Jharkhand High Court
Pankaj Kumar vs The State Of Jharkhand on 19 February, 2024
Author: S.N. Pathak
Bench: S. N. Pathak
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 5835 of 2019
Pankaj Kumar ... Petitioner
VERSUS
1. The State of Jharkhand
2. The Deputy Commissioner, Palamau, P.O. and P.S. Medininagar, District -
Palamau
3. The Sub-Divisional Officer, Hussainabad, Palamau
4. The Block Development Officer, Hussainabad, Palamau.
... Respondents
CORAM: HON'BLE DR. JUSTICE S. N. PATHAK
For the Petitioner :Mr. Sameer Sahay, Advocate
For the Respondents :Mr. Ashok Kumar, AAG-IV
Ms. Piyushita Meha Tudu, AC to AAG
05/19.02.2024 Heard learned counsel for the parties.
PRAYER
2. Petitioner has approached this Court with a prayer for a direction
upon the respondents - Deputy Commissioner, Palamau to give
opportunity to the petitioner to file reply to findings of Enquiry Officer
made in the Enquiry Report. Petitioner has further assailed the Memo
No. 513, dated 14.09.2019 (Annexure-4) i.e. Second Show-cause notice.
Petitioner has further assailed the memo no. 618/Estt., dated 31.10.2019
(Annexure-5), issued by the Deputy Commissioner, Palamau whereby
services of the petitioner has been terminated with immediate effect.
FACTUAL MATRIX
3. According to the petitioner, he was appointed on 23.06.2008 on
compassionate ground after death of his father. On 27.04.2019, the
concerned Block Development Officer, Hussainabad filed an application
alleging therein that the petitioner had tried to disturb the 2019 Lok
Sabha Election Process since petitioner was assigned the work of
Generator and other facilities for different clusters for polling party,
which he could not arrange and chaos was created. Petitioner was also
found absent from duty. On 27.04.2019, at mid-night, the Block
Development Officer, Hussainabad called the petitioner and said that
Sub-Divisional Officer, Hussainabad wanted to meet him. Thereafter,
RC
petitioner went to the residence of Sub Divisional Officer where he was
taken into custody and detained nightlong and was confined in one small
room. The next day i.e. 28.04.2019, he was handed over to the Police
Station and on 30.04.2019 i.e. after two days, was released from the
Police Station. Thereafter, departmental proceeding was initiated and
Kundan Kumar, Sub-Divisional Officer, Hussainabad was appointed as
Inquiry Officer with a direction to submit the report within 45 days. He
was put under suspension vide memo no. 251, dated 08.05.2019 with
effect from 27.04.2019, issued by the Deputy Commissioner, Palamau
and was also given charge memo i.e. Prapatra "Ka" with that letter. On
the date of issuance of suspension order, petitioner was not in custody
and had already given his joining on 02.05.2019 before the Block
Development Officer, Hussainabad, which is apparent from perusal of
letter no. 434, dated 17.06.2019. However, petitioner was not granted
subsistence allowance during the period of suspension and even his head
office was not fixed for the said period. Thereafter, departmental
proceeding was initiated against the petitioner by the Enquiry Officer -
cum - Sub Divisional Officer, Hussainabad and during the enquiry
proceeding, petitioner submitted his reply in response to memo no. 602,
dated 01.06.2019, issued by the inquiry officer and totally denied the
allegations levelled against him. Thereafter, report dated 08.08.2019 was
submitted by the inquiry officer before the disciplinary authority i.e.
Deputy Commissioner, Palamau. Thereafter, the Deputy Commissioner,
Palamau, vide memo no. 513, dated 14.09.2019, issued second show-
cause asking reply from him in respect to the proposed major
punishment. Thereafter, the Deputy Commissioner, Palamau, issued an
order vide memo no. 618/East, dated 31.10.2019 (Annexure-5),
terminating services of the petitioner with immediate effect. Being
aggrieved, petitioner has been constrained to knock door of this Court.
SUBMISSION ON BEHALF OF PETITIONER
4. Mr. Sameer Sahay, learned counsel appearing for the petitioner
strenuously urges that the impugned order is not sustainable in the eyes
of law and the same is fit to be quashed and set aside. The Disciplinary
Authority, without giving opportunity to the petitioner to file reply
RC
against finding of the enquiry report, bypassing a vital stage, directly
issued second show-cause, asking reply from the petitioner in respect to
the proposed major punishment, which is not tenable in the eyes of law.
Learned counsel further submits that after amendment of Article 311 of
the Constitution of India, it is not mandatory for the department to issue
second show-cause notice asking reply against proposed punishment but
it is mandatory for the Disciplinary Authority to provide enquiry report
to the concerned and it is further mandatory to give fair and reasonable
time to the concerned to file reply against finding of the enquiry officer
made in the enquiry report. After perusal of reply of the delinquent
against finding of the enquiry report, if Disciplinary Authority think it fit
to impose major punishment, then second show-cause notice is issued
asking reply against the proposed punishment. In this matter, a complete
step has been bypassed by the Disciplinary Authority which is not
sustainable in the eyes of law. Learned counsel further argues that it is
settled law that if Disciplinary Authority has issued second show cause
notice against the proposed punishment of termination, then even
petitioner has given reply against finding of the enquiry officer
mentioned in inquiry report, then the Disciplinary Authority has the to
look into quantum of punishment only. The direction to file reply against
proposed punishment and direction to file reply against the enquiry
report are two different types of show-cause notices. Even after 42nd
Amendment in Constitution of India in respect to Article 311(2), the
provision of issuance of show-cause notice against the proposed
punishment has been taken away. Petitioner has already rendered more
than eleven years of service without any complaint and only in order to
cover up the mistakes of certain authorities, he has been made scapegoat
and impugned order has been passed. Due to election duty, he could not
maintain the books. Petitioner has served the department diligently
without any compliant from any corner. Petitioner was not the competent
person to arrange generators etc. during the election rather he was the
person to work under the instructions of superiors. Just to cover up the
mistakes of higher authorities, he has been punished. For the purpose of
uninterrupted electricity supply and supervision of CCTV Camera,
RC
Rozgar Sewaks had been appointed and as such for inconvenience, if
any, they are responsible and not the petitioner. So far the fooding
facilities to the polling party is concerned, it had to be arranged by
Aanganbari Sewika who had been deputed for the said purpose by the
Block Development Officer. Learned counsel further argues that in the
instant case, neither witnesses have been examined in presence of
delinquent nor opportunity of cross examination has been given to the
petitioner by the respondents, which is erroneous, arbitrary and not
tenable in the eyes of law and is totally in conflict with the provisions as
contained in Article 311(2) of the Constitution of India. While affirming
penalty against the petitioner, the respondents could not justify that in
absence of any written office order by the competent authority regarding
work allotted to the petitioner, how the same has been proved against
him. Learned counsel emphatically submits that the impugned order is
illegal, arbitrary and against the principles of natural justice and the same
is fit to be quashed.
5. To sum-up, learned counsel for the petitioner has assailed the
impugned order mainly on the following grounds:
(i) The charge memo has been served to the petitioner without approval
of the competent authority and as such the entire proceeding itself
vitiates.
(ii) The second show-cause notice is bad in law as the same reflects
punishment awarded, which is against the provisions of law.
(iii) The opportunity of cross examination of witnesses was not provided,
which prejudiced the petitioner.
(iv) The enquiry report also becomes redundant as the enquiry officer has
recommended for punishment. The presenting officer has become a
witness to the enquiry.
6. To substantiate his arguments, learned counsel places heavy
reliance upon the Judgment rendered in the case of ECIL Vs. B.
Karunakar reported in (1993) 4 SCC 727 and refers para-25 thereof,
which reads as under:
"25. While the right to represent against the findings in the
report is part of the reasonable opportunity available
during the first stage of the inquiry viz., before the
RC
disciplinary authority takes into consideration the findings
in the report, the right to show cause against the penalty
proposed belongs to the second stage when the disciplinary
authority has considered the findings in the report and has
come to the conclusion with regard to the guilt of the
employee and proposes to award penalty on the basis of its
conclusions. The first right is the right to prove innocence.
The second right is to plead for either no penalty or a lesser
penalty although the conclusion regarding the guilt is
accepted. It is the second right exercisable at the second
stage which was taken away by the Forty-second
Amendment."
Further reliance has been placed by the petitioner in the case of
Union of India Vs. B.V. Gopinath reported in (2014) 1 SCC 35 and in
the case of Sunny Abraham Vs. Union of India reported in 2021 SCC
OnLine SC 1284 and submits that the second show cause is bad in law
in which disciplinary authority awarded punishment to the petitioner.
The whole inquiry report vitiated because the inquiry officer
recommended punishment in his report which is not tenable in the eyes
of law. The inquiry officer has no role in awarding or indicating
punishment. Same view has been reiterated in the case of State of
Uttaranchal v. Kharak Singh reported in (2008) 8 SCC 236. Para-14 of
the said Judgment reads as under:
"14. In regard to the question whether an enquiry officer can
indicate the proposed punishment in his report, this Court, in a
series of decisions has pointed out that it is for the
punishing/disciplinary authority to impose appropriate
punishment and enquiry officer has no role in awarding
punishment. It is useful to refer to the decision of this Court
in A.N. D'Silva v. Union of India [AIR 1962 SC 1130 : 1962 Supp
(1) SCR 968] wherein it was held: (AIR p. 1134, para 6)
"6. In the communication addressed by the enquiry officer
the punishment proposed to be imposed upon the appellant
if he was found guilty of the charges could not properly be
set out. The question of imposing punishment can only arise
after enquiry is made and the report of the enquiry officer is
received. It is for the punishing authority to propose the
punishment and not for the enquiring authority."
The opportunity of cross examination in presence of delinquent
has not been provided to the petitioner which is against the observations
made by this Court in its order dated 06.02.2020 in the case of Amar
RC
Kumar Sinha Vs. The State of Jharkhand and others passed in W.P.(S)
No. 5246 of 2013.
Further reliance has been placed in the case of Union of India
Vs. Ram Lakhan Sharma reported in (2018) 7 SCC 670 and it has been
argued that cardinal principles of natural justice has been given a
complete go-bye. In a case where the disciplinary authority proposes to
award punishment of dismissal i.e. capital punishment, a full fledged
departmental proceeding is warranted. But in the instant case, there is no
full fledged departmental proceeding and as such impugned orders are fit
to be quashed.
SUBMISSION ON BEHALF OF RESPONDENTS
7. Per contra, counter-affidavit has been filed on behalf of
respondents.
8. Mr. Ashok Kumar, learned AAG-IV assisted by Ms. Piyushita
Meha Tudu, learned counsel appearing on behalf of the State submits
that petitioner had filed reply to second show-cause which was not found
satisfactory. He did not utter a word to demand inquiry report prior to
filing of second show cause. Ample opportunity was given to the
petitioner during course of enquiry and the departmental proceeding has
been concluded following the procedures. Nothing has been brought on
record to show that any folly was committed during course of enquiry. It
has further been argued that the enquiry officer has returned the finding
holding the petitioner guilty of charges/ the second show-cause notice
was fully in accordance with law and justified. The punishment imposed
on the petitioner is proportionate to the charges and hence no
interference is warranted in the instant writ petition. Leaner counsel
further argues that it is well settled that the decision of a case cannot be
based on the ground outside the pleadings of the parties and it is the case
pleaded that has to be found. Without amendment of the plaint, no relief
can be granted by the Court. No prayer was ever made to amend the
plaint so as to incorporate any alternative remedy. Petitioner filed
amended writ petition but did not amend his plaint. Justifying the
impugned order, it is being argued that there is no scope of any
RC
interference by this Court and hence the writ petition is fit to be
dismissed. There is no illegality or any infirmity and no interference is
warranted. The writ petition is fit to be dismissed.
FINDINGS OF THE COURT
9. Having heard rival submission of the parties across the bar, this
Court is of the considered view that no interference is warranted in the
instant writ petition. Following the procedures, the departmental
proceeding has been concluded. No folly has been pointed out in the
entire departmental proceeding. Ample opportunity of hearing has been
given at all the stages. The enquiry officer has held the petitioner guilty
of charges and agreeing with the findings of the enquiry officer, the
disciplinary authority has inflicted order of punishment. The second
show-cause notice is fully justified and the punishment order is
proportionate to the charges.
10. The Hon'ble Apex Court in case Union of India & Ors. Vrs. P.
Gunasekaran (supra) has held that:
"20. Equally, it was not open to the High Court, in exercise
of its jurisdiction under Articles 226/227 of the Constitution
of India, to go into the proportionality of punishment so long
as the punishment does not shock the conscience of the court.
In the instant case, the disciplinary authority has come to the
conclusion that the respondent lacked integrity. No doubt,
there are no measurable standards as to what is integrity in
service jurisprudence but certainly there are indicators for
such assessment. Integrity according to Oxford Dictionary is
"moral uprightness; honesty". It takes in its sweep, probity,
innocence, trustfulness, openness, sincerity, blamelessness,
immaculacy, rectitude, uprightness, virtuousness,
righteousness, goodness, cleanness, decency, honour,
reputation, nobility, irreproachability, purity, respectability,
genuineness, moral excellence, etc. In short, it depicts
sterling character with firm adherence to a code of moral
values.
21. The impugned conduct of the respondent working as
Deputy Office Superintendent in a sensitive department of
Central Excise, according to the disciplinary authority,
reflected lack of integrity warranting discontinuance in
service. That view has been endorsed by the Central
Administrative Tribunal also. Thereafter, it is not open to the
High Court to go into the proportionality of punishment or
substitute the same with a lesser or different punishment.
These aspects have been discussed at quite length by this
Court in several decisions including B.C.
RC
Chaturvedi v. Union of India [(1995) 6 SCC 749 : 1996 SCC
(L&S) 80 : (1996) 32 ATC 44] , Union of India v. G.
Ganayutham [(1997) 7 SCC 463 : 1997 SCC (L&S) 1806]
, Om Kumar v. Union of India [(2001) 2 SCC 386 : 2001
SCC (L&S) 1039] , Coimbatore District Central Coop.
Bank v. Employees Assn. [(2007) 4 SCC 669 : (2007) 2 SCC
(L&S) 68] , Coal India Ltd. v. Mukul Kumar
Choudhuri [(2009) 15 SCC 620 : (2010) 2 SCC (L&S) 499]
and the recent one in Chennai Metropolitan Water
Supply [Chennai Metropolitan Water Supply and Sewerage
Board v. T.T. Murali Babu, (2014) 4 SCC 108 : (2014) 1
SCC (L&S) 38] .
24. The Central Administrative Tribunal, in the order dated
1-2-2001 in OA No. 521 of 2000, after elaborately discussing
the factual as well as the legal position, has come to the
conclusion that the punishment of compulsory retirement is
not outrageous or shocking to its conscience, it was not open
to the High Court to interfere with the disciplinary
proceedings from stage one and direct reinstatement of the
respondent with back wages."
11. Petitioner has been held guilty of gross misconduct, which has
been duly proved in the departmental proceeding. The conduct of the
petitioner is unbecoming of a government employee. It is better to weed
out the dead woods as early as possible.
12. As a sequitur to the aforesaid rules, guidelines, judicial
pronouncement, no interference is warranted. Consequently, the writ
petition stands dismissed.
(Dr. S.N. Pathak, J.)
RC
