Jharkhand High Court

Dr. Rashmi Singh vs The State Of Jharkhand Through The ... on 13 April, 2021

                    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                       W.P.(S).No. 4346 of 2020
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            Dr. Rashmi Singh                         ...    ...     ...         ...Petitioner
                                              -Versus-

1. The State of Jharkhand through the Chief Secretary, Government of Jharkhand, Project Building, HEC Town, Dhurwa, Ranchi

2. The Secretary, School Education and Literacy Department, Government of Jharkhand, MDI Building, HEC Township, Dhurwa, Ranchi

3. The Director (Secondary Education), School Education and Literacy Department, Government of Jharkhand, MDI Building, HEC Township, Dhurwa, Ranchi

4. The District Establishment Committee through the District Education Officer, Dhanbad, DEO Office, Dhanbad

5. The Deputy Commissioner, Dhanbad

6. The District Education Officer, Dhanbad ... ... ....Respondents

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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK (Through: Video Conferencing)

For the Petitioner :

Mr. Ajit Kumar, Sr. Advocate Mr. Samir Sahay, Advocate For the Respondents: Mrs. Vandana Singh, Sr. SC-III

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05/ 13.04.2021 Heard the parties.

2. Petitioner has approached this Court with a prayer for quashing the order contained in memo No.2323 dated 17/18.11.2020 issued by the respondent No.6, whereby and whereunder, the petitioner has been imposed with major punishment of stoppage of three increments with cumulative effect. Further, prayer has been made for a direction upon the respondents to pay the petitioner entire consequential benefits including full payment of salary for the period of suspension with penal interest of 18 % after quashment of the aforesaid impugned order. Further, prayer has been made for quashing the Letter No. 1911 dated 06.08.2018 issued by the respondent No.6, whereby and whereunder the petitioner has been transferred from G.N.M. School, Katrash Garh, Dhanbad to Girls High School, Gomoh, by way of punishment.

3. The factual exposition as has been delineated in the writ petition is that petitioner was appointed on 26.07.2010, as an Assistant Teacher of English Subject at Dhanbad. Vide order dated 05.08.2016, the District Education Officer, Dhanbad sent the petitioner on deputation to Butto Kristo Roy Memorial Girl's High School, Katrasgarh, Dhanbad and as such, she was relieved from G.N.M+2 High School, Katrasgarh on 08.08.2016 however same was cancelled vide office order No. 656 dated 07.04.2017 issued by the District Education Officer, Dhanbad on the direction of the Deputy Commissioner, Dhanbad and thus her

services was repatriated to G.N.M+2 High School, Katrasgarh, Dhanbad and relieving letter to that effect was issued to her on 08.04.2017. In compliance thereto, the petitioner gave her joining as Assistant Teacher in G.N.M. Teacher+2 High School, Katrasgarh, Dhanbad. It is further case of the petitioner that vide order dated 29.01.2018, the District Education Officer, Dhanbad nominated the petitioner as Incharge, Headmaster of the said School. During her entire service career, no proceeding has ever been initiated against the petitioner and she has performed her duties to the utmost satisfaction of the respondent authorities. However, without any information all of sudden, she has been transferred from G.N.M. +2 High School, Katrasgarh, Dhanbad to Girls High School, Gomoh vide office order dated 06.08.2018 issued by the District Education Officer, Dhanbad, alleging therein that on 30.07.2018 during the school hours an Assistant Teacher of her school namely Mr. Gautam, had instructed the students to bring some bamboo for school work, which is an irresponsible and ignorant act on the part of Mr. Gautam and Incharge Head Mistress of the school and it is also a 'proof' that Incharge Head Mistress of the school is not complying with the departmental instructions and subsequently she was relieved from G.N.M.+2 High School, Katrasgarh vide order 07.08.2018 issued by the District Education Officer, Dhanbad with a direction to join the transferred place on 08.08.2018 failing which strict action shall be taken against her. It is further the case of the petitioner that one Rajni Sharma, who is the President of Jharkhand Young Students Union has also filed a complaint case before the Child Welfare Committee, Dhanbad against the petitioner vide CWC Case No. 358 of 2018. However vide order dated 29.08.2018 the Child Welfare Committee has given clean chit to the petitioner holding therein that allegations leveled against the petitioner to be baseless and far from the truth and to the best knowledge of the petitioner, the said order has attained finality.

4. It is further the case of the petitioner that after joining the transferred place i.e. Girls High School, Gomoh she filed a representation before the District Education Officer, Dhanbad on 01.09.2018 and 18.09.2018 respectively for revocation of transfer order taking plea that the Child Welfare Committee, Dhanbad has already passed an order holding therein that allegation leveled against the petitioner is totally baseless and far from truth. On, 22.09.2018, the petitioner again filed a representation before the District Education Officer, Dhanbad stating therein that she has already handed over charge on 31.08.2018 to the present Head Mistress, Smt. Rekha Kumari. On 05.10.2018, an inspection report-cum-show cause was served to the petitioner stating therein that during her

tenure as Incharge Head Mistress of G.N.M +2 High School Katrasgarh, Dhanbad, several irregularities have been found and why not an appropriate proceeding be taken against her and petitioner was directed to reply within 3 days. Pursuant thereto, petitioner filed a detailed reply on 08.10.2018 refuting charges leveled against her. However, on 04.02.2019, the petitioner was served another show cause regarding irregularities during her regime as Inchage Head Mistress of G.N.M.+2 High School, Katrasgarh, which is more or less replica of the earlier show cause dated 05.10.2018. Pursuant to the same, the petitioner on 19.02.2019 filed detailed reply. However, without considering the reply of the petitioner, she was suspended by the District Education Officer vide order dated 23.09.2019,. Thereafter, District Education officer, Dhanbad vide letter 13.11.2019 instructed the petitioner to remain present before the authority along with proof of innocence on 19.11.2019. Pursuant to the same, the petitioner appeared before the authority and produced evidences in her defense. The petitioner has rebutted and filed point wise reply to each and every allegation leveled against her by the District Education Officer, Dhanbad. It is specific case of the petitioner that a departmental proceeding was initiated against the petitioner, charges were framed and memo to that effect was served to the petitioner on 22.10.2019. The petitioner cooperated in the proceeding and appeared before the Enquiry Officer. The Enquiry Officer, after considering every aspects of the matter, submitted his detailed enquiry report on 14.05.2020, with a specific finding that none of the charges levelled against the petitioner have been proved. It is the specific case of the petitioner that the Disciplinary Authority without differing with the enquiry report and without issuance of second show- cause notice, passed the order of major punishment i.e. impugned order dated 17/18.11.2020.Aggrieved by the same, the petitioner has knocked the door of this Hon'ble Court for redressal of her grievances.

5. Mr. Ajit Kumar, learned Sr. counsel assisted by Mr. Sameer Sahai, Advocate appears on behalf of the petitioner and submits that the action of the respondents in passing the impugned orders is arbitrary, illegal, unconstitutional and in violation of principle of natural justice. The impugned orders are fit to be quashed and set aside on the ground that Enquiry Officer has fully exonerated the petitioner from the charges levelled against her by giving a detailed enquiry report but the disciplinary authority, without differing with the reasoned enquiry report and also without giving second show-cause notice, passed the impugned order in violation of Article 311 (2) of the Constitution. Learned counsel further submits that the punishment orders are cryptic, as the disciplinary authority has

neither applied his own independent mind nor considered the reply submitted by the petitioner, before passing the impugned orders. He further submits that the action of the respondents in passing the transfer order dated 06.08.2018, by way of punishment is not permissible in the eyes of law. The petitioner is entitled for full salary for the period of suspension in terms of the Rule 97 of Jharkhand Service Code after quashment of the aforesaid impugned orders. Learned Sr. counsel places heavy reliance on the following judgments of this Court as well as Hon'ble Apex Court:

I. Birju Prasad Vs. The State of Jharkhand & Ors.{ W.P.(S) No.4649 of 2016}.

II. Lalit Oraon Vs. State of Jharkhand, reported in 2019 SCC Online Jhar

279. III. Nirmala J. Jhala Vs. State of Gujarat & Anr., reported in (2013) 4 SCC

301. IV. Punjab National Bank & Ors. Vs. Kunj Behari Misra, reported in (1998) 7 SCC 84.

6. On the other hand, Mrs. Vandana Singh, learned counsel appearing for the respondent-State vehemently opposes the contention of the learned Sr. counsel for the petitioner and submits that without exhausting the alternative remedy of Appeal available with the Petitioner, she has directly rushed to this Hon'ble Court and as such, this writ petition is liable to be dismissed in limine. She further argues that since the incident took place due to negligent attitude in Incharge Head Mistress of the School and Head Mistress has not followed the departmental instructions and as such, it was necessary to take action against the petitioner and subsequently she was transferred on administrative ground from the said school to Girl's High School, Gomo. She further submits that the reply of the petitioner was not found satisfactory and in her reply to the second show cause, she herself had admitted and confessed the fact that she had put her signature on the cheque for payment and the books were also loaded on her vehicle.

7. Be that as it may, having gone through the rival submissions of the parties and upon perusal of the records, this Court is of the considered view that the case of the petitioner needs consideration for the following facts and reasons: (I) None of the charges levelled against the petitioner has been proved in the Departmental Proceedings and the Enquiry Officer has fully exonerated the petitioner from all the charges.

(II) The Disciplinary Authority without differing with the findings of enquiry report and without issuance of second show-cause notice, has held the petitioner guilty of the charges, which is in complete violation of principles of natural justice and also against the settled principles of law. (III) The Disciplinary Authority without differing with the enquiry report and without issuance of show cause notice regarding disagreement with the enquiry report, has passed the impugned order of punishment without applying his mind, which is against the mandate of law.

(IV) It was incumbent upon the Disciplinary Authority to issue second show cause notice to the petitioner and get her reply before passing the impugned order of major punishment and also assigned cogent reasons for inflicting the punishment though exonerated by the Enquiry Officer.

8. The aforesaid issues fell for consideration before the Hon'ble Apex Court in case of Ram Kishan v. Union of India, reported in (1995) 6 SCC 157 and the Hon'ble Apex Court has held as under :

"10. ............. The purpose of the show-cause notice, in case of disagreement with the findings of the inquiry officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the inquiry officer for the reasons given in the inquiry report or he may offer additional reasons in support of the finding by the inquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show cause on the basis of which the findings of the inquiry 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 inquiry 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."

Further, the Hon'ble Apex Court in in case of Nirmala J. Jhala Vs. State of Gujarat & Anr., reported in (2013) 4 SCC 301 has held that:

"51. There is nothing on record to show that either the preliminary enquiry report or the statements recorded therein, particularly, by the complainant-accused or Shri C.B. Gajjar, Advocate, had been exhibited in regular inquiry. In the absence of information in the charge-sheet that such report/statements would be relied upon against the appellant, it was not permissible for the enquiry officer or the High Court to rely upon the same. Natural justice is an inbuilt and inseparable ingredient of fairness and reasonableness. Strict adherence to

the principle is required, wherever civil consequences follow up, as a result of the order passed. Natural justice is a universal justice. In certain factual circumstances even non-observance of the rule will itself result in prejudice. Thus, this principle is of supreme importance".

The same view has been reiterated by the Hon'ble Apex Court in case of Punjab National Bank & Ors. v. Kunj Behari Misra, reported in (1998) 7 SCC 84, relevant paras of which is reproduced herein below:

"17. These observations are clearly in tune with the observations in Bimal Kumar Pandit case8 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 case4 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.

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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. Taking into consideration the ratio laid down in catena of judgments of the Hon'ble Apex Court and different High Courts, this Court in case of Birju Prasad Vs. The State of Jharkhand & Ors.{ W.P.(S) No.4649 of 2016} & in case of Lalit Oraon Vs. State of Jharkhand (supra) has reiterated the same view.

10. Admittedly, the petitioner was fully exonerated by the Enquiry Officer and Disciplinary Authority without differing with the enquiry report and without assigning cogent reasons, has inflicted major punishment, which is in complete violation of cardinal principles of natural justice and also in violation of law laid down by the Hon'ble Apex Court and as such, the punishment imposed by the Disciplinary Authority, is not tenable in the eyes of law.

11. As a sequel of the aforesaid observations, rules, guidelines and judicial pronouncements, the order dated 17/18.11.2020 passed by the Disciplinary Authority is hereby quashed and set aside. The matter is remitted back to the Disciplinary Authority for considering the same afresh from the stage of submission of the enquiry report. The Disciplinary Authority is required to look into the matter afresh after applying his mind, taking into consideration the exoneration of the petitioner by the Enquiry Officer and conclude the proceeding within a period of four months from the date of receipt/ production of a copy of this order So far as the transfer order is concerned, the same has been given effect to as the petitioner has joined the transferred place and as such, no interference is warranted.