Jharkhand High Court
Naresh Prasad Yadav vs The State Of Jharkhand on 24 March, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S). No. 2345 of 2018
----------
Naresh Prasad Yadav ... ... ...Petitioner
-Versus-
1. The State of Jharkhand
2. The Commissioner, Santhal Pargana Division, Dumka, Jharkhand.
3. The Deputy Commissioner, Dumka.
4. The Circle Officer, Jarmundi, Dumka, Jharkhand.
5. The Block Development Officer, Jarmundi, Dumka, Jharkhand.
6. The Block Development Officer, Jama, Dumka, Jharkhand.
... .... ...Respondents
----------
CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
(Through: Video Conferencing)
For the Petitioner :Mr. Abhijeet Kumar Singh, Advocate
For the Respondents :Ms. Shivani Kapoor, AC to SC-II
-----------
05/ 24.03.2021 Heard Mr. Abhijeet Kumar Singh, learned counsel appearing for the petitioner
while Ms. Shivani Kapoor, AC to learned SC-II appears for the respondent-State.
2. Petitioner has approached this Court for issuance of writ in the nature of
certiorari for quashing the order dated 06.03.2012, issued by the Deputy
Commissioner, Dumka as well as the Appellate Order dated 08.11.2017 (Annexure-
15) and further for a direction upon the petitioner to pay the entire salary for the
period of suspension, as the whole departmental proceeding was conducted in utter
violation of principle of natural justice.
3. The facts of the case lies in a narrow compass. In the year 1982, the petitioner
was appointed to the post of Class-IV employee and accordingly, he joined his
services on 16.03.1982 in the Office of Block Development Officer, Palajori,
Dumka. Thereafter, petitioner was promoted posted in the office of Deputy
Commissioner, District Establishment Cell, Dumka to Class-III post on 27.1.1994.
It is the case of the petitioner that while discharging the assigned duties, the
petitioner was sent on deputation in the office of Circle Officer, Jarmundi as
Incharge of Circle Najir-cum-Tample Nagir of Baba Basukinath Temple, Dumka on
05.01.2002. The duties assigned to the petitioner was to keep the offerings of Baba
Basukinath Temple received in the form of money, ornaments, etc. in safe custody.
As no night guard was posted in the Nazarat, the petitioner requested the concerned
authorities to relieve him from the charge of Nazarat of Basukinath Tample but the
respondent did not pay any heed to his request. It is the further case of the
petitioner that in the night of 12.09.2010, an incidence of theft took place in the
temple of Baba Basukinath and for which a FIR being Jarmundi P.S. Case No. 159
of 2010 dated 13.09.2010 was lodged by the petitioner against unknown persons
for offences u/s. 461, 379 IPC. The police investigated the matter but could not find
any clue regarding the persons involved in the theft and finally submitted final form
and the case was closed. For the said incidence, the Deputy Commissioner, Dumka
vide memo No. 1271 dated 15.09.2010, suspended the petitioner in contemplation
of departmental proceeding. Subsequently, by memo No. 708 dated 15.03.2011,
charges were framed against the petitioner and the same was communicated to him
with a direction to reply to the allegations levelled against him. Thereafter, the
petitioner vide letter dated 09.04.2011 submitted his reply denying all the
allegations levelled against him. Thereafter, neither any witnesses were examined
nor the petitioner was given opportunity to present his case and straightway enquiry
report dated 15.09.2011 was submitted holding the petitioner guilty of the charges
levelled against him. Subsequently vide memo No. 1525 dated 08.12.2011, second
show-cause was issued by the Deputy Commissioner, Dumka and the petitioner
was directed to submit his reply within 15 days. The petitioner having no other
option, submitted his reply vide letter dated 28.12.2011 stating therein that the
allegations are not true and the enquiry report is not based on any evidence.
However, without taking into consideration the reply submitted by the petitioner,
vide memo dated 06.03.2012 the petitioner has been awarded major punishment of
withholding of four increments with cumulative effect and the suspension of
petitioner was revoked and it was further held that he will get nothing for the period
of suspension. The petitioner being aggrieved by the order dated 06.03.2012,
preferred an appeal before the Commissioner, Santhal Pargana Division and the
Appellate Authority without applying his independent mind by a non-speaking
order dated 08.11.2017 rejected the appeal of the petitioner in a most arbitrary
manner.
The order dated 06.03.2012, passed by the Deputy Commissioner, Dumka and
appellate order dated 08.11.2017, passed by the Commissioner, Santhal Pargana
Division are subject matter of challenge in the instant writ application.
4. Mr. Abhijeet Kumar Singh, learned counsel appearing for the petitioner
submits that though the petitioner participated in the enquiry proceedings but
admittedly his contentions were not considered and never replied by the
disciplinary authority. Learned counsel further argues that petitioner preferred an
appeal before the Appellate Authority but his contentions and the issue raised in the
appeal were never considered by the Appellate Authority and by one line order, his
appeal has been rejected. Learned counsel for the petitioner emphatically argued
that the appellate order is non-speaking order as the same has been passed without
assigning any reason and without meeting the contention of the petitioner and as
such, the same is fit to be quashed and set aside.
5. Per contra counter-affidavit has been filed. Ms. Shivani Kapoor, learned
counsel appearing for the petitioner vehemently opposes the contention of learned
counsel for the petitioner and argues that petitioner is nowhere prejudiced by the
appellate order. Due procedures were followed and the petitioner fully participated
in the enquiry proceeding. Petitioner was even issued second show-cause notice
which he duly replied and thereafter, disciplinary authority passed the order. It has
been further argued that it was not incumbent upon the appellate authority to assign
reason as he has affirmed the order of disciplinary authority.
6. Be that as it may, having gone through the rival submissions of the parties and
upon perusal of the documents brought on record, this Court is of the considered
view that admittedly petitioner was offered opportunity in the disciplinary
proceeding. The Enquiry Officer following the procedure has submitted the enquiry
report. The disciplinary authority after issuance of second show-cause notice,
passed the order of punishment as the petitioner was held guilty of the charges.
This Court is in agreement with the contention of learned counsel for the petitioner
that no reasons have been assigned in the appellate order, as it was incumbent upon
the appellate authority to assign reasons while rejecting the appeal of the petitioner.
From the appellate order it is crystal clear that it is a non-speaking, cryptic and
capricious order as nothing has been whispered regarding reply of the petitioner to
the second show-cause notice. In plethora of judgments, Hon'ble Apex Court has
held that right of appeal is with the employees and whenever statutes provides right
to appeal, the same has to be dealt with in a proper way and while rejecting the
appeal, reasons have to be assigned.
7. Similar issue fell for consideration before the Hon'ble Apex Court in case of
Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank
Vs. Jagdish Sharan Varshney, reported in (2009) 4 SCC 240, wherein in para-8
and 9 their Lordships have held as under:
"8. The purpose of disclosure of reasons, as held by a Constitution Bench
of this Court in S.N. Mukherjee Vs. Union of India, reported in (1990) 4
SCC 594, is that people must have confidence in the judicial or quasi -
judicial authorities. Unless reasons are disclosed, how can a person know
whether the authority has applied its mind or not? Also, giving of reasons
minimizes the chances of arbitrariness. Hence, it is an essential
requirement of the rule of law that some reasons, at least in brief, must be
disclosed in a judicial or quasi judicial order, even if it is an order of
affirmation.
9. No doubt, in S.N. Mukherjee case (supra) it has been observed that :(
SCC p.613, para 36) "36. ... The appellate or revisional authority, if it
affirms such an order, need not give separate reasons if the appellate or
revisional authority agrees with the reasons contained in the order under
challenge."
The above observation, in our opinion, really means that the order of
affirmance need not contain an elaborate reasoning as contained in the
order of the original authority, but it cannot be understood to mean that
even brief reasons need not be given in an order of affirmance. To take a
contrary view would mean that appellate authorities can simply dismiss
appeals by one-line orders stating that they agree with the view of the
lower authority."
Further, the Hon'ble Apex Court in para-6 in case of S. Ramanathan Vs.
Chief Judicial Magistrate, Chengalpattu & Ors., reported in (2002) 10 SCC 473
has held that:
". ...... We have no hesitation to come to the conclusion that the aforesaid
appellate order cannot be held to be a speaking order and therefore, the
same cannot be sustained in law. We therefore, set aside the appellate
order so far as it relates to affirming the direction of the disciplinary
authority directing recovery of Rs.12,07,529.30/- paise from the
delinquent and remit the matter to the Appellate Authority for
reconsideration of the same by passing a reasoned order thereon."
8. In the order of the Appellate Authority, it would have been reflected as to
what was the material placed and on what ground the order of Disciplinary
Authority was affirmed.
9. As a sequitur to the aforesaid observations, rules, guidelines, legal
propositions and judicial pronouncements, Appellate Order dated 08.11.2017 is
hereby quashed and set aside. However, the matter is remitted back to the Appellate
Authority to re-consider the case of the petitioner afresh and after providing ample
opportunity of hearing to the petitioner, pass a reasoned order, in accordance with
law, within a period of two months from the date of receipt/ production of a copy of
this order and communicate the same to the petitioner.
10. With the aforesaid observations and directions, the writ petition stands
disposed of.
(Dr. S.N. Pathak, J.)
kunal/-
