Jharkhand High Court
Subodh Kumar Jha vs The State Of Jharkhand Through The ... on 30 April, 2019
Equivalent citations: AIRONLINE 2019 JHA 171
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
WP(S) No. 3217 of 2017
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Subodh Kumar Jha, son of late Kailash Jha, resident of village and P.O.- Maheshpur, P.S. Basantray, District-Godda, Jharkhand.
...... Petitioner(s) Vs.
1. The State of Jharkhand through the Secretary, Department of HRD, Ranchi.
2. The Commissioner, Santhal Pargana Commissionary, Dumka.
3. The Deputy Commissioner, Dumka
4. The Deputy Collector Land Reform, Dumka.
5. The District Superintendent of Education, Dumka.
6. The Block Education and Extension Officer of Education, Dumka.
...... Respondent(s) For the Petitioner(s) : Mr. Pankaj Kumar Choudhary, Advocate.
For the respondents : J.C. to S.C-V.
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
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06/30.04.2019: In this writ petition, the petitioner has prayed for quashing the order as
contained in Memo No. 207 dated 14.2.2012 whereby, after departmental proceeding, the petitioner has been awarded punishment of stoppage of three increment with cumulative effect and it was held that during the period of suspension, no further amount save and except subsistence allowance will be paid to the petitioner. Further it has been held that the punishment shall be entered into the original service book. The petitioner has also challenged the order as contained in Memo No. 48 dated 6.2.2017 by which, the departmental appeal of the petitioner has been dismissed upholding the order of punishment. It has also been prayed for a direction upon the respondent authorities to release the arrears of salary of suspension period i.e. from 10.5.2010 to 14.2.2012 with interest.
2. The petitioner was appointed as an Assistant Teacher in the year 1982 in Primary School Vikrampur, Block Masaliya, District- Dumka. He was transferred to Primary School Babupur, Block-Gopikandar, District- Dumka and in the year 1998, he was again transferred to Upgraded Middle School Jiyapani, Block-Ramgrh, District- Dumka. The school of the petitioner was inspected on 13.4.2010 at 6:45 hours and the petitioner was found absent. As per the respondent, this absence was unauthorized. The petitioner was informed that he was found absent and the fact of his absence is communicated to the higher authority. Further it is alleged that on 20.4.2010, one para teacher, namely, Bharat Mandal informed the Block Education Officer that the petitioner remained unauthorized absent on 19.4.2010. Again the said para teacher on 4.5.2010 at 8:30 hours informed that the petitioner remained unauthorized absent from 3.5.2010. Further it was alleged that the petitioner often remained absent without any information on Mondays and Tuesdays and does not take any interest in the activities of the school. On the basis of the aforesaid allegation along with some other allegations, the petitioner was departmentally proceeded against and chargesheet was submitted. On the basis of the aforesaid allegation, the petitioner was also put under suspension. It was also alleged that the petitioner did not hand over charge to one Emanual Marandi after his suspension.
3. An Inquiry Officer was appointed to conduct the departmental enquiry. The Inquiry Officer found the charges to be proved. A second show cause notice was issued to the petitioner along with copy of the enquiry report. The petitioner replied to the said notice. Considering the enquiry report and the reply, the disciplinary authority vide Memo No. 207/Dumka dated 14.2.2012 inflicted the penalty of stoppage of three increment of the petitioner with cumulative effect. It was further ordered that the petitioner will not get any amount save and except the subsistence allowance, for the period, he was kept under suspension. It was also ordered that the said punishment will be recorded in his service book. The petitioner preferred an appeal before the appellate authority i.e. the Divisional Commissioner, Santhal Pargana, Dumka, but the same was also dismissed vide order as contained in memo No. 48 dated 6.2.2017. The petitioner thus challenged the order of punishment and the appellate order with an additional prayer for a direction upon the respondent authorities to release the balance amount of salary with interest, which was not paid to the petitioner during his suspension period.
4. I have heard the counsel for the parties and perused the record.
5. Learned counsel for the petitioner submits that the entire enquiry is based upon presumption and the same is liable to be set aside. He further submits that no evidence was produced by the Presiding Officer which can substantiate the act the petitioner. He also submits that it was the duty of the department to produce sufficient evidence to prove the guilt, which the department has miserably failed. He also submits that without any evidence, the Inquiry Officer found the petitioner guilty of the charges. He further submits that since there is no material on record which is against the petitioner the finding to the effect that the petitioner is guilty is perverse. He submits that once the finding is perverse, all consequential orders i.e. order of dismissal and the appellate order are also bad, as the same are based on non- existent materials. He submits that the petitioner had given a detailed points-wise reply but the same was also not considered by the Inquiry Officer. He lastly submits that in view of the aforesaid position, this writ petition be allowed, after setting aside the orders impugned.
6. Learned counsel for the State submits that as per the surprise inspection on 13.4.2010, the petitioner was found unauthorizedly absent from school. He further submits that the para teacher, namely, Bharat Mandal on several occasions informed over telephone to the Block Education Officer, Ramgarh that the petitioner remained unauthorizedly absent from school. He further submits that after suspension, the petitioner did not hand over the charge within time specified. He submits that the petitioner used to remain absent regularly on each Monday and Tuesday and did not take interest in the activities of the school. The Inquiry Officer found the aforesaid allegations correct, thus, he found the petitioner guilty of the charges levelled against him. He further submits that on the basis of the said report, the disciplinary authority has passed the impugned order of punishment for which, no fault can be found. He also submits that the appellate authority also considered all the submissions of the petitioner and independently had concluded that the alleged misconduct against the petitioner is proved and thereafter, the appellate authority affirmed the punishment order passed by the disciplinary authority. He lastly submits that since there is no material irregularity and illegality in the entire proceeding initiated against the petitioner, this Court sitting in jurisdiction under Article 226 of the Constitution of India cannot interfere with the orders impugned.
7. After hearing the counsel for the parties and after going through the record, I find that the alleged misconduct against the petitioner are as follows:-
(i) On 13.4.2010 at 6:45 hours, the Block Education Officer, Ramgarh inspected the school and found the petitioner absent.
(ii) On 20.4.2010, one para teacher, namely Bharat Mandal, over phone informed the B.E.O., Ramgarh that the petitioner remained unauthorized absent on 19.4.2010.
(iii) The B.E.O., Ramgarh was informed by said Bharat Mandal that the petitioner remained absent from 26.4.2010 to 28.4.2010 without any information.
(iv) Again the said para teacher on 4.5.2010 at 8:30 hours informed the BEO, Ramgarh that the petitioner remained unauthorizedly absent from 3.5.2010.
(v) Further there were charge against the petitioner that the petitioner often remained absent on each Monday and Tuesday from the school.
(vi) Because of unauthorized absence of petitioner from school, the Mid-day-Meal facilities and other activities of the school are suffering.
These are the gist of the charges levelled against the petitioner. An Inquiry officer was appointed. The Presenting Officer was also appointed. The Inquiry Officer submitted his report, which is at Annexure-9 to the writ petition.
8. I have gone through the entire enquiry report. From the Enquiry report, it appears that the Inquiry Officer has not taken any evidence whatsoever nor has recorded the statement of any witnesses. The show cause notices which were sent to the petitioner citing the aforesaid allegation of misconduct through Post by the Presenting Officer were taken to be evidence of misconduct by the Inquiry Officer. The Inquiry Officer on that basis concluded that the misconduct levelled against the petitioner stands proved. From the enquiry report, it is quite clear that the Presenting Officer was also not present before the Inquiry Officer as from the report, it is evident that he had sent the show cause notices to the Inquiry Officer through Post.
9. The Inquiry Officer is duty bound to enquire into the charges, which has been levelled against the delinquent employee. He has to take evidence on record and record the statement of witnesses. Without taking evidence on record and recording the statement of witnesses, the Inquiry Officer cannot conclude whether the charge has been proved or dis-proved. The allegations are to be proved by adducing oral and documentary evidence.
10. In this case, the Presenting Officer has not produced any oral or documentary evidence to substantiate the charges levelled against the petitioner. A major part of the charge of unauthorized absence against the petitioner is made by a para teacher, but the said para teacher has not been examined nor his statement has been recorded. There is also no whisper as to how the allegation levelled against the petitioner with regard to absence from school on each Monday and Tuesday has been proved, as there is no material to that effect, which is also apparent from the enquiry report. The enquiry report is only based on the show cause notices issued to the petitioner which cannot be said to be an evidence to prove the charge. Thus, the conclusion arrived at by the Inquiry Officer is not based on any material evidence at all. The findings arrived at, without any evidence, is a perverse finding and on perverse finding, no action can be taken against the delinquent employee. The punishment order passed on perverse enquiry report is also not sustainable in the eye of law. Thus, the impugned order of punishment is bad and so is the appellate order.
11. In view of the aforesaid facts, both the impugned orders i.e. the order as contained in Memo No. 207 dated 14.2.2012 whereby, in departmental proceeding, the petitioner has been awarded punishment of stoppage of three increment with cumulative effect and the order as contained in Memo No. 48 dated 6.2.2017 by which, the departmental appeal of the petitioner has been dismissed upholding the order of punishment, are quashed. Consequently, upon quashing of the aforesaid impugned orders, the respondent authorities are directed to release the balance amount of salary of the petitioner, for the period, he was kept under suspension, within a period of four weeks from the date of receipt of a copy of this order.
12. With the aforesaid observations and directions, this writ petition stands allowed.
Anu/-CP-2. (ANANDA SEN, J.)