Jharkhand High Court

(An Application Under Article 226 ... vs The State Of Jharkhand on 14 June, 2021

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  W.P.(S) No. 7872 of 2013
    (An application under Article 226 of the Constitution of India)
Navneet Nischal                                     ..... Petitioner
                            Versus
1.The State of Jharkhand
2. Secretary-cum-Commissioner, Commercial Taxes
   Department, Government of Jharkhand,
   P.O. & P.S. Dhurwa, District Ranchi, Jharkhand
3. Under Secretary to the Government,
   Commercial Taxes Department, Government of Jharkhand,
   P.O. & P.S. Dhurwa, District Ranchi, Jharkhand
4. The Deputy Commissioner, Commercial Taxes,
   Urban Circle, Dhanbad, P.O. & P.S. Dhanbad,
   District Dhanbad, Jharkhand
5. Joint Commissioner, Commercial Taxes (Admn.),
   Hazaribagh Division, Hazaribagh, P.O. & P.S. Hazaribagh,
   District Hazaribagh, Jharkhand             .....   Respondents
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For the Petitioner : Mr. Saurabh Shekhar, Advocate For the Respondents : Mr. Navneet Toppo, AC to SC-V

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PRESENT HON'BLE MR. JUSTICE DEEPAK ROSHAN

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By Court: Heard through V.C.

2. The instant writ application has been preferred by the

petitioner praying therein for quashing the order of punishment as

contained in Memo No.2766 dated 16.07.15, whereby this petitioner

has been imposed with punishment of censure, stoppage of

increment in payment with cumulative effect of five times and also

nothing should be paid to this petitioner except subsistence

allowance during the suspension period.

Learned counsel for the petitioner submits that he is not

pressing the second prayer whereby he prayed that his posting

should be at Dhanbad division.

3. The facts disclosed in the instant writ application are that

the petitioner joined his services after becoming successful in the

combined competitive examination, conducted by the Jharkhand

Public Service Commission. He was given finance services, and was

posted as Commercial Tax Officer, Urban Circle, Dhanbad. After

completion of three years, apprehending his transfer out of Dhanbad;

he made a representation requesting therein that he may allowed to

be continued in Dhanbad, and be transferred and posted in any of the

offices of the Commercial Taxes within the Dhanbad Urban on the

ground that his wife, who is an Assistant Teacher, is posted in

Government High School, Dhanbad and he has a son of four years

and daughter of four months of age.

However, without considering his representation, a

notification was issued; whereby the petitioner was transferred to the

post of Commercial Tax Officer, Dumka Circle, Dumka vide order

dated 30.06.2013. Unfortunately on this occasion; the petitioner was

sick (diagnosed Infective hepatitis and Fatty Liver), and he made an

application for grant of leave on 05.07.2013, but the same was

rejected on 02.08.2013 and he was directed to handover the charge.

Thereafter, the petitioner again submitted an application

for sanction of leave because the petitioner has been suffering from

disease which is an inflammation of liver and other disease detected

by the Doctor as fatty liver; which means built-up of fat in liver cell,

which leads to severe liver damage, so for this reason he was

recommended complete bed rest by his Doctor. He also submitted

the certificate issued by his Doctor, but the same has not been

considered.

Thereafter, the petitioner was suspended on 12.12.2013

and a departmental proceeding was initiated on 26.12.2013, which

finally culminated into passing of the order of punishment on

16.07.2015.

At this stage, it is important to note that the Departmental

Proceeding was initiated on 26.12.2013 and during the pendency,

the petitioner reported before the authorities on 02.01.2014, along

with fitness certificate. Thereafter, he participated in the proceeding

and submitted reply denying charges on 15.01.2014. The order of

punishment was passed on 16.07.2015.

4. Mr. Saurabh Shekhar, learned counsel for the petitioner

submits that the Inquiry Officer without holding that it was a willful

absenteeism, has passed the impugned order in spite of the fact that

his regular Doctor has advised the petitioner for complete bed rest.

Learned counsel further submits that the Inquiry Officer

has opined that the Doctor was not competent. He contended that it

is not the jurisdiction of the Inquiry Officer to hold as to which

Doctor is competent and which is not. He further submits that the

report of the Doctor who advised him complete bed rest was also

sent by the Inquiry Officer during the proceeding to a Medical

Board duly constituted by them and the Medical Board headed by

Chief Medical Officer has also held that the petitioner was suffering

from "Fatty Liver with Hepatitis" and his "S. Bilirubin (Total)"was

3.70 mg/dl which is above the normal level. It was also opined by

the Medical Board that only on 01.01.2014, the Doctor has found

him fit and allowed him to join duty

5. Learned counsel further submits that the Hon'ble Apex

Court in the case of Chhel Singh vs. MGB Gramin Bank, Pali and

others reported in (2014) 13 SCC 166 has held that the Inquiry

Officer without holding the delinquent for willful and deliberate

absence cannot hold the delinquent employee guilty of misconduct.

Absence from duty being willful and deliberate certainly amounts to

misconduct but the same is not in the present case. As a matter of

fact the disciplinary authority is required to prove that the absence is

willful and in absence of any such finding the absence will not

amount to misconduct.

6. Learned counsel further submits that there were three

charges. Charge No.1 and charge No.3 was regarding absenteeism

and charge No.2 was with respect to refusal to accept the letter of

the department. In this regard, he submits that the finding of Inquiry

Officer is perverse, inasmuch as, on the one hand the petitioner

received the said letter on 12.09.2013 and on the other hand the

allegation of refusal from accepting the letter on 02.08.2013 on the

basis of report of one person is perverse as the said person has not

been examined by the Inquiry Officer.

Even otherwise, it is only a difference of two months and

the main ground of punishment is absenteeism; however, since there

is no finding of willful absenteeism in the instant case; the

punishment order should be quashed and respondents be directed to

give all consequential benefits to this petitioner.

7. Mr. Navneet Toppo, learned counsel for the respondent

State submits that it would be wrong to hold the impugned order as

perverse as the Inquiry Officer has given categorical finding that the

Doctor who examined the petitioner was not a Government Doctor

rather he was a private practitioner. He further submits that there is a

clear finding of the Inquiry Officer that the Doctor was a simple

MBBS Doctor and he was not an expert enough to treat a critical

patient, as such, in a sense it can be said that there is finding of

willful absenteeism.

He further submits that if the impugned order will be

quashed, there will be a practice that people will give forged and

fabricated certificate of any Doctor which will become obstacle in

implementing the regular policy decision of transfer from the

department.

He further submits that the transfer order was in

accordance with the policy decision and no employee can ignore the

transfer order on the ground that his/her spouse is working on the

same district. It is true that there is no categorical finding that the

absence was willful but by going through the impugned order it will

transpire that the absence was willful; as such no relief can be

granted to this petitioner.

8. Having heard learned counsel for the parties and after

going through the documents annexed with the respective affidavits

and the averments made therein it appears that petitioner was

transferred to the post of Commercial Tax Officer, Dumka Circle on

30.06.2013. However, at that time the petitioner was suffering from

infection and he made an application for grant of leave on

05.07.2013 which was rejected on 02.08.2013 and he was directed to

hand over the charge. Pursuant thereto; the petitioner again

submitted an application for sanction of leave because the petitioner

was suffering from disease which is an inflammation of Liver and

other disease detected by the Doctor as "Fatty Liver" and the

concerned Doctor categorically advised him for complete bed rest

and thus he could not join on the transferred post.

As a result thereto, on 12.12.2013 petitioner was

suspended and charge sheet was issued; whereby the content of

charge No.1 and charge No.3 was with respect to misconduct on the

ground of absenteeism for a long period and charge No.2 was

regarding refusal to accept a Government letter. Thereafter, a proper

departmental enquiry was initiated and petitioner participated in the

said inquiry and finally order of punishment has been passed.

9. From the inquiry report it appears that the Inquiry Officer

was of the opinion that the concerned Doctor- Dr. Shekhar Kumar

was a simple MBBS Doctor and was not competent enough to treat a

serious patient like that of petitioner; so much so that the Inquiry

Officer constituted a Medical Board consisting of two senior

Professors and Civil Surgeon -cum- Chief Medical Officer, Dhanbad

to go in detail with regard to the reports and prescriptions of the

petitioner which was submitted by him to the Inquiry Officer.

After perusing the report of Medical Board (Annexure

34) it clearly transpires that the petitioner was suffering from "Fatty

Liver with Hepatitis" and his "S. Bilirubin (Total)" was 3.70 mg/dl

which was above the normal level.

10. The report of Medical Board further transpires that the

regular Doctor- Dr. Shekhar Kumar on 01.01.2014 has allowed the

petitioner to work by declaring him fit. Thereafter, the petitioner

joined his service; however, in the meantime he was suspended.

The finding of the Inquiry Officer that Dr. Shekhar

Kumar was since not having an MD Degree; as such, he was not

competent to treat the petitioner; is wholly misconceived and finding

is perverse, inasmuch as, the Inquiry Officer was not an expert in

medical so as to give his personal opinion as to whether a Doctor is

competent or not.

From record it further transpires that the Inquiry Officer

has also consulted the Doctor who treated the petitioner and the

Doctor has stated the entire things and also his advice given to the

petitioner for complete bed rest. All this goes to show that the

finding of the Inquiry Officer is perverse in nature.

11. Even otherwise, now the law is well settled that in a

departmental proceeding if allegation of unauthorized absence from

duty is made, the disciplinary authority is required to prove that the

absence is willful. In absence of any such finding, the absence will

not amount to misconduct. By going through the findings given by

the Inquiry Officer as well as the disciplinary authority, nowhere it

is mentioned that the absence is willful. In the case of Chhel Singh

(supra) the Hon'ble Apex Court has held in para 12 as under:

"12. From a plain reading of the charges we find that the main allegation is absence from duty from 11-12- 1989 to 24-10-1990 (approximately 10½ months), for which no prior permission was obtained from the competent authority. In his reply, the appellant has taken the plea that he was seriously ill between 11-12- 1989 and 24-10-1990, which was beyond his control; he never intended to contravene any of the provisions of the service regulations. He submitted the copies of medical certificates issued by doctors in support of his claim after rejoining the post. The medical reports were submitted after about 24 days. There was no allegation that the appellant's unauthorised absence from duty

was wilful and deliberate. The inquiry officer has also not held that the appellant's absence from duty was wilful and deliberate. It is neither a case of the disciplinary authority nor the inquiry officer that the medical reports submitted by the appellant were forged or fabricated or obtained for any consideration though he was not ill during the said period. In absence of such evidence and finding, it was not open to the inquiry officer or the disciplinary authority to disbelieve the medical certificates issued by the doctors without any valid reason and on the ground of 24 days' delay.

12. After going through the aforesaid judgment and the

inquiry report and other relevant documents; it is clear that the

certificate given by the delinquent employee was not either forged or

fabricated nor the Medical Board has opined that the petitioner was

not suffering from the disease. As a matter of fact nowhere in the

entire inquiry report or the impugned order of punishment it has

been held by the department that the petitioner's absence from duty

was willful and deliberate rather the only stand of the Inquiry

Officer is that the Doctor who has examined the petitioner was not a

competent Doctor and he was a private practitioner. However, in this

regard, there is no such Rule produced by the learned counsel for the

respondent that a delinquent employee is required to be treated only

by the Government Doctor prescribed by them.

13. So far as charge No.2 is concerned; it has been alleged

that the petitioner has refused to accept the Government letter in

order to avoid the proceeding on the basis of report given by the

notice server that the petitioner read the entire notice and finally

refused to accept. In this regard it is pertinent to mention here that

the said notice server was never examined in the departmental

proceeding. It was the duty of the Inquiry Officer to call that notice

server because the petitioner has specifically denied the charge of

refusal. However, for the reason best known to the respondent the

said notice server was never examined.

It is a settled principle that the domestic tribunal is a

quasi-judicial character; as such, it is required that the domestic

tribunal should arrive at its conclusion on the basis of some

evidence. In the case of Kuldeep Singh vs. Commissioner of Police

and others reported in (1999) 2 SCC 10, the Hon'ble Apex Court

has held in para 7 & 8 as under:

"7. In Nand Kishore Prasad v. State of Bihar it was held that the disciplinary proceedings before a domestic tribunal are of quasi-judicial character and, therefore, it is necessary that the Tribunal should arrive at its conclusions on the basis of some evidence, that is to say, such evidence which and that too, with some degree of definiteness, points to the guilt of the delinquent and does not leave the matter in a suspicious state as mere suspicion cannot take the place of proof even in domestic enquiries. If, therefore, there is no evidence to sustain the charges framed against the delinquent, he cannot be held to be guilty as in that event, the findings recorded by the enquiry officer would be perverse.

8. The findings recorded in a domestic enquiry can be characterised as perverse if it is shown that such findings are not supported by any evidence on record or are not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of that evidence. This principle was laid down by this Court in State of A.P. v. Rama Rao in which the question was whether the High Court under Article 226 could interfere with the findings recorded at the departmental enquiry. This decision was followed in Central Bank of India Ltd. v. Prakash Chand Jain and Bharat Iron Works v. Bhagubhai Balubhai Patel. In

Rajinder Kumar Kindra v. Delhi Admn. it was laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It was also laid down that where a quasi- judicial tribunal records findings based on no legal evidence and the findings are its mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated."

14. Thus, the findings arrived by the Inquiry Officer for

Charge No.2 in the domestic inquiry can easily be characterized as

perverse as the findings are not supported by examination of Notice

server. Since the petitioner has specifically denied that charge; it

was incumbent upon the Inquiry Officer to call the Notice server for

examination.

15. In view of the aforesaid discussion and findings, the

impugned order does not have any legs to stand in the eye of law

and deserves to be quashed and set aside.

Consequently, the impugned order as contained in Memo

No.2766 dated 16.07.2015, is quashed and set aside. The

respondents are directed to give all consequential benefits to the