexure-7 to the writ petition) issued under the signature of the respondent no. 3 affirming the order passed by the disciplinary authority (respondent no. 4) are hereby quashed. 11. The writ petition is, accordingly, allowed.