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2024 DIGILAW 354 (JHR)

Tunul Hermrom v. State of Jharkhand

2024-04-04

S.N.PATHAK

body2024
JUDGMENT : S.N. PATHAK, J. Heard learned counsel for the parties. 2. The petitioner has approached this Court with a prayer for issuance of a writ in the nature of certiorari for quashing the order dated 12.04.2023 (Annexure-9), issued by the Joint Secretary, Department of Health, Medical Education and Social Welfare, Government of Jharkhand (Respondent No. 3), whereby under the garb of provisions enshrined under Rule 43(b) of the Jharkhand Pension Rules, 15% pension of the petitioner has been withheld. Further prayer has been made for quashing the Memo No. 425(18) dated 19.12.2023 (Annexure-11) by which the appeal preferred by the petitioner has also been turned down, affirming the order of the Disciplinary Authority. The petitioner has also prayed for payment of entire recovered amount along with interest @ 18% per annum. 3. The case of the petitioner lies in a narrow compass. The petitioner was appointed as a Medical Officer and joined the services on 18.08.1983 and subsequently, retired from the post of Deputy Director, Health Services, Government of Jharkhand, on 30.11.2019. Vide Memo No. 715(18) dated 16.10.2019, a departmental proceeding was initiated against the petitioner by issuance of Prapatra-Ka by the Under Secretary, Department of Health, Medical Education and Family Welfare, Government of Jharkhand. Though the Prapatra-Ka was not approved by the Hon’ble Chief Minister, Jharkhand, notices were issued for conducting the departmental enquiry and the petitioner appeared in the departmental enquiry. After following the procedures, the inquiry officer submitted the enquiry report exonerating the petitioner from charges. The disciplinary authority having not been satisfied by the findings of the inquiry officer, again issued show cause notice on 25.07.2022 regarding fresh enquiry on Charge No. 2. Thereafter a fresh enquiry with respect to charge no. 2 was conducted. However, again the petitioner was not found guilty of the said charge and he was given a clean chit. It is the specific case of the petitioner that without differing with the findings of the inquiry officer and without assigning cogent reason, the disciplinary authority inflicted the punishment of stoppage of 15% pension for life. The petitioner preferred appeal thereagainst before His Excellency, the Governor of Jharkhand. When the appeal was not disposed of, the petitioner moved this Court in W.P.(S) No. 3109 of 2023. However, the said writ petition was disposed of on 11.10.2023 with a direction to take decision on the departmental appeal. The petitioner preferred appeal thereagainst before His Excellency, the Governor of Jharkhand. When the appeal was not disposed of, the petitioner moved this Court in W.P.(S) No. 3109 of 2023. However, the said writ petition was disposed of on 11.10.2023 with a direction to take decision on the departmental appeal. Thereafter, the departmental appeal of the petitioner also came to be dismissed vide Memo No. 425(18) dated 19.12.2023. Having no efficacious and alternative remedy, the petitioner has approached this Court. 4. Mr. Deepak Kumar Prasad, learned counsel appearing for the petitioner vociferously urges that the impugned orders are not tenable in the eyes of law. Learned counsel submits that the petitioner was exonerated by the inquiry officer in a full-fledged departmental proceeding. However, the disciplinary authority having not been satisfied by the findings of the inquiry officer issued a second show cause notice and started a fresh enquiry with respect to charge no. 2. The said charge was also not found to be true and the inquiry officer has given a clean chit to the petitioner. At this stage, he fairly submits that in a case where the enquiry report is in favour of the delinquent employee, still the disciplinary authority has power and jurisdiction to differ with the findings recorded by the inquiry officer and record a tentative reasoning of such difference by supplying the copy thereof to the delinquent employee and thereafter the disciplinary authority can differ with the findings recorded by the inquiry officer and punish the delinquent employee. Learned counsel submits that in the instant case, no settled norms have been adhered to by the disciplinary authority. What has been done is that the disciplinary authority issued notice dated 17.2.2022 in the shape of second show cause notice to simply direct the petitioner on the disagreement of the findings arrived at by the inquiry officer. Learned counsel points out that there is no stipulation in the second show cause notice as to for what reason, the disciplinary authority differs with the findings arrived at by the inquiry officer. Without recording a finding of charges being proved after giving tentative reasons for difference of findings arrived at by the inquiry officer, the punishment order was inflicted by the disciplinary authority. This according to learned counsel for the petitioner is neither sustainable on facts nor on law. Without recording a finding of charges being proved after giving tentative reasons for difference of findings arrived at by the inquiry officer, the punishment order was inflicted by the disciplinary authority. This according to learned counsel for the petitioner is neither sustainable on facts nor on law. He refers the celebrated judgment on this point in the case of Punjab National Bank Vs. Kunj Bihari Misra, reported in (1998) 7 SCC 84 . 5. On the other hand, Mr. Raunak Sahay, learned A.C. to G.P.-V, vehemently opposes the contentions advanced by learned counsel for the petitioner and submits that the petitioner was charged with defalcation of a huge amount. Such person cannot be allowed to continue in the services. Learned counsel referring to the second show cause notice, submits that the disciplinary authority was not in agreement with the findings of the inquiry officer and that is why, the disciplinary authority directed to conduct fresh enquiry with respect to a particular charge. However, learned counsel conceding the fact that nothing has been mentioned regarding difference of the findings returned by the inquiry officer, but it has been asserted that the disciplinary authority was not in agreement with the findings of the inquiry officer and thus, the order of punishment has rightly been passed, since the petitioner was charged with defalcation of a huge amount. Referring to Annexures-E and F of the supplementary counter-affidavit filed on behalf of Respondent Nos. 2 and 3, learned counsel submits that specific reasons have been assigned and it cannot be said that the disciplinary authority has inflicted the punishment without assigning any cogent reasons. Justifying the impugned order, the learned counsel submits that there is no error on the part of the disciplinary authority in awarding the punishment impugned which has been affirmed by the appellate authority too. 6. Having heard the rival submissions of the parties across the Bar, this Court is of the view that the petitioner’s case needs consideration for the following facts and reasons:- (i) Admittedly the petitioner was departmentally proceeded after following the due process of departmental proceeding and in the departmental proceeding, the inquiry officer has exonerated the petitioner from the charges. (ii) The disciplinary authority upon its dissatisfaction with the enquiry report, issued a second show cause notice for fresh enquiry regarding charge No. 2. (ii) The disciplinary authority upon its dissatisfaction with the enquiry report, issued a second show cause notice for fresh enquiry regarding charge No. 2. (iii) Thereafter again in the fresh enquiry, the petitioner was not found guilty of the charge, rather, charge No. 2 was not proved and he was exonerated once again. (iv) In service jurisprudence, particularly in the matter of departmental proceeding, it can safely be held that if the charges are not proved against the delinquent, the disciplinary authority has the power to differ with the findings recorded by the inquiry officer, but before that, it is also incumbent upon the disciplinary authority to give tentative reason of difference of opinion to the findings arrived at by the inquiry officer and after supplying a copy thereof, the punishment can be inflicted upon the delinquent. In the present case, unknown procedure of departmental proceeding was adopted by the authorities, which is contrary to what has been held by the Hon’ble Apex Court in a catena of decisions. (v) In the case of State of Assam Vs. Bimal Kumar Pandit, reported in AIR 1963 SC 1612 , the Constitution Bench of the Hon’ble Apex Court laid down the law in a case where question arose regarding the contents of the second show cause notice when the Government accepts, rejects or partly accepts or partly rejects the findings of the inquiry officer. The relevant paragraphs read as follows:- “We ought, however, to add that if the dismissing authority differs from the findings recorded in the enquiry report, it is necessary that its provisional conclusions in that behalf should be specified in the second notice. It may be that the report makes findings in favour of the delinquent officer, but the dismissing authority disagrees with the said findings and proceeds to issue the notice under Article 311(2). In such a case, it would obviously be necessary that the dismissing authority should expressly state that it differs from the findings recorded in the enquiry report and then indicate the nature of the action proposed to be taken against the delinquent officer. Without such an express statement in the notice, it would be impossible to issue the notice at all. There may also be cases in which the enquiry report may make findings in favour of the delinquent officer on some issues and against him on some other issues. Without such an express statement in the notice, it would be impossible to issue the notice at all. There may also be cases in which the enquiry report may make findings in favour of the delinquent officer on some issues and against him on some other issues. That is precisely what has happened in the present case. If the dismissing authority accepts all the said findings in their entirety, it is another matter: but if the dismissing authority accepts the findings recorded against the delinquent officer and differs from some or all of those recorded in his favour and proceeds to specify the nature of the action proposed to be taken on its own conclusions, it would be necessary that the said conclusions should be briefly indicated in the notice. In this category of cases, the action proposed to be taken would be based not only on the findings recorded against the delinquent officer in the enquiry report, but also on the view of the dismissing authority that the other charges not held proved by the enquiring officer are, according to the dismissing authority, proved. In order to give the delinquent officer a reasonable opportunity to show cause under Article 311(2), it is essential that the conclusions provisionally reached by the dismissing authority must, in such cases, be specified in the notice. But where the dismissing authority purports to proceed to issue the notice against the delinquent officer after accepting the enquiry report in its entirety, it cannot be said that it is essential that the dismissing authority must say that it has so accepted the report. As we have already indicated, it is desirable that even in such cases a statement to that effect should be made. But we do not think that the words used in Article 311(2) justify the view that the failure to make such a statement amounts to contravention of Article 311(2). As we have already indicated, it is desirable that even in such cases a statement to that effect should be made. But we do not think that the words used in Article 311(2) justify the view that the failure to make such a statement amounts to contravention of Article 311(2). In dealing with this point, we must bear in mind the fact that a copy of the enquiry report had been enclosed with the notice, and so, reading the notice in common sense manner, the respondent would not have found any difficulty in realising that the action proposed to be taken against him proceeded on the basis that the appellants had accepted the conclusions of the enquiring officer in their entirety.” (vi) Further law has been laid down by the Hon’ble Apex Court in the case of Managing Director, ECIL Vs. B. Karunakar, reported in (1993) 4 SCC 468, wherein it has been held 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. Relevant para-26 is 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. 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. 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 enquiry, 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 an 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.” (vii) In the case of Ram Kishan Vs. Union of India, reported in (1995) 6 SCC 157 , where the delinquent was proceeded on two charges and the inquiry officer found the first charge not proved and second one partly proved, the disciplinary authority disagreed with the conclusion reached by the inquiry officer and show cause was issued as to why both the charges should not be taken to have been proved, the Hon’ble Apex Court held that merely mentioning some reasons in the final order to disagree with the conclusions reached by the disciplinary authority, such final order cannot cure the defect. Their Lordships in para-10 held, which reads as under:- “10. Their Lordships in para-10 held, which reads as under:- “10. The purpose of the show-cause notice, in case of disagreement with the findings of the enquiry officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the enquiry officer for the reasons given in the enquiry report or he may offer additional reasons in support of the finding by the enquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show-cause on the basis of which the findings of the enquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the enquiry officer. In the absence of any ground or reason in the show-cause notice it amounts to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the disciplinary authority cannot cure the defect.” (viii) In the case of Punjab National Bank Vs. Kunj Bihari Misra, reported in (1998) 7 SCC 84 , wherein the question arises for consideration that when the inquiry officer, during the course of disciplinary proceedings, comes to a conclusion that all or some of the charges alleging misconduct against an official are not proved, then can the disciplinary authority differ from that and give a contrary finding without affording any opportunity to the delinquent officer, Their Lordships relying on the aforesaid judgments held in para-19, which reads as follows:- “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 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. (ix) Since in the instant case, it has been proved that before coming to the finding of the guilt and differing with the enquiry report, neither the disciplinary authority has assigned reasons for such difference nor opportunity of hearing was given to the delinquent employee and on this score itself, the impugned order is not tenable in the eyes of law and is fit to be quashed and set aside. (x) The arguments advanced by learned counsel for the respondents that since the petitioner has been charged for financial embezzlement and the disciplinary authority has inflicted punishment by following the procedures, is not at all accepted by this Court, in view of the settled law laid down by the Hon’ble Apex Court in the above mentioned cases. Lacuna in the departmental proceeding gives benefit to the employee and not to the employer. Of course, the charges are of financial irregularities and twice the matter was enquired into and detailed enquiry was made by the inquiry officer on the direction of the disciplinary authority, but the petitioner was exonerated. It appears that the disciplinary authority was bent upon inflicting punishment to the petitioner and even after two enquiries were made, being not satisfied with the inquiry officer’s report, the disciplinary Authority, without following the procedure, has inflicted punishment upon the petitioner, which is not tenable to the eyes of law. 7. As a sequitur to the aforesaid rules, guidelines and judicial pronouncements, the impugned order passed by the disciplinary authority vide Memo No. 227(18) dated 12.04.2023, as also the order passed by the appellate authority vide Memo No. 425(18) dated 19.12.2023 are hereby quashed and set aside. The respondents are directed to refund the recovered amount, if any, from the pension of the petitioner within a period of eight weeks from the date of receipt of a copy of this order. 8. The respondents are directed to refund the recovered amount, if any, from the pension of the petitioner within a period of eight weeks from the date of receipt of a copy of this order. 8. Resultantly, this writ application stands allowed.