Jharkhand High Court

Jolen Soren vs The State Of Jharkhand Through The ... on 5 May, 2022

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         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      W.P.(S) No.6168 of 2013
                                           -------

         Jolen Soren                                  ...     ...    Petitioner
                                           Versus
         1.   The State        of     Jharkhand       through    the   Chief
              Secretary..
         2.   Deputy Commissioner-cum                 District   Magistrate,
              Ramgarh.

3. Establishment Deputy Collector, Ramgarh.

4. Sub Divisional Officer, Ramgarh.

                                                      ...     ...Respondents
                                    -------
    CORAM     : HON'BLE MR. JUSTICE DEEPAK ROSHAN
                                           -------
         For the Petitioner         :Mr. A. K. Sahani, Adv.
         For the Res-State          : Mr. Ashok Kr. Yadav, G.A. I
                                           -------
C.A.V. on 25.03.2022                       Pronounced on 5/5/2022

Heard learned counsel for the parties.

2. The instant writ application was initially

preferred by the petitioner for quashing 2ndshow cause

notice issued under Memo No.618 dated 04.09.2013

(Annexure-5), however during pendency of this writ

application, upon issuance of 2ndshow cause notice, the

petitioner has been imposed with punishment of

withholding of two annual increments with cumulative

effect and also for recovery of Rs.12,50,000/- (Twelve

Lakhs Fifty Thousands) from his salary under Memo

No.470 dated 12.09.2014 (Annexure-7).

The petitioner challenged the said punishment

order by way of interlocutory application being I.A.

No.2338/15 which was allowed by this Court.

3. The facts relevant for disposal of the instant

writ application is that the petitioner joined on the post of

Clerk in the establishment Section under the Deputy

Commissioner, Hazaribagh on 31.3.1981. He also passed

Hindi Noting and Drafting examination along with

Account examination and was promoted to the post of

Head Accountant. Subsequently,the petitioner was

posted as Head Clerk in the Office of Block Development

Officer, Barkatha in the year 2001.

In the year 2013 while the petitioner was

posted as Head Clerk at Ramgarh, the respondent No.2

issued a charge-sheet by initiating a proceeding and

allegation were made against this petitioner vide letter

dated 28.2.2013. The crux of allegation was that

wrongful payment was made by this petitioner for

installation of Smokeless Oven for Indira Awas and

construction of toilet. On 09.4.2013, the respondent No.4

intimated the petitioner about his appointment as

Enquiry Officer. Petitioner submitted his show-cause

reply denying allegations vide letter dated 25.4.2013. On

15.6.2013, respondent No.4 submitted a report and on

4.9.2013, 2nd show cause notice was issued which was

initially challenged by this petitioner and during

pendency of writ application impugned order of

punishment dated 12.09.2014 (Annexure-7) has been

issued with punishment of withholding of two annual

increments with cumulative effect and also for recovery of

Rs.12,50,000/- from the salary of the petitioner.

4. Mr. A. K. Sahani, learned counsel for the

petitioner amongst several grounds submits that in the

instant case no principles of natural justice has been

followed, inasmuch as, no witness has been examined to

prove the documents; as such the impugned order of

punishment suffers from procedural irregularities. He

draws attention of this Court towards paragraph No.14 of

the writ application and submits that there is specific

averment that the department even did not adduce any

evidence either oral or documentary in order to

substantiate the charges against the petitioner. He

further submits that said averment made in paragraph

No.14 was replied vaguely by the respondents stating

that the said statement is false and not correct.

He further submits that in paragraph No.24 of

the counter affidavitit hasbeen stated that the petitioner

was given ample opportunity to cross-examine the

witness;is completely false,inasmuch as, the entire

enquiry report suggests that there was no witness to

prove the documents whatsoever. He further draws

attention of this Court towards the show cause filed by

the Executive Magistrate, Ranchi in compliance to the

order dated 27.09.2021 passed by this Court and

submits that the respondents have admitted that the

said statement made in paragraph No.24 was inadvertent

mistake. This clearly goes to show that the respondents

have admitted that no oral evidence was adduced to

prove the documents. So on this score alone the

impugned order should be quashed and set aside.

5. Mr. Ashok Kumar Yadav (G.A.-I), learned

counsel appearing for the respondent-State opposed the

prayer of the petitioner and reiterated the stands taken in

the counter affidavit. He further submits that on the

basis of letter of Deputy Commissioner, Hazaribagh dated

28.1.2013 to initiate departmental proceeding against the

petitioner who was involved in misappropriation of public

fund and drawn amount in favour of the NGO of public

supplier and only due to that the charge-sheet was

issued. This itself transpires that petitioner has

committed grave misconduct.

He further submits that the petitioner was

given ample opportunity and the enquiry officer has

proved the charges leveled against the petitioner; as such

there is no question of quashing of the punishment order

which is based upon the finding given by the Enquiry

Officer. However, learned counsel could not bring on

record any chit of paper that any evidence was adduced

to prove the documents.

6. Having heard learned counsel for the parties

and after going through the documents available on

record and the averments made in the respective

affidavits; it appears that the charge-sheet was issued

vide Memo No.174 dated 1.4.2013 against the petitioner

under Rule 55 of the Civil Service (Classification Control

and Appeal) Rule read with Rule 167 of the Jharkhand

Board Miscellaneous Rules.

The gist of allegation made against the

petitioner was that by letter No.44 dated 28.02.2013, the

then Deputy Commissioner, Hazaribagh reported that

wrong payment was made by this petitioner for

installation of Smokeless Oven for Indira Awas and

construction of toilet though the petitioner denied the

charges. However, ultimately the Enquiry Officer rejected

the claim of the petitioner and held the charge to be

proved and on the basis of Enquiry report even the

impugned order of punishment was passed.

7. At this stage it is relevant to take note of

specific arguments of learned counsel for the petitioner

that no witness has been examined and no documents

have been proved. This specific ground of the petitioner is

mentioned in paragraph No.14 of the writ application.

For brevity, paragraph No.14 of the writ application is

quoted herein below:-

"14. That, the department even did not adduce any evidence, either oral or documentary, in order to substantiate the charges against the Petitioner."

In reply to paragraph No.14, there is a vague

denial in the counter affidavit. Further in paragraph 24 of

the counter affidavit it has been specifically stated that

the petitioner was given ample opportunity to cross

examine the witness. For brevity paragraph No.24 of the

counter affidavit dated 17.01.2014 is quoted herein

below:-

"24. That with regard to the statement made by the petitioner in paragraph-15, in the instant writ petition under reply, it is humbly stated and submitted that the petitioner was given an ample opportunity to cross examine the witnesses, the allegation made in this para is false and fabricated. Rather the petitioner has tried to delay action against him."

Dueto vague denial made in paragraph No.23

and specific assertion with regard to examination of

witness made in paragraph-24 led to a confusion as to

whether any witness was examined or not and a show

cause was issued to the deponent vide order dated

27.9.2021 which reads as follows:-

"13/27.09.2021 Heard through V.C.

2. During Course of hearing, it has been pointed out that a counter affidavit has been filed on behalf of respondent State wherein, at paragraph 24, it has been

stated that the petitioner was given ample opportunity to cross-examine the witnesses. However, from the enquiry report it appears that none of the witnesses has been examined in order to prove the charge. This transpires that the deponent wants to mislead this court.

3. In this view of the matter, the deponent Mr. Manmohan Prasad Singh, S/o Late Mukeshwar Prasad, Resident of Lalpur, P.O. and P.S. Lalpur, District Ranchi, the then Executive Magistrate, Ramgarh is directed to address this court why he has made a false affidavit in Paragraph 24 of the said counter affidavit.

4. Respondent State is directed to serve a copy of this order to the said the then Executive Magistrate, Ramgarh.

5. Put up this case on 08.10.2021.

6. Let a copy of this order be handed over to Mr. Ashok Yadav, learned G.A.I for onward communication to the concerned department."

8. Pursuant to that aforesaid order,a reply was

filed wherein it has been specifically stated at paragraph

No.8 of the show cause reply dated 7.10.2021 that the

statement made in paragraph No.24 was made

inadvertently. The said paragraph No.8 to the show cause

notice date 7.10.2021 is quoted herein below:-

"8. That it is stated and submitted that the statement regarding ample opportunity to the petitioner to cross- examine the witnesses stated in Paragraph 24 of the counter affidavit sworn by deponent is neither intentional nor deliberate rather the same has been stated due to inadvertent mistake for that the deponent tenders his unqualified and unconditional apologies from this Hon'ble court."

9. The purpose of referring aforesaid paragraphs

is only to show that admittedly no witness was examined

to prove the documents.Even otherwise, from the entire

enquiry report it appears that none of the witness has

been examined in order to prove the charges. The law is

no more res-integra, inasmuch as, without any oral

evidence the documents could not be proved.In other

words no oral evidence has been taken into consideration

to conclude that the charges have been proved against

the petitioner. (Reference State of U.P. and Ors. Vs. Saroj

Kumar Sinha reported in (2010) 2 SCC 772).

In catena of judgments it has been held that