Jharkhand High Court
Manoj Kumar Sinha vs State Of Jharkhand & Ors on 15 March, 2013
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1
W. P. (S) No. 2806 of 2003
In the matter of an application under Article 226 of the Constitution of India
Manoj Kumar Sinha ... ... Petitioner
Versus
1. The State of Jharkhand
2. Commissioner, North Chotanagpur Division, Hazaribagh
3. Deputy Commissioner, Hazaribagh
4. Block Development Officer, Barkagaon
5. Block Development Officer, Ramgarh
6. District Panchayat Raj, Hazaribagh ... ... Respondents
For the Petitioner : Mr. Prabhash Kumar, Advocate
Mr. Tapash Kabiraj, Advocate
For the State : Mr. Anshuman Kumar, J.C. to Sr. S.C. I
P R E S E N T
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
By Court: Aggrieved by order dated 14.05.2003 by which the
petitioner has been dismissed from service, the petitioner has approached this Court by filing the present writ petition.
2. The petitioner was appointed on the post of Panchayat Sewak. On 14.06.1996, the petitioner was relieved from Barkagaon Block and he was directed to join in the office of Block Development Officer, Ramgarh. The petitioner was put under suspension by order dated 21.12.1996 as he had failed to handover the charge of Barkagaon Gram Panchayat. The order of suspension was revoked by order dated 08.08.2000 and a charge memo dated 16.08.2000 was served upon the petitioner asking him to showcause within 15 days. Essentially, the charges against the petitioner were,
(i) He remained absent for a period of 8 months and 10 days and he neglected the Government work.
2(ii) He did not give his joining at Ramgarh.
(iii) Even after he was relieved from Barkagaon Block Office, he did not handover the charge and the documents.
(iv) He committed certain irregularities in conducting the work under the Jawahar Rojgar Yajana and misused the Government fund.
(v) He did not submit the measurement book and other documents.
3. It is the case of the petitioner that inspite of his representation dated and his letter dated 22.05.2001, he was not supplied certain documents and the enquiry was not conducted in a fair manner. In view of the enquiry report, the petitioner was served order dated 24.08.2002, whereby he was asked to file his 2nd showcause. By order dated 14.05.2003, the petitioner was dismissed from service. In these circumstances, the petitioner has approached this Court.
4. A counteraffidavit has been filed on behalf of the respondents justifying the order of dismissal from service. The misconduct has been found proved against the petitioner. The Block Development Officer of Barkagaon has given a written statement before the enquiry officer that the receipt of acknowledgment of handing over charge produced by the petitioner was forged and fabricated.
5. Heard learned counsel for the parties and perused the documents on record.
6. Learned counsel for the petitioner has submitted that the enquiry report was not furnished to the petitioner and in a mechanical manner the petitioner was asked to file his 2nd show cause. The enquiry was not conducted in a fair manner as the petitioner was not supplied with certain relevant documents and in view of the judgment of the Hon'ble Supreme Court in the case of 3 "Union of India Vs. Mohd. Ramzan Khan", reported in (1991) 1 SCC 588, the order of dismissal dated 14.05.2003 is liable to be quashed.
7. On the other hand, learned counsel for the respondents has submitted that the charges against the petitioner were grave. He has been found committing certain irregularities besides, unauthorised absence from duty and not handing over the charge. No prejudice has been caused to the petitioner as he has been supplied all relevant documents, and the showcause contained all material evidences against him.
8. From the record of the case, I find that the petitioner has remained absent for 8 months and 10 days on different dates between August, 1992 and May, 1996 unauthorisedly. He failed to submit measurement book with respect to the four projects. He has also failed to handover the charge of Barkagaon Gram Panchayat. Serious irregularities were detected in execution of Jawahar Rojgar Yajana during the service tenure of the petitioner at Barkagaon. In the letter dated 24.08.2002, all details with respect to his absence, measurement book, irregularities in different Jawahar Rojgar Yajana etc. were clearly mentioned. In paragraph no. 24 of the writ petition, the petitioner has alleged that the enquiry report was not furnished to him. In reply, the respondents have stated as under,
16. "That with regard to the statement made in paragraph 23, 24 of the writ application, it is submitted that according to the report submitted by the Enquiry Officer all those charges against the petitioner were found to be true for which the petitioner was asked to file second show cause and no illegality has been committing thereunder. It is further submitted that the allegations made therein are not correct as the petitioner has been given full opportunities to know the charges and charges framed against him.
417. That with regard to the statement made in paragraph25 and 26 of the writ application it is submitted that the allegation made therein are not correct. It is submitted that inspite of opportunity given to the petitioner by the Enquiry Officer, the petitioner failed to produce documents and also failed to adduce evidence in support of his defence. It is submitted that second show cause notice was not illegal and not without jurisdiction as alleged in the writ application."
9. In the case of "Manging Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors.", reported in (1993) 4 SCC 727, the Hon'ble Supreme Court has held that, "Whether infact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed it would be a perversion of justice to permit the employee to resume duty and to take all the consequential benefits." The Hon'ble Supreme Court has further observed, "the Court/Tribunal should not mechanically setaside the order of punishment on the ground that the report was not furnished as is regrettable being at present. The courts should avoid resorting to shortcuts."
10. In the case of "Burdwan Central Cooperative Bank Limited & Anr. Vs. Asim Chatterjee & Ors.", reported in (2012) 2 SCC 641, the Hon'ble Supreme Court has taken note of the judgment in the case of "B. Karunakar" (supra) and has observed as under,
19. However, there is one aspect of the matter which cannot be ignored. In B. Karunakar case, (1993) 4 SCC 727 despite holding that non supply of a copy of the report of the enquiry officer to the employee facing a disciplinary proceeding, amounts to denial of natural justice, in the later part of the judgment it was 5 observed that whether in fact, prejudice has been caused to the employee on account of non furnishing of a copy of the enquiry report has to be considered in the facts of each case. It was observed that where the furnishing of the enquiry report would not make any difference to the ultimate outcome of the matter, it would be a perversion of justice to allow the employee concerned to resume his duties and to get all consequential benefits.
20. It was also observed in B. Karunakar case (1993) 4 SCC 727 that in the event the enquiry officer's report had not been furnished to the employee in the disciplinary proceedings, a copy of the same should be made available to him to enable him to explain as to what prejudice had been caused to him on account of nonsupply of the report. It was held that the order of punishment should not be set aside mechanically on the ground that the copy of the enquiry report had not been supplied to the employee.
11. In the case of "Union of India & Ors. Vs. Bishambar Das Dogra", reported in (2009) 13 SCC 102, in which a Security Guard in C.I.S.F. remained absent from duty without justification for more than five times and an order of removal from service was passed, the Hon'ble Supreme Court while examining the effect of nonsupply of enquiry report, has observed as under,
21. "Thus, in view of the above, we are of the considered opinion that in case the enquiry report had not been made available to the delinquent employee it would not ipso facto vitiate the disciplinary proceedings as it would depend upon the facts and circumstances of the case and the delinquent employee has to establish that real prejudice has been caused to him by not furnishing the enquiry report to him."
612. In the case of "Haryana Financial Corporation & Anr. Vs. Kailash Chandra Ahuja", reported in (2008) 9 SCC 31, the Hon'ble Supreme Court has observed as under,
21. "From the ratio laid down in B. Karunakar, (1993) 4 SCC 727 it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer's report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that nonsupply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that nonsupply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside."
13. In the case of "State Bank of Patiala & Ors. Vs. S.K. Sharma", reported in (1996) 3 SCC 364, the Hon'ble Supreme Court has held that unless it is established that nonfurnishing the copy of enquiry report to the delinquent employee has caused prejudice to him, the court shall not interfere with the order of punishment for the reason that in such eventuality setting aside the order may not be in the interest of justice.
14. In the writ petition, I do not find any detail regarding the documents which were not supplied to the petitioner and the prejudice which has been caused to the petitioner due to non supply of the enquiry report. As noticed above, in the Memo dated 24.08.2002, the petitioner has been informed about the details of the charges proved against him. There is no plea taken by the petitioner justifying his absence from duty for 8 months and 10 7 days and in fact, the present writ petition has been filed taking mainly the technical plea of nonsupply of certain documents and the enquiry report. I am of the opinion that the petitioner has not been able to establish the prejudice caused to him, due to nonsupply of the enquiry report to him.
15. In the result, the writ petition is dismissed.
(Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated: 15/03/2013 Manish/A.F.R.