Jharkhand High Court

Ramesh Kumar Choudhary vs The State Of Jharkhand on 2 December, 2022

                                    1


IN THE HIGH COURT OF JHARKHAND AT RANCHI

                   L.P.A No. 81 of 2020
Ramesh Kumar Choudhary, aged about 57 years, son of Kapoor Chand
Choudhary, residing at Tharpakhna, Post- GPO, Police Station Lower Bazar,
District Ranchi.                              .........              Appellant
                          Versus
1.The State of Jharkhand.
2.The Principal Secretary, Water Resources Department, Government of
Jharkhand, Ranchi officiating from Project Building, Post Duhrwa, Police
Station Jagarnathpur, District Ranchi
3.The Joint Secretary, Water Resources Department, Government of
Jharkhand, Ranchi officiating from Project Building, Post Duhrwa, Police
Station Jagarnathpur, District Ranchi.       ..........             Respondents
                          ---------

CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellant         : Mrs. Ritu Kumar, Advocate
                          : Mr. S.B. Deo, Advocate
                          : Ms. Satakshi, Advocate
For the Respondents       : Mr. Anish Kumar Mishra, A.C to Sr. S.C-I
                          -----------
             nd
06/Dated: 02 December, 2022

      I.A. No.1632 of 2021

      Heard the parties.

2. This interlocutory application has been filed for condoning the delay

of 19 days, which has occurred in preferring the present appeal.

3. Having regard to the facts and circumstances as mentioned in the

application and also considering the facts that no counter affidavit has been

filed opposing the interlocutory application by the respondents, we are of the

opinion that the appellant was prevented by sufficient cause from preferring

the appeal within the period of limitation.

4. Accordingly, the delay of 19 days in preferring the present appeal is

hereby condoned and this application stands allowed.

L.P.A. No.81 of 2020

5. This appeal under Clause 10 of the Letters Patent is directed against

the order/judgment dated 11.12.2019 passed by learned Single Judge of this

Court in W.P.(S) No.7561 of 2013 whereby and whereunder the order dated

01.03.2016 issued under the signature of the Joint Secretary, Water

Resources Department, Government of Jharkhand, appended as Annexure-

11 to the writ petition has been quashed and set aside by remitting the matter

before the respondent no.3, the Joint Secretary, Water Resources

Department, Government of Jharkhand with a direction to pass a fresh order

in accordance with law after giving due notice to the petitioner, preferably

within 12 weeks.

6. The brief fact of the case as per the pleading made in the writ petition

which requires to be enumerated, reads hereunder as:

The writ petitioner was posted as Assistant Engineer in the Water

Resources Department, Government of Jharkhand and while working at

Ranchi Regional Development Authority was proceeded departmentally for

commission of irregularities.

The enquiry officer was appointed to conduct an enquiry with respect

to the charge levelled against the writ petitioner. Altogether three charges

were levelled against the writ petitioner, all the charges were not found to be

proved, as would appear from the enquiry report appended as Annexure-7 to

the writ petition. However, one of the charge/finding had been recorded by

the enquiry officer that the said charge can be ignored. The aforesaid enquiry

report was forwarded before the disciplinary authority. The disciplinary

authority has passed the order of punishment of withholding two annual

increment with cumulative effect and the promotion for the period of two

years has been withheld. The writ petitioner assailed the said order before

the appellate authority but the appeal was dismissed.

Being aggrieved with the order passed by the disciplinary authority

dated 31.05.2010 and the appellate authority dated 01.03.2016 a writ petition

was filed being W.P.(S) No.7561 of 2013. The aforesaid writ petition has

been disposed of by quashing the appellate order dated 01.03.2016 but

remanding it before the appellate authority for passing order afresh after

issuing notice to the writ petitioner.

7. The instant appeal is against the aforesaid order inter alia on the

ground that the learned Single Judge has not appreciated the legal position

to the effect that in a case where the enquiry officer has not found the charge

proved, the disciplinary authority ought to have differ with the finding

recorded by the enquiry officer should assign the reason of such difference.

The writ petitioner ought to have been given an opportunity to make reply

and it is only on being not satisfied with the same the disciplinary authority

should have taken decision of inflicting punishment as enshrined under the

applicable Conduct and Discipline Rule. But herein the administrative

authority while inflicting the punishment has not differed with the finding

recorded by enquiry officer and inflicted the punishment of withholding two

annual increment with cumulative effect and the promotion for the period of

two years has been withheld presuming the charge found to be proved by the

enquiry officer.

8. It has further been contended while assailing the order passed by

learned Single Judge that the original authority has considered the Charge

No.2 to be proved but the same is contrary and not in consonance with the

finding recorded by the enquiry officer as would be evident from the enquiry

report wherein even the Charge No.2 has not found to be proved.

9. Learned counsel for the appellant/writ petitioner, therefore, submits

that although the learned Single Judge has interfered with the order of

punishment affirmed in appeal and has also quashed it but the issue which

was raised before the learned Single Judge about non-observance of the legal

position in a case where the charge has not been found to be proved. As

such, in the given facts of the case the order of remand ought to have been at

the stage of showing difference with the finding recorded by the enquiry

officer by the disciplinary authority. Hence, the order of remand ought to

have been at this stage, but, the same having not been considered by the

learned Single Judge, therefore, the order impugned requires interference.

10. Learned counsel for the appellant/writ petitioner has relied upon the

judgment rendered by Hon'ble Apex Court in the case of Punjab National

Bank & others Versus Kunj Behari Misra, (1998) 7 SCC 84.

11. Mr. Anish Kumar Mishra, learned A.C to Sr. S.C-I appearing for the

respondent-State of Jharkhand has defended the order passed by learned

Single Judge by taking the ground that the order impugned has been quashed

by remitting it before the respondent no.3, the appellate authority and as

such the said point can be raised before the appellate authority and in that

view of the matter the order passed by learned Single Judge requires no

interference.

12. We have heard learned counsel for the parties, perused the documents

available on record as also the finding recorded by the learned Single Judge

in the order impugned.

13. The fact which is not in dispute in this case is that the appellant/writ

petitioner was proceeded departmentally for commission of irregularities in

course of discharge of official duty. A memorandum of charge was issued.

The writ petitioner was subjected to appear before the enquiry officer to

defend the charge. Altogether three charges were levelled against the writ

petitioner, all the charges have not been found to be proved, as would appear

from the enquiry report appended as Annexure-7 to the writ petition.

However, one of the charge/finding has been recorded by the enquiry officer

that the said charge can be ignored. The aforesaid enquiry report had been

forwarded before the disciplinary authority and who even though had

accepted the aforesaid enquiry report has imposed the following

punishments i.e. (i) two annual increment has been withhold with cumulative

effect and (ii) the writ petitioner will not be entitled for promotion for a

period of two years with the due date of promotion.

The aforesaid order passed by the disciplinary authority was

challenged before the appellate authority who had rejected the appeal vide

order dated 01.03.2016.

14. It requires to refer herein that at the time of filing of the writ petition

the order passed by the original authority dated 31.05.2010, appended as

Annexure-8 to the writ petition was the subject matter of the writ petition but

in course of pendency of the writ petition the appeal has been decided

against the writ petitioner vide order as contained in Memo no.1422 dated

01.03.2016, which has been made part of the writ petition by allowing the

interlocutory application being I.A. No.6903 of 2019 having been allowed

vide order dated 08.08.2019 passed in the writ petition.

15. The instant appeal has been preferred on the ground that the legal

position as has been settled in a case where the enquiry officer has not found

the charge proved has not been followed and as such the learned Single

Judge ought to have quashed the order passed by the original authority dated

31.05.2010 and should have remanded the issue for fresh consideration from

the stage of passing of the order by the original authority by giving an

opportunity of being heard by differing with the finding recorded by the

enquiry officer assigning the specific reason. But, the learned Single Judge

has not appreciated the aforesaid fact, rather, has remanded the matter from

the stage of appeal. Since the matter has been remanded at the stage of

appeal, therefore, the error which has been crept up at the stage of taking

decision by the disciplinary authority cannot be rectified by the appellate

authority.

16. This Court before proceeding to assess the legality and propriety of

the order as to what should be the stage of remand by the learned Single

Judge, deem it fit and proper to refer the judgment rendered by Hon'ble

Apex Court in the case of Punjab National Bank & others Versus Kunj

Behari Misra (supra) wherein the situation of fact that the enquiry officer

has found the charge not proved. The process has been involved as would

appear from paragraph 19 of the said judgment, wherein, it has been

observed that 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 finding will have to

be conveyed and the delinquent officer will have an opportunity to persuade

the disciplinary authority to accept the favourble conclusion of the enquiry

officer, for ready reference, paragraph 19 is being referred herein, which

reads hereunder as:

"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 finding will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourble 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 the charges framed against the officer."

17. This Court on the basis of the aforesaid position of law as referred

hereinabove, as under paragraph 19 of the judgment rendered in the case of

Punjab National Bank & others Versus Kunj Behari Misra (supra) and

coming to the facts of the given case, has found that the enquiry officer has

found the Charge No.1 and 2 not to be proved. However, so far as Charge

No.3 is concerned, the same has also not conclusively been proved, rather, it

has been recorded by the enquiry officer that the same can be ignored. The

aforesaid finding of the enquiry officer has been accepted by the disciplinary

authority while imposing the punishment of withholding two annual

increment with cumulative effect and the promotion for the period of two

years has been withheld, as would appear from the order dated 31.05.2010.

18. It is, thus, evident that the process required to be followed in a case of

charge having not been proved by the enquiry officer as has been held in the

case of Punjab National Bank & others Versus Kunj Behari Misra (supra)

has not been followed by the disciplinary authority and thereby principle of

natural justice has been negated. The learned Single Judge, however, has

considered the fact of providing opportunity of natural justice which

according to learned Single Judge also has not been provided and the same

led the learned Single Judge to interfere with the order dated 01.03.2016

passed by the appellate authority with an order of remand for taking decision

afresh after issuing notice to the writ petitioner.

But, according to the considered view of this Court, the learned Single

Judge while passing such order has failed to appreciate the settled position

which requires to be followed in such circumstances where the charge has

not been found to be proved. The appellant/writ petitioner, therefore, is

before this Court only to the limited issue that what would be the stage of

remand whether it is fit to be at the appellate stage or it requires remand at

the stage from where the disciplinary authority is required to assign reason

of difference in order to provide an opportunity of hearing to the appellant/

writ petitioner.

19. This Court is not hesitant in agreeing to the ground taken by the writ

petitioner by taking into consideration the law laid down by Hon'ble Apex

Court in the case of Punjab National Bank & others Versus Kunj Behari

Misra (supra) and admittedly herein the disciplinary authority while passing

order on 31.05.2010 has not assigned the reason of difference, since, nothing

to that effect is being referred in the aforesaid order.

Therefore, according to our considered view that the process which

ought to have been followed at the stage of passing of the order by the

disciplinary authority since has not been followed and therefore, the error

has been crept up at that stage and if the matter will be remanded before the

appellate authority that error which has been crept up at the inception cannot

be rectified by the appellate authority, reference in this regard may be made

to the judgment rendered by Hon'ble Apex Court in Ritesh Tewari and

Another v. State of Uttar Pradesh and Others [(2010) 10 SCC 677] wherein

at paragraph 32 the Hon'ble Apex Court has held as under :-

"32. It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained the benefits."

20. This Court, in view of the discussion made hereinabove and

considering the law laid down by Hon'ble Apex Court in the case of Ritesh

Tewari and Another v. State of Uttar Pradesh and Others (supra) is of the

view that the order passed by the learned Single Judge requires interference

to the extent of the stage of remand.

21. Accordingly, the order passed by the learned Single Judge requires

interference. In the result, the order dated 11.12.2019 passed by the learned

Single Judge in W.P.(S) No.7561 of 2013 is quashed and set aside.

22. In consequence thereof, the order passed by the disciplinary authority

dated 31.05.2010 is hereby quashed and set aside. The matter is remitted

before the disciplinary authority from the stage of submission of enquiry

report for taking decision in accordance with law as per the discussion made

hereinabove. Such decision is to be taken within the period of three months

from the date of receipt of copy of the order.