Jharkhand High Court
(An Application Under Article 226 Of The ... vs State Of Jharkhand on 18 March, 2021
Author: Deepak Roshan
Bench: Deepak Roshan
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 735 of 2009
(An application under Article 226 of the Constitution of India)
Kamlesh Kumar ..... Petitioner
Versus
1. State of Jharkhand
2. Director General of Police, Jharkhand, Ranchi
3. Inspector General of Police (Provision), Jharkhand, Ranchi
4. Superintendent of Police, Department of Wireless,
Ranchi ..... Respondents
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For the Petitioner : Mr. Diwakar Upadhyay, Advocate For the Respondents : Mr. Devesh Krishna, Advocate
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PRESENT HON'BLE MR. JUSTICE DEEPAK ROSHAN
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By Court: Heard learned counsel for the parties through V.C.
2. The instant writ application has been preferred by the petitioner praying therein for quashing the order dated 12.08.2006 passed by respondent No.4; whereby an order of punishment forfeiting salary of six days and increment of one year amounting to black mark has been imposed upon this petitioner.
The petitioner has further assailed the appellate order whereby the order of punishment has been sustained.
3. Mr. Diwakar Upadhyay, learned counsel for the petitioner draws attention of this Court towards Rule 824 of Jharkhand Police Manual and submits that as per Rule 824 (f) read with 828(a), the items mentioned in serial (a) to (f) of Rule 824 shall be deemed to be a major punishment and Rule 835 has further clarified that whatever may be the numbers of black marks in any one act of delinquent, it shall count as one major punishment.
24. He contended that respondent authorities have considered the punishment imposed upon this petitioner as a minor punishment and that is the reason they have not even supplied the enquiry report.
He further submits that the petitioner has been prejudiced by non-
supplying of the enquiry report, inasmuch as, if he would have received the enquiry report, he could have given its reply. As such, the impugned order may be quashed and the case may be allowed in favour of this petitioner.
5. Mr. Devesh Krishna, learned counsel for the respondent State submits that in view of the latest judgment passed by the Hon'ble Apex Court in the case of State Bank of India & Ors. Vs. Mohammad Badruddin reported in (2019) 16 SCC 69 it has been held that the requirement of the second show-cause notice of proposed punishment has been dispensed with. Para 16-22 of the judgment is quoted as under:
"16. We have heard the learned counsel for the parties and find merit in the arguments raised by Mr. Viswanathan, learned Senior Counsel for the appellants, to some extent. The 42nd Constitutional Amendment deleted the following words appearing in clause (2) of Article 311 of the Constitution of India, which reads as under:
"and where it is proposed, after such inquiry to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry."
17. A perusal of such omitted provisions would show that an opportunity was required to be 3 given to submit a representation on penalty proposed but such requirement had been omitted by 42nd Constitutional Amendment. This Court in Mohd. Ramzan case considered the effect of amendment and held as under:
"9. Where, however, the inquiry officer furnishes a report with or without proposal of punishment the report of the inquiry officer does constitute an additional material which would be taken into account by the disciplinary authority in dealing with the matter. In cases where punishment is proposed there is an assessment of the material and a tentative conclusion is reached for consideration of the disciplinary authority and that action is one where the prejudicial material against the delinquent is all the more pronounced.
12. We have already noticed the position that the Forty-second Amendment has deleted the second stage of the inquiry which would commence with the service of a notice proposing one of the three punishments mentioned in Article 311(1) and the delinquent officer would represent against the same and on the basis of such representation and/or oral hearing granted the disciplinary authority decides about the punishment. Deletion of this part from the concept of reasonable opportunity in Article 311(2), in our opinion, does not bring about any material change in regard to requiring the copy of the report to be provided to the delinquent.
15. Deletion of the second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the inquiry officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the 4 effect of the enquiry report or to meet the recommendations of the inquiry officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings and the series of pronouncements of this Court making rules of natural justice applicable to such an inquiry are not affected by the Forty-second Amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendation, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-second Amendment has not brought about any change in this position."
18. Later, the Constitution Bench in B. Karunakar affirmed the said judgment to hold that it was no longer necessary to issue a notice to the delinquent employee to show cause against the punishment proposed. The Court held as under: "19. In Mohd. Ramzan Khan case the question squarely fell for consideration before a Bench of three learned Judges of this Court viz. that although on account of the Forty-second Amendment of the Constitution, it was no longer necessary to issue a notice to the delinquent employee to show cause against the punishment proposed and, therefore, to furnish a copy of the enquiry officer's report along with the notice to make representation against the penalty, whether it was still necessary to furnish a copy of the report to him to enable him to make representation against the findings recorded against him in the report before the disciplinary authority took its own decision with regard to the guilt or 5 otherwise of the employee by taking into consideration the said report. The Court held that whenever the enquiry officer is other than the disciplinary authority and the report of the enquiry officer holds the employee guilty of all or any of the charges with proposal for any punishment or not, the delinquent employee is entitled to a copy of the report to enable him to make a representation to the disciplinary authority against it and the non- furnishing of the report amounts to a violation of the rules of natural justice.
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 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.
29. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.
630. ...(iv) In the view that we have taken viz. that the right to make representation to the disciplinary authority against the findings recorded in the enquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan case should apply to employees in all establishments, whether Government or non- Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whatever the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the enquiry officer before the disciplinary authority records its findings on the charges levelled against him. Hence, Question (iv) is answered accordingly."
(emphasis supplied)
19. In K. Manche Gowda case, the inquiry officer recommended that the delinquent may be reduced in rank. But while serving show-cause notice after the report of the inquiry officer, the disciplinary authority proposed punishment of dismissal from service. The order of punishment considered the previous punishments imposed upon the delinquent to come to the conclusion that the delinquent is unfit to continue in government service and, therefore, he was ordered to be dismissed from service. It was, in these circumstances, the Court ordered that the past conduct can be taken into consideration during the second stage of inquiry, which essentially relates more to the domain of punishment rather than to that of guilt. An opportunity should be given to the delinquent to know that fact and meet the same.
720. The omission of the words from clause (2) of Article 311 of the Constitution reproduced above completely changes the requirement of serving notice in respect of the proposed punishment. The amended provisions of Article 311 of the Constitution of India have been considered in Mohd. Ramzan case and later in B. Karunakar case. The judgment of this Court in Nicholas Piramal India Ltd. arises out of an award passed by the Labour Court under the Industrial Disputes Act, 1947. The jurisdiction of the Labour Court is much wider where the punishment can be reviewed by the Labour Court in terms of Section 11-A of the said Act.
21. This Court in Punjab National Bank v.
K.K. Verma has taken the same view that right to represent against the proposed penalty has been taken away by the 42nd Amendment. It was so held:
"32. Thus, the right to represent against the findings in the inquiry report to prove one's innocence is distinct from the right to represent against the proposed penalty. It is only the second right to represent against the proposed penalty which is taken away by the 42nd Amendment. The right to represent against the findings in the report is not disturbed in any way. In fact, any denial thereof will make the final order vulnerable."
22. Thus, the requirement of the second show-cause notice of proposed punishment has been dispensed with. The mandate now is only to apprise the delinquent of the inquiry officer's report. There is no necessity of communicating proposed punishment which was specifically contemplated by clause (2) of Article 311 prior to the 42nd Amendment."
6. Learned counsel further contended that the Hon'ble Apex Court has held that now after the 42nd amendment the mandatory provision of supplying second show-cause notice has been dispensed 8 with. However, he could not demonstrate by any document that enquiry report has been served to this petitioner.
7. Learned counsel further submits that the ground that he has not received the enquiry report has been taken for the first time before this Court and further draws attention of this Court towards Rule 824 (2), 828 (C) and also 843 and submits that forfeiture of pay and deduction of pay on amount of damage of any Government property shall not be treated as punishment. He reiterated that forfeiture of increment is a minor punishment.
8. Having regards to the fact of the case and submissions of the learned counsel for the parties and after perusal of Rule 824 (f) Rule 828 (a) and Rule 835 of the Police Manual it is clear that whatever be the number of black marks; in any one act of delinquency, it shall count as one major punishment; as such, the contention of the respondents that it is a minor punishment is non-est in the eye of law and against the specific provision as laid down in Rule 835 of the Police Manual and since it is a major punishment, supply of enquiry report is an essential provision which is missing in the instant case.
The Hon'ble Apex Court in the above referred judgment has clarified the position after 42nd amendment and held that the requirement of the second show-cause notice of proposed punishment has been dispensed with but even now it is necessary to apprise the delinquent with the inquiry officer's report which is missing in the instant Case.
9. In view of the aforesaid discussions, the instant writ application is allowed and the impugned order dated 12.08.2006 9 (Annexure-6), whereby the petitioner has been imposed punishment, is quashed and set aside and also the appellate order dated 09.07.2008 (Annexure-8) which has sustained the order of punishment, is quashed.
The matter is remitted back to the disciplinary authority to start the proceeding afresh after serving the enquiry report and pass the order afresh after getting the reply, if any.
10. With the aforesaid observations and directions, the instant writ application stands disposed of.
(Deepak Roshan, J.) Jharkhand High Court, Ranchi Dated: 18.03.2021 Pramanik/A.F.R.