Jharkhand High Court
Shashi Bhusan Prasad vs The State Of Jharkhand on 28 February, 2020
Author: S.N.Pathak
Bench: S.N.Pathak
4IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S)No.262 of 2018
Shashi Bhusan Prasad. ... ... ...Petitioner
-Versus-
1. The State of Jharkhand.
2. The Secretary, Department of Labour, Employment and Training,
Govt. of Jharkhand, at P.O. & P.S. Doranda, District-Ranchi, Jharkhand.
3. The Special Secretary, Department of Labour, Employment and Training
Cum Director Employment and Training, Govt. of Jharkhand, at P.O. & P.S.
Doranda, District-Ranchi, Jharkhand.
4. The Joint Secretary, Department of Labour, Employment and Training, Govt. of
Jharkhand, at P.O. & P.S. Doranda, Dist.
Ranchi, Jharkhand. ... ... ...Respondents
-------------
CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
For the Petitioner: Mr. Sumeet Gadodia, Advocate.
Mr.Navin Kumar, Advocate.
For the Respondents: Mr.Atanu Banerjee, Sr. S.C. III.
-------------
11/28.02.2020 The petitioner has approached this Court for quashing the order dated
28.12.2017 (Annexure-11) whereby and whereunder a second show cause notice has been issued upon the petitioner in pursuant to the final enquiry report dated 15.03.2017 and 17.03.2017 submitted by the Conducting Officer cum Enquiry Officer to the departmental proceeding and further for quashing of order dated 18.01.2018 whereby the petitioner has been inflicted with major punishment of demotion from Deputy Director Training to the post of Principal Industrial Training Centre, Pakur which is against the principle of natural justice and de hors the Rule framed by the respondent-State of Jharkhand i.e. Jharkhand Government Servant (Classification, Control and Appeal) Rules, 2016.
2. As per factual matrix, the petitioner was appointed in the year 1988 in the cadre of Principal, Industrial Training Institute, Govt. of Bihar and after bifurcation of the State, his services had been allocated to State of Jharkhand. At the relevant period, the petitioner was posted as Deputy Director (Training) Head Quarter, Ranchi, Jharkhand. A complaint was made by one Sri Pankaj Kumar Yadav for non-payment of his scholarship, which was registered as Complaint Case No.2015-6652/25.12.2015. On enquiry of the matter, it was found that one Sri Yogendra Prasad, the then Assistant Director (Headquarter), Treasurer, Jharkhand Society for skilled Development Initiative Scheme (herein after referred as JSSDIS) had not made payment due to wrong bank details of the said Mr. Yadav and the amount remained in the account of JSSDIS. It was further alleged that the petitioner during his tenure has not made any attempt to make payment to the said Pankaj Kumar Yadav and he has not updated account book of JSSDIS. On inspection of account book, several financial 2 irregularities were found. On the basis of aforesaid vague allegations, the petitioner was suspended from his services by issuance of Memo No.765 dated 07.04.2016. During the suspension, Headquarter of the petitioner was fixed at Dumka and the petitioner was directed to make his attendance through Bio-metric attendance. Two departmental proceedings were initiated against the petitioner, first by issuance of Memo No.725 dated 04.04.2016 and another by issuance of Memo No.795 dated 12.04.2016. Both the departmental proceeding was served upon the petitioner. For both the Departmental proceedings, one Mr. Shekhar Kumar Verma, Departmental Enquiry Commissioner was made Enquiry Officer and Sri Sanjay Sharan, Under Secretary, Labour, Employment, Training and Skilled Development Department was made Presenting Officer of the Department. In the first departmental proceeding initiated by Memo No. 725 dated 04.04.2016, the petitioner has submitted his reply by his letter dated 03.06.2016. During the aforesaid departmental proceedings the Presenting Officer of the department has submitted letter dated 07.12.2016. In reply thereto the petitioner has submitted his final explanation dated 26.12.2016 stating therein that the allegation leveled against him are baseless and beyond the real facts. Similarly the petitioner had submitted his reply dated 03.06.2016 and 25.11.2016 to the allegations levelled against him in the second departmental proceeding initiated vide memo No.795 dated 12.4.2016 and denied all the charges levelled against him. Without considering the reply of the petitioner and without affording appropriate opportunity, the respondents have inflicted major punishment which is de hors the Rules and hence the petitioner has been constrained to knock the door of this Court.
3. Mr. Sumeet Gadodia, learned Counsel for the petitioner vociferously argues that respondents have issued second show-cause notice upon the petitioner without even differing with the findings of the Conducting Officer -cum Enquiry Officer and as such the second show-cause notice is a mere formality. Further it has been argued that though the petitioner has been exonerated by the Enquiry Officer, the same has not been considered by the disciplinary authority and in the most mechanical and cryptic manner, the major punishment has been inflicted against the petitioner which is de hors the Jharkhand Government Servant (Classification, Control and Appeal) Rules, 2016.
4. Mr. Sumeet Gadodia further argues that inflicting of major punishment of demotion without following the due process of law and principle of natural justice is not tenable in the eyes of law and as such fit to be quashed and set aside.
5. To buttress his argument, learned Counsel places heavy reliance on the several judgments of this Hon'ble Court as well as the Apex Court and submits that in view of number of decisions and settled law the order of punishment is bad in law and not tenable and is fit to be quashed and set aside.
6. Per contra counter-affidavit has been filed.
7. Mr. Atanu Banerjee, learned Sr. S.C. III appearing for the State vehemently opposes the contention of the learned Counsel for the petitioner and submits that none 3 of the contention raised by the petitioner is applicable in the instant case. The petitioner was given ample opportunity of hearing and after considering the charges against the petitioner, the disciplinary authority has inflicted major punishment which is as per the Rule as envisaged in Jharkhand Government Servant (Classification, Control and Appeal) Rules, 2016. Learned Counsel further argued that it was fully within the ambit of the disciplinary authority to differ with the enquiry report and based on the charges inflicted order of punishment as per the Rules. There is no illegality in the order and as such no interference is warranted in the writ application. Further the petitioner has caused defalcation and embezzlement of the amount credited by the Govt. of India in the Account of JSSDIS by realizing amounts as reimbursement for imparting training to the VTPs without making necessary verification and as such no interference is warranted as charges are grave and serious in nature.
8. Heard the parties at length.
9. After considering the submissions of the parties across the bar, this Court is of the considered view that case of the petitioner needs consideration for the following facts and reasons:
i. Petitioner has been exonerated by the Enquiry Officer as per the enquiry report dated 15.03.2017.
ii. The charges levelled against the petitioner has not at all been proved in the departmental proceeding.
iii. The Disciplinary Authority though differs with the enquiry report but without assigning any reason and also without issuance of second show-cause notice, has held the petitioner guilty of the charges and inflicted major punishment, which is de hors the Rules. iv. Admittedly, the disciplinary authority is fully empowered to differ with the enquiry report but simultaneously it is incumbent upon the disciplinary authority to assign cogent reasons for differing with the enquiry report which has not been done in the instant case. The Hon'ble Apex Court in case of "Ram Kishan v. Union of India", reported in (1995) 6 SCC 157, has held as under:
"10. ............The purpose of the show-cause notice, in case of disagreement with the findings of the inquiry officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the Inquiry Officer for the reasons giving in the inquiry report or he may offer additional reasons in support of the finding by the inquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show cause on the basis of which the findings of the inquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the inquiry officer. In the absence of any ground or reason in the show-cause notice it amounts to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the disciplinary authority cannot cure the defect."
4Further the Hon'ble Apex Court in case of Punjab National Bank & Ors. V. Kunj Behari Misra, reported in (1998) 7 SCC 84, relevant paras of which is reproduced herein below:
"17. These observations are clearly in true with the observations in Bimal Kumar Pandit case 8 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 enquiry officer had given an adverse finding, as per Karunakar case4 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 enquiry 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 enquiry 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 enquiry 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 enquiry authority on any article of charge, then before it records its own findings on such charges, it must record its tentative reasons for such disagreement and given to the delinquent officer an opportunity to represent before it records 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 enquiry officer. The principles of natural justice, as we have already observed, require the authority which as 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."
(IV) It was the requirement of the Disciplinary Authority to assign reasons regarding differing with the enquiry report and also to seek reply of delinquent employee. The same was not done in this case and as such, the impugned orders are fit to be quashed and set aside.
(IV) Even the Appellate Authority has mechanically rejected the Appeal of the petitioner and without application of his independent mind and without assigning any reasons, has just agreed with the view of the disciplinary authority.
10. As a sequel to the aforesaid observations, rules, guidelines and judicial pronouncements, the impugned order dated 28.12.2017 as contained in memo No. 5/Training (accounts)-02/2016 labour employment-2327, and impugned order dated 18.01.2018 as contained in memo No. 5/Training (accounts) 02/2016 Labour Employment-142 Ranchi are hereby quashed and set aside. Upon quashment of the 5 impugned order, the matter is remitted back to the Disciplinary Authority for considering the same afresh from the stage of submission of the enquiry report. The Disciplinary Authority is required to look into the matter afresh after applying his mind, taking into consideration the exoneration of the petitioner by the Enquiry Officer.
Needless to say that the entire exercise must be completed within a period of six weeks from the date of receipt/production of a copy of this order.
11. Resultantly, the writ petition stands disposed of.
12. Pending I.A., if any, also stands disposed of.
[Dr. S.N.Pathak,J.] P.K.S.