Jharkhand High Court
Vakil Prasad Singh vs Jharkhand State Electricity ... on 28 January, 2021
THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 3091 of 2008
(An application under Article 226 of the Constitution of India)
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Vakil Prasad Singh ..... Petitioner
Versus
1. Jharkhand State Electricity Board, Ranchi through its
Chairman
2. Secretary, Jharkhand State Electricity Board, Ranchi
3. Joint Secretary, Jharkhand State Electricity Board, Ranchi
..... Respondents
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For the Petitioner : Mr. Dhananjay Dubey, Advocate
For the Respondents : Mr. O. P. Tiwari, Advocate
PRESENT
HON'BLE MR. JUSTICE DEEPAK ROSHAN
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By Court Heard learned counsel for the parties through V.C.
2. The instant writ application has been preferred by
the petitioner praying therein for quashing and setting aside
the order issued under Memo No. 2620 dated 09.6.2008
whereby the petitioner has been inflicted with two
punishments: (i) warning and withholding of two annual
increments with non-cumulative effect and (ii) period spent in
custody has been decided to keep pending till the decision of
the court.
3. The facts of the case as disclosed in the instant
writ application are that while the petitioner was in service; in
the year 1999 he was served with a memo of charge
(Annexure 1) to which the petitioner duly replied asking for
supply of relevant documents. Thereafter, in the year 2001
another resolution dated 01.2.2001 was issued, whereby one
Thakur Ravindra Kumar was appointed as the Inquiry Officer
by changing the earlier Inquiry Officer. After appointment of
the new Inquiry Officer, the petitioner filed an application
before the respondents in which the petitioner requested to
change the Inquiry Officer, as he apprehended that the
Inquiry Officer might give report against him due to previous
biasness, but his request was rejected. Against that refusal,
the petitioner filed an application before Respondent No.1-the
Chairman of the Board, but the petitioner did not get any
reply. However, after a gap of almost six years, petitioner was
served with the punishment order.
The grievance of the petitioner is that the charge
was served upon him way back on 12.5.1999. Thereafter, the
petitioner asked for relevant documents, however, the same
were not handed over to him and on 01.02.2001 the earlier
Inquiry Officer has been changed and a new Enquiry Officer
has been appointed. However, after a gap of seven years in
the year 2008, vide the impugned order; punishment has
been imposed.
Learned counsel relied upon the resolution dated
09.8.1996 of the respondent Board (Annexure 5), by which it
was directed to all concerned that before passing an order of
punishment, it is necessary to supply the copy of the enquiry
report as a matter of right to the concerned employee of the
board calling upon him to show cause on the findings
recorded by the Inquiry Officer and after receipt of show
cause, if any, submitted by the concerned employee final
order may be passed on the concerned report of the
Departmental Proceedings.
Relying upon the aforesaid resolution and specific
averments stated in various paragraphs in the writ
application that neither enquiry report was handed over to
the petitioner nor any show-cause notice was asked before
imposing punishment, learned counsel submits that the
petitioner has been prejudiced. He reiterated that the
petitioner had filed a specific application before respondent
authorities that the petitioner has no faith in the Inquiry
Officer who has been appointed vide resolution dated
01.2.2001 and he might give report against this petitioner
due to previous bias but the same was not considered.
In order to buttress his argument he relied upon a
judgment passed by the Hon'ble Apex Court in the case of
STATE OF UTTARANCHAL AND OTHERS Versus KHARAK
SINGH reported in (2008) 8 SCC 236.
4. Mr. O.P. Tiwari, learned counsel for the Board
submits that no prejudice has been caused to the petitioner
by non-supply of the enquiry report as well as the second
show cause notice before imposing punishment. He further
relied upon the judgment passed in the case of HARYANA
FINANCIAL CORPORATION AND ANOTHER Versus
KAILASH CHANDRA AHUJA reported in (2008) 9 SCC 31,
wherein at paragraph no. 21-44 the Hon'ble Apex Court has
held that petitioner has to show that prejudice has been
caused.
5. Having heard learned counsel for the parties and
after going through the documents as well as averments
made in the respective affidavits, it appears that it is an
admitted case that the petitioner was not served with the
enquiry report as well as the show cause notice before
imposing punishment. It is also admitted that though the
charge was served upon this petitioner on 12.05.1999, the
punishment has been imposed in the year 2008.
From the various averments made in the writ
application it clearly transpires that the petitioner has been
prejudiced, inasmuch as, he could not defend himself before
imposition of penalty. It also appears that petitioner has
made a specific application to change the newly appointed
Inquiry Officer because it was anticipated by him that the
new Inquiry Officer might give incorrect report due to his
previous bias. However, the respondents failed to
demonstrate that any action has been taken, so much so,
that the categorical statement made in Paragraph 10 of the
writ application has not been responded by the respondent
authorities.
It further transpires that the Respondents vide its
standing order, being No. 776 dated 09.8.1996 has taken a
decision that in view of the Hon'ble Supreme Court's
judgment passed in MD ECIL vs. B. Karunakar reported in
1993 (4) SCC 727, it is now necessary to supply a copy of the
enquiry report as a matter of right to the concerned employee
of the board calling upon him to show cause on the findings
recorded by the Inquiry Officer and after receipt of show
cause, if any, submitted by the concerned employee final
order may be passed. Admittedly, the Board did not adhere to
its own standing order.
In the case of STATE OF UTTARANCHAL AND
OTHERS versus KHARAK SINGH reported in (2008) 8 SCC
236, the Hon'ble Apex Court has held in Paragraph 15 and
20 as under:
"15. From the above decisions, the following principles
would emerge:
(i) The enquiries must be conducted bona fide and care
must be taken to see that the enquiries do not become
empty formalities.
(ii) If an officer is a witness to any of the incidents which is
the subject-matter of the enquiry or if the enquiry was
initiated on a report of an officer, then in all fairness he
should not be the enquiry officer. If the said position
becomes known after the appointment of the enquiry
officer, during the enquiry, steps should be taken to see
that the task of holding an enquiry is assigned to some
other officer.
(iii) In an enquiry, the employer/department should
take steps first to lead evidence against the
workman/delinquent charged and give an opportunity to
him to cross-examine the witnesses of the employer. Only
thereafter, the workman/delinquent be asked whether he
wants to lead any evidence and asked to give any
explanation about the evidence led against him.
(iv) On receipt of the enquiry report, before proceeding
further, it is incumbent on the part of the
disciplinary/punishing authority to supply a copy of the
enquiry report and all connected materials relied on by the
enquiry officer to enable him to offer his views, if any."
20. A reading of the enquiry report also shows that the
respondent herein was not furnished with the required
documents. The Department's witnesses were not examined
in his presence. Though the respondent who was the writ
petitioner specifically stated so in the affidavit before the
High Court in the writ proceedings, those averments were
specifically controverted in the reply-affidavit filed by the
Department. Mere denial for the sake of denial is not an
answer to the specific allegations made in the affidavit.
Likewise, there is no evidence to show that after submission
of the report by the enquiry officer to the disciplinary
authority, the respondent herein was furnished with the copy
of the said report along with all the relied upon documents.
When all these infirmities were specifically pleaded and
brought to the notice of the appellate authority (i.e. Forest
Conservator), he rejected the same but has not pointed out
the relevant materials from the records of the enquiry officer
and disciplinary authority to support his decision. Hence, the
appellate authority has also committed an error in dismissing
the appeal of the respondent."
6. After going through the aforesaid judgment and
the resolution/standing order of the Respondent Board to
supply the enquiry report asking for a show cause before
imposing penalty; and the same has not been denied by the
Respondents, the case of the petitioner needs interference.
7. In view of the aforesaid finding the impugned order
as contained in Memo No. 2620 dated 09.6.2008 (Annexure
4) deserves to be quashed. Consequently, the same is
quashed and set aside. The Respondents are at liberty to
proceed afresh from the stage of serving of show-cause notice;
if the law permits, and pass a fresh order within a period of
four months from the date of receipt/production of copy of
this order.
8. With the aforesaid directions, the instant
application is stands allowed and disposed of.
(Deepak Roshan, J.)
Jharkhand High Court, Ranchi
Dated 28th January, 2021
s.m./N.A.F.R.
