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2023 DIGILAW 681 (JHR)

Jitendra Munda v. State of Jharkhand

2023-05-11

RAJESH SHANKAR

body2023
JUDGMENT : 1. The present writ petition has been filed for quashing the resolution as contained in memo No. 7041 dated 08.06.2012 (Annexure-10 to the writ petition) issued by the Deputy Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, Ranchi by which punishment of withholding two increments with non-cumulative effect has been inflicted upon the petitioner. 2. The petitioner, vide order dated 01.09.2014 passed in I.A. No. 3806/2014, was permitted to amend the writ petition seeking challenge to the appellate order dated 10.04.2013 communicated vide memo No. 3184 dated 11.04.2013 by which the original order of punishment dated 08.06.2012 of withholding two increments with non-cumulative effect was upheld. 3. Learned counsel for the petitioner submits that the petitioner was posted as the Circle Officer, Circle-Chanho, District-Ranchi during the period from 08.07.2011 to 24.01.2013. The order dated 21.04.2011 passed by the Deputy Collector Land Reforms, Ranchi in S.A.R. (Land Restoration) Case No. 483 of 1996-97 was issued to the then Circle Officer, Chanho vide memo No. 1296(ii) dated 09.06.2011 which was placed before him on 27.06.2011 for execution of the same by delivering possession of the land in question to Suleman Oraon and others after dispossessing Angna Oraon and others. The Deputy Collector Land Reforms, Ranchi issued a reminder to the Circle Officer, Chanho (the petitioner herein) vide letter No. 1590(ii) dated 12.07.2011 to carry out execution of the said order within two days. Accordingly, the order dated 21.04.2011 was executed by the petitioner on 01.08.2011 between 13.00 Hrs. to 14.00 Hrs. and only thereafter one of the affected parties submitted an application before him on 01.08.2011 at 16.20 Hrs. enclosing a copy of order of the Deputy Commissioner, Ranchi dated 28.07.2011 passed in S.A.R. Appeal Case No. 33 R 15/11-12 whereby the operation of the order dated 21.04.2011 passed by the Deputy Collector Land Reforms, Ranchi was stayed. Immediately after receipt of the order dated 28.07.2011, the petitioner took initiative on the same day to restore the possession of the land in question in favour of the affected parties. Though the petitioner had complied both the orders of the Deputy Collector Land Reforms, Ranchi as well as the Deputy Commissioner, Ranchi, however, an explanation was sought from the petitioner vide letter No. 8038 dated 16.12.2011 issued under the signature of the Deputy Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, Ranchi. Though the petitioner had complied both the orders of the Deputy Collector Land Reforms, Ranchi as well as the Deputy Commissioner, Ranchi, however, an explanation was sought from the petitioner vide letter No. 8038 dated 16.12.2011 issued under the signature of the Deputy Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, Ranchi. The petitioner submitted his explanation on 31.03.2012 which was examined by the Deputy Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, Ranchi, who recommended the respondent No.2 to exonerate the petitioner, however, the said respondent decided to obtain comments of the Deputy Commissioner, Ranchi. Thereafter, the Deputy Commissioner, Ranchi sent his comment on the basis of the report of the Sub-Divisional Officer, Sadar, Ranchi stating that the show cause reply filed by the petitioner was not satisfactory as well as that he had failed to discharge his duty while executing the order dated 28.07.2011 passed in Appeal Case No. 33 R 15/11-12. Finally, vide the impugned resolution as contained in memo No. 7041 dated 08.06.2012, the petitioner was imposed punishment of withholding two increments with non-cumulative effect. The petitioner preferred appeal against the impugned resolution dated 08.06.2012 before the Governor, State of Jharkhand, Ranchi, however, the same was also rejected vide order dated 10.04.2013 issued under the signature of the Deputy Secretary, Department of Personnel, Administrative Reforms and Rajbhasa, Government of Jharkhand on the ground that no new fact was brought by the petitioner and decision to reject the appeal of the petitioner was taken by the Advisory Council in its meeting held on 22.03.2013. It is further submitted that the petitioner has been made to suffer for such an act which he never committed, rather he has been victimised due to unfair and prejudiced decision taken by the respondent authorities. The impugned resolution of punishment has been issued against the petitioner in a mechanical manner without considering the explanation submitted by him. 4. Per-contra, learned counsel for the respondents submits that the petitioner had disobeyed the order of stay passed by the Deputy Commissioner, Ranchi and implemented the order passed by the Court of the Deputy Collector Land Reforms and thus he had acted as an obstacle in the statutory process. 4. Per-contra, learned counsel for the respondents submits that the petitioner had disobeyed the order of stay passed by the Deputy Commissioner, Ranchi and implemented the order passed by the Court of the Deputy Collector Land Reforms and thus he had acted as an obstacle in the statutory process. The impugned resolution of punishment has been issued after due examination of the explanation submitted by the petitioner and hence the same needs no interference of this Court under extraordinary writ jurisdiction. 5. Heard learned counsel for the parties and perused the relevant materials placed on record. 6. Thrust of the argument of learned counsel for the petitioner is that the impugned resolution of punishment has been issued without application of mind and considering the explanation submitted by the petitioner. 7. On perusal of record, it appears that the petitioner in his explanation dated 31.03.2012 addressed to the Deputy Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, Ranchi had specifically pleaded that in execution of the order passed in S.A.R. (Land Restoration) Case No. 483/96-97, the Circle Inspector/concerned Revenue Karamchari/Anchal Amin in presence of Armed Police Force got the possession of the land in question delivered to Suleman Oraon and others (the applicants of the said case) on 01.08.2011 between 1 P.M to 2 P.M whereas on the same date at 4.20 P.M, an application was filed on behalf of Rama Oraon (one of the appellants of S.A.R. Appeal Case No. 33 R 15/11-12) requesting to postpone handing over possession of the land in question till 18.08.2011 annexing a copy of the order dated 28.07.2011 passed by the Court of the Deputy Commissioner, Ranchi in S.A.R. Appeal Case No. 33 R 15/11-12 whereby it was directed that the order of the lower Court would not be effective till further order. Thus, the specific case of the petitioner is that he was not aware of the interim order dated 28.07.2011 passed by the appellate Court in S.A.R. Appeal Case No. 33 R 15/11-12 when the possession of the land in question was being handed over to Suleman Oraon i.e. between 1 P.M to 2 P.M on 01.08.2011, rather for the first time, he could know about the said order which was annexed with the application filed by Rama Oraon and Agna Oraon on 01.08.2011 at 4.20 P.M. 8. It however appears from the report of the Sub-Divisional Officer, Sadar, Ranchi as contained in letter No. 2118 dated 27.09.2011, which was made part of the report submitted by the Deputy Commissioner, Ranchi to the respondent No.2 vide his letter No. 147(i) dated 14.05.2012 in response to letter No. 3814 dated 20.04.2012 issued by the Deputy Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, Ranchi that the order dated 28.07.2011 passed in the said appeal was communicated to the Deputy Collector Land Reforms, Sadar, Ranchi vide memo No. 2049 (ii) dated 28.07.2011 as well as to the Circle Officer, Chanho by annexing the said order with the notices to be served to the concerned parties vide memo No. 2047(ii) dated 28.07.2011 and the service report of those notices to the concerned parties was communicated by the Circle Officer, Chanho through letter No. 290(ii) dated 10.08.2011. 9. On the one hand, the petitioner claims that the order dated 28.07.2011 was not communicated to him, on the other hand, the respondents claim that the same was communicated to the petitioner. Thus, there is a factual dispute with regard to time and date of service of copy of the interim order dated 28.07.2011 passed by the Deputy Commissioner, Ranchi to the Circle Officer, Chanho, Ranchi i.e. the petitioner herein. 10. In the case of Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors. reported in (1993) 4 SCC 727 , the Hon’ble Supreme Court has held as under:- “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. 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. 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.” 11. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it.” 11. The disciplinary authority was therefore required to come to its own finding on the basis of the enquiry report, consideration of evidence and the explanation of the delinquent employee i.e. the petitioner so as to ensure that at the relevant point of time he being the Circle Officer, Chanho, Ranchi was in receipt of a copy of the interim order passed by the appellate Court and to find out whether he deliberately violated the same by handing over the possession of the land in question to Suleman Oraon & Ors. [the petitioners of S.A.R. (Land Restoration) Case No. 483/96-97]. 12. However, on perusal of the impugned resolution as contained in memo No. 7041 dated 08.06.2012, it appears that the disciplinary authority has not discussed the said aspect at all, rather has only observed that the explanation submitted by the petitioner as well as the report of the Deputy Commissioner, Ranchi were examined and has thereafter imposed punishment of withholding two increments with non-cumulative effect upon the petitioner. It appears from the report of the Sub-Divisional Officer, Ranchi that he had accepted the oral evidence of some of the witnesses to the effect that the order of stay passed by the appellate authority was shown to the petitioner, however, he failed to comply the same. This Court is of the view that once the petitioner had denied the said claim of the opposite parties, it was incumbent upon the disciplinary authority to call for sufficient documentary evidence in this regard before rejecting the petitioner’s factual stand. It is thus evident that the impugned resolution dated 08.06.2012 suffers from non-application of mind and hence the same cannot be sustained in law. 13. Accordingly, the impugned resolution as contained in memo No. 7041 dated 08.06.2012 issued by the Deputy Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, Ranchi is hereby quashed and set aside. 14. The appellate authority has also not considered the said aspect in his order dated 10.04.2013 communicated vide memo No. 3184 dated 11.04.2013 (Annexure-12 to the writ petition) and hence the same is also quashed and set aside. 15. 14. The appellate authority has also not considered the said aspect in his order dated 10.04.2013 communicated vide memo No. 3184 dated 11.04.2013 (Annexure-12 to the writ petition) and hence the same is also quashed and set aside. 15. Since the orders of punishment were passed by the disciplinary as well as the appellate authority in the year 2012 & 2013 respectively, the Court does not find it appropriate to remand the matter to the disciplinary authority to pass a fresh order in this regard. 16. The present writ petition is, accordingly, allowed.