Arbind Kumar Jaiswal vs The State Of Jharkhand
2022 Latest Caselaw 111 Jhar

                                      1                         W.P.(S) No. 5775 of 2019




    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(S) No. 5775 of 2019
    Arbind Kumar Jaiswal                          .... ....     Petitioner
                               Versus
    1. The State of Jharkhand.
    2. The Principal Secretary, Drinking Water
        and Sanitation Department,
         Government of Jharkhand, Ranchi.
    3. The Engineer-in-Chief, Drinking Water
       and Sanitation Department, Ranchi.
    4. The Deputy Secretary, Drinking Water
        and Sanitation Department, Ranchi.      .... .... Respondents
                             ------

CORAM : HON'BLE MR. JUSTICE DR. S.N. PATHAK

------

    For the Petitioner           : Mr. Manoj Tandon, Advocate
                                    Ms. Neha Bhardwaj, Advocate
    For the Respondents          : Ms. Vandana Singh, Sr. S.C.-II
                             -----
8/ 13.01.2022    Heard the parties.

2. The petitioner has approached this Court for quashing the Notification contained in Memo No. 2229 dated 17.5.2017 (Annexure-6), whereby the petitioner has been awarded as many as five punishments, including stoppage of five increments with cumulative effect; not to be posted on higher post on in-charge basis; and not entitled for any payment other than subsistence allowance for the period of suspension. Petitioner has also prayed for quashing the order contained in Memo No. 3043 dated 22.8.2019, whereby review petition preferred by the petitioner has been rejected.

3. The facts of the case lie in a narrow compass. While the petitioner was posted as Executive Engineer, Drinking Water and Sanitation Division, Chakradharpur, charge-sheet contained in Notification No. 1305 dated 17.3.2016 was issued, whereby eight charges were framed in Prapatra'Ka'. Thereafter by issuance of another Notification No. 2840 dated 27.6.2016, three more charges were added. After due enquiry, the Enquiry Officer submitted its report on 14.2.2017, whereby charge Nos. 3, 5, 5(i) and 8 were not proved and rest of the charges were found to be proved. After issuance of second show cause notice and the same replied by

the petitioner, punishments were imposed against the petitioner as aforesaid. Thereafter, the petitioner preferred review, but the same was also rejected by order dated 23.2.2018 (Annexure-9). Aggrieved thereby, the petitioner preferred W.P.(S) No. 1788 of 2018, which was disposed of by setting aside the review order and the matter was remitted back to the respondent-Authority to consider the revision afresh, as the reviewing order was only in one line. Thereafter the Reviewing Authority once again rejected the review petition preferred by the petitioner vide order contained in Memo No. 145 dated 22.8.2019 (Annexure-12).

4. Learned counsel for the petitioner submits that the impugned penalty order, as also the review order are neither sustainable in law nor on facts, inasmuch as, not a single witness has been examined to prove the charges against the petitioner and mere production of document is not sufficient to prove the charge, and there was no such admission of the petitioner on the documentary evidence relied upon in the charge-sheet. Therefore, learned counsel submits that the impugned penalty is violative of Rule 17(14) of the Jharkhand Government Servants (Classification Control & Appeal) Rules, 2016. Learned counsel further submits that the review order passed by the Secretary of the Department is without jurisdiction, as the Secretary of the Department is not the Appointing Authority of the petitioner, rather, the Appointing Authority of the petitioner is Engineer-in-Chief. Learned counsel further adds that after considering each and every charges levelled against the petitioner, the Engineer-in-Chief, being the Appointing Authority, has come to the conclusion that none of the charges are sustainable in the eyes of law. He also submits that the penalty order as well as the review order passed by the Authorities are cryptic in nature and the same were passed without application of mind, as both the Authorities have not considered the points raised by the petitioner at all. Learned counsel lastly submits that the penalty imposed against the petitioner is too excessive and disproportionate to the nature of misconduct. To buttress his contention, learned counsel places heavy reliance upon the decisions in the case of Roop Singh Negi Vs. Punjab National Bank & Others, reported in (2009) 2 SCC 570 and in

the case of M.V. Bijlani Vs. Union of India & Others, reported in (2006) 5 SCC 88.

5. Per contra counter affidavit has been filed by the respondents. Learned counsel appearing for the respondents submits that the Department has rightly imposed the penalty upon the petitioner after considering each and every materials during the course of departmental proceeding. Learned counsel submits that on careful appraisal when the allegations leveled against the petitioner were found prime facie true, the Department has taken a decision for initiation of departmental proceeding by framing memo of charge. During departmental enquiry, when it came to light about some other misconducts against the petitioner, the Department has incorporated the said allegation by framing a supplementary memo of charge on 27.6.2016. After the petitioner submitted his defence along with relevant documents on 11.4.2016, the Enquiry Officer found Charge Nos. 2, 4, 6, 7, 9 and 10 proved whereas charge Nos. 3, 5, 5(i) and 8 were not proved and charge no. 1 was found to be partially proved. Learned counsel submits that considering the reply submitted by the petitioner in response to the second show cause notice issued on 15.3.2017, the petitioner was inflicted the punishment, as aforesaid, in accordance with Jharkhand Government Servant (Classification, Control and Appeal) Rules, 2016. Learned counsel also submits that having no fresh ground, the review filed by the petitioner was also rejected by the Department. Learned counsel submits that pursuant to the order dated 17.5.2017 passed in W.P.(S) No. 1788 of 2018, which was the earlier round of litigation of petitioner, the Department has rejected the revision petition considering the defence raised by the petitioner vide order contained in Memo No. 3043 dated 22.8.2019. Learned counsel accordingly submits that a full dressed departmental proceeding was conducted, in which, the Disciplinary Authority in agreement with the report of the Enquiry Officer, mentioning the contents of the charge-sheet, the detailed evidences and the findings of the Enquiry Officer, has passed the punishment order in detail, which was affirmed in the review order. In support of her contention, learned counsel places reliance upon the decisions of the Hon'ble Apex Court in the cases of Ram

Kumar Vs. State of Haryana, reported in 1987 (Suppl.) SCC 582 and B.C. Chatruvedi Vs. Union of India & Ors, reported in (1995) 6 SCC 749.

6. Be that as it may, having gone through the rival submissions of the parties across the Bar, this Court is of the considered view that no interference is required in the writ petition. Admittedly, the petitioner was charge-sheeted with eight charges, out of which charge nos. 3, 5, 5 (i) and 8 were proved and charge no.1 was found to be partially proved. The High Court under Article 226 of the Constitution will not sit in appeal over the order of the disciplinary authority, unless in cases where the conclusion of the disciplinary authority is perverse or suffers on no evidence etc. Here in the case at hand, the petitioner was given ample opportunity in the departmental proceeding to defend his case and after considering his reply, enquiry officer submitted its report proving some of the charges as true. The Disciplinary Authority in full agreement with the report of the Enquiry Officer has passed the detailed punishment order, mentioning therein the contents of the charge-sheet, evidences and the findings of the Enquiry Officer which was also affirmed in the review order. The Hon'ble Supreme Court while dealing with the issue on the findings of punishing authority, which is based on enquiry report, in the case of Ram Kumar Vas. State of Haryana (supra) held that when by the impugned order, the punishing authority has accepted the findings of the Enquiry Officer and the reasons given by him, the question of non-compliance with the principles of natural justice does not arise. The Hon'ble Supreme Court returned the following findings in para-8 of the judgment:-

"8. In view of the contents of the impugned order, it is difficult to say that the punishing authority had not applied his mind to the case before terminating the services of the appellant. The punishing authority has placed reliance upon the report of the Enquiry Officer which means that he has not only agreed with the findings of the Enquiry Officer, but also has accepted the reasons given by him for the findings. In our opinion, when the punishing authority agrees with the findings of the Enquiry Officer and accepts the reasons given by him in support of such findings, it is not necessary for the punishing authority to again discuss evidence and come to the same findings as that of the Enquiry Officer and give the same reasons for the findings. We are unable to accept the contention made on behalf

of the appellant that the impugned order of termination is vitiated as it is a non-speaking order and does not contain any reason. When by the impugned order the punishing authority has accepted the findings of the Enquiry Officer and the reasons given by him, the question of non-compliance with the principles of natural justice does not arise. It is also incorrect to say that the impugned order is not a speaking order."

[emphasis supplied]

7. Similarly in the case of B.C. Chaturvedi Vs. Union of India & Ors. (supra), the Hon'ble Supreme Court in para-13 held as follows:-

"13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to re-appreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India V. H.C. Goes this Court held at p.728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent errors on the face of the record or based on no evidence at all, a writ of certiorari could be issued."

8. As a cumulative effect of the aforesaid observations, rules, legal propositions and judicial pronouncements, I find no merit in this writ petition and the same is accordingly dismissed. No order as to costs.

(Dr. S. N. Pathak, J.)

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