Vinay Kumar Singh vs Health Medical Education And Family ... on 10 February, 2014

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Jharkhand High Court

Vinay Kumar Singh vs Health Medical Education And Family ... on 10 February, 2014

The petitioner was appointed on compassionate ground as lady constable on 28.2.2004 on the death of her husband in harness on 23.6.2003, while in the service of JAP-3. The grievance of the petitioner is that she has been dismissed from service by the impugned order contained in memo no. 300 dated 9.2.2010(Annexure-3) issued by the respondent no. 3, Commandant, JAP-10, Ranchi. The said order has been affirmed in appeal which is also under challenge being memo no. 932 dated 25.6.2011(Annexure-5) passed by the D.I.G., JAP.

The contention of the petitioner is that a departmental proceeding was initiated under charge contained in memo no. 292 dated 2.2.2009 (Annexure-2) with the allegation that she used to indulge in regular talks from the mobile no. 9708533551with another mobile no. 9798365544 which belonged to unknown person. On receipt of anonymous complaint, the matter was inquired into by three Deputy Superintendent of Police namely Harman Tigga, John Guria and Emilda Ekka of JAP-10. The preliminary inquiry revealed that she was not aware of the owner of the said mobile number but later on stated that it belonged to one of his cousin namely Hori Mahto of village Bero P.S. Tamar, District Ranchi. Later on she named the said person as Naresh chandra Mahto @ Dhiran Mahto. The petitioner's explanation was not at all found to be satisfactory. Her conduct indicated that security of the battalion of JAP was being leaked where lots of arms and ammunition are also stored and may lead to some un-pleasant incident. Call records of her number revealed that she had indulged in talk on a number of occasions on different dates, though she claims that she was not knowing him. This conduct of the petitioner was indicative of grave negligence which has been confirmed in the preliminary inquiry report. The inquiry proceeding, thereafter was conducted in which three Deputy Superintendent of Police, JAP-10 deposed as witnesses and the Inquiry Officer rendered the finding of guilt of the petitioner on the alleged misconduct.

It is submitted that after the submission of the inquiry report which is at Annexure-B to the first counter affidavit of the respondents submitted by the Dy.S.P. Cum Conducting Officer, JAP-10, Ranchi, petitioner has been straightway punished by dismissal from the service by the impugned order contained at Annexure-3 dated 9.2.2010. Her appeal has also been rejected by the impugned order at Annexure-5 passed by the D.I.G, JAP, Ranchi.

Learned counsel for the petitioner has assailed the impugned order passed by the Disciplinary Authority on the ground that the same was passed without issuance of any second show cause or a copy of the inquiry report furnished along with the same which is an essential requirement of the conduct of the disciplinary proceeding before such a punishment could have been imposed.

On the very question the respondents were allowed time on 19.11.2013 to file specific answer as to whether the petitioner was served with the inquiry report and the second show cause before the impugned order of punishment was passed as the earlier counter affidavit was not conclusive on the instant issue. In the supplementary counter affidavit filed thereafter on 7.1.2014 at para 10 it has been clearly stated that the Commandant did not issue second show cause to the petitioner before passing the impugned order of punishment. However, it has been stated that the impugned order has been passed taking into account the petitioner's deposition before the Inquiry Officer and the entire evidence taken in presence of the petitioner where she was given opportunity to cross examine the prosecution witnesses.

Learned counsel for the petitioner, therefore, submitted that impugned order has been passed on mere suspicion based upon the three men preliminary inquiry report and the content of the alleged talk on the said mobile no. 9798365544 have been evidenced in the inquiry to establish that the petitioner was putting the security of the JAP-10 battalion itself at risk because of such talks. It has been further submitted that there is no proof that the petitioners conversation with the said number actually caused any kind of security breach or risk to the JAP-10. No person has been examined to establish that the petitioner was indulging in confidential talks relating to security of the JAP-10 itself. It has been further stated that the petitioner has 4 minor children who are living at the distance of more than 50 km at her village home and she used to talk with her relatives . The person named as Dhiran Mahto also is the same person namely Nareshchandra Mahto, who was her cousin's friend and his credentials has also not been shown to be of antisocial nature. In any case learned counsel for the petitioner submits that the impugned order without serving the second show cause and copy of the inquiry report has seriously prejudiced the petitioner as she has been prevented from defending herself in a proper manner. Had the petitioner got an opportunity to prove her bonafide, she would have persuaded the Disciplinary authority that the findings of the Inquiry Officer are based on mere suspicion and conjectures without any cogent evidence. She has been therefore precluded from properly defending herself.

The respondent on the other hand submitted that during the preliminary inquiry the petitioner had given a confession before the Deputy Superintendent of Police, which is also enclosed as Annexure-A i.e. the preliminary inquiry report of the three Deputy Superintendent of Police. By relying upon the preliminary inquiry report it has been submitted that the petitioner had failed to give any satisfactory answer in respect of her regular talks on no. 9798365544. It also transpired from the details of the calls received that there were 31 missed calls on the next morning i.e 17.12.2008 after she was being inquired on 16.12.2008. Later on the petitioner herself had changed the statement naming such person as Naresh chandra Mahto instead as Hori Mahto. The inquiry was conducted in a proper manner where the petitioner was allowed to cross examine the prosecution witnesses who were three Deputy Superintendent of Police and another Sub Inspector but she failed to discredit them. It is submitted that the Inquiry Officer also gave her opportunity to file her written statement in her defence on 26.03.2009. After considering all these aspect, the guilt of the petitioner was found to be established by the Inquiry Officer which indicated serious threat of security on the part of petitioner-constable employed in the JAP-10 without any satisfactory explanation on her part. The Disciplinary Authority and the Appellate Authority having considered the materials adduced during course of inquiry and depositions of the witnesses including that of the petitioner have held the petitioner responsible for serious negligence on her part which amounted to breach of duty and also putting security of the JAP-10 at risk by her conduct. She was not worthy of being retained in service and therefore has been dismissed by the Disciplinary Authority by the impugned order which does not require any interference.

I have heard learned counsel for the parties at length and gone through the relevant materials on records including the impugned orders. As it appears from the perusal of the findings and documents on record, the petitioner who was a widow was appointed on compassionate ground as a lady constable in JAP-10 on death of her husband in harness and has been proceeded against on the allegation of having indulged in regular talks with another on a mobile number during duty. The petitioner was said to have allotted different duties including Magazine duty which relates to security of the JAP-10 itself.

On an anonymous complaint as would appear, the matter has been inquired by the three Deputy Superintendent of Police of JAP-10 and the petitioner was also called to give her answer which is enclosed to the inquiry report of the 3 Dy. S.P.s of JAP-10, Annexure-A to the counter affidavit. On perusal of the inquiry report it further appears that apart from the 3 Dy.S.P. Of JAP-10, who had submitted the preliminary report, one another witness have been examined. It however, appears that the Inquiry Officer after taking into account the materials adduced during the course of inquiry and the preliminary inquiry report reiterated by the 3 prosecution witnesses has held the petitioner guilty. Apparently, after the aforesaid findings of guilt by the Inquiry Officer, no second show cause notice has been issued neither the copy of the inquiry report was served upon the petitioner to allow her to offer her reply to the same before the Disciplinary Authority before he proceeded to pass an order of punishment. The requirement of second show cause notice and service of the inquiry report has been held to be an integral part of the conduct of the Disciplinary proceeding by the celebrated judgments rendered by the Hon'ble Supreme Court in the case of Union of India & others Vrs. Mohd. Ramzan Khan reported in (1991) 1 SCC 588 and also in the case of Managing Director, ECIL Hyderabad and Ors. Vrs. B. Karunakar & ors. reported in (1993)4 SCC 727. Para 15 and 18 of the judgment rendered in the case of Union of India & others Vrs. Mohd. Ramzan Khan(supra) is reproduced herein below for better appreciation of the case.

"Para 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 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.

Para18:- We make it clear that wherever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non- furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter".

The Hon'ble Supreme Court held that the Disciplinary Authority is required to exercise his independent mind before passing the order of punishment after taking into account the material adduced in the inquiry together with the reply to the second show cause by the delinquent employee. In the instant cases as it appears the impugned order has been passed without service of inquiry report and the second show cause, which obviously has vitiated the conduct of the disciplinary proceeding and prejudiced the petitioner.

The respondents in their supplementary counter affidavit have also accepted that no second show cause notice was issued before passing of impugned order . In the totality of facts and circumstance and the specific reasons that the impugned order has been passed without furnishing any second show cause along with the copy of the inquiry report, the impugned orders cannot be sustained in the eye of law as the decision making process appears to have been vitiated. Accordingly, the impugned order dated 9.2.2010 and 25.6.2011 contained in Annexure3 and 5 respectively are quashed . However, the respondents are at liberty to pass fresh order by taking an informed decision in respect of the same disciplinary proceeding from the stage of issuance of second show cause and after taking into account the reply of the petitioner.

The writ petition is allowed in the aforesaid terms.




                                                                       (Aparesh Kumar Singh, J.)
A. Mohanty / Tarun
            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(S) No. 888 of 2013
     Smt. Ugan Devi                                ..........        Petitioner
                             Versus

The Chief Regional Manager, Patna Regional Officer National Insurance Company Ltd & others ........... Respondents

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     CORAM:        HON'BLE MR. JUSTICE APARESH KUMAR SINGH
     For the Petitioner      : Mr. Arbind Kumar
     For the Respondents     :

                 I.A. No. 54 of 2014

09/10.02.2014    By way of instant interlocutory application, the applicant, Smt. Ugan

Devi seeks to substitute herself in place of the deceased- petitioner namely Jagmohan Mahto, who is said to have died on 13. 9.2013 during the pendency of the writ application, claiming herself to be his widow.

Having regard to the reasons stated in the instant interlocutory application, substitution of the applicant Smt. Ugan Devi is allowed in place of deceased petitioner. Learned counsel for the petitioner shall carry out necessary correction in the name of deceased petitioner during the course of the day in red ink.

I. A. No. 54 of 2014 stands disposed of.

W.P.(S) No. 888 of 2013 Learned counsel for the petitioner submitted that her husband was dismissed on 27.12.2010 vide order contained at Annexure-2 passed by the Manager & Appointing Authority on the ground that he had got appointment claiming himself to be the member of Scheduled Caste. According to the petitioner by the impugned order itself it was informed that the employee had right to appeal against the impugned order in terms of Rule 31 to 34 of the General Insurance (Conduct, Discipline & Appeal) Rules-1975 within a stipulated period. Vide Annexure-5 dated 24.2.2011 the said appeal was preferred against the impugned order dated 27.12.2010, which is still pending before the Appellate Authority. Learned counsel for the petitioner, therefore submits that the Appellate Authority may be directed to take a decision in the pending appeal within a stipulated period.

It appears that the respondents are not yet represented by any counsel. However, having regarding to the submissions made in the writ -2- petition, the instant application is disposed of without making any comment upon the merit of the claim of the petitioner by allowing her to pursue the appeal said to have been preferred before the Chief Regional Manager cum Appellate Authority vide Annexure-5 itself. It is however observed that if the appeal has not yet been considered and finally disposed of, respondents Appellate Authority shall consider the same in accordance with law and pass an appropriate order within a reasonable period preferably 12 weeks from the date of receipt of the copy of this order.

The writ petition is disposed of in aforesaid terms.




                                                                       (Aparesh Kumar Singh, J.)
A. Mohanty / Tarun
                      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                  W.P.(S) No. 379 of 2013
            Vinay Kumar Singh                                        ..........        Petitioner
                                    Versus
            The State of Jharkhand & others              ........... Respondents
                                            ----------
            CORAM:        HON'BLE MR. JUSTICE APARESH KUMAR SINGH
            For the Petitioner      : Mr. Arup Kumar Dey
            For the Respondents     : J.C to G.P.VI

 03/10.02.2014             Heard counsel for the parties.

The petitioner seeks quashing of the advertisement dated 22.11.2012 issued by the respondent no.3, Civil Surgeon cum Chief Medical Officer, Simdega seeking appointment of Multi Purpose Health Worker for the District of Simdega where the age of the eligible candidates in unreserved category has been prescribed as 18 to 35 years . The petitioner alleges the same as discriminatory.

The respondents have contended that the advertisement was in respect of Multi Purpose worker(Male) which is an untrained post having monthly remuneration to be paid as Rs.6000/- . The said advertisement was not in respect of Multi Purpose Health Worker, which is a trained post having monthly remuneration of Rs. 8000/-. Further, from the statement made in para 15 it appears that the exercise under the said advertisement has been carried out and out of 65 candidates 41 have been shortlisted and selected on the basis of marks obtained. They have been engaged on contract, thereafter and appointment letter has been issued to the selected candidates. Only 2 post of Scheduled Tribes are lying vacant. The petitioner is claiming himself to be general category candidate.

Having regard to the aforesaid statements made in the counter affidavit, it appears that the exercise under the said advertisement has already been given effect to and persons have been subsequently appointed as well on contract basis. These persons are not before this Court. Therefore, the writ petition has been rendered infructuous.

Accordingly, the writ petition is disposed of as infructuous.




                                                                       (Aparesh Kumar Singh, J.)
A. Mohanty / Tarun
            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(S) No. 266 of 2013
     Satya Devi                                            ..........        Petitioner
                               Versus
     M/s Central Coal Fields Ltd. & others               ........... Respondents
                                       ----------
     CORAM:        HON'BLE MR. JUSTICE APARESH KUMAR SINGH
     For the Petitioner        : Mr. Nand Kishore Prasad Sinha
     For the Respondents       : M/s Amit Kr. Das & Arbind Kumar

05/10.02.2014     Heard counsel for the parties.

The petitioner's husband died on 6.7.1999 and she claims to have made an application on 25.8.1999 seeking compassionate appointment which was not provided. Therefore, she has approached this Court in the present writ application in June, 2013.

The respondents stated that the petitioner's husband was appointed on probation under Female Voluntary Retirement Scheme in place of his mother on a consolidated pay/ stipend of Rs. 2500/- per month for a period of 1 year with the condition that on successful completion of training in the aforesaid assigned trade he may be put in regular scale or his training may be extended for further period of 1 year. The deceased employee joined his service at B.T.T.I , Bhurkunda on 30.3.1999 vide Annexure-B to the counter affidavit. It has been stated that he died during training and there are no provision of compassionate appointment in such circumstances and none of the family members including the petitioner had ever applied for compassionate appointment in the respondent- company. The time limit prescribed at the relevant point of time for making claim of compassionate appointment is 6 months and as such no such application was also received from the part of the petitioner.

Having heard the counsel for the parties, in the aforesaid facts and circumstance of the case, it is apparent that not only the petitioner's husband was untrained at the relevant point of time of his death on 6.7.1999 but the respondents have categorically denied receipt of any application for compassionate appointment on behalf of the petitioner or any of the family member of the deceased employee. The writ petition has been preferred after 13 years of the death. In such circumstance, this Court is not inclined to -2- exercise the writ jurisdiction in the matter of compassionate appointment where the family of the deceased employee appears to have survived all these years. The petitioner has failed to make out a case for invoking the provisions of N.C.W.A either.

The writ petition is accordingly, dismissed.

(Aparesh Kumar Singh, J.) A. Mohanty / Tarun

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