Jharkhand High Court
Indu Bhushan Dwivedi vs State Of Jharkhand And Ors. on 4 February, 2002
Equivalent citations: 2002(50)BLJR650, [2002(94)FLR331]
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
ORDER M.Y. Eqbal, J.
1. The petitioner, who is member of Subordinate Judicial Service, has challenged the order dated 17th August, 2001 by which the respondent High Court of Jharkhand ordered for holding enquiry against the petitioner and also the letter dated 11.12.2001 by which the High Court has directed the District and Sessions Judge, West Singhbhum to continue with the departmental proceeding.
2. The petitoner's case is that he entered in the Judicial Service in 1982 as Munsif and subsequently he was promoted to the post of Subordinate Judge. While he was working as Subdivisional Judicial Magistrate, Jhanjharpur, Madhubani, he was put under suspension on 5.3.1998. The petitioner was served with chargesheet and he denied the charges by filing show cause. Thereafter, one Sudarshan Upadhyaya, District and Sessions Judge, Madhubani was appointed as Enquiry Officer who submitted enquiry report to the High Court. Patna on 28.4.2000. However, in the meantime, after bifurcation of the State, petitioner's cadre has been given to the State of Jharkhand. It is contended that the High Court of Jharkhand served on the petitioner a letter dated 17.8.2000 informing him that on the chargesheet which was sewed on him, a fresh proceeding has been initiated and one Sri S.N. Panday, District and Sessions Judge, West Singhbhum, Chaibasa has been appointed as Enquiry Officer. The petitioner challenged the said decision by filing CWJC No. 5033/2000 (R) mainly on the ground that no fresh enquiry could be conducted unless the competent authority differs and rejects the enquiry report submitted by the District and Sessions Judge, Madhubani in which petitioner was fully exonerated. The writ application was disposed of on 9.10.2001 with a direction to the Registrar General, Jharkhand High Court, Ranchi to bring this fact to the notice of Hon'ble Chief Justice in its administrative side for taking a decision on the grievance of the petitioner. The grievance of the petitioner is that instead of taking any decision on the enquiry report submitted by the Enquiry Officer, the High Court of Jharkhand issued the impugned letter dated 11.12.2001 whereby the District and Sessions Judge, West Singhbhum has been directed by the High Court to continue with the departmental proceeding.
3. Mr. A.K. Sinha, learned Senior counsel appearing on behalf of the petitioner, assailed the impugned decision of the High Court of Jharkhand mainly on the ground that no order for fresh enquiry can be made without passing appropriate order on the enquiry report already submitted. Learned counsel submitted that the impugned order of the High Court for initiation/continuance of the departmental proceeding is absolutely contrary to law inasmuch as once a departmental proceeding has been concluded and enquiry report has been submitted, the Disciplinary Authority has to pass appropriate order on the said report and cannot ask for a fresh enquiry without differing with the enquiry report.
4. Mr. M.M. Banerjee, learned counsel appearing for the respondent High Court of Jharkhand, on the other hand, submitted that the respondents have not ordered for fresh enquiry rather directed for continuance of the enquiry which is permissible in law. Learned counsel, submitted that in the enquiry report submitted by the District and Sessions Judge, Madhubani some serious defects were found and all the important witnesses were not examined by the Enquiry Officer and, therefore, the High Court of Jharkhand directed the Enquiry Officer to continue with the departmental enquiry and submit a conclusive report.
5. In course of argument, learned counsel for the respondents produced the original records and the minutes of the proceeding of the Jharkhand High Court to show that the impugned order was passed in accordance with law.
6. After having heard the learned counsel for the parties, the only question that falls for consideration is whether the impugned order passed by the High Court of Jharkhand for continuance of the enquiry is valid in law.
7. As noticed above, while the petitioner was posted as Subdivisional Judicial Magistrate, Jhanjharpur, he was put under suspension and a departmental proceeding was initiated against him. Shri Sudarshan Upadhayay, the then District and Sessions Judge, Madhubani was appointed as Enquiry Officer who conducted the enquiry and submitted a report pn 28.4.2000. The said enquiry report was placed before the Standing Committee of the Patna High Court and vide minutes dated 12.1.2001 the Standing Committee of the Patna High Court ordered that the enquiry in the departmental proceeding is to continue as competent and natural witnesses were not examined by the Enquiry Officer in the departmental proceeding for the reason best known to him. The Standing committee also sought explanation from the Enquiry Officer as to how abruptly he closed the proceeding. In the meantime, after creation of the State and as a result of cadre bifurcation the petitioner was allocated to Jharkhand cadre and the file of departmental proceeding was forwarded to the Jharkhand High Court. It is, therefore, clear that the departmental proceeding initiated against the petitioner was not concluded in view of the minutes dated 12.1.2001 of the Standing Committee of the Patna High Court. Accordingly the matter regarding departmental proceeding against the petitioner was placed before the Full Court in its meeting dated 14th July, 2001. The Full Court resolved that Shri B.N. Panday, District and Sessions Judge. West Singhbhum, Chaibasa be appointed as Enquiry Officer and he was directed to complete the enquiry and submit enquiry report to this court. In terms of the said resolution a notification dated 17.8.2001 was issued mentioning that the High Court of Jharkhand ordered that the departmental proceeding be initiated against the petitioner for the charges contained in the articles of charges.
8. The petitioner challenged the said notification dated 17.8.2001 by filing a writ petition being W.P. (S) No. 5033/2001. As mentioned above, the writ application was disposed of with certain direction and, accordingly, the matter was again placed before the Full Court in its meeting held on 18.10.2001 and it was resolved that the matter be placed before Justice Gurusharan Sharma, a sitting Judge of this court for his considered views in the next Full Court meeting. The Hon'ble Judge examined the entire matter of the departmental proceeding and submitted his views on 19.11.2001. The Hon'ble Judge, in his report, opined that a direction be issued to the newly appointed Enquiry Officer to continue the enquiry and complete it within six months. The relevant portion of the report of the Hon'ble Judge of this court is quoted herein below :--
"In my view, notification ought to have been issued with a direction to the newly appointed enquiry officer to continue the enquiry and complete it within six months because the departmental proceeding was not to be started afresh, rather, it was to be continued and completed after recording statement of Shri S. Rahman, the then District Judge, Madhubani and Shri Birendra Kumar Singh, the then Registrar, Civil Court, Madhubani, which was left to be recorded by Shri Upadhayay and after collecting further evidence, if any. I find that Shri Upadhayay has concluded the enquiry abruptly without going through the service records on the main two witnesses, namely, Shri Rahman and Shri Singh. The same was fit to be rejected and the enquiry was to be continued further by summoning the aforesaid witnesses and then to submit a fresh report after recording their evidence."
9. The report of the learned Judge was placed in the Full Court meeting held on 20th November, 2001 and the report was considered and accepted and consequently the impugned letter dated 11.12.2001 directing the Enquiry Officer to continue with the enquiry has been issued.
10. From the facts of the case and sequence of developments and the orders passed by the High Court it is clear that the High Court has finally ordered for continuance of the enquiry by the newly appointed Enquiry Officer, since the then Enquiry Officer has retired. It was not a case of holding an enquiry afresh. In my considered opinion, the High Court of Jharkhand, who is now the competent authority, can take such decision as the law does not debar a Disciplinary Authority from holding further enquiry, if some vital defects are found in the enquiry report submitted by the Enquiry Officer. The Enquiry Officer, namely, Shri Sudarshan Upadhyay, the District and Sessions Judge, Madhubani, in para 30 of his report, mentioned that the most important witnesses i.e. the then District and Sessions Judge, Madhubani, Shri S. Rahman and Shri Birendra Kumar Singh, the then Registrar, Civil Court, Madhubani, have not been examined. It is, therefore, clear that there has been no proper enquiry because some important witnesses were not available at the time of enquiry and were not examined for some other reasons. In such situation the High Court can ask the Enquiry Officer to continue with the enquiry and record further evidence.
11. In the case of K.R. Deb v. Collector of Central Excise, Shilong (1971) 2, SCC 102, the Apex Court while considering a similar question, observed that even if rule prescribes for one enquiry but if in a particular case it is found that there has been no proper enquiry because some serious defect has crept into the enquiry or some important witnesses were not available at the time of enquiry or were not examined for some other reasons, the Disciplinary Authority may ask the Enquiry Officer to record further evidence. The Disciplinary Authority has enough power to reconsider the evidence itself and come to its own concluding. Same principle was reiterated by the Apex Court In the case of State of Assam and Anr. v. J.N. Biswas (1976) 1 SCC 234, and it was held that no government servant can urge that if for some technical or other good ground, procedural or other, the first enquiry or punishment or exoneration is found bad in law, that a second enquiry cannot be launched.
12. Recently in the case of R. Nitya Priya v. Revenue Divisional Officer, Thirukoyilur and Anr. (1998) 8 SCC 508, a similar question arose before the Supreme Court. The facts of the case was that a departmental enquiry was initiated on the issue whether the appellant belonged to a particular community. The claim of the appellant was rejected by the departmental authorities after enquiry. The appellant challenged the decision of the departmental authorities by a writ petition. In the writ petition a very crucial and important document was secured by the department and was produced before the High Court. The High Court, finding the document to be crucial and fatal to the appellant's case and after satisfying about the genuineness of the document, upheld the decision of the departmental authorities. The matter came to the Supreme Court. Their lordships held the High Court should have given opportunity to the appellant to meet with the documents during the enquiry proceeding. The Apex Court, therefore, remanded the matter to the department for holding enquiry afresh.
13. from the facts of the case and the law discussed hereinabove, I am, therefore, of the definite view that continuance of the proceeding against the petitioner in the instant case is perfectly in accordance with law and there is no illegality in appointing the Enquiry Officer and directing him to continue with the enquiry, record further evidence of the important witnesses and submit enquiry report.
14. For the aforesaid reasons, I do not find any merit in this writ application which is accordingly dismissed.