Jharkhand High Court
Karun Kumar Das Son Of Late Lakshman Das vs The State Of Jharkhand on 11 January, 2024
Author: Sanjay Prasad
Bench: Sanjay Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P (S) No. 2002 of 2016
Karun Kumar Das son of Late Lakshman Das
...... Petitioner
Versus
1.The State of Jharkhand
2.The Registrar, Civil Court, Godda.
3. The Principal District and Sessions Judge, Godda
....... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Petitioner : Mr. Manoj Tandon, Advocate
For the Respondents : A.C to G.P-I
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Oral Order in Court
17/Dated:11th January, 2024
This writ application has been filed on behalf of the
petitioner challenging the order dated 27.03.2015 passed by the
learned Principal District and Sessions Judge, Godda in
Departmental Proceeding No.02/2006 dated 21.12.2012 and
Departmental Proceeding No.3/2012 dated 05.12.2012 by which
the petitioner has been dismissed from service from the
afternoon of 27.03.2015 in exercise of power conferred under
Rule 2(VIII) of the Bihar Orissa Subordinate Service (Discipline
& Appeal) Rule 1935.
It was further directed that the delinquent employee shall
not be entitled to get any payment except the subsistence
allowance if any received by him.
2. Learned counsel for the petitioner has submitted that the
impugned order passed by the learned Principal District and
Sessions Judge, Godda is illegal, arbitrary and not sustainable in
the eye of law. It is submitted that this is a case of unauthorized
absence and major punishment by way of dismissal of service
has been passed against him in violation of principle of natural
justice. It is submitted that no subsistence allowance has been
paid to the petitioner which is contrary to Rule 96 of the
Jharkhand Service Code and it is mandatory upon the
respondent nos.2 and 3 to pay at least subsistence allowance to
the petitioner during pendency of the departmental proceeding.
It is submitted that as a matter of fact the petitioner was
suffering from mental disorder and for which he has filed
necessary certificate of doctors marked as Exhibit-D, Exhibit-
D/1, Exhibit-D/2, Exhibit-D/3, Exhibit-D/4, Exhibit-D/5,
Exhibit-D/6 and Exhibit-D/7 by the delinquent petitioner but the
same was not properly considered by the Enquiry Officer as well
as the Disciplinary Authority. It is further submitted that
petitioner will face grave hardship if the order is allowed to be
continued.
It is further alternatively submitted that lenient view may
be taken against him and the authority may be directed to give
minor punishment and hence the impugned order may be set
aside.
3. On the other hand, learned A.C to G.P-I appearing on
behalf of the State as well as the respondent nos.2 and 3 has
submitted that the order passed by the respondent nos.2 and 3 is
proper and no interference is required from this Court. It is
submitted that the delinquent employee i.e. the petitioner is a
habitual absentee and he used to remain absent several times. It
is submitted that the petitioner has remained absent from
10.05.2006 to 06.09.2006 and also from 18.05.2010 to
02.08.2012. It is submitted that the learned Principal District and
Sessions Judge has rightly not allowed subsistence allowance to
the petitioner from 14.08.2012 till the date of conclusion of
departmental proceeding as he was an absentee. It is further
submitted that all the formalities were made and the petitioner
was given show cause and after enquiry the second show cause
notice was given but the reply was not found satisfactory and as
such the respondent no.3 has passed the impugned order.
4. Learned counsel for the State has relied upon the judgment
reported in AIR 1963 SC 404 (State of Orissa vs. Murlidhar
Jena) and AIR 1963 SC 779 (State of Orissa vs. Bidbybhushan
Mohapatra) and submitted that the High Court has no power to
re-appreciate the evidence and finding recorded in the
departmental proceeding.
5. Heard learned counsel appearing for both the sides.
6. It transpires that the petitioner was appointed as Clerk in
Civil Court, Bokaro on 23.03.2012. Later on his services was
confirmed and he was transferred to Civil Court, Godda.
7. It transpires that petitioner was unauthorisedly absent from
10.05.2006 to 06.09.2006 and he was issued show cause notice
on 15.09.2006 vide Annexure-2 which was replied by the
petitioner on 26.09.2006 stating therein that due to ailment he
could not join during the said period.
8. It further transpires that show cause notice was issued
upon the petitioner that the petitioner again remained
unauthorizedly absent from 18.05.2010 to 02.08.2012 and for
which one another show cause notice was served upon him on
02.08.2012 vide Annexure-4. Thereafter vide Memo dated
14.08.2012 the petitioner was suspended for his long
unauthorizedly absence and it was also directed that the
petitioner will not be entitled to any subsistence allowance and
D.P. No.3/2012 was initiated. Thereafter both D.P. No.2/2006
and D.P. No.3/2012 were clubbed together.
9. It transpires that the petitioner filed reply to the show
cause notice on 13.08.2012 and has enclosed the prescriptions of
his ailments i.e. Annexure-6 series which the prescriptions of
Dr. U.N. Choudhary dated 21.05.2010, 04.02.2010, 05.05.2012,
22.07.2011, 0507.2012, 05.12.2012 and 10.08.2012
respectively.
10. It further transpires that the enquiry report was submitted
on 15.12.2012 and 21.12.2012 respectively in respect of two
enquiries which have been enclosed as Annexure-8 and 8/1
respectively. Then the second show cause notice was issued to
the petitioner on 02.01.2013 which has been enclosed as
Annexure-7. Thereafter petitioner submitted reply on
09.01.2013 denying all the charges levelled against him before
the Enquiry Officer, vide Annexure-9. Thereafter final
punishment order dated 27.03.2015 has been passed against the
petitioner vide Annexure-10.
11. From perusal of Memo dated 14.08.2012 i.e. Annexure-5,
it is evident that the learned Principal District and Sessions
Judge has suspended the petitioner on the ground of
unauthorized absence on the one hand but on the other hand he
denied the subsistence allowance which is contrary to Rule 96 of
the Jharkhand Service Code and in violence of principles of
natural justice.
12. It is further evident that even at the time of passing of
order of punishment dated 27.03.2015 it has been recorded that
no subsistence allowance will be paid to the petitioner during
pendency of both the departmental proceeding and at the time of
passing of dismissal it was observed by the learned Principal
District and Sessions Judge that the petitioner will not be
entitled to receive any payment except the subsistence
allowance, if any received by him.
13. Thus, it is evident that no subsistence allowance was paid
by the respondents particularly respondent no.2 and respondent
no.3 to the petitioner during the entire Departmental Proceeding
No.2/2006 and Departmental Proceeding No.3/2012.
14. It further transpires from the Enquiry Report marked as
Exhibit-8 that the petitioner had filed and proved Exhibit-D,
Exhibit-D/1, Exhibit-D/2, Exhibit-D/3, Exhibit-D/4, Exhibit-
D/5, Exhibit-D/6 and Exhibit-D/7 in support of his case that he
was under treatment of the doctor at RINPAS, Ranchi which
was completely disbelieved by the Enquiry Officer and
respondent no.3.
15. It is well settled from the judgment of the Hon'ble
Supreme Court that if no subsistence allowance is paid to the
delinquent employee during the period of his suspension and
departmental proceeding then the same will be in violation of
principles of natural justice.
16. It has been held by the Hon'bl Supreme Court in the case
of Jagdamba Prasad Shukla vs. State of U.P and Others
reported in (2000) 7 SCC 90 at paragraph 8 as follows:
"Para-8:- The payment of subsistence allowance, in
accordance with the Rules, to an employee under suspension
is not a bounty. It is a right. An employee is entitled to be paid
the subsistence allowance. No justifiable ground has been
made out for non-payment of the subsistence allowance all
through the period of suspension i.e. from suspension till
removal. One of the reasons for not appearing in inquiry as
intimated to the authorities was the financial crunch on
account of non-payment of subsistence allowance and the
other was the illness of the appellant. The appellant in reply
to the show-cause notice stated that even if he was to appear
in inquiry against medical advice, he was unable to appear
for want of funds on account of non-payment of subsistence
allowance. It is a clear case of breach of principles of natural
justice on account of the denial of reasonable opportunity to
the appellant to defend himself in the departmental enquiry.
Thus, the departmental enquiry and the consequent order of
removal from service are quashed."
17. It has been further held by the Hon'ble Supreme Court that
in the departmental proceeding the Disciplinary Authority has to
prove that absence of the delinquent employee from the duty
was willful or not.
18. It has been held in the case of Krushnakant B. Parmar vs.
Union of India and Another reported in (2012) 3 SCC 178 at
Paragraph Nos.16 to 21 as follows:-
"Para-16:- In the case of the appellant referring to
unauthorised absence the disciplinary authority alleged that he
failed to maintain devotion to duty and his behaviour was
unbecoming of a government servant. The question whether
"unauthorised absence from duty" amounts to failure of
devotion to duty or behaviour unbecoming of a government
servant cannot be decided without deciding the question
whether absence is wilful or because of compelling
circumstances.
Para-17:- If the absence is the result of compelling
circumstances under which it was not possible to report or
perform duty, such absence cannot be held to be wilful.
Absence from duty without any application or prior permission
may amount to unauthorised absence, but it does not always
mean wilful. There may be different eventualities due to which
an employee may abstain from duty, including compelling
circumstances beyond his control like illness, accident,
hospitalisation, etc., but in such case the employee cannot be
held guilty of failure of devotion to duty or behaviour
unbecoming of a government servant.
Para-18:- In a departmental proceeding, if allegation of
unauthorised absence from duty is made, the disciplinary
authority is required to prove that the absence is wilful, in the
absence of such finding, the absence will not amount to
misconduct.
Para-19:- In the present case the inquiry officer on
appreciation of evidence though held that the appellant was
unauthorisedly absent from duty but failed to hold that the
absence was wilful; the disciplinary authority as also the
appellate authority, failed to appreciate the same and wrongly
held the appellant guilty.
Para-20:- The question relating to jurisdiction of the court in
judicial review in a departmental proceeding fell for
consideration before this Court in M.V. Bijlani v. Union of
India [(2006) 5 SCC 88 : 2006 SCC (L&S) 919] wherein this
Court held: (SCC p. 95, para 25)
"25. It is true that the jurisdiction of the court in
judicial review is limited. Disciplinary proceedings,
however, being quasi-criminal in nature, there should
be some evidence to prove the charge. Although the
charges in a departmental proceeding are not required
to be proved like a criminal trial i.e. beyond all
reasonable doubt, we cannot lose sight of the fact that
the enquiry officer performs a quasi-judicial function,
who upon analysing the documents must arrive at a
conclusion that there had been a preponderance of
probability to prove the charges on the basis of
materials on record. While doing so, he cannot take into
consideration any irrelevant fact. He cannot refuse to
consider the relevant facts. He cannot shift the burden
of proof. He cannot reject the relevant testimony of the
witnesses only on the basis of surmises and conjectures.
He cannot enquire into the allegations with which the
delinquent officer had not been charged with."
Para-21:- In the present case, the disciplinary authority
failed to prove that the absence from duty was wilful, no such
finding has been given by the inquiry officer or the appellate
authority. Though the appellant had taken a specific defence
that he was prevented from attending duty by Shri P.
Venkateswarlu, DCIO, Palanpur who prevented him to sign the
attendance register and also brought on record 11 defence
exhibits in support of his defence that he was prevented to sign
the attendance register, this includes his letter dated 3-10-1995
addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts
from STD/PCO office of telephone calls dated 29-9-1995, etc.
but such defence and evidence were ignored and on the basis
of irrelevant fact and surmises the inquiry officer held the
appellant guilty."
19. In the present case also neither the Inquiry Officer nor the
learned Principal District and Sessions Judge have arrived at the
conclusion that the absence of the delinquent employee namely
Karun Kumar Das, during his absence period, was willful and
thus, the finding of the Enquiry Officer is wrong and illegal and
hence the order passed by the learned Principal District and
Sessions Judge, Godda is illegal, arbitrary and not sustainable.
20. It is further evident that the punishment imposed by the
learned Principal District and Sessions Judge, Godda is
excessive and disproportionate to the gravity of charges as in
this case the petitioner was allegedly absent from 10.05.2006 to
06.09.2006 and from 18.05.2010 to 02.08.2012 and for which he
has taken the specific plea that he was under treatment before
the doctor at RINPAS, Ranchi vide Exhibit-D, Exhibit-D/1,
Exhibit-D/2, Exhibit-D/3, Exhibit-D/4, Exhibit-D/5, Exhibit-D/6
and Exhibit-D/7 but the same was not properly appreciated
neither by the Enquiry Officer nor by the Disciplinary Authority
i.e. learned Principal District and Sessions Judge, Godda.
21. This Court is of the view that the petitioner should have
been given minor punishment instead of passing the order of
dismissal from his services and the punishment awarded to the
petitioner appears to be excessive and does not commensurate to
the gravity of charges.
22. Under the circumstances, the Order No.53 dated
27.03.2015 (i.e. Annexure-10) passed by then learned Principal
District and Sessions Judge, Godda in Departmental Proceeding
No.02/2006 and Departmental Proceeding No.3/2012 are set
aside in the interest of justice and the learned Principal District
and Sessions Judge, Godda is directed to reinstate the petitioner
in service with all consequential benefits and the matter is
remitted before the learned Principal District and Sessions
Judge, Godda and the Principal District and Sessions Judge,
Godda is directed to take fresh decision on the point of awarding
proper punishment except the punishment of dismissal, removal
or termination within a period of four weeks from the date of
receipt of copy of this order.
23. Thus, the writ petition stands allowed.
(Sanjay Prasad, J.)
Saket/-
NAFR
