Rang Bahadur Sharma vs Jharkhand Urja Vikas Nigam Ltd.
2021 Latest Caselaw 4257 Jhar

                             1

IN THE HIGH COURT OF JHARKHAND AT RANCHI
             L.P.A. No. 93 of 2020
                     with
             I.A. No. 1046 of 2021
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Rang Bahadur Sharma, aged about 62 years, son of Jagat Sinha, resident of Flat No. 3B, Surya Enclave, Amethia Nagar, P.O. & P.S. - Namkum, District- Ranchi (Jharkhand) .... Writ Petitioner/Appellant Versus

1.Jharkhand Urja Vikas Nigam Ltd., through its Chairman-cum-Managing Director, having its Office at Engineering Building, HEC Colony, Dhurwa, P.O. & P.S.

- Dhurwa, District - Ranchi.

2.The Managing Director (Distribution), Jharkhand Bijli Vitaran Nigam Ltd., having its Office at Engineering Building, HEC Colony, Dhurwa, P.O. & P.S. - Dhurwa, District - Ranchi.

3.The Deputy General Manager (Personnel & Administration), Jharkhand Urja Vikas Nigam Ltd., having its Office at Engineering Building, HEC Colony, Dhurwa, P.O. & P.S. - Dhurwa, District - Ranchi.

                      ....     Respondents/Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE

HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellant : Ms. Ritu Kumar, Advocate Mr. Samavesh Bhanj Deo, Adv.

Mr. Vikash Kumar, Adv.

For the Respondents : Mr. Manish Kumar, Adv.

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Oral Judgment Order No. 05: Dated 18th November, 2021:

I.A. No. 1046 of 2021

This Interlocutory Application has been filed for

condoning the delay of 85 days, which has occurred in

preferring this appeal.

2. Heard learned counsel appearing for the parties.

3. Having regard to the averments made in this

application, we are of the view that the appellant was

prevented by sufficient cause from preferring the appeal

within the period of limitation.

4. Accordingly, I.A. No. 1046 of 2021 is allowed and

delay of 85 days in preferring the appeal is condoned.

L.P.A. No. 93 of 2020

5. The instant intra-court appeal under Clause 10 of

the Letters Patent is preferred against the

order/judgment dated 14.10.2019 passed in W.P.(S) No.

2475 of 2017 whereby and whereunder the writ petition

was dismissed refusing interference with the order of

punishment.

6. The brief facts of the lis which is required to be

enumerated read as hereunder:

The writ petitioner was initially appointed in the

year 1988 as Unskilled Khalasi and subsequently

promoted to the post of Correspondence Clerk in the

year 1993. While discharging his duties, the petitioner

was served with a letter as contained in Memo No. 3695

dated 02.09.2009 informing the petitioner that the

Board intended to initiate a departmental proceeding on

the charges as contained in charge-sheet and a show

cause was called for from him. The writ petitioner replied

to the show cause notice vide letter dated 17.09.2009

stating that while he was discharging the duty in Special

Cell in addition to work of other Sections, no Assistant

was posted in the said Cell, as such it was difficult for

him to discharge his duties taking into consideration the

fact he was already over-loaded with other work and

further the delay in disposal of the file in question was

not intentional and delay occurred only because of

excessive workload on him. In the reply, it was further

stated that in his entire service career, there was no

complaint against him and it is the first instance such

allegation has been leveled against him, as such prayer

for exoneration of the charge was made. But the reply of

the petitioner was not found to be satisfactory as such

enquiry was conducted by the Conducting officer who

submitted his report vide letter dated 23.03.2010 stating

that the petitioner unnecessarily retained the file of the

delinquent-employee for a period of six months and

submitted wrong proposal. The Enquiry Officer taking

into consideration the stand taken by the petitioner as

also other material fact held the petitioner guilty of the

charges. On the basis of enquiry report, second show

cause was issued upon the petitioner vide memo no.

1287 dated 05.08.2010, to which he replied, whereupon

the disciplinary authority finally passed the impugned

order of punishment dated 13.10.2010 whereby the

petitioner was awarded the punishment of censure for

the year 2005-08 and further withholding of three

increments with cumulative effect, against which the

petitioner preferred appeal, which was rejected by the

appellate authority vide order dated 08.06.2011.

Being aggrieved, the writ petitioner-appellant

invoked the power of this Court conferred under Article

226 of the Constitution of India by preferring writ

petition being W.P. (S) No. 2475 of 2017 by challenging

the order passed by the disciplinary authority as well as

by the appellate authority on the ground that

withholding of three increments with cumulative effect

since is a major punishment could not have been

awarded in absence of any serious breach of duty

committed by the petitioner. The allegation that the

petitioner had retained the concerned file for a period of

about six months and given a wrong proposal is human

error which occurred due to excess workload and in

absence of helping hands as no Assistant was posted in

the Allegation Cell, as such the files were kept pending

for some time. It was further contended that while

passing the impugned order of punishment the

respondents failed to take into consideration the

Circular of the Jharkhand State Electricity Board issued

vide Memo No. 3265 dated 02.12.2004 wherein it has

been resolved that no employee would be awarded

punishment for a bona fide mistake committed in course

of employment.

While on the other hand plea was taken on behalf

of respondent-JSEB (now Jharkhand Urja Vikash Nigam

Limited, in short "JUVNL") that there is no error in the

impugned order of punishment rather the award of

punishment is proportional to the guilt committed by the

petitioner and has been passed after following the

mandatory provisions of the enquiry/departmental

proceeding. The enquiry officer after affording

opportunity of hearing to the petitioner has found the

petitioner guilty of the charges leveled against him and

based upon such finding the disciplinary authority after

following the principles of natural justice has imposed

the impugned punishment, which has been affirmed by

the appellate authority, as such the same requires no

interference.

The learned Single Judge after taking into

consideration the argument advanced on behalf of the

parties declined to interfere with the impugned order of

punishment as also the appellate order, which is the

subject matter of present intra-court appeal.

7. Mr. Samavesh Bhanj Deo, learned counsel for the

writ petitioner-appellant submits that the learned Single

Judge while dismissing the writ petition has not

appreciated the plea of the writ petitioner to the effect

that there was lack of work force in the Section where he

was posted and due to heavy workload such error was

committed which was unintentional and, therefore,

punishment of withholding three increment with

cumulative effect, which is major in nature, ought not to

have been imposed upon the writ petitioner-appellant

but the learned Single Judge discarding the aforesaid

plea declined to interfere with the impugned order of

punishment, therefore, the order passed by the learned

Single Judge suffers from material irregularity. Hence,

the same is not sustainable in the eyes of law and is

liable to be quashed and set aside.

8. Per contra, Mr. Manish Kumar, learned counsel

for the respondents submits that there is no error in the

order passed by learned Single Judge as learned Single

Judge dismissed the writ petition after taking into

consideration the nature of allegation, the finding

recorded by the enquiry officer wherein the writ

petitioner was afforded with the opportunity to defend

his case and the disciplinary authority basing upon the

finding recorded by the enquiry officer has imposed the

punishment. It has further been submitted that the writ

Court sitting under Article 226 of the Constitution of

India has limited scope of interference with the

concurrent finding recorded by the two consecutive

administrative authorities. Therefore, submission has

been made that the order passed by the learned Single

Judge suffers from no error.

9. This Court, having heard learned counsel for the

parties and on appreciation of the rival submissions of

the parties, deem it fit and proper first to refer certain

admitted facts, which are necessary for proper

adjudication of the lis.

10. Admittedly, the writ petitioner while posted as

Correspondence Clerk in the Allegation Cell, a memo of

charge was served upon him on the allegation that he

intentionally delayed in putting up the files of

delinquent-employees, namely, Sri Raj Mangal Prasad

Verma and Sri Umesh Prasad Sharma, which were of

urgent nature amounting to violation of the official

working procedures. Based upon the aforesaid charge,

the petitioner was served with letter as contained in

Memo No. 3695 dated 02.09.2009 informing the

petitioner that the Board intended to initiate a

departmental proceeding on the charges as contained in

charge-sheet and a show cause was called for from the

petitioner. The writ petitioner replied to the show cause

notice vide letter dated 17.09.2009 which was found

unsatisfactory, therefore, enquiry was conducted by the

Conducting officer who submitted his report vide letter

dated 23.03.2010 stating that the petitioner

unnecessarily retained the file of the delinquent-

employee for a period of six months and submitted

wrong proposal. On the basis of said enquiry report,

second show cause was issued upon the petitioner vide

memo no. 1287 dated 05.08.2010, to which he replied,

whereupon the disciplinary authority finally passed the

impugned order of punishment dated 13.10.2010

whereby the petitioner was awarded the punishment of

censure for the year 2005-08 and further withholding of

three increments with cumulative effect, against which

the petitioner preferred appeal, which was also rejected

by the appellate authority vide order dated 08.06.2011.

Being aggrieved the writ petitioner approached this

Court by filing writ petition, which was dismissed, which

is the subject matter of present intra-Court appeal.

Argument has been advanced by learned counsel

for the writ petitioner-appellant that the learned Single

Judge has failed to appreciate the very plea of the writ

petitioner of excessive workload put by the competent

authority in the Allegation Cell which caused delay in

processing the files of delinquent-employees, which is

the subject matter of departmental proceeding. Further

plea has been taken that imposing punishment of

withholding of three annual increments with cumulative

effect is considered to be excessive in nature taking into

consideration the nature of allegation leveled against the

writ petitioner.

While on the other hand, learned counsel for the

respondent-JUVNL has submitted that there is very

limited scope of interference under the power conferred

under Article 226 of the Constitution of India to exercise

the power of judicial review in a case of finding recorded

by the enquiry officer in the disciplinary proceeding.

Apart from that it has been submitted that nature of

allegation leveled against the petitioner is serious in

nature since he has tried to help the delinquent-

employees by keeping the file pending which amounts to

gross negligence and dereliction in duty on the part of

the writ petitioner. It has further been submitted that

the learned Single Judge after taking into consideration

the nature of allegation and also the finding recorded by

the enquiry officer as also the order passed by the

disciplinary authority as well as by the appellate

authority, has declined to interfere with the impugned

order of punishment, which may not be interfered with

by this Court sitting under Article 226 of the

Constitution of India in exercise of power of judicial

review by reversing the fact finding by re-appraisal of the

evidence.

11. We deem it fit and proper to refer to certain

judicial pronouncement of the Hon'ble Supreme Court

on the scope of judicial review in exercise of power

conferred under Article 226 of the Constitution of India.

Reference in this regard be made to the judgment

rendered in Union of India & Ors Vs. P. Gunasekaran

[AIR 2015 SC 545] wherein at paragraph 13, the

following guidelines has been laid down for showing

interference in the decision taken by the disciplinary

authority and not to interfere with the decision, which

reads hereunder as:

"13.Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re- appreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings;

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence.

Under Article 226/227 of the Constitution of India, the High Court shall not:

(i). re-appreciate the evidence;

(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii). go into the adequacy of the evidence;

(iv). go into the reliability of the evidence;

(v). interfere, if there be some legal evidence on which findings can be based.

(vi). correct the error of fact however grave it may appear to be;

(vii). go into the proportionality of punishment unless it shocks its conscience."

The Hon'ble Apex Court in the case of

Management of State Bank of India vs. Smita

Sharad Deshmukh and Anr. [(2017) 4 SCC 75], has

laid down therein that it is equally settled position of law

that the High Court sitting under Article 226 of the

Constitution of India can certainly interfere with the

quantum of punishment, if it is found disproportionate

to the gravity of offence.

The Hon'ble Apex Court in Central Industrial

Security Force and Ors. vs. Abrar Ali [(2017) 4 SCC

507], has laid down the guidelines at paragraphs 13 and

14 showing interference by the High Court in the matter

of punishment imposed on conclusion of the

departmental proceeding, which is quoted herein below:

"13.Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without

assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to re-appreciation of evidence. It is settled law that re-appreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India.

14.In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, reported in (2011) 4 SCC 584 : (AIR 2011 SC 1931, Para 6), this Court held as follows: "7.It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations."

Thus, it is evident from the judicial

pronouncement of the Hon'ble Apex Court, as referred

herein above, that guidelines have been laid down for

interference by the High Court under Article 226 of the

Constitution of India in exercise of power of judicial

review.

12. This Court after considering the aforesaid

judgment is now considering the fact of the given case. It

is not the case of the writ petitioner that he was not

afforded with the opportunity to defend his case before

the enquiry officer rather he has fully participated in the

enquiry and defended the charge whereafter the enquiry

officer, after considering his reply and taking into

considering the charge leveled against him, has found

that he has retained the file for a period of six months

while discharging the duty in Allegation Cell. The

enquiry officer has considered the said charge to be

serious in nature and after having recorded the finding

of proving of charge forwarded the same before the

disciplinary authority. The disciplinary authority has

accepted the same and imposed the punishment of

censure for the year 2005-08 and further withhold of

three increments with cumulative effect.

Therefore, according to our considered view,

taking into consideration the ratio laid down in Union of

India Vs. P. Gunasekaran (supra) and Central

Industrial Security Force and Ors. vs. Abrar Ali

(supra), there is no breech of principles of natural

justice and the specific finding has been recorded by the

enquiry officer while dealing with charge, which has

been accepted by the disciplinary authority by imposing

punishment, and the appellate authority has refused to

interfere with the order of punishment, therefore, there

is concurrent finding by the two administrative

authorities i.e., disciplinary authority and appellate

authority.

In such a circumstance since no other issue save

and except the issue of non-consideration of plea of

excessive workload as has been raised by the learned

counsel for the appellant, which according to our

considered view cannot be treated to be a valid ground

to interfere with the administrative decision. When a

public servant is assigned with duty to discharge in a

particular manner, it would be incumbent on his part to

discharge his duty with utmost sincerity and with all

devotion. In the case in hand, the writ petitioner has

failed to discharge his duty as directed by the higher

authorities in processing the file of delinquent-

employees who were facing the departmental proceeding

by keeping the said file for a period of about six months.

Therefore, according to our considered view, the act of

the writ petitioner cannot be said to be bona fide and

also it cannot be said that writ petitioner was

discharging his duty with utmost sincerity. There can be

delay of few days or weeks but there cannot be delay of

six months in disposing of the file of a particular Section

by the concerned who was custodian of the said file. If

the enquiry officer has come to a conclusive finding that

there is gross dereliction in duty on the part of the writ

petitioner the said finding cannot be reversed by this

Court sitting under Article 226 of the Constitution of

India in exercise of power of judicial review that too

when the finding recorded by the enquiry officer has

been accepted by the disciplinary authority by imposing

punishment and the appellate authority has declined to

interfere with the punishment imposed by disciplinary

authority. Therefore, there is concurrent finding of the

administrative authorities and in such a circumstance

interference by the High Court in exercise of power of

judicial review by re-appreciating the evidence for

reversing the fact finding of the enquiry officer will

amount to sitting as appellate Court, which is not

permissible, as has been held by Hon'ble Apex Court in

Union of India Vs. P. Gunasekaran (supra) and

Central Industrial Security Force and Ors. vs. Abrar

Ali (supra).

13. We are, therefore, of the view that the writ

petitioner has failed to make out a case for interference

by this Court under Article 226 of the Constitution of

India by exercising the power of judicial review as per

the proposition of law laid down in Union of India Vs.

P. Gunasekaran (supra) and Central Industrial

Security Force and Ors. vs. Abrar Ali (supra).

14. We, having discussed the fact in detail as above as

also considering the order passed by learned Single

Judge, are of the view that the learned Single Judge has

considered all these aspects of the matters as also the

legal position, as discussed herein above, thus, the order

passed by the learned Single Judge suffers from no

infirmity.

15. Accordingly, the appeal fails, and is dismissed.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Alankar/ -

A.F.R.