Jharkhand High Court
Bindeswari Mandal vs The State Of Jharkhand on 2 May, 2018
Author: D.N. Patel
Bench: Amitav K. Gupta, D.N. Patel
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 642 of 2017
with
I.A. No. 10014 of 2017
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Bindeswari Mandal, S/o Late Kishore mandal, R/o Lalu Pokhar, Nagtola, P.O. Munger, P.S. Munger, District Munger, Bihar.
... .... Petitioner/Appellant
Versus
1. The State of Jharkhand.
2. The Principal Secretary, Animal Husbandry & Fishery Department, Government of Jharkhand, Nepal House, P.O. & P.S. Doranda, District Ranchi, Jharkhand.
3. The Director, Animal Husbandry & Fishery Department, Government of Jharkhand, Nepal House, P.O. & P.S. Doranda, District Ranchi, Jharkhand.
....Respondents/Respondents
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE AMITAV K. GUPTA
For the Appellant : M/s Abhay Prakash, P.P. Roy, Advocates
For the Respondents : Ms. Chandra Prabha, S.C.-IV
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nd
04/Dated: 2 May, 2018
Oral order:
Per D.N. Patel, A.C.J.:
I.A. No. 10014 of 2017
1. The present interlocutory application has been preferred under Section 5 of the Limitation Act, for condoning the delay of 256 days in preferring this Letters Patent Appeal.
2. Having heard counsel for both the sides and looking to the reasons stated in this interlocutory application especially in paragraph nos. 4, 5 and 6, there are reasonable reasons for condoning the delay in preferring this Appeal. We therefore, condone the delay in preferring this L.P.A. No. 642 of 2017.
3. This Interlocutory Application is allowed and disposed of.
L.P.A. No. 642 of 20171. By consent of the learned counsels for both the sides, this Letters Patent Appeal is taken up for hearing.
22. This Letters Patent Appeal has been preferred by the original petitioner, being aggrieved and feeling dissatisfied by the judgment and order delivered by the learned Single Judge in W.P.(S)No. 617 of 2012 dated 8th March, 2017 whereby, the order of punishment-dismissal passed by the disciplinary authority has been upheld and hence, the original petitioner has preferred the present Letters Patent Appeal.
3. This appellant, who is a delinquent, was working as Night Guard with the respondents-State. The appellant was suspended on 04.04.2009 and later on chargesheet was also issued which is at Annexure-8 to the memo of this Letters Patent Appeal.
4. Looking to the facts of the case, it appears that the following charges have been framed against the appellant-delinquent:-
(a) Charge No.1 is that the petitioner alongwith another delinquent viz. Ravindra Gope had beaten one Officer, Belaspur Checkpost within the district of Palamau and one register was also taken away by them.
(b) Charge No.2 is about rudeness and indiscipline.
(c) Charge No.3 is that he had given direction to the Police Officer not to conduct enquiry.
(d) Charge No.4 is that if his demands are not satisfied by the Deputy Commissioner, Palamau he will commit self- immolation.
(e) Charge No.5 is that time to time the appellant puts false allegations against the officers for pressuring them and by putting such pressure, he is trying to secure his presence mark in attendance register, even, during the absent period.
(f) Charge No. 6 is that he was putting pressure upon administration by Dharna, strike etc.
(g) Charge No.7 is that the appellant was absent from 23rd November, 2008 without prior permission or without any approval from the higher authorities as well as to the effect that he had cultivated a habit to pressurise the administration by giving threat to commit self-immolation and 3 fast unto death. Even to this effect he has written letters also.
(h) Charge No.8 is that though he was transferred from one district to another district pressure was mounted upon the high ranking officers and ultimately, he was again posted at the same place and though he was absent for a particular period he was insisting for the payment of salary.
5. For the aforesaid charges, enquiry was conducted by the competent officer of respondents-State and the Enquiry Officer gave his report on 31st October, 2009. When any Enquiry Officer conducts enquiry, sometimes they are also getting guidance from the high ranking administrative officers because enquiry ought to be in accordance with law and hence, he sought for guidance from the high ranking administrative officers and thereafter after getting the same, another report was given on 30th December, 2009.
6. On the basis of the Enquiry Officer's report, disciplinary authority passed an order on 2nd August, 2011 after giving an adequate opportunity of being heard and punishment of dismissal was inflicted upon this appellant.
7. This appellant had preferred earlier one writ petition being W.P.(S) No. 2474 of 2009 against the order of suspension and for getting stay against the further proceedings in the departmental proceedings which was not granted by this Court vide order dated 5th August, 2011 because before the matter could be decided by the learned Single Judge, final order of dismissal was already passed, as stated hereinabove on 2nd August, 2011.
8. It further appears from the facts of the case that this appellant had challenged order of dismissal dated 02.08.2011 in W.P.(S) No. 617 of 2012 which was dismissed by the learned Single Judge vide order dated 8th March, 2017 and hence, the present Letters Patent Appeal has been preferred by the original petitioner. Reasons:
9. Having heard counsels for both the sides and looking to the facts and circumstances of the case, it appears that there are as many as eight charges, as stated hereinabove, which are narrated at 4 Annexure-8 page no. 32 of the memo of this Letters Patent Appeal in Hindi Language.
10. Looking to the Enquiry Officer's report, adequate opportunity of being heard was given to this appellant-delinquent. Enquiry Officer has submitted the final report on 30th December, 2009.
11. On the basis of the Enquiry Officer's report again, after giving adequate opportunity of being heard to the delinquent, the disciplinary authority has passed an order dated 2nd August, 2011 and punishment of dismissal has been inflicted upon this appellant.
12. Much has been argued out by the counsel for the appellant that there are more than one reports i.e. 1st report is dated 31st October, 2009 and another report is dated 30th December, 2009. It is contented by the counsel for the appellant that 2nd report has been given at the behest of the high ranking administrative officer, which is not permissible.
This contention is not accepted by this Court mainly for the reason that:
(a) Enquiry Officer has conducted enquiry impartially and after giving adequate opportunity of being heard. The report prepared on 31st October, 2009 is not a final report at all.
(b) Even in the criminal investigation also the Enquiry Officer is getting guidance from the superior officials like Superintendent of Police etc, so as to avoid any procedural illegality, so as to avoid, any patent or latent illegality vis-à-
vis, Governmental circulars/orders/earlier directions, so as to avoid, any error in marshalling the facts and so as to avoid, any applicability of law. Subordinate Officer has all power, jurisdiction and authority to get the guidance from the high ranking administrative officers.
(c) Looking to the report dated 30th December, 2009 nothing has been reflected in the said report that he has mechanically followed the advice of the superior officer. Guidance is one thing and governing the decision is altogether another thing. Enquiry Officer has sought for guidance and he has obeyed the law and has given his final 5 report which is subjective conclusion, based upon objective facts, dated 30th December, 2009 and hence, there is no illegality in grant of his final report dated 30th December, 2009.
13. Thus, it appears that there is no procedural lacuna on the part of the respondents in holding the departmental enquiry. Enquiry Officer's report dated 30th December, 2009 is based upon the evidences on record. We are not sitting in an appeal against the decision given by the Enquiry Officer.
14. It has been held by the Hon'ble Supreme Court in the case of State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya reported in (2011) 4 SCC 584 especially in paragraph nos.7, 8 and 9 as under:
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations.
8. When a court is considering whether the punishment of "termination from service" imposed upon a bank employee is shockingly excessive or disproportionate to the gravity of the proved misconduct, the loss of confidence in the employee will be an important and relevant factor. When an unknown person comes to the bank and claims to be the account-holder of a long inoperative account, and a bank employee, who does not know such person, instructs his colleague to transfer the account from "dormant" to "operative" category (contrary to the instructions regulating dormant accounts) without any kind of verification, and accepts the money withdrawal form from such person, gets a token and collects the amount on behalf of such person for the purpose of handing it over to such person, he in effect enables such unknown person to withdraw the amount contrary to the banking procedures; and ultimately, if it transpires that the person who claimed to be the account-holder was an impostor, the bank cannot be found fault with if it says that it has lost confidence in the 6 employee concerned. A bank is justified in contending that not only the employees who are dishonest, but those who are guilty of gross negligence, are not fit to continue in its service.
9. Several witnesses were examined to prove the charge. One of them was H.S. Sharma who conducted the preliminary enquiry and to whom the respondent had made a statement broadly admitting the facts which constituted the subject- matter of the second charge. I.M. Rawal, who was the cashier and I.C. Ojha, the officiating Branch Manager were also examined. Based upon their evidence, the enquiry officer found the respondent to be guilty of the second charge and that has been accepted by the disciplinary authority. The High Court has interfered with the said finding without expressly holding that the said finding of guilt was erroneous. The High Court has proceeded as if it was sitting in appeal over the departmental enquiry and interfered with the finding on a vague assumption that the respondent must have acted bona fide in an "increasing customer-friendly atmosphere". There was no justification for the Division Bench to interfere with the finding of guilt."
(Emphasis supplied)
15. It has been held by the Hon'ble Supreme Court in the case of State of Meghalaya and Ors. Vs. Mecken Singh N. Marak, as reported in AIR 2008 SC 2862, especially in paragraph nos. 8 and 9 as under:
"8. This Court has heard the learned counsel for the parties at length and in great detail. This Court has also considered the documents forming part of the instant appeal. The competent authority as well as the first appellate authority have concluded that grave misconduct committed by the respondent is satisfactorily proved. The said finding is upheld by the learned single Judge of the Gauhati High Court while deciding the petition filed by the respondent under Article 226 of the Constitution. On re-appreciation of evidence adduced, during the course of the departmental inquiry initiated against the respondent, the Division Bench has also recorded a finding of fact that the respondent had committed serious misconduct. The said finding is a finding of fact which is not liable to be interfered with in the instant appeal.
9. The next question which falls for consideration is whether the competent authority was justified in removing the respondent from service and whether the Division Bench of the High Court was right in remitting the matter to the Appellate Authority for passing appropriate order of punishment short of removal. The record would indicate that the respondent was a senior police officer. He was instructed by his Commandant to go to Shillong to disburse the pay in a vehicle belonging to the department and along with him another police officer was also deputed for safe carriage of pay to be disbursed to the Bn personel posted at Shillong. Further, the respondent was issued 0.38 bore revolver with 12 rounds. It is an admitted position that the respondent was 7 instructed to come back to Bn headquarters by the vehicle of the department along with other police personnel but the respondent disobeyed the instructions and travelled to Bn headquarters in a bus wherein not only he lost cash of Rs. 17,314/- but also his service revolver with 12 rounds of ammunition. Under the circumstances the question arises whether the Division Bench of the High Court was justified in setting aside the order of removal of the respondent from service and remitting the matter to the appellate authority, namely, the Inspector General of Police to consider the question of imposition of appropriate punishment, short of removal from service, commensurate with the gravity of the proven misconduct of the respondent. A Court or a tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment is not commensurate with the proved charges. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons, The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the Appellate Authority unless shocking to the conscience of the Court, cannot be subjected to judicial review. In the impugned order of the High Court no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. While considering the question of proportionality of sentence imposed on a delinquent at the conclusion of departmental inquiry, the Court should also take into consideration, the mental set up of the delinquent, the type of duty to be performed by him and similar relevant circumstances which go into the decision making process. If the charged employee holds the position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct, in such cases has to be dealt with iron hands. The respondent belonged to a disciplined force. He was supposed to carry out instructions given to him by his superior. Not only he flouted the instructions but conducted himself in such a manner that he caused loss of part of pay to be deposited with the exchequer and loss of service revolver with ammunition which could be misused. When a statute gives discretion to the administrator to take a decision, the scope of judicial review would remain limited. The proved charges clearly established that the respondent, who was a police officer failed to discharge his duties with utmost integrity, honesty, devotion and diligence and his acts were prejudicial to the exchequer and society. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the Court, normally the disciplinary authority or the Appellate Authority should be 8 directed to reconsider the question of imposition of penalty. The High Court in this case, has not only interfered with the punishment imposed by the disciplinary authority in a routine manner but overstepped its jurisdiction by directing the Appellate Authority to impose any other punishment short of removal. By fettering the discretion of the Appellate Authority to impose appropriate punishment for serious misconducts committed by the respondent, the High Court totally misdirected itself while exercising jurisdiction under Article
226. Judged in this background, the conclusion of the Division Bench of the High Court cannot be regarded as proper at all. The High Court has interfered with the punishment imposed by the competent authority in a casual manner and, therefore, the appeal will have to be accepted.
(Emphasis supplied)
16. It has been held by the Hon'ble Supreme Court in the case of The General Manager (P), Punjab & Sind Bank & Ors. v. Daya Singh reported in 2010 (4) JLJR 81(SC) especially in paragraph No. 18 as under:
"18. As held in T.N. C.S. Corporation Ltd. vs. K. Meerabai, (2006)2 SCC 255 the scope of judicial review for the High Court in departmental disciplinary mater is limited. The observation of this Court in Bank of India vs. Degala Sriramulu, (1999)5 SCC 768 are quite instructive:-
"Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. In Union of India vs. H.C. Goel, [AIR 1964 SC 364, (1964) 4 SCR 718] the Constitution Bench has held:-
a. "The High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the 9 respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not".
(Emphasis supplied)
17. It has been held by the Hon'ble Supreme Court in the case of Union of India and others Vs. P. Gunasekaran, as reported in AIR 2015 SC 545 especially in paragraph no. 13 as under:
"13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re- appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;
(vii). go into the proportionality of punishment unless it shocks its conscience."
(Emphasis supplied) 10
18. In view of the aforesaid decisions, once the adequate opportunity of being heard is given to the delinquent and there is no procedural lacuna, while holding the departmental enquiry, the Court will be extremely slow in interfering with the subjective satisfaction, arrived at by the Enquiry Officer and in the facts of the case, we see no reason to interfere with the report given by the Enquiry officer. All the charges levelled against this appellant-delinquent have been held as proved.
19. Disciplinary authority viz. Secretary, Animal Husbandry Department has passed an order on 02.08.2011 of dismissal of this appellant. Much has been argued out by the counsel for the appellant that infact, he is an appellate authority and therefore, subordinate officer to the post of Secretary, Animal Husbandry Department ought to have passed the order.
We are not accepting this contention also mainly for the reason that the requirement under the Constitution is that the Employee/Officer who is delinquent, against whom the enquiry is conducted for misconducts, and when any disciplinary authority is taking action, he must be superior to the delinquent. How much superior he should be, is not to be looked into. It is an admitted fact in this case that the disciplinary authority is superior authority than that of appellant-delinquent, which is a requirement under Article 311 of the Constitution of India.
20. Once a departmental enquiry is held to be fair and it has been conducted after giving adequate opportunity of being heard and there is no violation of principles of natural justice, the only question left out to be checked by the court is the quantum of punishment.
21. Looking to the nature of misconducts as narrated in detail at Annexure-8 to the memo of this Letters Patent Appeal (page no. 32) which have been held as proved by the Enquiry Officer's report it appears that they are quite serious and grave in nature. This appellant is claiming to be a Leader of some group. Twice or thrice this Leadership has also been highlighted in the arguments canvassed by the counsel for the appellant.
11It ought to be mentioned that he is a dismissed Leader. It ought to be mentioned that he is a disobedient Leader. It ought to be mentioned that he is such type of Leader that though he is absent and he is seeking salary for the period of absenteeism. He is such a Leader that he is giving threat that if his demands are not fulfilled by the Deputy Commissioner, Palamau, he will commit self- immolation and he will go on "fast unto death". Perhaps, these are not the qualities of a good Leader. He should know the skill and art of negotiation. There is not a single problem which cannot be solved by negotiation whether it is a problem at a district level or at a country level or at international level, but, by committing misconducts as have been proved and by adopting such type of pressurising techniques, befits, not him to be in the government job.
22. It appears that governmental officers are tired of this delinquent hence, we see no reason to hold that the quantum of punishment inflicted upon this appellant, by any stretch of imagination as shockingly disproportionate nor can it be labelled as unreasonably excessive punishment, looking to the nature of misconducts. These aspects of the matters have been property appreciated by the learned Single Judge while deciding W.P.(S) No. 617 of 2012 vide judgment dated 8th March, 2017. We see no reason to take any other view than what is taken by the learned Single Judge.
23. There is no substance in this writ petition and hence, the same is hereby dismissed with a cost of Rs. 25,000/- (Rupees twenty five thousand only). This amount will be deposited by this appellant before the Secretary, Department of Women and Child Development & Social Welfare, Government of Jharkhand, Ranchi, towards the Juvenile Justice Fund. This amount will be deposited in the Bank Account No. 3734498462-5, Jharkhand Juvenile Justice Fund, State Bank of India, Project Bhawan, Hatia, Ranchi, either by cheque or bank draft, within a period of twelve weeks from today, towards Juvenile Justice Fund. This amount shall be utilised for the welfare of the juveniles as per the duties assigned by the State under the Juvenile Justice Act.
1224. A copy of this order will be sent to the:
(a) Secretary, Department of Women and Child Development & Social Welfare, Government of Jharkhand, Ranchi;
(b) Member Secretary, Jharkhand State Legal Services Authority, Nyaya Sadan, Doranda, Ranchi.
25. The matter will be enlisted on 6th August, 2018 only to verify the facts, whether the cost is deposited or not?
(D.N. Patel, A.C.J.) (Amitav K. Gupta, J.) VK/NAFR