Jharkhand High Court
Jaibind Kumar Son Of Sri Kishori Singh At ... vs The High Court Of Jharkhand At Ranchi ... on 21 August, 2018
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar, Rongon Mukhopadhyay
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 374 of 2016
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Jaibind Kumar son of Sri Kishori Singh at present resident of C/o Shri Madan Sahu Chhatar Bagicha, P.O-Lohardaga, P.S & District Lohardaga, Jharkhand-PIN-835302 .........Appellant
-Versus-
1. The High Court of Jharkhand at Ranchi through its Registrar General having office at Doranda, P.O & P.S Doranda, Town and District Ranchi, Jharkhand PIN 834002
2. The Principal District & Sessions Judge, Civil Courts Lohardaga, having office at P.O, P.S & District-Lohardaga, Jharkhand-PIN- 834302
3. Sri Sanjay Prasad son of not known to the petitioner/appellant, the then Principal District and Sessions Judge, Lohardaga-Cum- Disciplinary Authority, presently posted as the Principal District & Sessions Judge, Bokaro having office at Civil Courts Bokaro, P.O and P.S and District Bokaro, Jharkhand
4. The Enquiry Officer Cum the then District Judge-I, Civil Courts Lohardaga presently posted as Labour Judge at Labour Court Doranda Ranchi, P.O Doranda, District Ranchi-PIN-834002
5. Sri Shesh Nath Singh son of not known to the petitioner/appellant the then judge in charge Civil Courts Lohardaga presently posted as District Judge, Civil Courts Jamshedpur, District East Singhbhum, Jharkhand
6. The State of Jharkhand, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand, Project Building, Dhurwa, Ranchi ....... Respondents
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
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For the Appellant : Mr. Anil Kumar Sinha, Adv.
Mr. Ashish Kumar, Adv.
For the Resp. No.1 : Mr. Rajiv Ranjan Mishra, Adv. For the Resp. No.2 : Mr. Atanu Banerjee, Adv.
For the Resp. No.6 : Mr. Vikash Kumar, Adv.
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11/Dated:21 August, 2018
st
Oral Order
The appellant is aggrieved of order dated
03.08.2016 by which the writ petition preferred by him, challenging the enquiry report dated 10.01.2013, punishment of dismissal from service vide order dated 12.08.2013 and the appellate order which was communicated to him vide letter dated 28.07.2015, has been dismissed.
2. Briefly stated, the appellant who was appointed as Clerk on 16.03.2000 while posted as Bench Clerk in the Court of Munsif, Civil Courts, Lohardaga was issued a show-cause notice on 08.05.2012 on the allegation that the 2 records of Title Suit No.07 of 2001 were found missing due to his negligence, dereliction of duty etc. which amount to gross misconduct. He submitted his reply on 14.05.2012 taking a stand that records of the said case were taken out by Mr. Fataul Rahman, counsel for the plaintiffs and the plaintiff no.2-Seraj Ansari for carrying out amendment in the plaint and he was not responsible if some of the documents were missing from the records. He was placed under suspension vide Memo dated 31.05.2012. Vide Memorandum dated 12.06.2012 a departmental proceeding was initiated against him and he was directed to submit his show-cause reply within 10 days. However, on a plea that either he was engaged in some personal works or undergoing treatment he did not submit his reply; finally through letter dated 11.10.2012 he has submitted his written defence. During the departmental enquiry show- cause notices were issued to him, however, when he did not participate in the enquiry, on 18.08.2012 a notice was published in the daily newspaper directing him to appear in the departmental proceeding. Still, he did not participate in the departmental enquiry. Thereafter, the enquiry continued ex-parte and an enquiry report was submitted on 10.01.2013. Second show-cause notice was issued to him which was published in the newspaper on 06.05.2013, however, the appellant did not respond to it. Finally, punishment of dismissal from service was inflicted upon him by the disciplinary authority by an order dated 12.08.2013 and his appeal preferred against the punishment of dismissal from service was rejected by the Standing Committee of the High Court of Jharkhand which was communicated to him through letter dated 27/28.07.2015.
3. In the mean-time, with a grievance against the ex-parte enquiry the appellant came to this Court in W.P.(S) No.3219 of 2013 for a direction for re-opening the departmental enquiry. During pendency of the writ petition the order of punishment of dismissal from service was passed on 12.08.2013 and, therefore, he filed an application for amendment vide I.A. No.6487 of 2013. This 3 application was dismissed and the writ petition was disposed of vide order dated 23.04.2014 with liberty to the appellant to challenge the punishment of dismissal from service before the appropriate forum. Subsequently, the appellant has filed appeal before the Standing Committee on 30.04.2014.
4. Writ Court's powers to interfere with the orders passed in a departmental proceeding is very limited. In exercise of powers under Article 226 of the Constitution of India the writ Court does not interfere with the conclusions of the departmental authorities, for the High Court is not constituted in a proceeding under Article 226 as a court of appeal [refer "State of Andhra Pradesh and Others Vs. Chitra Venkata Rao" reported in (1975) 2 SCC 557]. The learned Single Judge while adjudicating challenge to the punishment of dismissal from service apparently was conscious of the aforesaid limitations of the writ Court. In paragraph no.6 of the impugned order dated 03.08.2016 the learned Single Judge has referred to the decision in "State of U.P and Others Vs. Raj Kishore Yadav and Another" reported in (2006) 5 SCC 673 wherein the Supreme Court has observed that; "......it is a settled law that the High Court has limited scope of interference in the administrative action of the State in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India, and, therefore, the findings recorded by the enquiry officer and the consequent order of punishment of dismissal from service should not be disturbed...".
5. It is in this context of the limited powers of the writ Court that this Court exercising powers under Letters Patent needs to examine correctness of the impugned order dated 03.08.2016 passed in W.P.(S) No.3872 of 2015. However, in fairness to the appellant on whose behalf some arguments on legality of the order of punishment have also been advanced, we propose to record the plea urged on his behalf to challenge the order of punishment.
46. The appellant has raised two fold contentions;
(i) the impugned order dated 03.08.2016 is a cryptic order which does not deal with the contentions raised by him, and (ii) he was denied sufficient opportunity during the departmental enquiry to defend himself which has rendered the ex-parte departmental proceeding illegal and on that ground the punishment of dismissal from service is liable to be quashed.
7. Mr. Atanu Banerjee, the learned G.A has contended that the plea raised by the appellant, that serious prejudice has been caused to him during the departmental enquiry, is a mere pretention and he who himself has abstained from the departmental enquiry cannot plead that he was not afforded sufficient opportunity to defend himself. On the limitations of the powers of judicial review of the order of punishment, the learned G.A has referred to decision in "Union of India and Others Vs. P. Gunasekaran" reported in (2015) 2 SCC 610.
8. The appellant has taken a stand that on 05.05.2012 Title Suit No.07 of 2001 was fixed for orders on the application for amendment in the plaint and correction in the list of exhibits and after the order was passed by the learned Munsif records of the case were given to Mr. Fataul Rahman, the learned counsel for the plaintiffs and at that time the plaintiff no.2-Seraj Ansari was with him. After some time he came and gave bunch of papers to him and few hours thereafter he again came and gave another set of papers on the pretext that those papers were mixed with his file. The appellant has asserted that when the Presiding Officer asked him to rectify the list of exhibits he found that some of the documents and depositions were not in the records and therefore he called up Seraj Ansari who admitted that he had taken away the missing documents. Subsequently, the appellant has changed his stand and alleged that the records of Title Suit No.07 of 2001 were sent to the residence of the learned Munsif on the previous day, that is, on 04.05.2012 and how those documents got 5 misplaced he is not aware of and not responsible for missing of the aforesaid documents. During the departmental enquiry separate charges for handing over deposition of witnesses, exhibits vide Exhibits-1 to 13 and Exhibits-A to J/1 and list of witnesses in Title Suit No.07 of 2001 to one of the parties, and those documents were found missing from the records of Title Suit No.07 of 2001, were framed against the appellant. Five witnesses have been examined by the department in support of the charges framed against the delinquent. The office-clerk of the Munsif, Civil Courts, Lohardaga who was examined as P.W 1 has deposed that on receiving the cause-list he submits the case records through the office peon-Puni Das Tana Bhagat to the Bench Clerk. The said Puni Das Tana Bhagat (P.W 2) has affirmed that he brought the case records and handed over the same to the Bench Clerk one day in advance and the cases fixed for 05.05.2012 were also handed over to the Bench Clerk-the delinquent on 04.05.2012. The Munsif-P.W 3, the orderly peon-P.W 4 and one Jitendra Tiwari, an independent witness, who has been examined as P.W 5 have all deposed in support of the charges framed against the delinquent. On the basis of evidences led during the departmental enquiry the enquiring officer has found the charges framed against the delinquent proved. This has led to the punishment of dismissal from service of the appellant.
9. The appellant has taken a stand that on 05.05.2012 he wrote a letter to the Munsif, Lohardaga for lodging a First Information Report against Seraj Ansari and Fataul Rahman who according to him had taken away a part of the records of Title Suit No.07 of 2001. However, in his show-cause reply dated 14.05.2012 there is no whisper of the aforesaid application dated 05.05.2012; his show-cause reply dated 14.05.2012 was his first response to the allegation of dereliction of duty and gross misconduct on account of which records of Title Suit No.07 of 2001 were found missing. The enquiring officer has considered his written defence dated 11.10.2012 6 (para-7) and on the basis of the materials on record has recorded a finding that the charges framed against the delinquent are proved. It has to be kept in mind that the strict rules of evidence are not applicable in a departmental proceeding and to a limited extent even hear-say is admissible, though the departmental authority must be careful in examining such evidence brought before it. About the allegation levelled against the Principal District and Sessions Judge-cum-disciplinary authority, it is pertinent to record that in the present proceeding, on 27.04.2017, it was ordered that notice to respondent nos.3, 4 and 5 is not required to be issued; respondent no.3 is the Principal District and Sessions Judge, respondent no.4 is the enquiry officer and respondent no.5 is the Judge-in-Charge, Civil Courts, Lohardaga. This order has become final. By virtue of order dated 27.04.2017 the appellant is precluded from raising a plea of mala fide against these officers; may be this is a technical ground but then that is how it has to be seen. Moreover, for the first time he has made such an allegation in his Memorandum of Appeal.
10. To support the plea that he was not afforded sufficient opportunity to defend himself, the appellant has pleaded that on 18.06.2012 he submitted an application seeking leave from 19.06.2012 to 28.06.2012, and applications dated 29.06.2012, 02.07.2012 and 11.07.2012 for leave on the ground that he was advised bed rest by the doctors. His application dated 18.06.2012 was for leave from 19.06.2012 to 28.06.2012 for attending Tilak and marriage ceremony and thereafter for attending Dashkarm and Shradh of his mother-in-law who had died on 15.06.2016. Again on 24.07.2012 he submitted an application to the Judge-in-Charge, Lohardaga informing him about his inability to remain present on duty till 05.08.2012 on the ground that he has been advised bed rest by the doctor. For his treatment at Dr. Ram Manohar Lohia Hospital, New Delhi, he has submitted application on 14.08.2012.
711. In the departmental proceeding inspite of show-cause notices issued to him when he did not appear a notice was published in the newspaper on 18.08.2012. The second show-cause notice was also published in the newspaper. The appellant has produced reports of Angiography dated 14.08.2012 and Angioplasty dated 05.09.2012. However, he has not produced any evidence which may indicate that during this period he was admitted in the hospital. Assuming that he was admitted in the hospital during this period, still he has failed to explain his absence in the departmental proceeding till enquiry report was submitted on 10.01.2013 and thereafter till when the second show-cause notice was issued to him. The order passed by the disciplinary authority and the appellate order, both are well-reasoned order.
12. It is well-settled that a departmental authority vested with jurisdiction if has come to a conclusion which can be reasonably supported by the evidence produced before it, the writ Court in exercise of supervisory jurisdiction under Article 226 of the Constitution of India would not interfere with conclusions of the departmental authorities. It is also well-settled that it is not sufficiency of evidence led during the departmental enquiry which is a ground for interference with the order of punishment. During departmental enquiry sufficient opportunities were afforded to the appellant, however, on the one pretext or the other he did not participate in the enquiry. The learned Single Judge has rightly observed that there is no doubt that at any stage of the departmental proceeding there was any violation of rules of natural justice. Once it is found that the appellant was offered sufficient opportunity to defend himself still he did not participate in the departmental enquiry, it was lawful for the enquiring officer to proceed in the matter and it was also lawful for the departmental authority to impose punishment upon the delinquent on the basis of the materials produced before it [refer "Major U.R. Bhatt Vs. Union of India" reported in AIR 1962 SC 1344].
813. Viewed thus, and having scrutinized the entire record placed before us including the writ Court's record, we find ourselves in agreement with the conclusions arrived at by the learned Single Judge, that there is no substance in challenge to the punishment of dismissal from service. The impugned order dated 03.08.2016 passed in W.P.(S) No.3872 of 2015 is a well-reasoned, elaborate order which takes note of brief facts of the case and contentions raised on behalf of the applicant-writ petitioner.
14. In the aforesaid facts and for the reasons indicated hereinabove, we find no merit in this Letters Patent Appeal, and accordingly it is dismissed.
(Shree Chandrashekhar, J.) (Rongon Mukhopadhyay, J.) sudhir