Jharkhand High Court
Manoj Kumar Gupta vs The State Of Jharkhand Through The ... on 14 November, 2024
Author: S.N. Pathak
Bench: S.N.Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S). No. 2707 of 2024
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Manoj Kumar Gupta, son of late Mahendra Lal Gupta, resident of
Mohalla - Mangal Bazar, P.O. Sadar, P.S. Hazaribagh (Sadar), Dist.
Hazaribagh. .......... Petitioner
Versus
1. The State of Jharkhand through the Secretary/ Principal Secretary,
Personnel, Administrative Reforms and Rajbhasha Department,
Project Building, Dhurwa, P.O. & P.S. Dhurwa, Town & Dist. Ranchi.
2. The Joint Secretary to Government, Personnel, Administrative
Reforms and Rajbhasha Department, Govt. of Jharkhand, Ranchi,
Project Building, Dhurwa, P.O. & P.S. Dhurwa, Town & Dist. Ranchi.
.......... Respondents.
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CORAM: HON'BLE DR. JUSTICE S.N.PATHAK
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For the Petitioner : Ms. Neha Bhardwaj, Advocate
Mr. Adamya Kerketta, Advocate
Mr. Siddharth Ranjan, Advocate
For the Respondents : Mr. Munna Lal Yadav, SC(L&C)-III
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07/ 14.11.2024 Heard the parties.
2. Petitioner has thrown challenge to the order of punishment dated
01.03.2024 (Annexure-8), issued by respondent No. 2, whereby order has
been passed to forfeit one increment of the petitioner without cumulative
effect.
3. The facts of the case lies in a narrow compass. The petitioner was
appointed on 19.08.2013 after clearing the Civil Service Examination
conducted by the Jharkhand Public Service Commission and accordingly,
he was posted as Block Development Officer of Pratapur Block in the
district of Chatra on 30.09.2014. The petitioner continued to work as Block
Development Officer, Pratapur, Chatra from 30.09.2014 to 20.07.2016. It is
the case of petitioner that during the aforesaid period, the petitioner wrote
letters dated 15.09.2015, 07.01.2016 and 17.05.2016 to the Deputy
Collector (Establishment), Chatra to take action against one Shyamal
Kumar Alkat, then Panchayat Secretary of Block Office, Pratapur who took
the amount of Rs.10,74,200/- but did not adjust the same. The petitioner
wants to bring to the notice that the Deputy Commissioner, Chatra was the
disciplinary authority/ appointing authority of Panchayat Secretary and the
petitioner was neither the appointing authority nor the disciplinary authority
of the Panchayat Secretary under the extant Rules. However, for the reasons
best known to the respondents a departmental proceeding was initiated
against the petitioner after almost 12 years from the date of event. The
proceeding was initiated by resolution dated 11.05.2023 by framing memo
of charge in Prapatra 'ka' against the petitioner, which reads as under:
"The petitioner being the Block Development Officer, Pratapur
did not take action against Shri Shyamal Kumar Alkat,
Panchayat Secretary of Pratapur Block, who took a sum of
Rs.10,74,200/- but he did not adjust the same. This act of this
petitioner was contrary to Rule-3(3) of the Jharkhand
Government Servant Conduct Rule, as the targeted group
could not receive appropriate benefits."
4. The petitioner submitted a reply before the Enquiry Officer to the
said memo of charge on 05.06.2023 denying the charges levelled against
him. However, the disciplinary authority being not satisfied with the reply
of the petitioner initiated a departmental proceeding by appointing Enquiry
Officer. Thereafter, the Enquiry Officer conducted the enquiry against the
petitioner and submitted his report by letter dated 01.09.2023, holding
therein that the charges against the petitioner have not been proved.
Thereafter, a 2nd show-cause notice was issued to the petitioner with the
proposed punishment as it appears from letter dated 27.10.2023. The
petitioner though submitted his reply but the respondents without
considering the same, passed the order of punishment dated 01.03.2024 by
which one increment without cumulative effect has been ordered to be
forfeited.
Throwing challenge to the said order of punishment, petitioner has
filed the present writ petition.
5. Ms. Neha Bhardwaj, learned counsel appearing for the petitioner
vociferously urges that impugned order is not tenable in the eyes of law in
view of the fact that petitioner has been exonerated by the Enquiry Officer
and the Disciplinary Authority without differing with the findings of the
Enquiry Officer and without assigning valid and cogent reasons has
inflicted the punishment. Further, it has been argued that it is a case of no
evidence as without examining any witnesses, the order of punishment has
been passed. Learned counsel emphatically argues that even the cause of
action arose in the year 2011 and charges were framed in the year 2023
which amounts to gross delay in initiation of departmental proceeding and
on that count also punishment order deserves to be quashed and set aside.
6. Per contra, counter-affidavit has been filed.
7. Mr. Munna Lal Yadav, learned SC(L&C) appearing for the
respondent-State by referring to paragraphs- 9 and 10 of the supplementary
counter-affidavit dated 25.10.2024 submits that looking into the seriousness
of charges it is not open for this Court to quashed the impugned order only
on the ground of inordinate delay. Learned counsel further argues that this
Court should also not interfere with the order of punishment since the
departmental proceeding has been conducted in accordance with law, the
procedure have been followed, there is no fallacy in initiation of proceeding
and after issuance of 2nd show-cause notice, the punishment has been
inflicted against the petitioner, which warrants no interference. To
strengthen his arguments, learned counsel places heavy reliance on the
judgment passed in Anant R. Kulkarni Vs. Y.P. Education Society and
Ors., reported in (2013) 6 SCC 515.
8. Having heard the parties at length across the bar, this Court is of the
view that admittedly petitioner has been exonerated by the Enquiry Officer
and the Disciplinary Authority though have issued a 2nd show-cause notice
but from the notice itself it transpires that the reasons which has been
assigned for inflicting the punishment is not sustainable in the eyes of law
and it can comfortably be said that without differing with the findings of the
enquiry report and assigning valid and cogent reasons, the Disciplinary
Authority has inflicted punishment. There is no witness to satisfy that
petitioner was solely responsible for the charges whereas, petitioner as
Block Development Officer has already issued show-cause and written
several letters to the higher Authorities for taking action against the
Panchayat Secretary of the concerned Block, who was likely to be
superannuated. It has been brought to the notice of the Court that petitioner
was neither the Appointing Authority nor the Disciplinary Authority of the
Panchayat Secretary.
9. So far the issue of delay of 12 years in initiation of departmental
proceeding is concerned, this Court is of the view that it is not the sweet-
will of the respondents to initiate proceeding against the delinquent as and
when they want. The same has to be done in accordance with law and as
such, the judgment relied upon by the respondents is not attracted in the
instant case.
10. The issue fell for consideration before the Hon'ble Apex Court in case
of State of Madhya Pradesh vs Bani Singh & Anr., reported in (1990) Suppl.
SCC 738, wherein their Lordships have held as under:
"4. The appeal against the order dated December 16, 1987 has
been filed on the ground that the Tribunal should not have
quashed the proceedings merely on the ground of delay and
laches and should have allowed the enquiry to go on to decide
the matter on merits. We are unable to agree with this
contention of the learned counsel. The irregularities which
were the subject matter of the enquiry is said to have taken
place between the years 1975-1977. It is not the case of the
department that they were not aware of the said irregularities,
if any, and came to know it only in 1987. According to them
even in April, 1977 there was doubt about the involvement of
the officer in the said irregularities and the investigations were
going on since then. If that is so, it is unreasonable to think
that they would have taken more than 12 years to initiate the
disciplinary proceedings as stated by the Tribunal. There is no
satisfactory explanation for the inordinate delay in issuing the
charge memo and we are also of the view that it will be unfair
to permit the departmental enquiry to be proceeded with at this
stage. In any case there are no grounds to interfere with the
Tribunal's orders and accordingly we dismiss this appeal."
In case of M.V. Bijlani Vs. Union of India & Ors., reported in
(2006) 5 SCC 88, it has been held by the Hon'ble Apex Court that,
"............... The Tribunal as also the High Court failed to take into
consideration that the disciplinary proceedings were initiated after six
years and it continued for a period of seven years and, thus, initiation of the
disciplinary proceedings as also continuance thereof after such a long time
evidently prejudiced to the delinquent officer".
11. Further, the Hon'ble Apex Court in case of Punjab National Bank &
Ors. v. Kunj Behari Misra, reported in (1998) 7 SCC 84, has held as under:
"17. These observations are clearly in tune with the
observations in Bimal Kumar Pandit case quoted earlier and
would be applicable at the first stage itself. The aforesaid
passages clearly bring out the necessity of the authority which is
to finally record an adverse finding to give a hearing to the
delinquent officer. If the Inquiry officer had given an adverse
finding, as per Karunakar case the first stage required an
opportunity to be given to the employee to represent to the
disciplinary authority, even when an earlier opportunity had
been granted to them by the Inquiry officer. It will not stand to
reason that when the finding in favour of the delinquent officers
is proposed to be overturned by the disciplinary authority then
no opportunity should be granted. The first stage of the Inquiry
is not completed till the disciplinary authority has recorded its
findings. The principles of natural justice would demand that the
authority which proposes to decide against the delinquent officer
must give him a hearing. When the enquiring officer holds the
charges to be proved, then that report has to be given to the
delinquent officer who can make a representation before the
disciplinary authority takes further action which may be
prejudicial to the delinquent officer. When, like in the present
case, the Inquiry report is in favour of the delinquent officer but
the disciplinary authority proposes to differ with such
conclusions, then that authority which is deciding against the
delinquent officer must give him an opportunity of being heard
for otherwise he would be condemned unheard. In departmental
proceedings, what is of ultimate importance is the finding of the
disciplinary authority.
.........
19. The result of the aforesaid discussion would be that the
principles of natural justice have to be read into Regulation
7(2). As a result thereof, whenever the disciplinary authority
disagrees with the Inquiry authority on any article of charge,
then before it records its own findings on such charge, it must
record its tentative reasons for such disagreement and give to
the delinquent officer an opportunity to represent before it
records its findings. The report of the Inquiry officer containing
its findings will have to be conveyed and the delinquent officer
will have an opportunity to persuade the disciplinary authority
to accept the favourable conclusion of the Inquiry officer. The
principles of natural justice, as we have already observed,
require the authority which has to take a final decision and can
impose a penalty, to give an opportunity to the officer charged of
misconduct to file a representation before the disciplinary
authority records its findings on the charges framed against the
officer."
Further, in case of Managing Director, ECIL & Ors. v. B.
Karunakar & Ors., reported in (1993) 4 SCC 727, the Hon'ble Apex Court
has held thus:
"26. The reason why the right to receive the report of the
Inquiry officer is considered an essential part of the reasonable
opportunity at the first stage and also a principle of natural
justice is that the findings recorded by the Inquiry officer form
an important material before the disciplinary authority which
along with the evidence is taken into consideration by it to come
to its conclusions. It is difficult to say in advance, to what extent
the said findings including the punishment, if any, recommended
in the report would influence the disciplinary authority while
drawing its conclusions. The findings further might have been
recorded without considering the relevant evidence on record,
or by misconstruing it or unsupported by it. If such a finding is
to be one of the documents to be considered by the disciplinary
authority, the principles of natural justice require that the
employee should have a fair opportunity to meet, explain and
controvert it before he is condemned. It is negation of the tenets
of justice and a denial of fair opportunity to the employee to
consider the findings recorded by a third party like the Inquiry
officer without giving the employee an opportunity to reply to it.
Although it is true that the disciplinary authority is supposed to
arrive at its own findings on the basis of the evidence recorded
in the inquiry, it is also equally true that the disciplinary
authority takes into consideration the findings recorded by the
Inquiry officer along with the evidence on record. In the
circumstances, the findings of the Inquiry officer do constitute
an important material before the disciplinary authority which is
likely to influence its conclusions. If the Inquiry officer were
only to record the evidence and forward the same to the
disciplinary authority that would not constitute any additional
material before the disciplinary authority of which the
delinquent employee has no knowledge. However, when the
Inquiry officer goes further and records his findings, as stated
above, which may or may not be based on the evidence on
record or are contrary to the same or in ignorance of it, such
findings are an additional material unknown to the employee but
are taken into consideration by the disciplinary authority while
arriving at its conclusions. Both the dictates of the reasonable
opportunity as well as the principles of natural justice,
therefore, require that before the disciplinary authority comes to
its own conclusions, the delinquent employee should have an
opportunity to reply to the Inquiry officer's findings. The
disciplinary authority is then required to consider the evidence,
the report of the Inquiry officer and the representation of the
employee against it."
12. Admittedly, there was embezzlement of government funds but not by
the petitioner. The petitioner, as Block Development Officer, exercising his
power and duties has already informed his higher Authorities for taking a
suitable action, in accordance with law against the Panchayat Secretary who
has embezzled the amount and as such, petitioner cannot be held
responsible for the same.
13. From perusal of the records, the specific averments made in para-8 of
the writ petition and other documents it transpires that without going
through the findings of the Enquiry Officer and without differing with the
findings and without assigning valid and cogent reason, mechanically the
impugned order has been passed.
14. As a sequitur to the aforesaid observations, rules, guidelines, legal
propositions and judicial pronouncements, the impugned order dated
01.03.2024 (Annexure-8) is hereby quashed and set aside. Since the
impugned order has been quashed, the petitioner is entitled for all
consequential benefits.
15. With the aforesaid observations and directions, the writ petition
stands allowed.
(Dr. S.N. Pathak, J.)
kunal/-
