Jharkhand High Court
Shiv Kishore vs The State Of Jharkhand on 10 October, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 324 of 2007
Shiv Kishore, son of late Ram Jatan Ram, Co-operative Extension
Officer, Office of the Assistant Registrar, Co-operative Societies,
Chaibasa, P.S. - Chaibasa Muffasil, District - Singhbhum (West),
Permanent R/o 80, Jheelganj, Satbal, PO + PS - Gaya, District - Gaya
--- Petitioner
Versus
1. The State of Jharkhand
2. Secretary, Co-operative Societies, at present residing at Ayodhya
Enclave Kokar Road, PO Deepa Toli, Ranchi, , Jharkhand, Ranchi.
3. Registrar, Co-operative Societies, Jharkhand, Ranchi
4. Sri Jitendra Kumar, S/o not known to the petitioner, Managing
Director, Jharkhand State Co-operative Lac Marketing (Federation),
Ranchi, at present residing at Home No.35 Ashok Nagar, PO Ashok
Nagar, Gate No.1 Ranchi
5. Managing Director, Central Co-operative Bank, Hazaribagh
6. Assistant Registrar, Co-operative Societies, Koderma
7. Jharkhand State Co-operative Bank through its Chief Executive
Officer, 3rd Floor, Marketing Board Building, Itki Road, Post Hehal,
District Ranchi
--- --- Respondents
---
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Petitioner : Mr. Samavesh Bhanj Deo Advocate
For the Respondents : Mr. Mrinal Kanti Roy, Advocate
For the State : Mr. Rakesh Kumar Roy, Advocate
---
27/10.10.2022 Heard learned counsels for the parties.
2. This writ petition has been filed for the following reliefs:
"For quashing of the memo no.1388 dated 10.8.2006 (Annexure - 7)
passed by Respondent no.2 who has no jurisdiction, whereby and
whereunder after revoking his suspension order following punishment
has been imposed:
i) Pay of the petitioner was fixed on lowest scale of pay;
ii) No monetary benefits will be given for the suspension period
except subsistence allowance;
iii) The petitioner will not be allowed to handle any independent
charge."
Arguments of the Petitioner.
3. Learned counsel for the petitioner submits that out of three charges, the
petitioner was found guilty of one charge i.e., Charge No.2 and the concluding
portion of the enquiry report held the petitioner guilty of charges which was
subject matter of charge no.1 wherein the petitioner was found not guilty. The
learned counsel submits that even the disciplinary authority has mechanically
passed the order of punishment by only quoting and referring to the concluding
portion of the enquiry report.
4. The learned counsel for the petitioner has also submitted that the present case is
a case of no evidence in as much as no oral evidence was adduced although the
documents were considered by the enquiry officer. He submits that in absence of
oral evidence, the documents were not proved and therefore it is case of no
evidence. He has referred to a judgment reported in (2017) 2 SCC 308 (Allahabad
Bank and Others Versus Krishna Narayan Tewari) to submit that in case of
findings based on „no evidence‟, interference is called for under Article 226 of the
Constitution of India.
5. The learned counsel for the petitioner has also referred to paragraph no.15 of
the writ petition to submit that the Secretary did not have the jurisdiction to
initiate departmental proceedings against the petitioner and therefore the entire
proceeding is vitiated.
6. The learned counsel for the petitioner has referred to order dated 25.02.2021 to
submit that his submissions have been recorded in the said order which may
also be considered. Vide order dated 25.02.2021, following contentions of the
petitioner were recorded:
(i) The disciplinary authority is basically the appellate authority, as
such, the petitioner has been deprived to appeal against the order
passed by the disciplinary authority. In support of this contention,
learned counsel relied upon the judgment passed in W.P.(S)
No.5987 of 2008.
(ii) The disciplinary authority while disagreeing with the view of the
Inquiry Officer who had exonerated the petitioner from charges
did not issue any show cause notice rather changed the Inquiry
Officer itself which is not permissible in the eye of law. In support
of his contention, he relied upon the judgment reported in (1998) 7
SCC 84 para 17-19.
(iii) The entire punishment has been imposed on the basis of document
but no witness has been examined and document has not been
accepted which is against the settled principle of law and the case
has become case of no evidence.
Arguments of the Respondents.
7. The learned counsel for the respondents on the other hand has submitted that
there is no scope for re-appreciation of materials which was subject matter of
consideration by the enquiry officer and the petitioner was found guilty. The
learned counsel submits that there is no perversity in the impugned proceedings
and the order of punishment and therefore no interference is called for.
8. Learned counsel for the respondent - State has referred to Bihar and Orissa
Subordinate Services (Discipline and Appeal) Rules, 1935 annexed with the
counter-affidavit to submit that the Secretary has got the power to initiate
proceeding in terms of Rule 12 of the Rules and appeal can be filed before higher
authority in terms of Rule 4.
Scope of interference in disciplinary proceedings.
9. The scope of interference in the matter of disciplinary proceedings has been
summarized in the judgment passed by the Hon‟ble Supreme Court reported in
(2020) 9 SCC 471 (Pravin Kumar vs. Union of India) and also in the case of
"Deputy General Manager Vs. Ajai Kr. Srivastava" reported in 2021 SCC
Online SC 4.
10. Para-25, 26 and 28 of the judgement in Pravin Kumar(supra) dealing
with scope of judicial review in service matters, is quoted as under: -
"I. Scope of judicial review in service matters
25. The learned counsel for the appellant spent considerable
time taking us through the various evidence on record with the
intention of highlighting lacunae and contradictions. We feel
that such an exercise was in vain, as the threshold of
interference in the present proceedings is quite high. The power
of judicial review discharged by constitutional courts under
Article 226 or 32, or when sitting in appeal under Article 136,
is distinct from the appellate power exercised by a
departmental appellate authority. It would be gainsaid that
judicial review is an evaluation of the decision-making process,
and not the merits of the decision itself. Judicial review seeks to
ensure fairness in treatment and not fairness of conclusion. It
ought to be used to correct manifest errors of law or procedure,
which might result in significant injustice; or in case of bias or
gross unreasonableness of outcome.
26. These principles are succinctly elucidated by a three-Judge
Bench of this Court in B.C. Chaturvedi v. Union of India in the
following extract: (SCC pp. 759-60, paras 12-13)
"12. Judicial review is not an appeal from a decision but a
review of the manner in which the decision is made. Power of
judicial review is meant to ensure that the individual receives
fair treatment and not to ensure that the conclusion which the
authority reaches is necessarily correct in the eye of the court.
When an inquiry is conducted on charges of misconduct by a
public servant, the Court/Tribunal concerned is to determine
whether the inquiry was held by a competent officer or whether
rules of natural justice are complied with. Whether the findings
or conclusions are based on some evidence, the authority
entrusted with the power to hold inquiry has jurisdiction, power
and authority to reach a finding of fact or conclusion. But that
finding must be based on some evidence. Neither the technical
rules of the Evidence Act nor of proof of fact or evidence as
defined therein, apply to disciplinary proceeding. When the
authority accepts that evidence and conclusion receives support
therefrom, the disciplinary authority is entitled to hold that the
delinquent officer is guilty of the charge. The Court/Tribunal in
its power of judicial review does not act as appellate authority
to reappreciate the evidence and to arrive at its own
independent findings on the evidence. The Court/Tribunal may
interfere where the authority held the proceedings against the
delinquent officer in a manner inconsistent with the rules of
natural justice or in violation of statutory rules prescribing the
mode of inquiry or where the conclusion or finding reached by
the disciplinary authority is based on no evidence. If the
conclusion or finding be such as no reasonable person would
have ever reached, the Court/Tribunal may interfere with the
conclusion or the finding, and mould the relief so as to make it
appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where
appeal is presented, the appellate authority has coextensive
power to reappreciate 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. Goel this Court held at SCR pp. 728-29 that if
the conclusion, upon consideration of the evidence reached by
the disciplinary authority, is perverse or suffers from patent
error on the face of the record or based on no evidence at all, a
writ of certiorari could be issued."
27. .....................
28. It is thus well settled that the constitutional courts while
exercising their powers of judicial review would not assume the
role of an appellate authority. Their jurisdiction is
circumscribed by limits of correcting errors of law, procedural
errors leading to manifest injustice or violation of principles of
natural justice. Put differently, judicial review is not analogous
to venturing into the merits of a case like an appellate
authority.
11. Similar view has been expressed by the Hon‟ble Supreme Court in the
case of "Deputy General Manager Vs. Ajai Kr. Srivastava" reported in 2021
SCC Online SC 4. Para 23 to 28 of the report is quoted as under: -
"23. It has been consistently followed in the later decision of this
Court in H.P. SEB v. Mahesh Dahiya and recently by the three-
Judge Bench of this Court in Pravin Kumar v. Union of India.
24. It is thus settled that the power of judicial review, of the
constitutional courts, is an evaluation of the decision-making
process and not the merits of the decision itself. It is to ensure
fairness in treatment and not to ensure fairness of conclusion.
The court/tribunal may interfere in the proceedings held against
the delinquent if it is, in any manner, inconsistent with the rules
of natural justice or in violation of the statutory rules prescribing
the mode of enquiry or where the conclusion or finding reached
by the disciplinary authority is based on no evidence. If the
conclusion or finding be such as no reasonable person would
have ever reached or where the conclusions upon consideration
of the evidence reached by the disciplinary authority are perverse
or suffer from patent error on the face of record or based on no
evidence at all, a writ of certiorari could be issued. To sum up,
the scope of judicial review cannot be extended to the
examination of correctness or reasonableness of a decision of
authority as a matter of fact.
25. When the disciplinary enquiry is conducted for the alleged
misconduct against the public servant, the court is to examine
and determine:
(i) whether the enquiry was held by the competent authority;
(ii) whether rules of natural justice are complied with;
(iii) whether the findings or conclusions are based on some
evidence and authority has power and jurisdiction to reach
finding of fact or conclusion.
26. It is well settled that where the enquiry officer is not the
disciplinary authority, on receiving the report of enquiry, the
disciplinary authority may or may not agree with the findings
recorded by the former, in case of disagreement, the disciplinary
authority has to record the reasons for disagreement and after
affording an opportunity of hearing to the delinquent may record
his own findings if the evidence available on record be sufficient
for such exercise or else to remit the case to the enquiry officer
for further enquiry.
27. It is true that strict rules of evidence are not applicable to
departmental enquiry proceedings. However, the only
requirement of law is that the allegation against the delinquent
must be established by such evidence acting upon which a
reasonable person acting reasonably and with objectivity may
arrive at a finding upholding the gravity of the charge against the
delinquent employee. It is true that mere conjecture or surmises
cannot sustain the finding of guilt even in the departmental
enquiry proceedings.
28. The constitutional court while exercising its jurisdiction of
judicial review under Article 226 or Article 136 of the
Constitution would not interfere with the findings of fact arrived
at in the departmental enquiry proceedings except in a case of
mala fides or perversity i.e. where there is no evidence to support
a finding or where a finding is such that no man acting
reasonably and with objectivity could have arrived at those
findings and so long as there is some evidence to support the
conclusion arrived at by the departmental authority, the same has
to be sustained."
12. Thus, the scope of interference in departmental enquiry in the present
case has to be seen in the light of the aforesaid judicial pronouncements.
Findings of this court.
Point no. (i) as recorded in order dated 25.02.2021(quoted in para 6
above).
13. The point involved in the present case is whether the Secretary had the
jurisdiction to initiate departmental proceeding against the petitioner. The
specific case of the petitioner is that the appointing authority of the petitioner is
Registrar, Cooperative Society and the Secretary, Cooperative department is
the appellate authority and as such, the Secretary could not have framed the
charges and it is the appointing authority who is competent to take the
disciplinary action and impose punishment.
14. A counter-affidavit has been filed in the present case by respondent
nos. 5 and 6 wherein it has been stated that it is wrong to submit that the
Secretary is the appellate authority. As per by-laws of the Bank, the Managing
Director is the controlling officer for all the employees of the Bank below the
rank of Branch Manager and for Branch Manager and above, the Registrar,
Cooperative Society is the controlling authority. It has also been stated in para
31 of the said counter-affidavit that as per law, disciplinary action cannot be
initiated by any person subordinate to the appointing authority, but there is no
bar in case disciplinary action is initiated by an officer senior to the appointing
authority. Similar stand has been taken in the supplementary counter-affidavit
filed by the Under Secretary in the Department of Cooperative, Government of
Jharkhand.
15. To the counter-affidavit filed by the respondent no. 3, a rejoinder has
been filed by the petitioner and it has been stated in para 13 thereof that from
the circular of the Cooperative Department, Government of Jharkhand
(Annexure- 11), the competent authority to decide matters relating to charges
against IIIrd and IVth grade employee like the petitioner will be the Registrar,
Cooperative Societies and Secretary is the appellate authority. The said circular
has been annexed by the petitioner along with rejoinder to the counter-affidavit
filed by respondent nos. 5 and 6 dated 22.08.2012 and the said circular is
contained in Memo No. 393 dated 01.08.2007. So, it has been contended that
the Secretary could not exercise the powers specifically delegated to the
Registrar and the Secretary being a creature of statute, has to function as per
the provision of law.
16. The learned counsel during the course of argument, has referred to
the Schedule A to the said circular 01.08.2007 to submit that as per Clause 8
thereof, it is the Registrar, Cooperative Society who is the competent authority
to decide the matter relating to charges against the IIIrd and IVth grade
employees.
17. The respondents have also filed a counter-affidavit dated 22.10.2021
wherein a specific statement has been made in para 9 thereof that Rule 4 of
Jharkhand Subordinate Service (Discipline and Appeal) Regulations, 1935
states that every member of the subordinate service (in which the temporary
employees and probation officers are also included) will be entitled to file an
appeal before the competent authority i.e. the next senior officer to the officer
who has passed the order of penalty in regard to the provision as specified in
Rule 2 of the Act and consequently it has been submitted that in terms of Rule
12 of Jharkhand Subordinate Service Rules, the State Government and the
departmental head has been authorized to initiate a departmental proceeding
against an employee and is also authorized to reverse or change the decision of
subordinate authority.
18. Rule 4 and 12 of Jharkhand Subordinate Service (Discipline and
Appeal) Rules, 1935 Reads as follows:
"4. अवर सेवा का हर सदस्य (जिसमें अस्थायी सरकारी सेवक और
पररवीक्षा पदाजधकारी भी सम्मिजित हैं ) उस प्राजधकारी के पास अपीि
दायर करने का हकदार होगा िो जनम्नजिम्मित आदे श दे नेवािे प्राजधकारी से
ठीक ऊपर का प्राजधकारी हो-
(क) जनयम 2 में जवजनजदि ष्ट शाम्मियोों में से जकसी शाम्मि का अजधरोजपत
जकया िाना;
(ि ) उसकी जनयुम्मि समाप्त करना , िो जनयुम्मि की अवजध बीतने पर या
अजधवजषि ता (सुपर एनुएशन ) की आयु प्राप्त करने पर की गई सेवा-समाम्मप्त
से जभन्न हो ।
12. इस जनयमाविी के पूविगामी उपबों धोों में अोंतजवि ष्ट जकसी बात के होते हुए
भी राज्य सरकार और जवभागाध्यक्ष जकसी भी समय अपने अधीनस्थोों पर
जवभागीय कायिवाही चिाने का आदे श दे सकेगा और जकसी अधीनस्थ
प्राजधकारी द्वारा जदए गए आदे श को उिट सकेगा या पररवजतित कर
सकेगा। जकन्तु इस जनयमाविी की कोई भी बात जवजनयमाविी 1, 1829 की
धारा 4 द्वारा प्रदत्त शम्मियोों में हिक्षेप करनेवािी नहीों समझी िाएगी। "
19. Upon perusal of the aforesaid Rule 4 and 12, this Court is of the
considered view that the head of the department has been authorized to initiate
a departmental proceeding against any employee and is also entitled to reverse
or change the decision of the subordinate authority and further, Rule 4 clearly
provides that appeal against any order can be filed before any authority just
above the authority who has passed the order. Thus, the argument of the
petitioner that the Secretary had no jurisdiction to initiate a departmental
proceeding against the petitioner is devoid of any merit, hence rejected.
20. So far as the circular dated 01.08.2007 relied upon by the petitioner as
contained in Annexure- 11 is concerned, the said circular itself indicates that it
will come into force with immediate effect, but in the instance case, admittedly
the disciplinary proceeding against the petitioner was initiated and concluded
much prior to 01.08.2007 and accordingly, said circular has no applicability to
the facts and circumstances of this case.
21. So far as the judgment passed in W.P (S) No. 5987 of 2008 (Prem
Marandi vs. State of Jharkhand) is concerned the petitioner of the said was the
wife of the deceased employee and appeal filed by her against the order of
dismissal of her husband by the Secretary, Co-operative Department was
refused to be entertained vide communication issued by Joint Secretary on the
ground that Rules of 1935 did not confer right upon dependent employee to
prefer an appeal and she was also informed that she could file a writ petition.
Although in the said judgement it was held that the secretary was the appellate
authority and could not have initiated the disciplinary proceedings and deprive
the original employee of the appellate forum and at the same time it was also
held as follows: -
"Under the circumstances, this is a fit case wherein the State Government
ought to have considered the case of the petitioner in light of the factual
scenario emerged out of this petition and ought to take a decision whether
the proceeding abates in view of the statutory provisions of appeal
provided under Rules 1935, as the departmental proceedings are
considered to be continuous proceedings till the out come of appeal. But it
appears that the respondent- State Government failed to take such
decision."
The said judgement does not apply to the facts and circumstances of this case
as the petitioner has relied upon the notification as contained in annexure 11
dated 01.08.2007 to submit that only the registrar could have initiated the
proceedings but the said notification as contained in annexure 11 dated
01.08.2007 was issued much after the order of punishment imposed upon the
petitioner. Further, the petitioner had also challenged the initiation of
proceedings by the secretary in the aforesaid writ petition being W.P. (S) No.
4871 of 2005 which was disposed of on 17.01.2006 and ultimately direction
was issued to expeditiously complete the proceedings and the petitioner was
also to participate in the proceedings. This court also finds that in W.P (S) No.
5987 of 2008 (Prem Marandi vs. State of Jharkhand) (supra) the provision of
rule 12 enabling any higher authority to initiate disciplinary proceedings was
not placed and rule 4 of the rules when seen in the light of rule 12 enabled a
delinquent to file appeal before the higher authority and challenge the order in
appeal. Thus, the judgement relied upon by the petitioner passed in W.P (S)
No. 5987 of 2008 (Prem Marandi vs. State of Jharkhand) (supra) does not
apply to the facts and circumstances of this case.
Point no. (ii) as recorded in order dated 25.02.2021(quoted in para 6
above) as well as the point that there have been repeated enquiry
22. It is not in dispute that the petitioner was appointed as Co-operative
Extension Officer by the Registrar Co-operative Societies, Bihar Patna vide
order dated 20.10.1989 (Annexure - 1). He was posted at Koderma as Block
Co-operative Extension Officer in the year 2001. He was deputed as Branch
Manager of Hazaribagh District Central Co-operative Bank vide office order
issued by the Registrar Co-operative Societies dated 17.02.2003. A
departmental proceeding was drawn up against the petitioner by the Registrar
Co-operative society vide order dated 24.12.2004 (Annexure - 3) whereby one
Sri S.D. Mehta was appointed as Conducting Officer. The records of the case
reveal that Sri S.D. Mehta was subsequently allocated Bihar Cadre. Another
proceeding was drawn up by the Secretary, Co-operative Department, State of
Jharkhand vide letter dated 12.05.2005 and one Sri Rajendra Choudhary,
Under Secretary, Co-operative Department was appointed as enquiry Officer.
23. It further appears from the writ records that the petitioner had moved
this Court earlier in W.P.(S). No.4871 of 2005 challenging the proceeding
initiated by the Secretary, Co-operative Department, State of Jharkhand
alleging that it was the 2nd enquiry. It was the case of the petitioner in the writ
petition that some of the charges were common and therefore two proceedings
were bad in law. Considering the grievance of the petitioner, this Court vide
order dated 17.01.2006 passed in W.P.(S). No.4871 of 2005, directed the
Registrar Co-operative Society, Jharkhand to take a final decision in
accordance with law with regard to the enquiry. It was also observed that the
petitioner may raise his grievance with regard to common charges before the
enquiry officer - Deputy Secretary, Department of Co-operative, Jharkhand
appointed for 2nd enquiry. The 2nd enquiry was also directed to be completed as
early as possible preferably within a period of four months from the date of
receipt of the copy.
24. The enquiry officer, namely, Rajendra Choudhary- Deputy Secretary,
Department of Co-operative, Jharkhand, submitted an enquiry report before the
secretary of the department. The enquiry report was considered by the secretary
Vide memo dated 10.03.2006 (Annexure - 5) and recorded that the actual facts
were not projected by the enquiry officer, enquiry was incomplete and the
allegations have not been enquired in depth and consequently, discarded the
enquiry report and directed another authority-the respondent no.5 i.e.,
Managing Director, Jharkhand State Co-operative Marketing Federation
Ranchi to conduct enquiry and submit a report.
25. This court finds that sufficient reasons were assigned by the Secretary
in memo dated 10.03.2006 (Annexure - 5) for not accepting the enquiry report
submitted by Rajendra Choudhary- Deputy Secretary, Department of Co-
operative, Jharkhand which also reflected on the competence of the enquiry
officer which was the reason for appointing another enquiry officer for
conducting indepth enquiry. However, neither any opportunity was granted to
the petitioner prior to issuance of aforesaid memo dated 10.03.2006 (Annexure
- 5) nor the petitioner objected or protected or challenged the memo dated
10.03.2006 at any point of time.
26. As a result of memo dated 10.03.2006 (Annexure - 5) the petitioner
was issued notice dated 16.04.2006 ( Annexure-6) to participate in the enquiry
in order to find the truth and for doing in-depth analysis with authenticity ; the
petitioner duly participated in the enquiry ; enquiry report dated 09.06.2006
was submitted; the petitioner was forwarded a copy of the enquiry report for
his comments by way of 2nd show cause vide letter dated
28.06.2006(Annexure-8) ; the petitioner submitted his response on 11.07.2006
( Annexure-S/1) and the impugned order of punishment was passed vide
memo no.1388 dated 10.08.2006 (Annexure-7) by the Secretary, Co-operative
Department, State of Jharkhand .
27. It is important to note that the petitioner never raised any objection
and never challenged the memo dated 10.03.2006 (Annexure - 5) [whereby the
enquiry report submitted by Rajendra Choudhary was not accepted by the
disciplinary authority and the Respondent no.5 was appointed as the new
enquiry officer with a direction to conduct in-depth enquiry and to bring on
record the true facts] and fully participated in the enquiry conducted by the
respondent no. 5. No such grievance was raised by the petitioner even in the 2nd
show cause reply, rather the petitioner relied upon the enquiry report to state
that the enquiry officer has exonerated him with regard to charge no.1 and 3
but has wrongly held him guilty with regard to charge no.2. The petitioner also
explained his conduct by stating that he had raised his doubt with regard to the
genuineness of the accounts before higher authority and had acted and
disbursed the amounts as per the directions of the higher authority.
28. This court is of the considered view that the petitioner having fully
participated in the enquiry conducted pursuant to memo dated 10.03.2006
(Annexure - 5) without any protest at any stage before the enquiry officer and
even till the stage of filing his second show cause reply, cannot be permitted to
challenge the entire proceedings on the ground that no opportunity was granted
to the petitioner before issuance of memo dated 10.03.2006 (Annexure - 5)
whereby the enquiry report submitted by Rajendra Choudhary, Under Secretary
of the cooperative department, was discarded by citing reasons and another
enquiry officer was appointed. In the present case the disciplinary authority
(Respondent no.2) was dis-satisfied with the incomplete enquiry done by
Rajendra Choudhary, Under Secretary of the cooperative department, but the
Respondent No. 2 did not record his findings differing with the enquiry officer
and punished the petitioner. Rather, the Respondent no.2 appointed a new
enquiry officer to conduct in-depth enquiry vide memo dated 10.03.2006
(Annexure - 5) in which the petitioner duly participated without any protest
and was found guilty with regard to part of the charges only.
29. This court is of the considered view that under the aforesaid
circumstances the judgement relied upon by the petitioner reported in (1998) 7
SCC 84 ( Punjab National Bank versus Kunj Bihari Misra) does not apply .
In the said judgement, the disciplinary authority had differed with the findings
of the enquiry officer, recorded his own findings and held the delinquent guilty
without granting an opportunity of hearing to the delinquent and the question
for consideration was „when an enquiry officer , during the course of
disciplinary proceedings , comes to a conclusion that all or some of the
charges alleging misconduct against an official are not proved then can the
disciplinary authority differ from that and give a contrary finding without
affording an opportunity to the delinquent officer.‟ In the present case, the
disciplinary authority had directed for in-depth enquiry vide memo dated
10.03.2006 (Annexure - 5) and had not recorded his own findings differing
with the report of the enquiry officer namely Rajendra Choudhary, Under
Secretary of the cooperative department. The present proceedings arise out of
subsequent enquiry pursuant to order dated 10.03.2006 (Annexure-5) in which
the petitioner duly participated. The disciplinary authority issued 2nd show
cause enclosing the enquiry report and considering the materials on record as
well as the response of the petitioner, punishment was imposed by the
impugned order.
30. The law is well settled that the jurisdiction of the constitutional courts
while exercising their powers of judicial review is circumscribed by limits of -
-correcting errors of law,
- procedural errors leading to manifest injustice, or,
- violation of principles of natural justice.
31. There is no allegation of violation of principles of natural justice so
far as the enquiry proceeding arising out of memo dated 10.03.2006 (Annexure
- 5) is concerned. The learned counsel for the petitioner has argued that
subsequent enquiry could not have been directed vide memo dated 10.03.2006
(Annexure - 5) when an enquiry report was already submitted by Rajendra
Choudhary, Under Secretary of the cooperative department. However, the
enquiry report of Rajendra Choudhary has neither been placed on record nor it
is the case of the petitioner that the enquiry report of Rajendra Choudhary was
complete in all respects. If the petitioner was aggrieved by memo dated
10.03.2006 (Annexure - 5), the petitioner ought to have challenged the same at
appropriate stage. Instead, the petitioner duly participated in the subsequent
enquiry pursuant to memo dated 10.03.2006 (Annexure-5) without any protest.
This court is of the considered view that direction to conduct fresh enquiry by
changing the enquiry officer by citing cogent reasons vide memo dated
10.03.2006 (Annexure - 5), instead of asking for further enquiry, does not
render the subsequent enquiry null and void. Rather, at best the same is a
procedural error in as much as the authority could have directed for further
enquiry instead of fresh enquiry. However, in the present case the enquiry was
incomplete resulting in passing of memo dated 10.03.2006 (Annexure-5) as it
lacked in depth factual findings. All procedural errors do not call for
interference unless they lead to manifest injustice. In the present case there has
been no manifest injustice caused to the petitioner with regard to the
subsequent enquiry in which the petitioner duly participated without any
protest. This court is of the considered view that the petitioner having
participated in the subsequent enquiry and having not raised any objection to
such enquiry at any stage of the subsequent enquiry, cannot be permitted to
raise such objection for the first time in writ jurisdiction that too without
showing any manifest injustice having caused to the petitioner. Accordingly,
no interference is called for Under Article 226 of the Constitution of India so
far it relates to conduct of subsequent enquiry pursuant to memo dated
10.03.2006 (Annexure-5) under the facts and circumstances of the case.
The point raised in the writ petition that there has been repeated enquiry
with regard to the allegations
32. It is also alleged by the petitioner in the writ petition that three
proceedings for the same charges could not be there. The first one was initiated
by the registrar of the cooperative department, the second one was initiated by
the secretary of the cooperative department and the third one was by the order
of the secretary of the cooperative department vide memo dated 10.03.2006
(Annexure - 5) by discarding the enquiry report submitted by the Rajendra
Choudhary, Under Secretary of the cooperative department being incomplete in
facts and direction was issued to conduct enquiry by another enquiry officer i.e
Respondent no.5. The circumstances in which the 3 rd enquiry was held has
already been considered above .
33. As already stated above, the petitioner had filed a writ petition
challenging the initiation of second enquiry by the secretary of the cooperative
department when enquiry was already directed by the registrar and in the writ
proceedings the specific case of the petitioner was that there were some
common allegations and it was never the case that the allegations were
identical. In such circumstances, this court while disposing of the earlier writ
petition enabled the petitioner to point out the common allegations made in the
charge memo issued by the Registrar dated 24.12.2004 in the enquiry
proceedings conducted by the orders of the secretary of the cooperative
department and direction was also passed to conclude the enquiry within a
stipulated time frame. The jurisdictional issued with regard to the competence
of the secretary of the cooperative department to initiate an enquiry against the
petitioner was apparently not raised before this court in the earlier writ petition
and in fact a direction was issued by this court to take the enquiry initiated by
the secretary of the cooperative department to a logical end. It is further not in
dispute that the proceedings initiated and the enquiry conducted by the order of
the registrar dated 24.12.2004 was never taken to a logical end and the
conducting officer Mr. Mehta was allocated Bihar Cadre. Thus, the present
enquiry proceedings is the only proceedings which has been taken to a logical
end where by the impugned order of punishment has been imposed.
34. The order passed by this court in W.P. (S) No. 4871 of 2005 which
was disposed of on 17.01.2006 is quoted hereunder which reads as under:
"Heard.
According to the petitioner, the District Co-operative
Officer, Ranchi (respondent No. 5), being the enquiry officer
has completed one enquiry and the matter is pending for final
decision before the competent authority i.e. The Registrar, Co-
operative Societies, Jharkhand, Ranchi (respondent no. 3),
although a copy of the said enquiry report has not been
supplied to the petitioner till date. It is further submitted that a
second enquiry has also been initiated by the Secretary,
Department of Co-operative, Jharkhand, Ranchi (respondent
no. 2). Petitioner's grievance is that some of the charges being
common, two proceedings are bad. It is lastly submitted that
the petitioner is lying under suspension.
In the circumstances, Registrar-Co-operative Societies,
Jharkhand, Ranchi (respondent no. 3), before whom the
enquiry report sent by the District Co-operative Officer,
Ranchi (respondent no. 5) is pending and who is said to be
competent authority, on behalf of the petitioner, is directed to
take a final decision in accordance with law, if not already
taken within a period of six weeks from the date of receipt of a
copy of this order.
So far as second enquiry is concerned, the petitioner
may raise his grievances with regard to common charges,
before the enquiry officer-Deputy Secretary, Department of
Co-operative , Jharkhand appointed for the second enquiry.
The said enquiry officer should complete the enquiry as early
as possible and preferably within a period of four months
from the date of receipt of a copy of this order.
With the aforesaid observations and directions, this writ
petition is disposed of."
35. From the perusal of the aforesaid order it is apparent that this court
had directed the Registrar, Co-operative Society before whom the enquiry
report was said to have been sent by the District Co-operative Officer, Ranchi
was directed to take a final decision in accordance with law if not already taken
and so far as the second enquiry initiated under the direction of the Secretary,
Department of Co-operative, Jharkhand is concerned, the said enquiry was also
directed to be completed as early as possible and the petitioner was enabled to
raise his grievance with regard to common charges before the enquiry officer.
36. From the perusal of the enquiry report involved in the present case it
appears that the first charge related not only in connection with opening of
various accounts under the scheme namely Laxmi Accounts, but the same also
related to disbursal of the maturity amount of the said accounts. While dealing
with this charge, the enquiry officer clearly recorded a finding that the accounts
were fake accounts, all opened under the signature of one person and the
person who was posted at the time of opening of account was the person posted
at the relevant point of time was responsible and not the petitioner. However, at
the end of the enquiry report while mentioning about the role of the petitioner
at the time of disbursal of the maturity amount of such fake accounts, a specific
finding has been recorded by the enquiry officer holding the petitioner guilty as
follows: -
उपरोि सभी त ोों के आिोक में यह षट होता माह ह जक सावजध ि ी
िमा िाता सों0 593,594, 595. बजक 596,597,598 के अजतररि िाता सों0
478 तथा 928 जववाजदत से एवों प्रज या क ोर अजनयजमतता के पररचायक
ह। यह कहा िा सकता ह जक ये िािसािी पू ि ह। सभी सोंबोंजधत या
कागिात एक ही म्मि के द्वारा भरे , अनुशोंजसत एवों या हिाक्षररत ह, िे जकन
इन सभी के जिए िाता िुिवाने समय पदस्थाजपत बैंक शािा प्रबोंधक एवों
सहायक दोषी ह। िे जकन भुगतान के समय िब ये सभी रसीदें एवों िाताएों
जववाद में आ गयी थी तब भी आव क एवों जनयमत प्र ाजियोों का उपयोग न
कर सीधे भुगतान कर दे ने के जिए ी जशवजकशोर दोषी हैं ।
37. Thus, the enquiry officer clearly held the petitioner guilty of not
following the prescribed procedure while disbursing the maturity amount
although these accounts had already come under dispute. This finding has been
recorded, interalia, with regard to eights accounts bearing account Nos. 593 to
598.
38. This court finds from perusal of second show cause reply filed by the
petitioner that the petitioner had referred to the enquiry report contained in
letter No. 400 dated 28.05.2005 (arising out of enquiry conducted under the
orders of Registrar) with regard to allegation No. 2 involved in the present case
and had also disputed the allegations. The disciplinary authority considered the
disbursal of maturity amount in connection with Laxmi Deposit Account Nos.
593 to 598 and held the petitioner guilty of illegality in the matter of disbursal
of the maturity amount of the said fake accounts. From the perusal of the report
contained in memo No. 400 dated 28.02.2005 it is apparent that the same is
dealing with Laxmi Deposit account no. 928 and 893 only. This court finds
from perusal of the impugned order arising out of enquiry conducted by the
order of the secretary of the cooperative department involved in the present
case that the petitioner has been punished for the irregularity in the matter of
payment with regard to Laxmi Deposit Account No. 593 to 598 which were not
specifically involved in the 1st enquiry under the Registrar, Co-operative
Society. However, admittedly the 1st enquiry proceeding initiated vide memo
No. 2441 dated 24.12.2004 by the Registrar, Co-operative Society was never
taken to a logical end as per the counter affidavit filed by the respondents
wherein it has been specifically mentioned that the conducting officer was
allocated Bihar Cadre.
Point no. (iii) as recorded in order dated 25.02.2021(quoted in para 6 above)
and arguments recorded in para 3 and 4 above.
39. It is not in dispute that no oral evidence has been adduced from either
side and consequently there has been no formal marking of exhibits of any of
the documents filed by either side. It is also an admitted fact that both the sides
had relied on documents without any objection from the other side in the
departmental proceedings. The petitioner has not raised any grievance
regarding compliance of principles of natural justice. The petitioner had access
to all the records and documents relied upon by the department and there is no
complaint in this regard. Although the petitioner was exonerated of the charge
regarding opening of fake accounts which was only 1st part of charge no. 1 on
the ground that he was not the concerned person at the relevant point of time of
opening of fake accounts but the fact that those accounts were fake and amount
was disbursed during the tenure of the petitioner is not in dispute. Illegal
disbursal was 2nd part of the charge No. 1.
40. It has been held in the aforesaid judgements dealing with scope of
judicial review of departmental proceedings that strict rules of evidence are not
applicable to departmental proceedings. The only requirement of law is that the
allegation against the delinquent must be established by such evidence acting
upon which a reasonable person acting reasonably and with objectivity may
arrive at a finding upholding the gravity of the charge against the delinquent
employee.
41. This court is of the considered view that merely because there has
been no oral evidence from the side of the department and accordingly, there
has been no formal marking of documents relied upon in the enquiry
proceedings, the same by itself does not render the enquiry proceedings as
based on „no evidence‟. In the present case the documents relied upon by the
department were official records and the petitioner never denied such
documents. The petitioner had also relied upon his own documents without
formally exhibiting the same. No prejudice has been caused to the petitioner by
absence of any oral evidence from the side of the department or by the fact that
the documents were not marked formally. There is no legal impediment in
resting the departmental proceeding merely on documents produced by the
department and relied upon after due compliance of the principles of natural
justice and fair play without formally exhibiting the same through oral
evidence of any witness.
42. It is open to the authority to rest its case on documentary evidence.
Strict rule of evidence is not applicable to the departmental proceedings. What
is relevant that the proceeding should be conducted in tune with principles of
natural justice and fair play. Therefore, argument of the petitioner that the
present case is a case of „no evidence‟, as no oral evidence has been adduced
by the department to formally prove the charge or prove the documents relied
in the departmental proceedings by filing memo of evidence, is devoid of any
merits and hence rejected.
43. It is well settled that the constitutional Court, while exercising its
jurisdiction of judicial review under Article 226 of Constitution of India, is not
to interfere with the findings of fact arrived at in the departmental enquiry
proceedings except in a case of mala fides or perversity i.e. where there is no
evidence to support a finding or where a finding is such that no man acting
reasonably and with objectivity could have arrived at those findings and so
long as there is some evidence to support the conclusion arrived at by the
departmental authority, the same has to be sustained.
44. Altogether three charges were levelled against the petitioner out of
which charge no. 1 was in two parts. 1st part related to opening of fake Laxmi
accounts and 2nd part of charge No. 1 related to irregularity in disbursal of
maturity amount of such fake accounts. Charge no.1 related to opening of fake
accounts and also disbursal of the maturity amount of the fake accounts. The
petitioner was exonerated from 1st part of charge No. 1 i.e. opening of fake
account on the ground that at the time of opening of the fake accounts, the
petitioner was not posted in the branch although there is specific finding that
the accounts were fake. The finding with regard to charge No. 1 relate the
account Nos. 593,594,595,596,597 and 598.
45. The second part of Charge no. 1 related to withdrawal of the deposits
relating to the aforesaid fake accounts. The withdrawal of the maturity value
of the fake deposits had taken place during the tenure of the petitioner. With
regard to these allegations, it has been recorded by the enquiry officer that in
connection with the disputed receipts, the petitioner had issued a letter no.85
dated 16.06.2003 to the then Managing Director and asked for appropriate
order for payment of the amount with interest. Consequently, the Managing
Director had issued a letter No.366 dated 24.06.2003 that the maturity value is
required to be paid by the bank and if the depositor has already taken interest,
then the bank is not supposed to make payment of interest. The findings of the
enquiry officer are that there was another clear order from the Managing
Director that the maturity value was to be paid only through the account and
prior to payment „Form - 15 H‟ was required to be taken. The petitioner had
taken „Form 15 H‟ and it contained the signature of the petitioner as well as the
account holders. The enquiry officer recorded that in all the „Forms 15 H‟, the
signatures were of the same person. The enquiry officer further recorded a
finding that the petitioner had illegally attested the signatures of the account
holders. The enquiry officer also recorded that the petitioner, was responsible,
but for disbursing the amount, against the accounts. The enquiry officer
recorded that the signature could be verified by hand writing expert. The
enquiry officer held that in totality of the facts and circumstances, it was clear
that the disputed Laxmi Deposit accounts suffered from serious procedural
lapse while opening and those were fake accounts. The petitioner was found
guilty by holding that at the time of making payment of the maturing amount,
the accounts were already under dispute and in spite of that, the petitioner did
not follow the necessary procedure and straightaway made payments. The
finding of the enquiry officer at the end is quoted as under:-
" उपरोि सभी त ोों के आिोक में यह ष्ट होता माह ह जक सावजध ि ी
िमा िाता सों0 593,594, 595. बजक 596,597,598 के अजतररि िाता सों0 478
तथा 928 जववाजदत से एवों प्रज या क ोर अजनयजमतता के पररचायक ह। यह
कहा ह। िा सकता ह जक ये िािसािी पू ि ह। सभी सोंबोंजधत या कागिात एक
ही म्मि के द्वारा भरे , अनुशोंजसत एवों या हिाक्षररत ह, िे जकन इन सभी के जिए
िाता िुिवाने समय पदस्थाजपत बैंक शािा प्रबोंधक एवों सहायक दोषी ह।
िे जकन भुगतान के समय िब ये सभी रसीदें एवों िाताएों जववाद में आ गयी थी तब
भी आव क एवों जनयमत प्र ाजियोों का उपयोग न कर सीधे भुगतान कर दे ने के
जिए ी जशवजकशोर दोषी हैं ।"
46. The petitioner was found guilty in connection with his role in
disbursal of money from the fake accounts and admittedly, the petitioner was
the branch manager at the time of disbursal of money and he was also a
signatory in all the form 15H which also contained the signature of the person
withdrawing the money and the signature on all the forms were found to be of
the same person.
47. In the enquiry proceedings, the petitioner did not produce any defence
witness nor made any such prayer to send the signatures for examination by
hand writing expert as all the signatures were said to be of same person as per
the enquiry report. It is important to note that in the 2 nd show cause reply the
petitioner had taken a specific stand that the form H is the declaration of the
account holder and the manager is not the attesting authority of the signatures.
He has also taken a stand that that the enquiry officer could gather from the
account opening forms that all the signatures were of the same person and on
account of similar doubts, the petitioner himself had sent the matter for
consideration by the Managing Director and he was instructed to release the
payment after due verification of documents and certificates and he had done
accordingly and acted in terms of the directions issued by the higher authority.
Thus, the petitioner also had found that same signatures were there in relation
to all the accounts and reported the matter to higher authority and sought
directions but did not take due care while disbursing the maturity amount.
Consequently, maturity amount from the fake accounts were withdrawn and at
the time of withdrawal the petitioner was holding the responsible post and had
also put his signature on concern form H. The argument of the petitioner that
the petitioner was fully exonerated from charge No. 1 is not correct.
48. The disciplinary authority considered the materials on record and the
reply of the petitioner and recorded that when at the time of disbursal of the
maturity amount, the accounts were already under dispute, the petitioner was
not justified in making payment without following necessary and due
procedure and imposed punishment.
49. This court is of the considered view that the findings of the enquiry
report as well as that of the disciplinary authority is based on materials on
record and there is no scope for reappreciating the materials on record and
come to a different finding under Article 226 of the Constitution of India.
50. As a cumulative effect of the aforesaid findings, there is no merit in
this writ petition calling for any interference under Article 226 of the
Constitution of India , which is accordingly dismissed.
51. Pending interlocutory applications, if any, are closed.
(Anubha Rawat Choudhary, J.)
Binit/Saurav
