Babunand Prasad vs The State Of Jharkhand Through Its ...
2021 Latest Caselaw 911 Jhar

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        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          W.P.(S) No.5994 of 2015
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        Babunand Prasad                                ...     ...   Petitioner
                               Versus

1. The State of Jharkhand through its Chief Secretary, Government of Jharkhand, Ranchi.

2. The Principal Secretary, Forest and Environment and Climate Change Department, Government of Jharkhand, Ranchi.

3. The Principal Chief Conservator of Forest, Government of Jharkhand, Ranchi.

4. The Regional Chief Conservator of Forest, Hazaribagh.

5. The Conservator of Forest, Hazaribagh.

6. The Divisional Forest Officer, Koderma, Forest Division, Koderma. ... ... Respondents

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CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner :Mr. Anil Kumar Sinha, Sr. Adv.

Mr. Onkar Nath Tiwary, Adv.

For the Res.-State :Mr. A. Shekhar, A.C. to S.C(L&C) II

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13/24.02.2021 Heard learned counsel for the parties through

V.C.

2. The instant writ application has been preferred

by the petitioner praying therein for quashing the entire

departmental proceeding and the order of punishment

dated 22.09.2015 (Annexure-7); whereby the petitioner has

been dismissed from service and an order of recovery of

Rs.18,28,557/- has been passed. The petitioner has further

prayed for his reinstatement in service with full back wages

and other consequential benefits.

3. The facts giving rise to the instant writ

application are that while the petitioner was posted as

Forest Range officer, Koderma, the Deputy Secretary of

State of Jharkhand issued Memo No.881 dated 06.04.2009

against this petitioner and it was decided to proceed with a

departmental proceeding against this petitioner under Rule

55 of Civil Services (Classification, Control & Appeal) Rules.

It is the case of petitioner that he received only

the copy of Memo dated 06.04.2009 issued by the Deputy

Secretary, Forest and Environment Department,

Government of Jharkhand and therefore, he immediately

informed the department about non supply of charge sheet

and the supporting documents. Thereafter, the Inquiry

Officer handed over the memo of charge to this petitioner;

however, no list of documents and/or witnesses was

provided to him

The further grievance of the petitioner is that

though he repeatedly demanded for the list of documents

mentioned in the charge-sheet but he was never provided,

inasmuch as, he was forced to write a letter to the

government and pursuant to that the Government vide its

letter dated 11.03.2011 instructed the Inquiry Officer to

supply the documents.

4. Mr. Anil Kumar Sinha learned senior counsel for

the petitioner submits that the entire proceeding has been

conducted dehors the principle of natural justice,

inasmuch as, the first Inquiry Officer was changed without

any notice to this petitioner and the subsequent Inquiry

Officer was bias. He further referred one letter which was

written by the Inquiry Officer to the concerned D.F.O -cum-

presenting officer that if he was not present in his office on

a particular date then the petitioner should have camped in

your office to procure the documents.

He further submits that the law is now well

settled that an Inquiry Officer acting in a quasi-judicial

authority is in the position of an independent adjudicator.

He is not supposed to be a representative of the department

or disciplinary authority. He contended that in the instant

case the Inquiry Officer was full of bias against this

petitioner. On the question of biasness, Mr. Sinha referred

to the judgment passed in the case of State of Uttar

Pradesh & Ors. Vs. Saroj Kumar Sinha reported in

(2010) 2 SCC 772.

He further submits that the entire departmental

proceeding as well as the impugned order of punishment is

also bad in law, inasmuch as, admittedly; neither any

document has been proved by the Inquiry Officer nor any

witness has been examined by the prosecution. The Inquiry

Officer simply in two lines proved the charge against this

petitioner by holding that on the basis of charge alleged

against this petitioner and on the basis of evidence the

charge has been proved. Not even in a single line, the

Inquiry Officer has given reason for proving the charge.

Even otherwise, the proceeding is vitiated on the ground of

non-examination of witness as well as non-exhibit of

documents.

He further referred to the impugned order and

submits that the same is completely non-speaking and

non-reasoned order, inasmuch as, the disciplinary

authority has not given any reason, whatsoever, in

imposing punishment. The order is bad and non-est in the

eye of law in the background that even the Inquiry Officer

has not given any reason for proving the charge; thus, the

disciplinary authority was duty bound to give reasons. In

support of this contention, Mr. Sinha relied upon the

judgment passed in the case of A.L. Kalra Vs. Project and

Equipment Corporation of India Ltd. reported in (1984)

3 SCC 316.

He concluded his argument by submitting that

the impugned order has no legs to stand and the entire

proceeding is vitiated due to non-examination of witness

and non-exhibit of documents and also due to bias attitude

of the Inquiry Officer.

5. Mr. A. Shekhar, learned counsel for the

respondent-State supported the impugned order and

submits that heavy amount is involved in this case. He

further submits that though the reasoning given by the

Disciplinary authority is not in detail; however, the Inquiry

Officer has certainly given reasons on the basis of

documents and charge leveled against this petitioner and

proved the charge.

However, learned counsel could not demonstrate

that any witness was examined or any document has been

exhibited/proved nor he could satisfy this Court that any

reason has been assigned by the Inquiry Officer in proving

the charge.

He further contended that the impugned order of

punishment is just and proper and no interference is

required as the allegations against this petitioner are grave

in nature; as such, on technical grounds, this case should

not be allowed.

Learned counsel lastly submits that since the

amount involved in this case is huge; as such, the

department may be given liberty to proceed afresh against

this petitioner and case may be remitted back to the

competent authority.

6. Having heard learned counsel for the parties and

after going through the documents available on record and

the averments made in the respective affidavits, it appears

that during course of enquiry proceeding, the first Inquiry

Officer was changed and a new Inquiry Officer was

appointed to conduct the proceeding. It further transpires

that initially the petitioner was only supplied memo of

charge-sheet.

As a matter of fact, it is a specific case of the

petitioner that initially he received only the memo and not

the entire charge-sheet; however, subsequently he received

the entire charge-sheet but without any documents. From

enquiry report itself it appears that the petitioner

approached the State Government requesting them to

direct the Inquiry Officer to hand over the documents

which are relevant and mentioned in the charge-sheet and

pursuant thereto, the State Government vide its letter no.

829 dated 11.03.2011 had requested the Inquiry Officer to

supply the documents to this petitioner and complete the

enquiry proceeding after affording opportunity to this

petitioner. This clearly goes to show that the documents

were not handed over to the petitioner. The respondents

have failed to bring on record any letter which could

demonstrate that the documents were handed over to this

petitioner.

Further, the bias attitude of the Inquiry Officer

in not handing over the required documents clearly

transpires from his own letter dated 21.12.2010 (part of

Annexure4 series) which was written to the concerned

D.F.O -cum- presenting officer that if the said officer was

not present on a particular date then the petitioner should

have camped in his office to procure the documents.

7. In the case of Saroj Kumar Sinha (supra), the

Hon'ble Apex Court has held in Para-23 of the Judgment

that even if the delinquent employee is continued in the

same department it would not have been possible for him

to take the custody of the document as he would no longer

be in the charge of the office. Thus it clearly transpires that

it is the duty of the department to hand over the

documents to the delinquent employee. In the said

judgment the Hon'ble Apex Court has further held that if

no oral evidence has been examined the documents could

not been proved, and could not have been taken into

consideration to conclude that the charges have been

proved against the delinquent. Relevant Para- 28 to 31 are

quoted as under:-

"28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

29. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee.

30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.

31. In Shaughnessy v. United States [97 L Ed 956 : 345 US 206 (1952)] (Jackson, J.), a Judge of the United States Supreme Court has said: (L Ed p.

969) "... Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied."

8. It further transpires from perusing the Inquiry

report that admittedly; no witness has been examined on

behalf of the department and no document has been

exhibited or proved. The Hon'ble Apex Court in the case of

Saroj Kumar Sinha (supra) has further held in Paragraph

no.33 which is quoted herein below.

"33. As noticed earlier in the present case not only the respondent has been denied access to documents sought to be relied upon against him, but he has been condemned unheard as the inquiry officer failed to fix any date for conduct of the enquiry. In other words, not a single witness

has been examined in support of the charges levelled against the respondent. The High Court, therefore, has rightly observed that the entire proceedings are vitiated having been conducted in complete violation of the principles of natural justice and total disregard of fair play. The respondent never had any opportunity at any stage of the proceedings to offer an explanation against the allegations made in the charge-sheet."

After going through the aforesaid judgment in

the background of the facts of this case, there won't be any

embellishment in holding that the entire departmental

proceeding is null and void being conducted in complete

violation of the principles of natural justice and total

disregard of fair play.

9. It further transpires that neither the Inquiry

Officer nor the Disciplinary authority has assigned any

reason in proving the charge and/or imposing the

punishment against this petitioner. In this view of the

matter, the impugned order of punishment being non-

reasoned and non-speaking deserves to be quashed and set

aside on this score alone.

10. In this regard reference may be made to the

order passed by the Hon'ble Apex Court in the case of A.L.

Kalra (supra). Relevant paragraph nos.28, 29, 30 are

quoted herein below:-

"28. Mr Ramamurthi on behalf of the appellant further contended that the order of removal from service is void as it is passed in violation of the

principles of natural justice and at any rate an order imposing penalty by a quasi-judicial tribunal must be supported by reasons in support of its conclusions. It was urged that duty to give reasons would permit the court hearing a petition for a writ of certiorari to ex facie ascertain whether there is any error apparent on the record.

It was conceded that for the present submission adequacy or sufficiency of reasons is not questioned. What is contended is that the inquiry officer has merely recorded his ipse dixit and no reasons are assigned in support of the findings. The mental process is conspicuously silent. A speaking order will at its best be reasonable and at its worst be at least a plausible one (M.P. Industries Ltd. v. Union of India [AIR 1966 SC 671 : (1966) 1 SCR 466, 472 : (1966) 1 SCJ 204] ). What prevents the authority authorised to impose penalty from giving reasons? If reasons for an order are given, there will be less scope for arbitrary or partial exercise of power and the orders ex facie will indicate whether extraneous circumstances were taken into consideration by authority passing the order. This view in A. Vedachala Mudaliar v. State of Madras [AIR 1952 Mad 276 : (1951) 2 Mad LJ 411 : 1951 Mad WN 882] was approved by this Court in Bhagat Raja v. Union of India [AIR 1967 SC 1606 : (1967) 3 SCR 302, 320 : (1968) 1 SCJ 431] . As pointed out earlier, the findings of the inquiry officer are merely his ipse dixit. No reasons are assigned for reaching the finding and while recapitulating evidence self-contradictory positions were adopted that either there was no misconduct or there was some misconduct or double punishment was already imposed. Rule 27(19) casts an

obligation upon the inquiry officer at the conclusion of the inquiry to prepare a report which must inter alia include the findings on each article of charge and the reasons therefor. The report is prepared in contravention of the aforementioned rule.

29. The situation is further compounded by the fact that the disciplinary authority which is none other than Committee of Management of the Corporation while accepting the report of the inquiry officer which itself was defective did not assign any reasons for accepting the report of the inquiry officer. After reproducing the findings of the inquiry officer, it is stated that the Committee of Management agrees with the same. It is even difficult to make out how the Committee of Management agreed with the observations of the inquiry officer because at one stage while recapitulating the evidence the inquiry officer unmistakably observed that appellant was subjected to double punishment and at other place, it was observed that granting extension of time and acceptance of documents and balance advance would tantamount to extending the time which would make the affair look wholly innocuous. This shows utter non-application of mind of the Disciplinary Authority and the order is vitiated.

30. A detailed appeal was submitted by the appellant to the Board of Directors running into about 8 pages. The only order while dismissing the appeal brought to our notice is a communication by a gentleman Anand Krishna whose authority and designation are not stated, but who purported to act on the behalf of the Board of Directors, that the Appellate Authority,

after going through the records of the case, has decided to uphold the decision of the disciplinary authority and to confirm the penalty of removal from service imposed upon the appellant. Rule 35 of 1975 Rules deals with appeals. Sub-rule (ii) of Rule 35 provides amongst others that the Appellate Authority shall consider whether the findings are justified or whether the penalty is excessive or inadequate and pass appropriate orders within three months of the date of appeal. In order to ascertain whether the rule is complied with, the order of the Appellate Authority must show that it took into consideration the findings the quantum of penalty and other relevant considerations. There is no material for showing that the Appellate Authority acted in consonance with its obligation under Rule 35. However, in para 5.14 to 17 of the counter-affidavit, it was stated that "full inquiry report with annexure can be shown to the court at the time of hearing, if desired". If the respondent was anxious to sustain its action, it was obligatory upon it to disclose the full inquiry report. Nothing was shown to us nor any attempt to show the proceedings of the Appellate Authority to disabuse our mind that the Appellate Authority was guilty of utter non-application of mind and discharged its duty under Rule 35. No attempt was made to urge that the three authorities had ever assigned reasons in support of their conclusions. For this additional reason also, the initial order of the disciplinary authority as well as the Appellate Authority are liable to be quashed and set aside."

11. In view of the aforesaid discussions and the

judicial pronouncements, the impugned order of

punishment and the entire enquiry proceeding is quashed

and set aside. However, the respondents are at liberty to

proceed in accordance with law from the stage of

appointing a fresh Inquiry Officer and proceed strictly

following principles of natural justice, if so advised.

12. It is made clear that if the respondents choose to

proceed in the proceeding from the stage of appointing a

fresh Inquiry Officer; then the entire proceeding must be

completed within a period of Six months from the date of

receipt/production of a copy of the order.

Needless to say that the petitioner shall be

reinstated in service and on the question of back wages, the

respondents shall take a decision in accordance with law

and pass necessary order which shall be communicated to

the petitioner.

13. It goes without saying that in the departmental

proceeding the petitioner shall fully cooperate.

14. With the aforesaid terms, the instant writ

application stands allowed. If any I.A. is pending, the same

also stands disposed of.

(Deepak Roshan, J.) Fahim/-

AFR