Jharkhand High Court
Binod Kumar Mandal vs Education on 21 April, 2017
Author: Pramath Patnaik
Bench: Pramath Patnaik
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 4925 of 2012
Binod Kumar Mandal son of Buddhinath Mandal, resident of Satya Nagar,
Near Block Field, North West Corner, Street No.2, P.O., P.S. and District
Godda, (Jharkhand). ..... Petitioner
Versus
1. The State of Jharkhand.
2. The Director, Primary Education, Government of Jharkhand, Project
Building, P.O. Dhurwa, P.S. Jagarnathpur, District-Ranchi.
3. The D.S.E., Godda, P.O., P.S. & District Godda.
4. The Block Education Extension Officer, Godda, P.O., P.S. & District
Godda. ...... Respondents
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CORAM: HON'BLE MR. JUSTICE PRAMATH PATNAIK
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For the Petitioner : M/s Saurav Arun & Mr. Deepak Kr. Dubey, Adv.
For the Respondents : Mr. Rishikesh Giri, J.C. to G.P.II.
CAV on:26th October, 2016 Pronounced on 21/04/2017
Per Pramath Patnaik, J.:
1. In the instant writ application, the petitioner has inter alia prayed for
quashing the memo no.1554 dated 25.05.2012 vide Annexure-12 to the writ
application pertaining to dismissal from services.
2. Shorn of unnecessary details, the facts, as disclosed in the writ
application, is that the petitioner was appointed on 01.08.2006 as Assistant
Teacher, Primary School, Kundaha, Godda East. While continuing as such at
primary school, Sagar Sunderpahari, on the basis of a sham inspection the
petitioner was put under suspension vide letter dated 17.11.2011 on the
ground of absenteeism, and commissions and omissions on the part of the
petitioner. Thereafter, the charge sheet dated 29.11.2011 containing 10
charges were levelled against the petitioner as evident from Annexure-3 to
the writ petition. After receipt of the suspension order the petitioner
submitted his reply repudiating each and every charges levelled against him,
requesting the respondent to exonerate him from all the charges levelled
against him. Thereafter, the enquiry officer conducted enquiry in a very
perfunctory manner without affording reasonable opportunity to the
petitioner nor the petitioner was allowed to adduce any evidence. The
enquiry officer submitted its report. The respondent authorities issued
second show cause notice and the petitioner submitted his reply to the
second show cause notice. Thereafter, the disciplinary authority on the reply
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to the second show cause and the enquiry report dismissed the petitioner
from services vide letter dated 25.05.2012 Annexure-12 to the writ
application. The School Managing Committee which was constituted by the
Government to look into the functioning of the school requested the District
Superintendent of Education vide letter dated 18.06.2012 refuting the
allegations levelled against the petitioner as evident from Annexure-13 to
the writ petition. Left with no other alternative and efficacious remedy, the
petitioner being aggrieved with the impugned order, has invoked the
extraordinary jurisdiction of this Court under Article 226 of the Constitution
of India for redressal of grievances.
3. Learned counsel for the petitioner has strenuously urged that the so
called enquiry report which is the basis for imposition of the impugned order
of punishment of dismissal from services, is perverse since no witness has
been examined by the respondent-enquiry officer nor the villagers have been
examined in the proceeding and the enquiry has been completed in a
summary manner, and the petitioner on the basis of surmises and conjectures
has been held guilty. Learned counsel for the petitioner further submits that
the enquiry officer has exceeded its jurisdiction in recommending infliction
of major punishment, which he was not legally authorized to do. Learned
counsel for the petitioner further submits that the complaints which was
alleged to have been made by the villagers and on the basis of which the
proceeding has been initiated, has not been provided to the petitioner, which
has materially affected in the outcome of the proceeding, therefore, the
proceeding has been vitiated and the punishment basing on this perfunctory
enquiry could not be legally sustainable. Learned counsel for the petitioner
further submits that the imposition of punishment of dismissal from services
does not commensurate to the charges levelled against the petitioner. Hence,
considering the proved misconduct, the punishment inflicted upon the
petitioner is grossly disproportionate, excessive to the alleged charges and
therefore, the petitioner's case ought to be considered afresh, on the
principles of doctrine of proportionality so far as quantum of punishment is
concerned. In this regard, learned counsel for the petitioner has relied upon
the judgment of the Hon'ble Apex Court reported in (2013) 6 SCC 602 (S.R.
Tewari vs. Union of India and Another) (para 24 to 27).
4. The last limb of argument advanced by the learned counsel for the
petitioner is that the entire case is based on no evidence. Starting from very
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initiation of proceeding till its culmination, there has been breach of
principles of natural justice and the findings of the enquiry officer is
perverse and the entire proceeding is based on no evidence. In this respect,
learned counsel for the petitioner has referred to the judgment of the Hon'ble
Apex Court reported in (1999) 2 SCC 10 (Kuldeep Singh vs. Commissioner
of Police and Ors.) (para-6, 9 and 10). Learned counsel for the petitioner
submitted that the enquiry officer has recommended for punishment which is
cryptic and bad in law. In this respect, learned counsel for the petitioner has
referred to the judgment of the Hon'ble Apex Court reported in AIR 1986
SC 1571.
5. Controverting the averments made in the writ application, a counter
affidavit has been filed on behalf of the respondents, wherein it has been
inter alia submitted that the Primary School, Dhopahari, Block-
Sunderpahari was found closed at the time of inspection dated 16.11.2011 by
the Deputy Commissioner, Godda and the petitioner was found absent
without information. The villagers complained to the Deputy Commissioner,
Godda against the petitioner, so the then District Superintendent of
Education, Godda issued a letter vide memo no.17.11.2011 for suspension of
the petitioner. Thereafter, charge sheet has been issued by the then District
Superintendent of Education, Godda and all the allegations have been
proved during the enquiry and the enquiry officer recommended for
punishment to the petitioner. Thereafter, the petitioner submitted his
explanation dated 25.02.2012 accepting his mistake/guilt. Thereafter, on the
basis of the findings of the enquiry officer, the matter was placed before the
meeting of District Education Establishment Committee, Godda and it was
discussed in the Committee on 24.05.2012, and the Committee took entire
matter minutely and passed a resolution to terminate the petitioner from
services as evident from Annexure-C to the counter affidavit.
6. Mr. Rishikesh Giri, J.C. to G.P.II appearing for the State has reiterated
his submission made in the counter affidavit vociferously submitted that if
the teacher is indisciplined, he cannot inculcate discipline amongst the
students. Since most of the charges levelled against the petitioner have been
proved, hence just adequate and proper punishment has been inflicted,
basing on the proved misconduct.
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7. Having heard learned counsel for the parties and on perusal of the
records, it appears that the petitioner has been able to make out a case for
interference, due to the following facts and reasons:
(I) On perusal of the enquiry report, it would be apparent that the
enquiry officer has recommended for imposition of punishment,
which is not duty of an enquiry officer. Law is well settled that the
duty of the enquiry officer is to say, as to whether charges levelled
against the delinquent are proved or not. But, under no circumstances,
the enquiry officer has any authority under law for recommending to
the disciplinary authority regarding imposition of punishment.
(II) It would be apposite to refer the relevant paragraph of the
Hon'ble Apex Curt reported in (2008) 8 SCC 236 (State of
Uttaranchal and Ors. vs. Kharak Singh), wherein at paragraph 18, it
has been held as under:
"18. Another infirmity in the report of the enquiry officer
is that he concluded the enquiry holding that all the
charges have been proved and he recommended for
dismissal of the delinquent from service. The last
paragraph of his report dated 16.11.1985 reads as
under:
"During the course of above inquiry, such facts
have come into light from which it is proved that
the employee who has doubtful character and does
not obey the order, does not have the right to
continue in the government service and it is
recommended to dismiss him from the service with
immediate effect."
(emphasis supplied)
Though there is no specific bar in offering views by the
enquiry officer, in the case on hand, the enquiry officer
exceeded his limit by saying that the officer has no right
to continue in the government service and he has to be
dismissed from service with immediate effect."
(III) That the contention of the petitioner that he has never been
given opportunity of examining, cross examining or adducing
evidences nor he has been given personal hearing in the departmental
proceeding, has not been denied in the counter affidavit. Therefore,
the assertion of the petitioner is bound to be accepted on the ground of
doctrine of non traverse.
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(IV) Upon perusal of the counter affidavit, it would be seen that the
respondents have stated that the decision of termination has been
taken against the petitioner as per the direction given by the Deputy
Commissioner, Godda. But, the Deputy Commissioner is not the
appointing authority and the disciplinary authority is the Deputy
Superintendent of Education, Godda, therefore, at the behest and
dictates of Deputy Commissioner, the District Superintendent of
Education, Godda has terminated the petitioner from services, which
is bereft of application of mind by the disciplinary authority, which
cannot be justified on the touchstone of Article 14 and 16 of the
Constitution of India.
(V) In the instant case the charges against the petitioner is of
absenteeism. The Hon'ble Apex Court in the case of Krushnakant B.
Parmar vs. Union of India and another reported in (2012) 3 SCC
178 in paragraph 17 and 18 has been pleased to hold:
"17. If the absence is the result of compelling
circumstances under which it was not possible to report or
perform duty, such absence cannot be held to be wilful.
Absence from duty without any application or prior
permission may amount to unauthorized absence, but it
does not always mean wilful. There may be different
eventualities due to which an employee may abstain from
duty, including compelling circumstances beyond his
control like illness, accident, hospitalization, etc., but in
such case the employee cannot be held guilty of failure of
devotion to duty or behavior unbecoming of a government
servant.
18. In a departmental proceeding, if allegation of
unauthorized absence from duty is made, the disciplinary
authority is required to prove that the absence is wilful, in
the absence of such finding, the absence will not amount to
misconduct."
8. On cumulative effect of the facts, reasons and judicial
pronouncements, the impugned order of punishment of dismissal dated
25.05.2012vide Annexure-12 being not legally sustainable, is quashed and set aside. However, the matter is remitted to the respondent authorities to start the proceeding afresh by giving opportunity of hearing to the petitioner by supplying all relevant documents and conclude the proceeding in 6 accordance with law, preferably within a period of six months from the date of receipt/production of a copy of the order.
9. With the aforesaid direction, the writ petition stands disposed of.
(Pramath Patnaik, J.) Saket/-