Mukesh Kumar vs The State Of Jharkhand
2021 Latest Caselaw 80 Jhar

                                            1                 W.P.(S) No. 466 of 2020




             IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(S) No. 466 of 2020

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Mukesh Kumar, aged about 43 years, son of Sri Rama Shankar Singh, resident of village and PO Nonihat, PS Hansdiha, District Dumka ..... Petitioner

-- Versus -

1.The State of Jharkhand, through the Principal Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, having its office at Project Building, Dhurwa, PO and PS Dhurwa, District Ranchi

2.The Joint Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, having its office at Project Building, Dhurwa, PO and PS Dhurwa, District Ranchi

3.The Divisional Commissioner, Santhal Pargana, Dumka, PO and PS Dumka, District Dumka

4.The Deputy Commissioner, Sahibganj, PO and PS and District Sahibganj ...... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner :- Mr. Manoj Tandon, Advocate For Resp.-State :- Mr. Anshuman Kumar, Advocate

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7/07.01.2021 Heard Mr. Manoj Tandon, the learned counsel for the

petitioner and Mr. Anshuman Kumar, the learned counsel appearing on

behalf of the respondent State.

2. This writ petition has been heard through Video

Conferencing in view of the guidelines of the High Court taking into

account the situation arising due to COVID-19 pandemic. None of the

parties have complained about any technical snag of audio-video and

with their consent this matter has been heard.

3. The petitioner has preferred this writ petition for quashing

the resolution dated 10.04.2019 contained in Annexure-6 whereby the

petitioner has been imposed punishment of withholding of two

increments of pay with cumulative effect under rule 14(vi) of Jharkhand

Government Servants (Classification, Control and Appeal) Rules, 2016.

The prayer for consequential benefits is also made in the writ petition.

4. The petitioner has been appointed in Jharkhand

Administrative Service in the year 2010. The petitioner was posted as

Block Development Officer (BDO) at Ormanjhi Block in the District of

Ranchi. The petitioner received the show cause from the Department of

Personnel, Administrative Reforms and Rajbhasha, Government of

Jharkhand dated 13.10.2016 whereby he was directed to reply on the

charges. The petitioner replied to the said charges. Department of

Personnel, Administrative Reforms and Rajbhasha, Government of

Jharkhand vide resolution dated 25.09.2017 decided to initiate

departmental proceeding against the petitioner under Rule 17 of

Jharkhand Government Servants (Classification, Control and Appeal)

Rules, 2016. The petitioner was directed to reply on the charges levelled

against him before the conducting officer. The petitioner submitted his

reply of defence before the conducting officer on 20.12.2017. The

petitioner was also allowed to file supplementary reply to the charge

sheet. Thereafter the departmental proceeding proceeded and the

enquiry report has been submitted. The second show cause was issued

against the petitioner. The petitioner replied to the concerned show cause

and thereafter the punishment order dated 10.04.2019 has been issued.

Aggrieved with this, the petitioner has moved before this Court.

5. Mr. Manoj Tandon, the learned counsel for the petitioner

assailed the impugned order on the ground that in the enquiry

proceeding the enquiry officer has exonerated the petitioner from all

those 14 charges. He submits that inspite of that, the disciplinary

authority without providing opportunity of hearing and recording the

reasons on differing with the enquiry report has passed the impugned

order. He submits that it is against the well settled principles of law. To

buttress this argument, he relied in the case of 'Punjab National Bank

v. Kunj Behari Misra' reported in (1998) 7 SCC 84. Paragraph no.19

of the said judgment is quoted hereinbelow:

"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."

6. He further submits that the Hon'ble Supreme Court has

further considered the case of 'Kunj Bihari Mishra' (supra) in the case of

'S.P. Malhotra v. Punjab National Bank' reported in (2013) 7 SCC

251. Paragraph no.7, 13 to 20 of the said judgment are quoted

hereinbelow:

"7. The appellant challenged the said orders of punishment by filing Writ Petition No. 1201 of 1988 before the High Court of Punjab and Haryana at Chandigarh. The said writ petition was contested by the respondent Bank. The learned Single Judge

allowed the said writ petition vide judgment and order dated 20-

5-2011, holding that in case the disciplinary authority disagrees with the findings recorded by the enquiry officer, he must record reasons for the disagreement and communicate the same to the delinquent seeking his explanation and after considering the same, the punishment could be passed. In the instant case, as such a course had not been resorted to, the punishment order stood vitiated.

"13. In ECIL, only the first issue was involved and in the facts of this case, only second issue was involved. The second issue was examined and decided by a three-Judge Bench of this Court in Kunj Behari Misra wherein the judgment of ECIL has not only been referred to, but extensively quoted, and it has clearly been stipulated that wherein the second issue is involved, the order of punishment would stand vitiated in case the reasons so recorded by the disciplinary authority for disagreement with the enquiry officer had not been supplied to the delinquent and his explanation had not been sought. While deciding the said case, the Court relied upon the earlier judgment of this Court in Institute of Chartered Accountants of India v. L.K. Ratna.

14. Kunj Behari Misra itself was the case where the disciplinary authority disagreed with the findings recorded by the enquiry officer on 12-12-1983 and passed the order on 15-12- 1983 imposing the punishment, and immediately thereafter, the delinquent officers therein stood superannuated on 31-12-1983. In Kunj Behari Misra this Court held as under: (SCC p. 97, para 19) "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."

(emphasis supplied)

15. The Court further held as under: (Kunj Behari Misra case, SCC p. 97, para 21) "21. Both the respondents superannuated on 31-12-1983. During the pendency of these appeals, Misra died on 6-1- 1995 and his legal representatives were brought on record. More than 14 years have elapsed since the delinquent officers had superannuated. It will, therefore, not be in the interest of justice that at this stage the cases should be remanded to the disciplinary authority for the start of another innings."

16.The view taken by this Court in the aforesaid Kunj Behari Misra case has consistently been approved and followed as is evident from the judgments in Yoginath D. Bagde v. State of Maharashtra, SBI v. K.P. Narayanan Kutty, J.A. Naiksatam v. High Court of Bombay, P.D. Agrawal v. SBIand Ranjit Singh v. Union of India.

17. In Canara Bank v. Debasis Das this Court explained the ratio of the judgment in Kunj Behari Misra, observing that it was a case where the disciplinary authority differed from the view of the inquiry officer.

"26. ... In that context it was held that denial of opportunity of hearing was per se violative of the principles of natural justice." (Debasis Das case, SCC p. 578, para 26)

18. In fact, not furnishing the copy of the recorded reasons for disagreement from the enquiry report itself causes prejudice to the delinquent and therefore, it has to be understood in an entirely different context than that of the issue involved in ECIL.

19. The learned Single Judge has concluded the case observing as under:

"The whole process that resulted in dismissal of the petitioner is flawed from its inception and the order of dismissal cannot be sustained. I am examining this case

after nearly 23 years after its institution and the petitioner has also attained the age of superannuation. The issue of reinstatement or giving him the benefit of his wages for during the time when he did not serve will not be appropriate. The impugned orders of dismissal are set aside and the petitioner shall be taken to have retired on the date when he would have superannuated and all the terminal benefits shall be worked out and paid to him in 12 weeks on such basis. There shall be, however, no direction for payment of any salary for the period when he did not work."

20. As the case is squarely covered by the judgment of this Court in Kunj Behari Misra, we do not see any reason to approve the impugned judgment rendered by the Division Bench. Thus, in view of the above, the appeal is allowed. The judgment and order of the Division Bench is set aside and that of the learned Single Judge is restored. No costs."

7. Lastly, Mr. Tandon, the learned counsel for the petitioner

submits that co-delinquent employee has not been punished and only

warning has been issued against him whereas the petitioner has been

punished with withholding of two increments with cumulative effect.

Thus, he makes out a case of parity. He further submits that in the

punishment order one document being letter no.2071/2011 dated

08.06.2017 has been considered by the disciplinary authority which is not

the part of the departmental proceeding which was just part of the

preliminary enquiry. He submits that it is well settled that the document

of the preliminary proceeding cannot be considered in the regular

departmental proceeding.

8. Mr. Anshuman Kumar, the learned counsel for the

respondent State submits that in the departmental proceeding all

opportunity of hearing have been provided to the petitioner and all the

parameters have been followed in the departmental proceeding. He

submits that the disciplinary has rightly passed the order. There is

nothing in the counter affidavit to suggest that opportunity of hearing on

difference of opinion on the enquiry report by the disciplinary authority

was provided to the petitioner or not. He fairly submits that letter dated

08.06.2017 was the part of the preliminary enquiry and this letter was

not the subject matter of regular departmental proceeding. He submits

that this aspect of the matter has already been stated in paragraph no.27

of the counter affidavit.

9. Having heard the learned counsels appearing on behalf of

the parties and after going through the materials on record, the Court

finds that in the all 14 charges, the enquiry officer has exonerated the

petitioner from the charges. The enquiry report is very exhaustive which

runs in 259 pages and the enquiry officer has considered each and every

aspect of the matter. In the enquiry proceeding not even a single witness

has been examined by the prosecution to prove the charge. On perusal

of the punishment order and the second show cause, it transpires that

opportunity of hearing and the reasons for differing with the reasons of

the enquiry officer has not been taken care of which is against the

principles decided by the Hon'ble Supreme Court in the case of 'Kunj

Bihari Mishra' (supra). On perusal of the punishment order of one co-

delinquent at page 264 of the writ petition at Annexure-7 it transpires

that he was only warned and no punishment order has been passed

against that co-delinquent. Thus, the case of the petitioner also succeeds

on the ground of parity. The document datd 08.06.2017 was not the part

of the regular departmental proceeding and in view of settled proposition

of law that the document which was not part of regular proceeding

cannot be relied whereas the punishing authority has relied on the said

document. A reference in this reard may be made in the case of

'Nirmala J. Jhala v. State of Gujarat' reported in (2013) 4 SCC 301.

Paragraph no.51 of the said judgment is quited hereinbelow:

"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, whenever 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. (Vide S.L. Kapoor v. Jagmohan, D.K. Yadav v. J.M.A. Industries Ltd. and Mohd. Yunus Khan v. State of U.P.)."

10. As a cumulative effect of the above discussion, the writ

petition succeeds. The impugned order dated 10.04.2019 is quashed.

The petitioner shall be entitled for consequential benefits.

( Sanjay Kumar Dwivedi, J) SI/,