Research › Search › Judgment

Jharkhand High Court · body

2024 DIGILAW 182 (JHR)

Usha Rani v. State of Jharkhand

2024-02-20

SANJAY PRASAD

body2024
JUDGMENT : Sanjay Prasad, J. This writ petition has been filed on behalf of the petitioner for quashing the order of punishment dated 21.11.2016, as contained in the Order passed vide Memo No. 3132 (Annexure-14 to this writ application), whereby punishment of “reduction to lowest scale of the cadre” has been awarded to the petitioner passed after conclusion of the departmental proceeding and for a direction upon the respondents to release the entire arrears of salary and the entire consequential benefits, which has been withheld due to the order of punishment dated 21.11.2016 2. Heard Mr. Saurav Shekhar, learned counsel for the petitioner and Mrs. Vandana Singh, learned Sr.S.C.-III, learned counsel for the State. 3. Learned counsel for the petitioner has submitted that the impugned order dated 21.11.2016 is illegal, arbitrary and not sustainable in the eye of law. It is submitted that the order of punishment dated 21.11.2016 has been passed in violation of principles of natural justice and without examining any witness. It is submitted that the Departmental Proceeding has been initiated vide order contained in Memo No. 1393 dated 20.09.2007 (Annexure-4) and Charges were framed against him on 30.8.2007 and which was served upon her on 30.8.2007 and the enquiry was conducted and the enquiry officer held that the petitioner is guilty in respect of Charge 1 and 2 without examination of any witness and without proving any document as exhibit. It is submitted that the departmental proceeding was initiated on the same set of charges, facts and evidences as available in the criminal prosecution pending against the petitioner and therefore, instead of waiting for the final outcome of the criminal case and by forcing the conclusion of the departmental proceeding, the respondents have attempted to make the petitioner to disclose her defence, which was to be raised in the criminal proceeding, which is not permissible in the eye of law. In support of his contention, learned counsel for the petitioner relied upon the judgment passed by the Hon’ble Supreme Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Others reported in 1998 (8) SCC 1 and judgment passed in the case of Commr. of Police v. Jai Bhagwan reported in (2011) 6 SCC 376 . It is submitted that neither the complainant Tavita Khalkho nor other witness, namely Balkishun Sahu had been examined. Registrar of Trade Marks, Mumbai & Others reported in 1998 (8) SCC 1 and judgment passed in the case of Commr. of Police v. Jai Bhagwan reported in (2011) 6 SCC 376 . It is submitted that neither the complainant Tavita Khalkho nor other witness, namely Balkishun Sahu had been examined. It is submitted that even the D.S.P. has not been examined during the Department Proceeding and merely on the basis of the documents, the enquiry officer has held the petitioner guilty for the charges against her. It is further submitted that in the light of the law laid down by the Hon’ble Supreme Court, the impugned order of punishment may be set aside and the respondents may be directed to pay the entire arrears of salary to the petitioner with all consequential benefits. 4. On the other hand, learned counsel for the State has submitted that the writ petition is not maintainable and devoid of merit. Learned counsel for the respondents has further submitted that the petitioner has not availed of the remedy of statutory appeal and the petitioner should have preferred appeal before the Appellate Authority. It is further submitted that the petitioner has wrongly stated in Para 35 of the writ petition that she has got no other equally efficacious or alternative remedy but to move before this Court. It is submitted that the petitioner was caught red handed for taking the amount in question and as such, she has been rightly been held guilty by the Enquiry Officer while concluding Departmental Proceeding against her. It is further submitted that the examination of the complainant or any witness in the departmental proceeding is not required. It is further submitted that since the respondent has raised a plea of non-maintainability of the writ petition and as such, detailed counter affidavit has not been filed. It is submitted that there is no violation of the principles of natural justice and due opportunity was given to petitioner to defend her case. It is further submitted that since the respondent has raised a plea of non-maintainability of the writ petition and as such, detailed counter affidavit has not been filed. It is submitted that there is no violation of the principles of natural justice and due opportunity was given to petitioner to defend her case. It is submitted that the Departmental Proceeding was initiated against the petitioner under Section 55 of the Civil Services (Classification, Control and Appeal) Rule, 1930 and in the said rule there is a provision of Departmental appeal against the order of punishment passed by the Disciplinary Authority, however, the petitioner, without availing that alternative remedy of filing a departmental appeal, has directly filed this writ petition and hence the same may be dismissed. 5. In reply, the learned counsel for the petitioner has submitted that as the impugned order was communicated by the Respondents under the order of the His Excellency, the Governor of Jharkhand (Annexure 14) and as per Clause 9 of Part I of the rules of Executive Business published vide G.S.R. 3 dated 16th of January, 1979, she under the bonafide impression has not filed the appeal as the Council was said to be collectively responsible for all advice tendered to the Governor and all the Executive orders have been issued in the name of the Governor in accordance with these rules. Therefore, as the issuance of impugned order was issued in the name of the Governor and hence, appeal was not required to be filed. 6. Perused the record of this case and considered the submission of both the sides. 7. It transpires that the petitioner was appointed as Child Development Project Officer (CDPO), after competing in B.P.S.C. Thereafter, she was performing her duties. The petitioner at the time of the framing of charges in PRAPATRA ‘KA’ and when decision for initiation of departmental proceeding was taken and also at the time of incident, she was posted as CDPO, Mandar, Ranchi & she, at present, is serving as CDPO, posted at Churchu Block, District Hazaribagh. While the petitioner was serving as CDPO, Mandar, FIR has been lodged against the petitioner (i.e. Annexure-2) for the alleged offence of illegal gratification and pursuant to which Vigilance P.S. Case No. 13 of 2006 was instituted under Section 9/13 of the Prevention of Corruption Act. 8. While the petitioner was serving as CDPO, Mandar, FIR has been lodged against the petitioner (i.e. Annexure-2) for the alleged offence of illegal gratification and pursuant to which Vigilance P.S. Case No. 13 of 2006 was instituted under Section 9/13 of the Prevention of Corruption Act. 8. As per the said F.I.R., the petitioner is said to have demanded a bribe from the Anganbari Sewika Smt. Tabitha Khalkho and on the basis of such complaint made before the Superintendent of Police, Vigilance Bureau, Ranchi, one raid was conducted and the petitioner was caught red handed accepting bribe of Rs.5,000/-from the said Tabitha Khalkho. Petitioner was arrested on the same day, i.e. on 27.11.2006. Thereafter the petitioner moved one Bail Application, i.e. B.A. No. 9133 of 2006 and she was granted bail by order of the Co-ordinate Bench of this Court, vide order dated 20.12.2006. The petitioner was kept under suspension from the date of arrest till 23.12.2006, after which suspension order was revoked vide order dated 04.05.2007 (i.e. Anneuxre-3) and further decision has been taken that the period of service, during suspension, shall be regularized on the conclusion of the criminal prosecution. 9. On the basis of the letter sent by the Vigilance Department to the Respondent-Department, it was decided that the departmental proceeding has to be initiated against the petitioner, and this decision was taken vide order passed in the name of the Governor of Jharkhand, contained in memo no. 1393 dated 20.09.2007. The petitioner was also served with memo of charge/PRAPATRA ‘KA’. The photocopies of office order dated 20.09.2007 along with a copy of memo of charge/PRAPATRA KA’ are enclosed as Annexure-4 series. 10. It transpires that charge as contained in PRAPATRA ‘KA’ alleges illegal gratification of Rs.5,000/-and on the basis of communication of the Vigilance Department and the allegation in the memorandum of charge contained in PRAPATRA ‘KA’ is replica of the allegations made out in the FIR. 11. The petitioner replied to the said communication and made a demand for the list of necessary documents and witnesses to be examined. The petitioner further submitted in her reply submitted on 02.11.2007 (i.e. Annexure-5) that the departmental proceeding must be stayed, as because a criminal case on the same set of charges is already going on. 12. 11. The petitioner replied to the said communication and made a demand for the list of necessary documents and witnesses to be examined. The petitioner further submitted in her reply submitted on 02.11.2007 (i.e. Annexure-5) that the departmental proceeding must be stayed, as because a criminal case on the same set of charges is already going on. 12. The Petitioner was again served with a notice to present a reply, since another Inquiry Officer was appointed and it was decided to reinitiate the inquiry, and in this relation, notice was served upon the petitioner on 10.09.2010 (i.e. Annexurre-7) The Petitioner submitted her reply on 07.11.2010 (i.e. Anneuxre-8) to the notice dated 10.09.2010 and also demanded for the list of witnesses and documents from the Inquiry Officer, but the same was not supplied to her. The Inquiry Officer passed an Order on 16.05.2011 (i.e. Annexure-9), to keep the departmental proceeding in abeyance for the second time. 13. The petitioner was again served with a notice to present a reply for the third time as another Inquiry Officer was appointed and it was decided to reinitiate the inquiry and notice was served upon the petitioner on 15.01.2015, to which the petitioner submitted her reply. Photocopies of the notice dated 15.01.2015 and reply, are being enclosed as Annexure-10 (Series). 14. Thereafter, final report was submitted before the respondent on 07.09.2015, and this report was made available to the petitioner vide second show cause notice dated 04.12.2015. Photocopies of the covering letter along with the final inquiry report dated 07.09.2015 and second show cause notice dated 04.12.2015, are enclosed as Annexure-12 & 12/1 respectively. 15. The petitioner submitted her reply on 21.12.2015 (i.e. Annexure-13) to the second show cause notice dated 04.12.2015. Thereafter, no notice on proposed punishment was served upon the petitioner, and the punishment order was passed on 21.11.2016 (i.e. Annexure-14). 16. It also appears that before passing of the order of punishment, opinion from Public Service Commission was not sought for and the petitioner was not intimated before passing of the punishment order. 17. So far as maintainability of the instant writ petition is concerned, it has been held by the Hon’ble Supreme Court in the case of Whirlpool Corporation Vs. It also appears that before passing of the order of punishment, opinion from Public Service Commission was not sought for and the petitioner was not intimated before passing of the punishment order. 17. So far as maintainability of the instant writ petition is concerned, it has been held by the Hon’ble Supreme Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Others reported in 1998 (8) SCC 1 , at Para 15 as follows:- Para 15:-Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field. 18. It transpires that the writ petition was admitted by a Co-ordinate Bench of this Court on 26.9.2022. Therefore, availing of the alternative remedy of appeal is not required to be decided at this stage now. 19. It is well settled from the judgment of the Hon’ble Supreme Court reported in 1998 (8) SCC 1 that the alternative remedy is not a bar for the High Court to entertain a matter where the punishment order has been passed in the Departmental Proceeding in violation of Principles of natural justice and in the present case, the punishment order has been passed without examining any witness and without marking any document as an Exhibit is illegal and amounts to be passed in violation of the principles of natural justice. 20. 20. It has been held in the case of Roop Singh Negi Versus Punjab National Bank and Others reported in (2009) 2 SCC 570 , at Para-23 as follows:- “Para-23:-Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.” 21. It has also been held by the Hon’ble Supreme Court in the case of Commr. of Police v. Jai Bhagwan reported in (2011) 6 SCC 376 at Para 16 as follows:- “Para 16:-It also seems quite impracticable to presume that in the presence of so many passengers, the respondent could have extorted money. The allegation of receiving Rs. 100 as illegal gratification is framed on suspicions and possibilities while trying to link it up with the instance of returning back of Rs. 100 by the respondent to the complainant. There are many other shortcomings in the entire investigation and the enquiry like the statement of Mrs Ranjana Kapoor was not recorded by the Inspector and the Inspector also did not take down in writing and also attest the complaint made by her. The statement of S.P. Narang was also not recorded by the Inspector nor did the Inspector seize Rs. 100 note nor noted down its number. Mr Narang was also not examined during the course of departmental proceedings. The statement of S.P. Narang was also not recorded by the Inspector nor did the Inspector seize Rs. 100 note nor noted down its number. Mr Narang was also not examined during the course of departmental proceedings. Non-examination of the complainant and P.S. Narang during the departmental proceeding has denied the respondent of his right of cross-examination and thus caused violation of Rule 16(iii) of the Delhi Police (F&A) Rules, 1980.” 22. In the present case also the enquiry officer has failed to examine the complainant-Tavita Khalkho and the D.S.P., who is the I.O. of the case. 23. In view of the discussions made above and the law laid down by the Hon’ble Supreme Court, the impugned order of punishment dated 21.11.2016, as contained in the Order passed vide Memo No. 3132 (i.e. Annexure-14 to this writ application) is set aside and consequentially, it is held that the petitioner is entitled to her arrears of salary with consequential benefits. 24. Thus, this writ petition is allowed.