Jharkhand High Court

Rupesh Kumar vs The State Of Jharkhand on 15 September, 2023

                                    -1-                       W.P.S No.6507 of 2016



    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            (Civil Writ Jurisdiction)
                          W.P.(S) No.6507 of 2016

    Rupesh Kumar, Son of Vijay Prasad, resident of village
    Sihodih, P.O. Sirsiya, P.S. Giridih (M), District Giridih
                                            ......      Petitioner

                               Versus
    1.    The State of Jharkhand
    2.    The Principal Secretary, Personnel Administrative
          Reforms and Rajbhasa Department, Government of
          Jharkhand, Dhurwa, Ranchi.
    3.    The Deputy Secretary, Personnel Administrative
          Reforms and Rajbhasa Department, Government of
          Jharkhand, Dhurwa, Ranchi.
    4.    The Deputy Commissioner, Giridih
    5.    The Sub-Divisional Officer, Giridih.
                                           ...... Respondents
                               ---------

CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR

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For the Petitioner : Mr. Rajendra Krishna, Advocate Mr. Subham Mayank, Advocate Mr. Manish Kumar, Advocate For the Respondents : Mr. Mithilesh Singh, G.A.-IV Mrs. Archana Kumari Singh, A.C to G.A.-IV

---------

               th
17/Dated: 15        September, 2023

1. Heard learned counsel for the petitioner and learned

counsel for the respondents-State.

2. The present writ petition has been filed for quashing the

charge-sheet dated 08.07.2015 (Annexure - 3), the second

show cause notice dated 18.10.2016 (Annexure - 5), the

cancellation of caste and residential certificate dated

08.11.2014 (Annexure - 8) and also for quashing the order

contained in Memo No.924 dated 05.07.2018 (Annexure - 9)

by which the petitioner was put under suspension.

3. The brief facts as appear from the arguments and

pleadings of the parties are as follows :-

I. The petitioner has been appointed pursuant

to the examination held under 4th Jharkhand Public

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Service Commission (JPSC) under the category of

Other backward Class (B.C.-1) in the cadre of State

Administrative Service vide appointment letter dated

11.02.2013.

II. While the petitioner was posted as Block

Development Officer, Chinya, Garhwa, a show cause

notice dated 29.12.2014 has been issued to him,

which has been brought on record as Annexure - 1 to

the amended writ petition. The said notice stipulates

that the petitioner is not a member of Other

Backward Class (B.C.-1) and as such why not a

departmental proceeding should be initiated against

him for his dismissal. The said notice has been

replied by the petitioner, as contained in letter No.56

dated 10.01.2015 (Annexure - 2) denying the

allegation.

III. Thereafter, it appears that the department

has issued the Memo of charge vide Memo dated

08.07.2015.

IV. It further appears that thereafter, Enquiry

Officer has started the enquiry and the petitioner has

participated in the said proceeding with protest. The

enquiry report has been submitted on 13.06.2016

(Annexure - 4) in which the Enquiry Officer has not

found the allegation true against the petitioner.

Thus, the enquiry is in favour of the petitioner.

V. It further appears that thereafter, the

department has differed with the findings recorded

by the Enquiry Officer and accordingly, second show

cause notice dated 18.10.2016 (Annexure - 5) has

been issued. Although reasons have not been

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assigned in the second show cause notice, but there

is enclosure with the second show cause notice in

which there is discussion of the reason and evidence.

VI. It further appears that second show cause

notice, issued to the petitioner, has been challenged

in the present writ petition by way of filing

amendment petition, which has been allowed and the

same is under challenge in the present writ petition.

VII. It also appears that the petitioner has been

suspended on 05.07.2018 (Annexure - 9).

VIII. It further appears that the petitioner was

suspended earlier also on 20.05.2015, but the said

suspension order has been revoked on 29.03.2016.

Thus, the present suspension order is the second

suspension after the second show cause notice.

IX. It also appears that the caste certificate,

issued to the petitioner, has been cancelled by the

Sub-Divisional Officer, Giridih, vide its order dated

08.11.2014 (Annexure -8) which has also been

impugned in the present writ petition.

4. The following argument has been advanced by the

learned counsel for the petitioner :-

A. That the petitioner is a Class-II Officer and

his appointing authority is the State Government and

as such any initiation of the departmental

proceedings has to be with the prior approval of the

State Government. From perusal of record, it

appears that although there is approval for initiation

of the departmental proceeding, but the Memo of

charge-sheet, issued to the petitioner, has never

been approved by the appointing authority and as

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such the entire proceeding is bad from the stage of

the issuance of the charge-sheet dated 08.07.2015.

For this purpose, learned counsel for the petitioner

has relied upon the judgment of the Hon'ble Apex

Court in the case of Union of India Vs. B.V.

Gopinath., reported in (2014) 1 SCC 351,

especially paragraph Nos.21, 22, 26 and 55,

which reads as under:-

"21. It was further submitted that there may be some situations where even despite the fact that approval has been accorded to initiate the enquiry, charge-sheet may not be issued or approved. To illustrate, it was pointed out that there may be circumstances where the disciplinary authority, after approving the initiation of proceedings but before giving approval to the charge- sheet, comes to a conclusion that a lesser charge or no charge is made out against the officer concerned. In such circumstances, the disciplinary authority proceeds accordingly and may drop the proceedings. Thus, it is for this reason that Rule 14 provides that the disciplinary authority has to apply its mind separately at two different stages: (i) initiation of proceedings; and (ii) approval of charge-sheet.

22. In this context, similar submissions were also reiterated by Mr Shekhar Kumar, learned counsel for the respondent in SLP (Civil) No. 25839 of 2011. Referring to Rule 14(3), the learned counsel submitted that charge memo ought to have been sanctioned by the disciplinary authority, especially since there was no subdelegation of such power in favour of any other officer.

26. Mr Patwalia countered the submission of the learned Additional Solicitor General that it will not be in the interest of good administration to drop the inquiries which are already going on if the charge-sheets issued in such inquiries are required to be approved by the Finance Minister. In this context, it was submitted that such a contention has already been rejected by this Court in Coal India Ltd. v. Saroj Kumar Mishra. Our attention was also drawn to the following excerpt from the said case: (SCC p. 632, para 19) "19. The floodgate argument also does not appeal to us. The same appears to be an argument of desperation. Only because there is a possibility of floodgate litigation, a valuable right of a citizen cannot be permitted to be taken away. This Court is bound

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to determine the respective rights of the parties." Thus, it was submitted that the civil appeals are required to be dismissed.

55. Although number of collateral issues had been raised by the learned counsel for the appellants as well the respondents, we deem it appropriate not to opine on the same in view of the conclusion that the charge- sheet/charge memo having not been approved by the disciplinary authority was non est in the eye of the law."

(Emphasis supplied)

Learned counsel for the petitioner has

further relied upon the judgment of this Hon'ble

Court in the case of Abhay Kumar Vs. The State of

Jharkhand, reported in 2016 (3) JBCJ 506,

especially paragraph Nos.3, 4 and 5, which reads

as under:-

"3. The Trial Court on 21.03.2014 has taken note of the supplementary charge sheet no. 20/2014 and observed that the accused Abhay Kumar has not been charge sheeted. Cognizance has been taken for the offences and processes have been issued against some accused persons (Annexure-4).

4. Inquiry proceeded against the petitioner and out of six charges, charge nos. 2 and 4 were partly found to be proved by the Inquiry Officer i.e. Additional MANREGA Commissioner of the Rural Development Department. Petitioner was served with a second show-cause notice which however has not been brought on record. He has also responded vide Annexure-6 seeking exoneration on the grounds that in the criminal case, final form has been submitted exonerating the petitioner and that there could be no basis for holding him guilty even as per the Inquiry Report. Petitioner has approached this Court after issuance of the second show-cause notice and pleaded that the criminal case and the Departmental Proceeding being based on same charges and similar set of facts and evidence, he deserves protection from any precipitate action taken in the Departmental Proceeding which the respondents were inclined to take.

5. The grounds urged on behalf of the counsel for the petitioner in support thereof inter-alia are as follows:

(i) Petitioner was on deputation in Rural Development Department from his parent Water Resources Department and though, the initiation of the Departmental Proceeding was approved by the

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competent authority under the Rural Development Department, but the charge memo was not approved by him, as is the mandatory requirement in view of the judgment rendered by the Hon'ble Apex Court in the case of Union of India and Others vs. B. V. Gopinath and analogous cases, (2014) 1 SCC 351.

(ii) Since in the criminal case for the same set of charges, the Investigating Agency has not found any evidence to prosecute him, the Disciplinary Authority should not proceed with the Departmental Inquiry on the same charges, same evidence and set of facts. His exoneration by the Investigating Agency is in effect honourable acquittal and the petitioner deserves exoneration in the Departmental Proceeding as well. Learned counsel for the petitioner has relied upon a judgment rendered by the Apex Court in the case of K. Venkateshwarlu vs. State of Andhra Pradesh (2012) 8 SCC 73 Para-5 to 11 and 13 thereof.

(iii) It is also urged that during pendency of the writ application, respondents have forwarded the proposal for imposing punishment of dismissal upon him to the Public Service Commission i.e. JPSC which shows a premeditated state of mind to punish the petitioner, though even as per Inquiry Report, only two charges were partly proved."

(Emphasis supplied)

Learned counsel for the petitioner has also

relied upon the judgment of the Hon'ble Supreme

Court in the case of State of Tamil Nadu Rep. By

Secretary To Govt. (Home) Vs. Pramod Kumar

IPS & Anr., passed in Civil Appeal Nos.8427-8428

of 2018, especially paragraph Nos.17, 18 and 19,

which reads as under:-

"17. It is clear that the approval of the disciplinary authority was taken for initiation of the disciplinary proceedings. It is also clear from the affidavit that no approval was sought from the disciplinary authority at the time when the charge memo was issued to the delinquent officer. The submission made on behalf of the Appellant is that approval of the disciplinary authority for initiation of disciplinary proceedings was sufficient and there was no need for another approval for issuance of charge memo. The basis for such submission is that initiation of disciplinary proceedings and issuance of

-7- W.P.S No.6507 of 2016

charge memo are at the same stage. We are unable to agree with the submission in view of the judgment of this Court in B.V. Gopinath (supra). In that case the charge memo issued to Mr. Gopinath under Rule 14(3) of the Central Civil Service (Classification, Control and Appeal) Rules, 1965 was quashed by the Central Administrative Tribunal on the ground that the Finance Minister did not approve it. The judgment of the Tribunal was affirmed by the High Court. The Union of India, the Appellant therein submitted before this Court that the approval for initiation of the departmental proceedings includes the approval of the charge memo.

Such submission was not accepted by this Court on an interpretation of Rule 14(3) which provides that the disciplinary authority shall " draw up or cause to be drawn up" the charge memo. It was held that if any authority other than the disciplinary authority is permitted to draw the charge memo, the same would result in destroying the underlying protection guaranteed under Article 311 (2) of the Constitution of India.

18. Rule 8 (4) of the All India Service (Discipline and Appeal) Rules, 1969 also mandates that the disciplinary authority shall "draw up or cause to be drawn up" the charge memo. We see no reason to take a view different from the one taken by this Court in B.V.Gopinath (supra). We also see no substance in the submission made by the Senior Counsel for the State that the said judgment needs reconsideration. Assuming that Mr.Giri is right in his submission that the initiation of disciplinary proceedings and issuance of charge memo are at the same stage, the mandatory requirement of Rule 8 which provides for the charge memo to be drawn by the disciplinary authority cannot be ignored. We reject the submission on behalf of the Appellant that Gopinath's case can be distinguished on facts. We are not in agreement with the contention of the Appellant that the business rules and standing orders of the State of Tamil Nadu are quite different from the office orders and circulars issued by Union of India which formed the basis of the judgment in Gopinath's case. A close reading of the said judgment would disclose that reliance on the office note was only in addition to the interpretation of the Rule.

19. It is also settled law that if the rule requires something to be done in a particular manner it should be done either in the same manner or not at all- Taylor v. Taylor (1875) 1 Ch.D. 426, 431. In view of the mandatory requirement of Rule 8 (4) and the charge

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memo being drawn up or cause to be drawn up by the disciplinary authority is not complied with, we are of the considered opinion that there is no reason to interfere with the judgment of the High Court on this issue. The only addition we would like to make is to give liberty to the disciplinary authority to issue a charge memo afresh after taking approval from the disciplinary authority.

(Emphasis supplied)

Learned counsel for the petitioner while

referring to the Rule 17(3) of the Jharkhand

Government Servants (Classification, Control &

Appeal) Rules, 2016, has also submitted that the

Memo of charge has to be issued by the appointing

authority. Rule 17(3) of the Jharkhand Government

Servants (Classification, Control & Appeal) Rules,

2016, reads as under :-

"17. Procedure for imposing major penalties:-

1) .........

2) ........

3) Where it is proposed to hold an inquiry against a Government Servant under this rule, the Disciplinary Authority shall draw up or cause to be drawn up :-

i) The substance of the imputations of misconduct or misbehaviour as a definite and distinct article of charge.

ii) A statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain :-

a) A statement of all relevant facts including any admission or confession made by the Government Servant;

b) A list of such document by which, and a list of such witnesses by whom, the articles of charge are proposed to be sustained.

B. It has further been argued by the learned

counsel for the petitioner that the Sub-Divisional

Officer has no power and authority to cancel the

caste certificate, issued in favour of the petitioner

and for that purpose he has referred to the Circular

-9- W.P.S No.6507 of 2016

issued by the State Government dated 08.07.2004

whereby a Caste Scrutiny Committee has been

constituted. It has been mandated under the said

Circular that any such dispute has to be placed

before the Caste Scrutiny Committee and the said

Caste Scrutiny Committee alone is competent to look

into the matter and consider the genunity of the

caste certificate. Since in the present case, the caste

certificate, issued to the petitioner, has been

cancelled by the Sub-Divisional Officer and it has not

been referred to the Caste Scrutiny Committee and

as such the cancellation of the caste certificate is

without authorization of law rather it is contrary to

the above Circular dated 08.07.2004. For this

purpose, learned counsel for the petitioner has relied

upon the judgment of the Hon'ble Apex Court in the

case of Kumari Madhuri Patil & Anr. Vs. Addl.

Commissioner, Tribal Development & Ors.,

reported in AIR 1995 Supreme Court 94.

C. The third limb of argument of the learned

counsel for the petitioner is that it is settled principle

of law that the Disciplinary Authority may differ with

the findings recorded by the Enquiry officer, but the

reasons for difference has to be assigned in the

second show cause. In the present case, the second

show cause contains no such reasoning or discussion

of the evidence and as such the second show cause is

bad in law. It has further been submitted that mere

supplying the note-sheet will not suffice the matter.

It has to be the part of the second show cause.

On above basis, the impugned orders, i.e., (a) the

- 10 - W.P.S No.6507 of 2016

second order of suspension dated 05.07.2018; (b) the Memo

of charge dated 08.07.2015; (c) the second show cause dated

18.10.2016; and (d) the cancellation order of the caste

certificate dated 08.11.2014 have been assailed and

argument has been advanced that the same are wholly

without jurisdiction and are contrary to law and against the

judicial pronouncements.

5. Per contra, learned counsel for the respondents-State,

has opposed the submission advanced by the learned counsel

for the petitioner. It has been argued by the learned counsel

for the respondents-State :-

A. that so far as approval of the Memo of

charge is concerned it is a combined approval and

for this purpose he has relied upon the portion of the

Annexure -D of the supplementary counter affidavit

affidavit dated 17.12.2019. The relevant portion of

the same is quoted herein-below:-

^^vr% izLrko gS fd& 1- Jh dqekj dks vlSfud lsok,¡ ¼oxhZdj.k] fu;a=.k ,oa vihy½ fu;ekoyh] 1930 ds fu;e&49¼d½¼1½¼d½ ds rgr~ rRdky izHkko ls fuyafcr fd;k tk;A fuyacu vof/k esa budk eq[;ky; izeM a yh;

vk;qDr dk dk;kZy;] iykew izeM a y] esfnuhuxj jgsxk rFkk >kj[k.M lsok lafgrk ds fu;e&96 ds rgr~ bl vof/k esa bUgsa thou fuokZg HkÙkk ns; gksxk;

2- Jh dqekj ds fo:) izfrosfnr vkjksiksa dks foHkkx }kjk izi=&^d* esa xfBr djrs gq, fu;e&55 ds rgr~ foHkkxh; dk;Zokgh pyk;h tk;] ftlds fy, Jh 'kqHksUnz >k] lsokfuo`r Hkk0iz0ls0] foHkkxh; tk¡p inkf/kdkjh dks lapkyu inkf/kdkjh fu;qDr fd;k tk ldrk gS rFkk Jh tqfYQdkj vyh] vuqeM a y inkf/kdkjh] fxfjMhg dks miLFkkiu inkf/kdkjh ukfer fd;k tk ldrk gSA ,oa 3- fcuk leqfpr tk¡p ds Jh dqekj dk Lfkkuh; fuoklh izek.k&i= rFkk tkfr izek.k&i= fuxZr djus okys nks"kh rnsu iz[k.M fodkl inkf/kdkjh] vapy vf/kdkjh ,oa vuqeM a y inkf/kdkjh dks fpfUgr djrs gq, muds fo:) izi=&^d* esa vkjksi xfBr dj ,d i{k ds Hkhrj miyC/k djkus dk funs'k mik;qDr] fxfjMhg dks fn;k tk

- 11 - W.P.S No.6507 of 2016

ldrk gSA Hkonh; lger gksa] rks mDr izLrko ij eq[; lfpo ds ek/;e ls ekuuh; eq[;ea=h dk vkns'k izkIr fd;k tk ldrk gSA**

This has been approved by the Hon'ble Chief

Minister of the State. Since the approval order itself

stipulates that izi=&^d* has to be issued after

initiation of the departmental proceeding and as

such the separate approval of the Memo of charge is

not required since it was a joint approval.

B. that so far as objection of the learned

counsel for the petitioner regarding order of

cancellation of caste certificate by the Sub-Divisional

Officer is concerned, the argument has been

advanced by the learned counsel for the respondents

-State that the Circular dated 08.07.2004 is of the

year 2004 and is with regard to the caste certificate

issued to the member of the Scheduled Caste and

Scheduled Tribe only. This Circular does not cover

the caste certificate issued in favour of the

petitioner, who belongs to Other Backward Class

(B.C.-1). Since the Caste Scrutiny Committee is not

for the member of other backward class and as such

the said Circular is not applicable in the case of the

present petitioner rather the Sub-Divisional Officer

has the authority to cancel the caste certificate.

C. So far as the assignment of reasons for

differing with the enquiry report is concerned, a

separate note-sheet has been supplied with the

second show cause, wherein the evidence has been

discussed and the reasons have been assigned for

differing with the findings recorded by the Enquiry

- 12 - W.P.S No.6507 of 2016

Officer and as such it is purportedly in accordance

with law. The note-sheet has been supplied with the

second show cause notice and as such merely on the

basis of format, the petitioner cannot claim any

relief.

6. Having heard learned counsel for the parties and from

perusal of record, it appears :-

(i). that although the departmental proceeding

has been initiated with the approval of the State

Government, but the Memo of charge has never been

approved by the council of the Minister or by the

Hon'ble Chief Minister of the State. The judgment of

the Hon'ble Apex Court, as noted above, is clear on

this point. Further, Rule 17(3) of the Jharkhand

Government Servants (Classification, Control &

Appeal) Rules, 2016, which covers the field, also

clarifies the position that the Memo of charge has to

be issued by the appointing authority. Non-approval

of the Memo of charge by the appointing authority

makes it unauthorized and nullity in the eyes of law.

It is settled principle of law that an action can only

be taken by an authorized person, who is authorized

in law, otherwise, the action itself is without

jurisdiction and void ab-initio. Since the present

Memo of charge has been issued without the

approval of the State Government and as such this

Court finds that the Memo of charge-sheet dated

08.07.2015 is not sustainable in the eye of law and

accordingly, the same is hereby, quashed and set

aside.


         (ii).     So far as the second issue regarding the
                          - 13 -                         W.P.S No.6507 of 2016

cancellation of caste certificate by the Sub-Divisional

Officer is concerned, this Court finds that the

Circular relied upon by the petitioner is not

applicable in the case of the petitioner as because

the said Circular covers only for the members

belonging to the Scheduled Caste and Scheduled

Tribe. The Caste Scrutiny Committee, which has

been constituted, has not been authorized to look

into the caste certificate, issued to the members of

the other backward class. In the absence of

authorization by the circular itself, the reliance upon

the said circular by the petitioner is of no use and

accordingly, this Court finds no force in the

submission of learned counsel for the petitioner and

accordingly, the same is, hereby, rejected.

(iii) Since in the present case, the issue involved

is the ouster of Sub-Divisional Officer on the

strength of Caste Scrutiny Committee constituted

vide Circular dated 08.07.2004, has not been

accepted by this Court and on this score the

challenge to the order of the Sub-Divisional Officer

cancelling the caste certificate, has been rejected by

this Court. However, it is clarified that the issue of

the caste has not been decided by this Court on

merit and it is, hereby, kept open to be decided by

the competent authority in accordance with law.

The liberty is reserved with the petitioner to

challenge the order of cancellation of the caste

certificate in the appropriate proceeding in

accordance with law.


(iv).      So    far     as    the      second     show       cause       is
                                     - 14 -                  W.P.S No.6507 of 2016

concerned, the evidence has been discussed and the

reasons have been assigned by the authority while

issuing the second show cause and the same has

been supplied along with the second show cause

itself. It is settled principle of law that the format has

not to be seen rather substance has to be seen. Since

in substance the reasons have been shown for

differing with the finding recorded by the Enquiry

Officer by referring to the evidence available on

record and as such this Court finds no illegality in

issuance of second show cause notice on the ground

of non-assignment of reasons. Accordingly, the