Jharkhand High Court
Rajendra Prasad Sharma vs The State Of Jharkhand Through The ... on 2 November, 2021
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 415 of 2021
Rajendra Prasad Sharma ... ...Petitioner
-Versus-
1. The State of Jharkhand through the Principal Secretary, School, Education and Literacy
Department, Government of Jharkhand, having its office at MDI Building, Dhurwa, Ranchi
2. The Director, Primary Education, School, Education and Literacy Department, Ranchi at
MDI Building, Dhurwa, Ranchi
3. The Deputy Commissioner, Ramgarh
4. The Under Secretary, Primary Education, School, Education and Literacy Department,
Ranchi, Government of Jharkhand, Ranchi
5. The Regional Deputy Director of Education, North Chhotanagpur Division, Hazaribagh,
District Hazaribagh
6. The District Education Officer, Ramgarh
7. The District Superintendent of Education, Ramgarh ... ...Respondents
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CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK
(Through Video Conferencing)
For the Petitioner :Mr. Rahul Kumar, Advocate
:Ms. Apoorva Singh, Advocate
For the Resp.-State :Mr. Suresh Kumar, SC (L & C)-II
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CAV on 09.08.2021 Pronounced on 02.11.2021
Dr. S.N. Pathak, J. : The petitioner has approached this Court for quashing the order as
contained in Memo No. 54 dated 12.01.2021 (Annexure-12) passed by the Director,
Primary Education, whereby and whereunder the petitioner has been imposed with a major
punishment of dismissal from service without conducting a proper and full-fledged
Departmental Proceeding by competent authority. Further, prayer has been made for
quashing the Memo of Charge dated 05.09.2020 (Annexure-1) and to reinstate the
petitioner in service with back wages along with all consequential benefits.
2. The case of the petitioner lies in a narrow compass. The Petitioner was
appointed to the post of Assistant Teacher in Science subject on 14.05.1988 in Government
Middle School, Jalim, Latehar. Thereafter, he was appointed as Block Education Extension
Officer (hereinafter referred as BEEO) on 10.04.1992 through competitive examination
held for Sub-ordinate Education Service in the year, 1989 and was posted at Bero, Ranchi.
Since his appointment, the petitioner served at different places of posting with utmost
sincerity. During the period 2019-20, when the petitioner was posted as BEEO at Patratu-I
in Ramgarh District including the additional charge of Patratu-II, a Charge Memo dated
05.09.2020 was framed against him without any show cause notice for not submitting the
reports within time and misusing his chair to coerce the teachers into getting insurance
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policies from his wife, who is an Insurance Agent. The said Memo of Charge has been
issued jointly by the Office of the District Superintendent of Education, Ramgarh and
Deputy Commissioner, Ramgarh. While the petitioner was oblivious to the Memo of
Charge framed against him, the said Charge of Memo was forwarded by the Respondent-
DSE to the Director, Primary Education vide his letter contained in memo No. 1297 dated
08.09.2020. for further proceeding. It is specific case of the petitioner that when the Memo
of Charge was served upon the petitioner, the supporting documents containing the relied
upon documents/evidence were not supplied to him. Thereafter, vide letter contained in
memo No. 1199 dated 24.09.2020 issued by the Under Secretary, Primary Education by
which the petitioner was called upon hearing of the matter. Pursuant to the same, the
petitioner appeared before the respondent-Director, Primary Education on 24.09.2020 and
was directed to immediately give his written reply to six charges framed against him,
which the petitioner submitted carefully, elucidating that all the required reports for his
districts had been duly submitted and he had never misused his position to coerce the
teachers into getting insurance policies. Thereafter, the Director, Primary Education vide
his office order dated 02.11.2020 recorded a finding that the petitioner was guilty of the
charges and directed that second show cause may be issued to him and he be suspended
with immediate effect although nothing cogent had been brought on record to substantiate
the charges of imputation relating to dereliction of duties and coerce of teachers. Upon the
direction of the Director, Primary Education, the petitioner was suspended vide Office
order contained in Memo No. 1335 dated 10.11.2020 issued by the Deputy Director,
Primary Education. The second show cause was issued to the petitioner vide letter
contained in Memo No. 1370 dated 23.11.2020 by the Under Secretary, Primary Education
and petitioner was directed to submit his reply, within 15 days. Pursuant to the same, the
petitioner replied vide his letter dated 04.12.2020 requesting the authorities to clarify
certain aspects w.r.t. disciplinary proceedings initiated against him and also prayed for time
to submit his reply and take effective defense. In the meanwhile, the respondents have
exonerated 31 Assistant Teachers, who were alleged to have been taken undue advantage of
the position of the petitioner in order to get their insurance policies and their salaries were
released vide office order contained in Memo No. 1750 dated 18.12.2020.
3. It is further the case of the petitioner that although the documents
demanded by the petitioner were not provided but from his memory and limited resource,
he gave his reply on 21.12.2020 to the allegations levelled against him. Thereafter, The
respondent-Director, Primary Education vide office order dated 12.01.2021passed the order
of punishment of dismissal from service as against the Petitioner, without considering the
nature of allegations and the replies/defence submitted by the petitioner.Hence, the
petitioner has been constrained to knock the door of this Court.
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4. Mr. Rahul Kumar, learned counsel for the petitioner submitted that the
impugned order of dismissal from service is against the Service Rule as the dismissal of the
Petitioner from service, amounts to a major punishment under the Jharkhand Government
Servant (Classification Control and Appeal) Rules, 2016 and as per Rule 17 of the said
Rules, no major punishment can be imposed upon a government employee without holding
an enquiry in the manner provided under the Rules and the entire copy of articles of charge,
list of documents, witness depositions and other relevant documents must be served upon
the delinquent officer. Furthermore, he must be accorded an opportunity to give his written
statement of defence which must be taken into consideration during the hearing in
disciplinary proceedings. He further submitted that there is folly in the departmental
proceeding as Memo of Charge was not framed by competent authority neither approved
by Disciplinary Authority. There is no full-fledged Departmental Proceeding contemplated
by Appointing Authority. He further contended that no opportunity was given to the
petitioner to cross examine the witnesses and also no Enquiry Report was submitted in
relation to findings on the Memo of Charge. Extraneous materials beyond the purported
charge were considered. Guilt under the provisions of Prevention of Corruption Act, 1988
has been opined, but there was no criminal prosecution, however, departmental
proceedings under the provisions of Jharkhand Government Servant (Classification,
Control and Appeal) Rules has been contemplated. There is complete violation of
principles of natural justice and procedure established under Jharkhand Education Code
and Jharkhand Government Servant (Classification, Control and Appeal) Rules. The order
of punishment is shockingly disproportionate.
5. He further argued that the finding recorded by the Enquiry Officer is
highly perverse and extraneous to the charges as he has been held guilty under the
provisions of Prevention of Corruption Act, 1988 although there had been no Criminal
Prosecution as against the petitioner. The petitioner has further been denied access to the
enquiry report and the materials on which the Departmental Proceeding had been based.
Lastly it is submitted that during the pendency of the writ petition, the petitioner has
crossed the age of superannuation and as such, an appropriate direction may be passed for
payment of entire dues, if he succeeds.
6. To buttress his argument, learned counsel for the petitioner placed heavy reliance
on the following judgments of Hon'ble Apex Court as well as this Court:
1. Managing Director, ECIL, Hyderabad Vs. B. Karunakar&Ors., reported in
(1993) 4 SCC 727.
2. Whirpool Corporation Vs. Registrar of Trade Marks, Mumbai &Ors.
reported in (1998) 8 SCC 1
3. State of Uttaranachal&Ors. Vs. Kharak Singh, reported in 2008 (8) SCC 236
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4. State of Uttar Pradesh &Ors. Vs. Saroj Kumar Sinha, reported in 2010 (2)
SCC 772
5. Union of India Vrs. B.V. Gopinath reported in 2014 (1) SCC 351
6. Chennai Metro Politan Water Supply &Swerage Board and Ors. Vs. T.T.
MuraliBabu, reported in (2014) 4 SCC 108
7. Abhay Kumar Vrs. State of Jharkhand &Ors.) reported in 2016 SCC Online
8. Union of India &Ors. Vs. Ram Lakhan Sharma reported in 2018 (7) SCC 670
9. 2020 SCC Online Jhar, 410
7. Per contra counter-affidavits have been filed.
8. Mr. Suresh Kumar, learned counsel appeared on behalf of the respondent -State
submitted that impugned order of dismissal from service has been passed after complying
with the principles of natural justice. The respondent-Director, vide office order dated
12.01.2021 after considering the nature of allegations, the enquiry report & provision of
law had passed the order of punishment of dismissal from service as against the Petitioner
and as such, there is no illegality or infirmity in the impugned order. He further submitted
that upon proper departmental proceeding, by giving proper opportunity to defend his case,
the petitioner was found guilty of misuse of public post for personal benefits and after
giving show cause notice, punishment of dismissal was passed against the petitioner under
Rule-14 of Jharkhand Government Employee (classification, control & Appeals) Rule
2016. There is no violation of principles of natural justice as the petitioner has also served
second show cause notice. He further submitted that there is an alternative remedy i.e.
Appellate Authority and petitioner has directly approached this Court without availing the
alternate remedy and as such, this writ petition is liable to be dismissed in limine. The
D.S.E. and Deputy Commissioner are competent authority to constitute and recommend the
Memo of Charge which has been forwarded to the Director. The enquiry was made by the
Director, Primary Education, Jharkhand with assistance of Under Secretary and cross
examination of 50 teachers were also done and as such, the spirit of Jharkhand Government
Servants (Classification, Control & Appeal) rules, 2016 has been followed. He further
submitted that the petitioner was found guilty of the charges and as such, the petitioner was
inflicted with the punishment of dismissal from service under the provisions of the State
Cadre Rules and Jharkhand State (Classification, Control & Appeal) Rules, 2016.
9. To buttress his argument, learned counsel for the petitioner placed heavy reliance
on the judgment of Hon'ble Division Bench of this Court in case of Hemlal HembramVs.
Union of India &Ors. passed in LPA No.256 of 2019.
10. Be that as it may, having gone through the rival submissions of the parties and on
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perusal of the records, the case of the petitioner needs consideration for the following facts
and reasons:-
I. The impunged order of dismissal is arbitrary and cryptic in nature and has been
passed dehors the rules inasmuch as the Disciplinary Authority has considered
the case of corruption against the petitioner, which is not nowhere mentioned
in the Memo of Charge. The Hon'ble Apex Court in case of M.V. Bijlani v.
Union of India, reported in (2006) 5 SCC 88 , it has been held thus:
25. It is true that the jurisdiction of the court in judicial review is
limited. Disciplinary proceedings, however, being quasi-criminal in
nature, there should be some evidence to prove the charge.
Although the charges in a departmental proceeding are not
required to be proved like a criminal trial i.e. beyond all reasonable
doubt, we cannot lose sight of the fact that the enquiry officer
performs a quasi-judicial function, who upon analysing the
documents must arrive at a conclusion that there had been a
preponderance of probability to prove the charges on the basis of
materials on record. While doing so, he cannot take into
consideration any irrelevant fact. He cannot refuse to consider the
relevant facts. He cannot shift the burden of proof. He cannot reject
the relevant testimony of the witnesses only on the basis of surmises
and conjectures. He cannot enquire into the allegations with which
the delinquent officer had not been charged with.
II. The cardinal principles of natural justice has been given a complete go-bye. In
a case where the Disciplinary Authority proposes to award punishment of
dismissal i.e. capital punishment, a full-fledged departmental proceeding is
warranted, but in the instant case, there is no full-fledged department
proceeding neither any Enquiry Officer nor any Presenting officer has been
appointed and also the petitioner was never given any opportunity to cross
examine the witnesses. The Hon'ble Apex Court in case of Union of India v.
Ram Lakhan Sharma, reported in (2018) 7 SCC 670 has held thus:
24. The disciplinary proceedings are quasi-judicial proceedings
and the Enquiry Officer is in the position of an independent
adjudicator and is obliged to act fairly, impartially. The authority
exercising quasi-judicial power has to act in good faith without
bias, in a fair and impartial manner.
25. Rules of natural justice have been recognised and developed as
principles of administrative law. Natural justice has many facets.
All its facets are steps to ensure justice and fair play. This Court
in Suresh Koshy George v. University of Kerala [Suresh Koshy
George v. University of Kerala, AIR 1969 SC 198] had occasion to
consider the principles of natural justice in the context of a case
where disciplinary action was taken against a student who was
alleged to have adopted malpractice in the examination. In para 7
this Court held that the question whether the requirements of
natural justice have been met by the procedure adopted in a given
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case must depend to a great extent on the facts and circumstances
of the case in point, the constitution of the Tribunal and the rules
under which it functions. The following was held in paras 7 and 8:
(AIR p. 201)
"7. ... The rules of natural justice are not embodied rules. The
question whether the requirements of natural justice have been met
by the procedure adopted in a given case must depend to a great
extent on the facts and circumstances of the case in point, the
constitution of the Tribunal and the rules under which it functions.
8. In Russell v. Duke of Norfolk [Russell v. Duke of Norfolk, (1949)
1 All ER 109 (CA)] , Tucker, L.J. observed: (All ER p. 118 D-F)
'There are, in my view, no words which are of universal application
to every kind of inquiry and every kind of domestic tribunal. The
requirements of natural justice must depend on the circumstances of
the case, the nature of the inquiry, the rules under which the
tribunal is acting, the subject-matter that is being dealt with, and so
forth. Accordingly, I do not derive much assistance from the
definitions of natural justice which have been from time to time
used, but, whatever standard is adopted, one essential is that the
person concerned should have a reasonable opportunity of
presenting his case.' "
26. A Constitution Bench of this Court has elaborately considered
and explained the principles of natural justice in A.K.
Kraipak v. Union of India [A.K. Kraipak v. Union of India, (1969) 2
SCC 262 : AIR 1970 SC 150] . This Court held that the aim of the
rules of natural justice is to secure justice or to put it negatively to
prevent miscarriage of justice. The concept of natural justice has
undergone a great deal of change in recent years. Initially
recognised as consisting of two principles, that is, no one shall be a
judge in his own cause and no decision shall be given against a
party without affording him a reasonable hearing, various other
facets have been recognised. In para 20 the following has been
held: (SCC p. 272)
"20. The aim of the rules of natural justice is to secure justice or to
put it negatively to prevent miscarriage of justice. These rules can
operate only in areas not covered by any law validly made. In other
words they do not supplant the law of the land but supplement it.
The concept of natural justice has undergone a great deal of
change in recent years. In the past it was thought that it included
just two rules, namely, (1) no one shall be a judge in his own case
(nemo debet esse judex propria causa), and (2) no decision shall be
given against a party without affording him a reasonable hearing
(audi alteram partem). Very soon thereafter a third rule was
envisaged and, that is, that quasi-judicial enquiries must be held in
good faith, without bias and not arbitrarily or unreasonably. ..."
28. When the statutory rule does not contemplate appointment of
Presenting Officer whether non-appointment of Presenting Officer
ipso facto vitiates the inquiry? We have noticed the statutory
provision of Rule 27 which does not indicate that there is any
statutory requirement of appointment of Presenting Officer in the
disciplinary inquiry. It is thus clear that statutory provision does
not mandate appointment of Presenting Officer. When the statutory
provision does not require appointment of Presenting Officer
whether there can be any circumstances where principles of natural
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justice can be held to be violated is the broad question which needs
to be answered in this case. We have noticed above that the High
Court found breach of principles of natural justice in Enquiry
Officer acting as the prosecutor against the respondents. The
Enquiry Officer who has to be independent and not representative
of the disciplinary authority if starts acting in any other capacity
and proceeds to act in a manner as if he is interested in eliciting
evidence to punish an employee, the principle of bias comes into
place.
36. Thus, the question as to whether the Enquiry Officer who is
supposed to act independently in an inquiry has acted as prosecutor
or not is a question of fact which has to be decided on the facts and
proceedings of a particular case. In the present case we have
noticed that the High Court had summoned the entire inquiry
proceedings and after perusing the proceedings the High Court
came to the conclusion that the Enquiry Officer himself led the
examination-in-chief of the prosecution witness by putting
questions. The High Court further held that the Enquiry Officer
acted himself as prosecutor and Judge in the said disciplinary
enquiry. The above conclusion of the High Court has already been
noticed from paras 9 and 10 of the judgment of the High Court
giving rise to Civil Appeal No. 2608 of 2012.
37. The High Court having come to the conclusion that the Enquiry
Officer has acted as prosecutor also, the capacity of independent
adjudicator was lost while adversely affecting his independent role
of adjudicator. In the circumstances, the principle of bias shall
come into play and the High Court was right in setting aside the
dismissal orders by giving liberty to the appellants to proceed with
inquiry afresh. We make it clear that our observations as made
above are in the facts of the present cases.
Further, The Hon'ble Apex Court in case of State of U.P. v. Saroj Kumar
Sinha, reported in (2010) 2 SCC 772 has held thus:
27. A bare perusal of the aforesaid sub-rule shows that when the
respondent had failed to submit the explanation to the charge-sheet
it was incumbent upon the inquiry officer to fix a date for his
appearance in the inquiry. It is only in a case when the government
servant despite notice of the date fixed failed to appear that the
inquiry officer can proceed with the inquiry ex parte. Even in such
circumstances it is incumbent on the inquiry officer to record the
statement of witnesses mentioned in the charge-sheet. Since the
government servant is absent, he would clearly lose the benefit of
cross-examination of the witnesses. But nonetheless in order to
establish the charges the Department is required to produce the
necessary evidence before the inquiry officer. This is so as to avoid
the charge that the inquiry officer has acted as a prosecutor as well
as a judge.
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
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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.
This extract is taken from State of U.P. v. Saroj Kumar Sinha,
(2010) 2 SCC 772 : (2010) 1 SCC (L&S) 675 : 2010 SCC OnLine
SC 248 at page 782
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.
III. Material evidences were not considered neither the necessary documents were
furnished to the petitioner to defend his case. The Hon'ble Apex Court in case
of State of Uttaranchal v. Kharak Singh, reported in (2008) 8 SCC 236 , it
has been held thus:
19. As pointed out above, awarding appropriate punishment is the
exclusive jurisdiction of the punishing/disciplinary authority and it
depends upon the nature and gravity of the proved charge/charges
and other attended circumstances. It is clear from the materials, the
officer, who inspected and noted the shortfall of trees, himself
conducted the enquiry, arrived at a conclusion holding the charges
proved and also strongly recommended severe punishment of
dismissal from service. The entire action and the course adopted by
the enquiry officer cannot be accepted and is contrary to the well-
known principles enunciated by this Court.
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
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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.
IV. Looking into the Memo of Charge, it can be comfortably incurred that the
punishment of dismissal is shockingly disproportionate to the charges.
V. There has been procedural latches in the departmental proceedings. Charges
were neither framed nor approved by the Disciplinary Authority, which is the
requirement of law. Even the respondent agrees to the contention of the learned
counsel for the petitioner that charges were never approved by the Competent
Authority. Similar issue fell for consideration before the Hon'ble Apex Court
in case of Union of India Vs. B.V. Gopinath, reported in (2014) 1 SCC 351,
wherein the Hon'ble Apex Court has held that :
40. Article 311(1) of the Constitution of India ensures that no
person who is a member of a civil service of the Union or an all
India service can be dismissed or removed by an authority
subordinate to that by which he was appointed. The overwhelming
importance and value of Article 311(1) for the civil administration
as well as the public servant has been considered stated and re-
stated, by this Court in numerous judgments, since the Constitution
came into effect on 19th January, 1950. Article 311(2) ensures that
no civil servant is dismissed or reduced in rank except after an
inquiry held in accordance with the rules of natural justice. To
effectuate the guarantee contained in Article 311(1) and to ensure
compliance with the mandatory requirements of Article 311(2), the
Government of India has promulgated CCS (CCA) Rules, 1965.
41. Disciplinary proceedings against the respondent herein were
initiated in terms of Rule 14 of the aforesaid Rules. Rule 14(3)
clearly lays down that where it is proposed to hold an inquiry
against a government servant under Rule 14 or Rule 15, the
disciplinary authority shall draw up or cause to be drawn up the
charge sheet. Rule 14(4) again mandates that the disciplinary
authority shall deliver or cause to be delivered to the government
servant, a copy of the articles of charge, the statement of the
imputations of misconduct or misbehaviour and the supporting
documents including a list of witnesses by which each article of
charge is proposed to be proved. We are unable to interpret this
provision as suggested by the Additional Solicitor General, that
once the disciplinary authority approves the initiation of the
disciplinary proceedings, the charge sheet can be drawn up by an
authority other than the disciplinary authority. This would destroy
the underlying protection guaranteed under Article 311(1) of the
Constitution of India. Such procedure would also do violence to the
protective provisions contained under Article 311(2) which ensures
that no public servant is dismissed, removed or suspended without
following a fair procedure in which he/she has been given a
reasonable opportunity to meet the allegations contained in the
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charge sheet. Such a charge sheet can only be issued upon
approval by the appointing authority i.e. Finance Minister.
49. We are unable to accept the submission of the learned Addl.
Solicitor General. Initially, when the file comes to the Finance
Minister, it is only to take a decision in principle as to whether
departmental proceedings ought to be initiated against the officer.
Clause (11) deals with reference to CVC for second stage advice. In
case of proposal for major penalties, the decision is to be taken by
the Finance Minister. Similarly, under Clause (12) reconsideration
of CVC's second stage advice is to be taken by the Finance
Minister. All further proceedings including approval for referring
the case to DOP & T, issuance of show cause notice in case of
disagreement with the enquiry officer report; tentative decision
after CVC's second stage advice on imposition of penalty; final
decision of penalty; and revision/review/memorial have to be taken
by the Finance Minister.
In our opinion, the Central Administrative Tribunal as well as the
High Court has correctly interpreted the provisions of the Office
Order No. 205 of 2005. Factually also, a perusal of the record
would show that the file was put up to the Finance Minister by the
Director General of Income Tax (Vigilance) seeking the approval of
the Finance Minister for sanctioning prosecution against one
officer and for initiation of major penalty proceeding under Rule
3(1)(i) and (3) (1) (iii) of the Central Civil Services (Conduct)
Rules against the officers mentioned in the note which included the
appellant herein. Ultimately, it appears that the charge memo was
not put up for approval by the Finance Minister. Therefore, it would
not be possible to accept the submission of Ms. Indira Jaising that
the approval granted by the Finance Minister for initiation of
departmental proceedings would also amount to approval of the
charge memo.
52. In our opinion, the submission of the learned Addl. Solicitor
General is not factually correct. The primary submission of the
respondent was that the charge sheet not having been issued by the
disciplinary authority is without authority of law and, therefore,
non est in the eye of law. This plea of the respondent has been
accepted by the CAT as also by the High Court. The action has
been taken against the respondent in Rule 14(3) of the CCS(CCA)
Rules which enjoins the disciplinary authority to draw up or cause
to be drawn up the substance of imputation of misconduct or
misbehaviour into definite and distinct articles of charges. The term
"cause to be drawn up" does not mean that the definite and distinct
articles of charges once drawn up do not have to be approved by
the disciplinary authority. The term "cause to be drawn up" merely
refers to a delegation by the disciplinary authority to a subordinate
authority to perform the task of drawing up substance of proposed
"definite and distinct articles of charge sheet". These proposed
articles of charge would only be finalized upon approval by the
disciplinary authority. Undoubtedly, this Court in the case of
P.V.Srinivasa Sastry & Ors. Vs. Comptroller and Auditor General &
Ors.[19] has held that Article 311(1) does not say that even the
departmental proceeding must be initiated only by the appointing
authority. However, at the same time it is pointed out that : (SCC P
422, para 4)
"4...... However, it is open to Union of India or a State Government
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to make any rule prescribing that even the proceeding against any
delinquent officer shall be initiated by an officer not subordinate to
the appointing authority."
It is further held that
"4. ..... Any such rule shall not be inconsistent with Article 311 of
the Constitution because it will amount to providing an additional
safeguard or protection to the holders of a civil post."
Further, the Hon'ble Division Bench of this Court in case of Abhay
Kumar Vs. The State of Jharkhand & Ors. reported in 2016 SCC Online
Jhar 2592 has held thus:
4. In "B.V. Gopinath Case", the Hon'ble Supreme Court repelled
the contention raised on behalf of the Union of India that once the
disciplinary authority approves the initiation of the disciplinary
proceeding, the charge-sheet can be drawn by any authority other
than the disciplinary authority. The Supreme Court further held that
the provision seeking approval of the charge-memo subsequent to
the decision taken by the competent authority for initiation of the
departmental proceedings is in consonance with the mandate
contained under Article 311 (1) & (2) of the Constitution of India.
5. Vide order dated 07.12.2015, original file was called for and
today, the learned counsel for the respondent-State of Jharkhand
has produced the original record of the case. On a perusal of the
original records, both by the counsel for the respondent-State of
Jharkhand as well as the counsel for the petitioner, they agree that
after the approval for initiation of departmental proceeding was
taken on 11.11.2011 from the Minister of Rural Development
Department, the file was not placed before the competent authority
i.e., the Minister seeking his approval of the charges contained in
the charge-memo. A photo-copy of the relevant extract of the record
which was obtained by the petitioner through RTI has also been
placed on record by way of supplementary affidavit. We, for our
satisfaction, have also perused the original records and we find that
the charge-memo served upon the petitioner was not approved by
the competent authority, though required under the Rules.
VI. The enquiry was never conducted as per the Jharkhand Government Servant
(Classification Control and Appeal) Rules, 2016 as there was no regular
departmental proceeding as per the said Rules and also no major punishment
can be imposed upon a government employee without holding an enquiry in
the manner provided under the said Rules.
VII. The finding recorded by the Enquiry Officer is highly perverse and extraneous
to the charges as he has been held guilty under the provisions of Prevention of
Corruption Act, 1988, but there had been no criminal prosecution against the
petitioner.
VIII. So far as the contention of the learned counsel for the respondents that there is
provision of Appeal and as such, petitioner without availing the alternative
punit
remedy has rushed to this Court is concerned, the law is well settled that when
there is a violation of principles of natural justice and order is without
jurisdiction, the High Court sitting under Article 226 of the Constitution of
India has every jurisdiction to interfere and entertain the writ petition even if
there is an alternative remedy. The Hon'ble Apex Court in case of Whirphool
Corporation V. Registrar of Trade Marks, Mumbai & Ors., reported in
(1998) 8 SCC 1 has held thus:
"15. Under Article 226 of the Constitution, the High court, having
regard to the facts of the case, has a discretion to entertain or not to
entertain a writ petition. But the High Court has imposed upon
itself certain restrictions one of which is that if an effective and
efficacious remedy is available, the High Court would not normally
exercise its jurisdiction. But the alternative remedy has been
consistently held by this Court not to operate as a bar in at least
three contingencies, namely, where the writ petition has been filed
for the enforcement of any of the Fundamental Rights or where
there has been a violation of the principle of natural justice or
where the order of proceedings are wholly without jurisdiction or
the vires of an Act is challenged. There is a plethora of case-law on
this point but to cut down this circle of forensic whirpool, we would
rely on some old decisions of the evolutionary era of the
constitutional law as they still hold the field".
Further, the Hon'ble Apex Court in case of Harbanslal Sahnia & Anr.
Vs. Indian Oil Corporation Ltd. & Ors. reported in (2003) 2 SCC 107, has
held thus:
"7. So far as the view taken by the High Court that the remedy by
way of recourse to arbitration clause was available to the
appellants and therefore the writ petition filed by the appellants
was liable to be dismissed, suffice it to observe that the rule of
exclusion of writ jurisdiction by availability of an alternative
remedy is a rule of discretion and not one of compulsion. In an
appropriate case in spite of availability of the alternative remedy,
the High Court may still exercise its writ jurisdiction in at least
three contingencies: (i) where the writ petition seeks enforcement of
any of the Fundamental Rights; (ii) where there is failure of
principles of natural justice or, (iii) where the orders or
proceedings are wholly without jurisdiction or the vires of an Act
and is challenged [See Whirlpool Corporation v. Registrar of Trade
Marks, Mumbai and Ors., (1998) 8 SCC 11. The present case
attracts applicability of first two contingencies. Moreover, as noted,
the petitioners' dealership, which is their bread and butter came to
be terminated for an irrelevant and non-existent cause. In such
circumstances, we feel that the appellants should have been
allowed relief by the High Court itself instead of driving them to the
need of initiating arbitration proceedings".
Further, the Hon'ble Apex Court in case of Uttar Pradesh Power
Transmission Corporation Ltd. & Anr. Vs. CG Power and Industrial
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Solutions Limited and Anr. reported in (2021) SCC Online SC 383, has held
thus:
67. Even though there is an arbitration clause, the petitioner herein
has not opposed the writ petition on the ground of existence of an
arbitration clause. There is no whisper of any arbitration
agreement in the counter affidavit filed by the UPPTCL to the writ
petition in the High Court. In any case, the existence of an
arbitration clause does not debar the court from entertaining a writ
petition.
68. It is well settled that availability of an alternative remedy does
not prohibit the High Court from entertaining a writ petition in an
appropriate case. The High Court may entertain a writ petition,
notwithstanding the availability of an alternative remedy,
particularly (1) where the writ petition seeks enforcement of a
fundamental right, (ii) where there is failure of principles of natural
justice or (iii) where the impugned orders or proceedings are
wholly without jurisdiction or (iv) the rives of an Act is under
challenge. Reference may be made to Whirpool Corporation Vs.
Registrar of Trade Marks, Mumbai reported in (1998) 8 SCC 1
:AIR 1999 SC 22 and Pimpri Chinchwad Municipal Corporation V.
Gayatri Construction Company, reported in (2008) 8 SCC 172,
cited on behalf of Respondent No.1.
69. In Harbanslal Sahnia V. Indian Oil Corporation Ltd., reported
in (2003) 2 SCC 107, this Court allowed the appeal from an order
of the High Court dismissing a writ petition and set aside the
impugned judgment of the High Court as also the impugned order
of the Indian Oil Corporation terminating the dealership of the
appellants, notwithstanding the fact that the dealership agreement
contained in arbitration clause.
11 . As a sequel to the aforesaid rules, guidelines and judicial pronouncement, the
impugned order of dismissal dated 12.01.2021 is fit to be quashed and set aside and same
is hereby quashed and set aside. As a result of quashment of impugned order, the petitioner
is directed to be reinstated into services with 50 % backwages to be paid to him from the
date of dismissal to reinstatement with all consequential benefits, in accordance with law,
within a period of six weeks from the date of receipt of a copy of this order.
12 It is made clear that if the petitioner has already crossed the age of
superannuation, the respondents shall take appropriate decision for making payment of
aforesaid benefits to him from the date of his dismissal till date of his superannuation, in
accordance with law, within the aforesaid period itself.
13 . Resultantly, writ petition stands allowed. No order as to cost.
(Dr. S. N. Pathak, J.)
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