Birendra Kumar Singh vs State Of Jharkhand Through The ...
2024 Latest Caselaw 1593 Jhar

Jharkhand High Court

Birendra Kumar Singh vs State Of Jharkhand Through The ... on 17 February, 2024

Author: Sanjay Prasad

Bench: Sanjay Prasad

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           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          W. P. (S) No. 6047 of 2017
                                     ....

           Birendra Kumar Singh                            ...... Petitioner
                               Versus

1. State of Jharkhand through the Secretary/Principal Secretary, Panchayati Raj and NREF (Special Division), Department, Ranchi

2. The deputy Commissioner, Latehar

3. The Director, Accounts, Administration and Self - Employment, District Rural Development Wing, Latehar-cum- Enquiring Authority, DRDA Building, Latehar ..... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD

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            For the Petitioner       : Mr. Manoj Tandon, Advocate
                                     Ms. Neha Bhardwaj, Advocate
                                     Mr. Adamya Kerketta, Advocate
            For the Resp. -State     : Mr. Jayant Franklin Toppo, GA-V
                                     Mr. Neil Abhijit, Toppo, AC to GA-V
                                      .....

09/17.02.2024      Heard learned counsel for the petitioner and learned
           counsel for the State.

2. The present Writ Petition No. 6047 of 2017 has been filed on behalf of the petitioner challenging the order dated 21.08.2017, Annexure-10, passed by the respondent no. 2, the Deputy Commissioner, Latehar and the Appellate Order dated 08.08.2019, Annexure-13, passed by the Appellate Authority i.e. the Secretary, Rural Development Department, Panchayati Raj, Government of Jharkhand by which the appeal preferred on behalf of the petitioner has been dismissed.

3. Learned counsel for the petitioner has submitted that the order dated 21.08.2017, Annexure-10 and the Appellate Order dated 08.08.2019, Annexure-13 have been passed in violation of the principle of natural justice as neither a copy of the enquiry report nor the 2nd show cause notice have been served upon the

petitioner till that date while passing the order of termination. It is submitted that the Appellate Authority has simply affirmed the order passed by the Disciplinary Authority. It is also submitted that on the one hand, the petitioner has been made scapegoat by terminating his services by the Disciplinary Authority whereas, Block Development Officer, Mahuadanr, who was also involved in the said case, has been left off by giving warning and the petitioner claims parity in the matter of punishment. It is also submitted that termination order is also bad in the view of the judgment reported in the case of Roop Singh Negi Versus Punjab National Bank and Others reported in (2009) 2 SCC 570.

Learned counsel for the petitioner in support of his contention, has relied upon the judgment reported in the case of Managing Director ECIL Hyderbad Versus B. Karunakar reported in 1993 (4) SCC 727 and in the case of Union of India and Ors. Versus, Mohd. Ramzan Khan reported in 1991 (1) SCC 588 and as such, the impugned orders may be set aside.

4. Learned counsel for the respondent- State has submitted that copy of the enquiry report was served upon the petitioner and the petitioner has not raised the plea of non-availability of the enquiry report and 2nd show cause notice.

5. It transpires that petitioner was working as Panchayat Secretary and he was issued show cause notice and a departmental proceeding was initiated against him vide Memo No. 63 dated 02.02.2017 vide Annexure-3 and prior to that he put under suspension vide Memo No. 1166 dated 30.12.2016 and the Director, Accounts Administration and Self-employment, District Rural Development Agency, Latehar was appointed as Enquiry Authority.

6. It transpires that the petitioner has submitted reply for all the charges vide letter dated 07.03.2017 as contained in Annexure-5.

However, vide order dated 21.08.2017, Deputy Commissioner Latehar has dismissed the petitioner from the services withholding guilty of the charges.

7. It transpires from the order dated 21.08.2017 that neither copy of the enquiry report nor 2nd show cause notice was issued upon the petitioner.

8. Rule 14 of the Jharkhand Government Servants (Classification, Control & Appeal) Rules, 2016 prescribes for Minor and Major Penalties whereas Rule 17 of the Jharkhand Government Servants (Classification, Control & Appeal) Rules, 2016 prescribes for procedure for imposing Major Penalties. Rule 18 (4) of the Jharkhand Government Servants (Classificationi, Control & Appeal) Rules, 2016 prescribes that Disciplinary Authority before making final order in a case, shall provide a copy of the Enquiry Report to the Government Servant concern to enable his/her to file his/her statement. However, the same has not been done.

9. It appears that the Disciplinary Authority has not proceeded in the light of the above mentioned Rules.

10. It further transpires that the Appellate Authority has merely affirmed the order of the Disciplinary Authority without discussing the materials.

11. It has been held in the case of Managing Director ECIL Hyderbad Versus B. Karunakar reported in 1993 (4) SCC 727 that supply of enquiry report and 2nd show cause is mandatory in nature, which has not been furnished to the petitioner.

12. It has been held in the case of Managing Director ECIL Hyderbad Versus B. Karunakar reported in 1993 (4) SCC 727 at para- 61, 62 and 63 as follows:-

"Para-61:- It is now settled law that the proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. It is

well-settled law that the principles of natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post-mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Articles 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice. The contention on behalf of the Government/management that the report is not evidence adduced during such inquiry envisaged under proviso to Article 311(2) is also devoid of substance. It is settled law that the Evidence Act has no application to the inquiry conducted during the disciplinary proceedings. The evidence adduced is not in strict conformity with the Indian Evidence Act, though the essential principles of fair play envisaged in the Evidence Act are applicable. What was meant by 'evidence' in the proviso to Article 311(2) is the totality of the material collected during the inquiry including the report of the enquiry officer forming part of that material. Therefore, when reliance is sought to be placed by the disciplinary authority, on the report of the enquiry officer for proof of the charge or for imposition of the penalty, then it is incumbent that the copy thereof should be supplied before reaching any conclusion either on proof of the charge or the nature of the penalty to be imposed on the proved charge or on both.

Para-62:- Shri P.P. Rao obviously realising this effect, contended that the enquiry officer being a delegate of the disciplinary authority is not bound by the delegatee's recommendations and it is not a material unless it is used by the disciplinary authority. Therefore, the need for its supply does not arise and the principles of natural justice need not be extended to that stage as the officer/workman had opportunity at the inquiry. In support thereof he placed strong reliance on Suresh Koshy George v. University of Kerala [(1969) 1 SCR 317 : AIR 1969 SC 198] ; Shadi Lal Gupta v. State of Punjab [(1973) 1 SCC 680 :

1973 SCC (L&S) 293 : (1973) 3 SCR 637] ; Hira Nath Misra v. Principal, Rajendra Medical College, Ranchi [(1973) 1 SCC 805 : AIR 1973 SC 1260] ; Satyavir Singh v. Union of India [(1985) 4

SCC 252 : 1986 SCC (L&S) 1 : AIR 1986 SC 555] ; Secretary, Central Board of Excise & Customs v. K.S. Mahalingam [(1986) 3 SCC 35 : 1986 SCC (L&S) 374] and Union of India v. Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] . I am unable to agree with his contentions. Doubtless that the enquiry officer is a delegate of the disciplinary authority, he conducts the inquiry into the misconduct and submits his report, but his findings or conclusions on the proof of charges and his recommendations on the penalty would create formidable impressions almost to be believed and acceptable unless they are controverted vehemently by the delinquent officer. At this stage non-supply of the copy of the report to the delinquent would cause him grave prejudice. S.K. George case [(1969) 1 SCR 317 : AIR 1969 SC 198] renders no assistance. It is only an inquiry against malpractice at an examination conducted by the University under executive instruction. Therein the students were given an opportunity of hearing and they were supplied with all the material, the foundation for the report. The observations of the Bench of two Judges with regard to the theory of two stages in the Inquiry under Article 311 also bears little importance for the foregoing consideration in this case. It is already seen that this Court held that the inquiry from the stage of charge-sheet till the stage of punishment is a continuous one and cannot be split into two. The reliance in Keshav Mills Co. Ltd. v. Union of India [(1973) 1 SCC 380 : (1973) 3 SCR 22] is also of no avail. Therein it was pointed out that under Section 18-A of the I.D.R. Act there was no scope of enquiry at two stages and the omission to supply enquiry report, before taking the action, did not vitiate the ultimate decision taken. In Shadi Lal case [(1973) 1 SCC 680 : 1973 SCC (L&S) 293 : (1973) 3 SCR 637] Rule 8 of the Punjab Civil Service (Punishment and Appeal) Rules did not provide for the supply of copy of the report of an inquiry conducted by the fact finding authority before inquiry. It was held that the delinquent officer was supplied with all the materials and was given opportunity to make representation and the same was considered. The report did not indicate anything in addition to what was already supplied to him. Under those circumstances it was held that the principles of natural justice cannot be put into an iron cast or a strait-jacket formula. Each case has to be considered and the principles applied in the light of the facts in each case. The effect of the violation

of the principles of natural justice on the facts of the case on hand needs to be considered and visualised. The effect of Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] ratio was considered by my brother Sawant, J. and it needs no reiteration. The reliance on S.K. George case [(1969) 1 SCR 317 :

AIR 1969 SC 198] in Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672 : 1985 Supp (2) SCR 131] ratio renders no assistance in the light of the above discussion. Since Mahalingam case [(1986) 3 SCC 35 : 1986 SCC (L&S) 374] which was after the Forty-second Amendment Act, the need to supply second show-cause notice was dispensed with, regarding punishment and therefore, that ratio renders no assistance to the case. Hira Nath Misra case [(1973) 1 SCC 805 :

AIR 1973 SC 1260] also is of no avail since the inquiry was conducted relating to misbehaviour with the girl students by the erring boys. The security of the girls was of paramount consideration and therefore, the disclosure of the names of the girl students given in the report or their evidence would jeopardise their safety and so was withheld. Accordingly this Court on the fact situation upheld the action of the Medical College. Satyavir Singh [(1985) 4 SCC 252 : 1986 SCC (L&S) 1 : AIR 1986 SC 555] ratio also is of no assistance as the action was taken under proviso to Article 311(2) and Rule 199 of the CCA Rules. The inquiry into insubordination by police force was dispensed with as the offending acts of the police force would generate deleterious effect on the discipline of the service. Asthana case [(1988) 3 SCC 600 : 1988 SCC (L&S) 869] was considered by my brother Sawant, J. in which the report was not supplied and it was upheld. It should, thus be concluded that the supply of the copy of the enquiry report is an integral part of the penultimate stage of the inquiry before the disciplinary authority considers the material and the report on the proof of the charge and the nature of the punishment to be imposed. Non-compliance is denial of reasonable opportunity, violating Article 311(2) and unfair, unjust and illegal procedure offending Articles 14 and 21 of the Constitution and the principles of natural justice.

Para-63:- The emerging effect of our holding that the delinquent is entitled to the supply of the copy of the report would generate yearning for hearing before deciding on proof of charge or penalty which Forty-second Amendment Act had advisedly avoided. So while

interpreting Article 311(2) or relevant rule the court/tribunal should make no attempt to bring on the rail by back track the opportunity of hearing as was portended by the Gujarat High Court. The attempt must be nailed squarely. Prior to the Forty-second Amendment Act the delinquent had no right of hearing before disciplinary authority either on proof of charge or penalty. So after Forty-second Amendment Act it would not be put on higher pedestal. The Gujarat High Court's decision is, therefore, not good law. However, the disciplinary authority has an objective duty and adjudicatory responsibility to consider and impose proper penalty consistent with the magnitude or the gravity of the misconduct. The statute or statutory rules gave graded power and authority to the disciplinary authority to impose either of the penalties enumerated in the relevant provisions. It is not necessarily the maximum or the minimum. Based on the facts, circumstances, the nature of imputation, the gravity of misconduct, the indelible effect or impact on the discipline or morale of the employees, the previous record or conduct of the delinquent and the severity to which the delinquent will be subjected to, may be some of the factors to be considered. They cannot be eulogised but could be visualised. Each case must be considered in the light of its own scenario. Therefore, a duty and responsibility has been cast on the disciplinary authority to weigh the pros and cons, consider the case and impose appropriate punishment. In a given case if the penalty was proved to be disproportionate or there is no case even to find the charges proved or the charges are based on no evidence, that would be for the court/the tribunal to consider on merits, not as court of appeal, but within its parameters of supervisory jurisdiction and to give appropriate relief. But this would not be a ground to extend hearing at the stage of consideration by the disciplinary authority either on proof of the charge or on imposition of the penalty. I respectfully agree with my brother Sawant, J. in other respects in the draft judgment proposed by him."

13. Under the circumstances, the order dated 21.08.2017, Annexure-10, passed by the respondent no. 2, the Deputy Commissioner, Latehar and the Appellate Order dated 08.08.2019, Annexure-13, passed by the Appellate Authority i.e. the Secretary, Rural Development Department, Panchayati Raj,

Government of Jharkhand are set aside and the case is remitted to the Disciplinary Authority for passing a fresh order in accordance with law by giving full opportunity to the petitioner by providing Enquiry Report and 2nd show cause notice to the petitioner. The petitioner will be at liberty to take all the points at the time of enquiry including the point of taking parity with the Block Development Officer, Mahuadanr and the enquiry will proceed further from the stage of submission of reply.

Authority will proceed accordingly and in the meantime, if the petitioner is found entitled to the allowance, then the same may be paid to him by the Competent Authority in accordance with law.

(Sanjay Prasad, J.) Kamlesh/