Jharkhand High Court
Mirtunjay Kumar vs The State Of Jharkhand on 8 March, 2022
Author: S. N. Pathak
Bench: S.N. Pathak
1
W.P.(S) No. 2257 of 2020 & other cases
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 2257 of 2020
Mirtunjay Kumar .... ..... Petitioner
Versus
1. The State of Jharkhand.
2. The Secretary, Road Construction Department, Govt. of Jharkhand,
Ranchi.
3. The Deputy Secretary, Road Construction Department, Govt. of
Jharkhand, Ranchi.
4. The Under Secretary, Road Construction Department, Govt. of
Jharkhand, Ranchi.
5. The Engineer-in-Chief, Road Construction Department, Govt. of
Jharkhand, Ranchi.
6. The Executive Engineer, Building Division, Dhanbad
. ..... ..... Respondents
W.P.(S) No. 2290 of 2020
Ratenshwar Das .... ..... Petitioner
Versus
1. The State of Jharkhand.
2. The Secretary, Road Construction Department, Govt. of Jharkhand,
Ranchi.
3. The Deputy Secretary, Road Construction Department, Govt. of
Jharkhand, Ranchi.
4. The Under Secretary, Road Construction Department, Govt. of
Jharkhand, Ranchi.
5. The Engineer-in-Chief, Road Construction Department, Govt. of
Jharkhand, Ranchi.
6. The Executive Engineer, Road Division, Bokaro.
. ..... ..... Respondents
W.P.(S) No. 4949 of 2019
Surendra Prasad .... ..... Petitioner
Versus
1. The State of Jharkhand through the Chief Secretary, Ranchi.
2. The Secretary, Road Construction Department, Govt. of Jharkhand,
Ranchi.
3. The Joint Secretary, Road Construction Department, Govt. of
Jharkhand, Ranchi.
4. The Deputy Secretary, Road Construction Department, Govt. of
Jharkhand, Ranchi.
5. The Under Secretary, Road Construction Department, Govt. of
Jharkhand, Ranchi.
6. The Engineer-in-Chief, Road Construction Department, Govt. of
Jharkhand, Ranchi.
. ..... ..... Respondents
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CORAM : HON'BLE MR. JUSTICE DR. S.N. PATHAK
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For the Petitioners : Mr. Ajit Kumar, Senior Advocate Ms. Aprajita Bhardwaj, 2 W.P.(S) No. 2257 of 2020 & other cases Mr. Sameer Sahay & Mr. Vikash Kr. Advs.
For the Respondents : Mr. Sreenu Garapati, SC-III
Mr. P.A.S. Pati, G.A.-II
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5 /08.03.2022 Since the issue involved in these writ petitions are same and
similar, they are heard together and are being disposed of by this common order.
2. Heard the parties.
3. The petitioners, Mirtunjay Kumar and Ratneshwar Das, have challenged the order of punishment contained in Memo No. 4220(S) dated 22.8.2019 and Memo No. 4222(S) dated 22.08.2019 respectively, whereby, penalty of stoppage of three annual increments with cumulative effect has been imposed upon them, with a further direction that they shall not be entitled to get salary for the period of suspension.
Challenge has been thrown to the order contained in Memo No. 4156(S) dated 20.8.2019 by petitioner Surendra Prasad in W.P.(S) No. 4949 of 2019, whereby, he was awarded the punishment of deduction of 5% pension for the next five years.
Further common prayer has been made by all the petitioners to extend the consequential benefits after quashment of the impugned orders. Factual Matrix 4 The factual matrix as delineated in these writ petitions is that the petitioners were appointed on the post of Junior Engineer in the Road Construction Department. While they were continuing in service, they were put under suspension under Rule 3A(1) of the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935 and proceeded departmentally, which was communicated by letter dated 17.11.2008. Memo of charges were served upon the petitioners on 31.10.2009. The charges against all the petitioners, reads as under:-
(a) The hand receipt used for making payments of the labourers did not contain:
(1) The quantity of materials and, (2) the number of labourers.
(b) The voucher did not mention the address of the labourers and mate.
(c) The muster roll Form 21 of the labourers had not been prepared as per T.C. Form-49, due to which mistakes in muster roll could not be pointed out on time, thereby violating Rules 226 & 227 of Public Works Accounts Code.3
W.P.(S) No. 2257 of 2020 & other cases
(d) The due procedure for payment and accounts keeping was not followed.
(e) Acting against the provisions of Rule 3 of the Government Servant Conduct Rules, 1976.
5. To substantiate the aforesaid charges, the Superintending Engineer, was appointed as enquiry officer to enquire into the charges. All the petitioners submitted their detailed replies along with supporting documents before the Enquiry Officer. The petitioners categorically stated that the vouchers concerning them very well mentioned the address of labourers and mates, quantities of material and the number of labourers along with other details. The petitioners also stated that muster roll was prepared by them as per norms and rules and the same were approved and countersigned by the higher authorities. As such, they prayed for their exoneration from the said charges. The enquiry officer proceeded with the departmental enquiry against the petitioners and thereafter submitted his report on 13.3.2010. The enquiry officer has specifically and clearly held that the charges levelled against all the petitioners could not be proved and the petitioners are entitled to be given benefit of the charges not being proved against them, as no provisions of Rule 226 and 227 of the P.W.A. Code had been found to be violated. However, after lapse of few months, the petitioners were surprised to receive second show cause notices for imposing the proposed punishment vide letter no. 3676(S) dated 05.7.2010 in case of Mirtunjay Kumar, letter no. 3668(S) dated 03.7.2010 in case Ratneshwar Das and letter no. 3677(S) dated 5.7.2010 in case Surendra Prasad because of the fact that the disciplinary authority had not accepted the enquiry report and held two charges as proved.
6. In response to the second show cause notices, the petitioners submitted their replies in detail and justified their stand in categorical terms that the addresses mentioned over the concerned vouchers cannot be said to be in-complete, because the persons concerned belonged to small villages, mohallas and locality thus no further detail was required. The petitioners also mentioned that the signature of the witnesses was not required as per norms because the beneficiaries had not made thumb impressions. However, the Disciplinary Authority (Engineer in-in-Chief, Road Construction Department) without considering the replies submitted by the petitioners, imposed three punishments upon the petitioners, which are:- (1) stoppage of three annual 4 W.P.(S) No. 2257 of 2020 & other cases increments with cumulative effect; (2) no payment of any amount over and above subsistence allowance for the period of suspension; and (3) Post at none works post for next three years.
7. Thereafter the petitioners challenged the punishment order before appellate authority and when no decision was taken on their appeals, the petitioners preferred writ petitions, being W.P.(S) No. 3134 of 2011, W.P.(S) No. 3132 of 2011 and W.P.(S) No. 3126 of 2011 respectively before this Court.
8. During pendency of the aforesaid writ petitions before this Court, the appellate authority vide order contained in Memo No. 8610(S) dated 24.12.2011 decided the respective appeals of the petitioners, whereby the original punishment orders dated 25.8.2010, 23.08.2010 and 24.08.2010 respectively were modified to the extent that only first two punishments were maintained as it is, while third punishment of posting on non-work post was deleted. This appellate order was also challenged by the petitioners by filing amendment application in the aforesaid writ petitions.
Meanwhile petitioner Surendra Prasad retired from service on 31st January, 2017.
9. All the aforesaid three writ petitions along with other analogues matters were heard together and after hearing the learned counsel for the parties, by order dated 18.3.2017, this Court has been pleased to quash and set aside the order passed by the disciplinary authority, as well as the appellate authority, holding inter alia that the disciplinary authority while differing with the findings of the enquiry officer has not given cogent reasons of disagreement before infliction of punishment to the petitioners and second show cause is at variance with the original charges levelled against the petitioners. However, liberty was reserved with the respondents to proceed afresh against the petitioners from the stage of issuance of fresh second show cause notice, indicating tentative disagreement with the findings of the enquiry report and conclude the same within six months.
10. Thereafter, in compliance of the directions passed by this Court, the respondents issued show cause to the petitioners on 21.5.2018, 21.05.2018 and 17.4.2018 respectively quoting the same charges as was mentioned in the earlier second show cause notices which were criticized by this Court. The petitioners submitted their replies with supporting documentary proof. The 5 W.P.(S) No. 2257 of 2020 & other cases disciplinary authority without considering the replies submitted by petitioners, Mirtunjay Kumar and Ratneshwar Das, imposed same punishment as had been earlier imposed upon them i.e. for stoppage of three annual increments with cumulative effect and they shall not be entitled for anything other than subsistence allowance during the period of suspension.
11. So far as petitioner Surendra Prasad is concerned, though he was initially exonerated from the charges, as would be evident from the Notification No. 914(S) dated 8.2.2019, the Department reviewed its earlier order of exoneration of the said petitioner from the charges and held him guilty and an order of recovery of 5% of pension for next five years was imposed upon him vide notification no. 4156(S) dated 20.8.2019. This punishment order has been issued under the provisions of Rule 43(b) of Jharkhand Pension Rules.
Having no option left, all the petitioners approached this Court for redressal of their grievances. This Court having found prime facie case in favour of the petitioners, stayed the operation, implementation and execution of the impugned orders.
Argument advanced by Petitioners.
12. Learned senior counsel appearing on behalf of the petitioners submit that the entire exercise of imposition of punishment upon the petitioners in the present facts and situation of the case is totally illegal, arbitrary and in violation of the well-known rules of the principle of natural justice. Learned senior counsel further submitted that the first impugned punishment orders dated 25.8.2010, 23.08.2010 and 24.08.2010 respectively, whereby the disciplinary authority imposed the punishment of withholding of three increments with cumulative effect and no payment of salary for the period of suspension, while disagreeing with the report of the inquiry officer was absolutely illegal and contrary to the law laid down and reiterated by the Hon'ble Supreme Court in catena of judgments, the leading case being Punjab National Bank Vs. Kunj Bihari Mishra, reported in (1998) 7 SCC
84. While referring to some of paragraphs of the said celebrated judgment, the learned senior counsel submits that whenever the disciplinary authority disagrees with the enquiry officer, whereby the delinquent officer was exonerated of the charge, as they were not found proved, then before it records its own findings on such charge, it must record its tentative reasons 6 W.P.(S) No. 2257 of 2020 & other cases for such disagreement and give to the delinquent officer an opportunity to represent before recording its findings. Finding these material things absent, a Coordinate Bench of this Court, in earlier round of litigation, has been pleased to quash and set aside the earlier first impugned punishment orders dated 25.8.2010, 23.08.2010 and 24.08.2010 respectively. However, liberty was reserved with the respondents to start the departmental proceeding afresh, from the stage of issuing of second show cause notice and conclude it within six months. Learned senior counsel further submits that the respondents in complete disobedience of the order passed by this Court in earlier round of litigation issued second show cause notice to the petitioners quoting the same contents and in same fashion and manner, that too after lapse of more than a year. Learned counsel further adds that the second show cause issued to the petitioners, pursuant to direction of this Court, is the replica of the earlier second show cause, when this Court in earlier round of litigation has already been pleased to quash and set aside the impugned penalty order, based on second show cause notice, as the same was issued without recording the reasons of disagreement of charges. Learned senior counsel further submits that without considering either the enquiry report or the replies submitted by the petitioners to the second show cause notice, the disciplinary authority has passed the impugned penalty order. As such, the impugned punishment orders passed against the petitioners are illegal, inasmuch as, the disciplinary authority came to the finding of the petitioner's guilt first and pre-judged the issue by deciding punishment impugned and issued second show cause quoting the punishment order, that too when the petitioners were fully exonerated by the enquiry officer. Learned counsel adds that when the disciplinary authority decided to disagree with the findings recorded by the enquiry officer, the disciplinary authority should have waited for response/representation of the delinquent and then only he could have issued notice quoting the proposed punishment. Issuance of the said second show cause notices dated 21.5.2018, 21.05.2018 and 17.4.2018 respectively, amounts to post decisional hearing, as it has been specifically held by the Hon'ble Supreme Court that before reaching to a finding and imposing a punishment the disciplinary authority must have given an opportunity to the delinquent to place their case. Learned senior counsel submits that the impugned punishment imposed upon the petitioners is harsh and 7 W.P.(S) No. 2257 of 2020 & other cases disproportionate and cannot be sustained as the disciplinary authority having not show caused the petitioners for differing with the findings of the inquiry officer. Lastly, learned counsel submits that once the initial punishment orders passed by the disciplinary authority holding the petitioners guilty of the charges itself was bad and quashed and set aside by this Court in earlier round of litigation, the subsequent action taken based on such finding is per se illegal and the same is also fit to be quashed and set aside.
13. In addition to that, learned senior counsel on behalf of petitioner Surendra Prasad submits that this petitioner was charge-sheeted for the same allegation as that of petitioners Mirtunjay Kumar and Ratneshwar Das, and thereupon after full exoneration in the enquiry proceeding, second show cause was issued without recording the reasons of disagreement by the disciplinary authority and he was imposed with the same penalty. This petitioner also challenged the penalty order in W.P(S) No. 3126 of 2011, which was disposed of by the same common order. Thereafter, after issuance of second show cause notice and reply filed by him, this petitioner was exonerated by the disciplinary proceeding (Engineer-in-Chief, Road Construction Department) vide notification contained in Memo no. 915 (S) dated 08.02.2019 and the departmental proceeding was ordered to be closed. Learned counsel submits that after retirement, the Department on its own reviewed its earlier order of exoneration of this petitioner and vide notification no. 4156(S) dated 20.8.2019 held him guilty and an order of recovery of 5% of pension for next five years was passed under the provisions of Rule 43(b) of the Jharkhand Pension Rules, although no such notice under Rule 43(b) of the Jharkhand Pension Rules was ever served to the petitioner. Learned senior counsel relying on a judgment of the Patna High Court in the case of Bihar State Electricity Board Vs. Braj Mohan Prasad, reported in 2004(2) PLJR 291 submits that once an order of punishment was passed and given effect to, cannot be enhanced to the detriment of the delinquent. Learned counsel further submits that in a catena of judgments rendered by the Hon'ble Apex Court, including in the case of State of Assam & Anr. Vs. J.N. Roy Biswas, reported in (1976) 1 SCC 234, it has been held that in absence of the Rule, in no case the authority can review or revise the earlier order passed in a concluded departmental proceeding. Learned senior counsel further submits that in case of petitioner Surendra Prasad, the departmental 8 W.P.(S) No. 2257 of 2020 & other cases proceeding was concluded by the order of the disciplinary authority i.e. the Engineer-in-Chief, Road Construction Department and the said order was reviewed by the order of Joint Secretary to the Government, Road Construction Department, who is not the disciplinary authority to review the punishment order.
14. Considering the other aspect of the case, learned counsel submits that while the punishment order was inflicted upon petitioner Surendra Prasad, he had already retired and as such, before imposing punishment, he should have been issued notice under Rule 43(b) of the Jharkhand Pension Rules, but in the given case, the same procedure was totally absent and in such situation, the impugned order of punishment is also fit to be quashed and set aside by this Court on this count alone.
Arguments advanced by Respondents
15. Controverting the submissions made on behalf of the petitioners, learned counsel representing the respondent State submits that after conclusion of the inquiry, the enquiry officer submitted his report on 13.3.2010, though exonerating the petitioners from the charges. The disciplinary authority, however, while recording the disagreement from the report of the inquiry officer held the petitioners guilty of the charges by orders dated 25.8.2010, 23.08.2010 and 24.08.2010 (earlier) and imposed the punishment of withholding of increments for three years and no salary shall be made to the petitioners during the period of suspension. Learned counsel submits that report of the enquiry office is not binding upon the disciplinary authority and it is open to the disciplinary authority to come to its own conclusion on the charges. Justifying the impugned punishment, learned counsel submits that while imposing the order of punishment, the disciplinary authority referring to the report of the inquiry officer, pointed out that the inquiry officer did not take care of hand receipts submitted by the petitioners, which had no signature of the witnesses. Learned counsel further submits that finding these defects in the enquiry report and disagreeing with his report, the disciplinary authority imposed the aforesaid punishment. Learned counsel also submits that in compliance of the direction by this Court in earlier round of litigation, the respondents issued second show cause after recording the reasoning of difference of the enquiry officer after affording adequate opportunity to represent their cases, impugned penalty was issued against 9 W.P.(S) No. 2257 of 2020 & other cases them. Learned counsel further submits that in view of the nature of allegation and gravity of the charge, punishments as imposed are justified in the facts and circumstances of the case. So far as reviewing the punishment order against petitioner Surendra Prasad is concerned, learned counsel submits that the exercise of power with the aid of the Rules in the present case cannot be said to be without authority of law or void, as the Joint Secretary to the Government, Road Construction Department is the competent authority to review such penalty order.
Findings of the Court.
16. Having heard learned counsel for the parties at the bar and having gone through the relevant records, I find that it is an admitted position that all these petitioners, while working as Junior Engineer, Road Construction Department, were proceeded departmentally in the year 2009 and were exonerated by the enquiry officer in a full-fledged enquiry. The enquiry officer was the Superintending Engineer, National Highway Circle, Ranchi. The enquiry officer in clear terms opined that none of the charges were found to be proved. But the disciplinary authority without assigning the reasons of disagreement of the charges, found the charges proved and asked the petitioners to show cause on the following grounds:-
(a) The copy of hand receipts submitted by the petitioners along with his written statement had incomplete address and;
(b) The said hand receipt did not contain the signature of the witnesses.
17. The disciplinary authority by issuing second show cause to the petitioners, though gave opportunity to them to represent their case but at the same time, the disciplinary authority with a pre-judged mind, quoted the proposed punishment to be imposed upon the petitioners. The petitioners replied to the show cause notices stating therein that the grounds for establishing the charges as mentioned by the disciplinary authority is at variance with the original charges levelled against the petitioners but the disciplinary authority without applying his mind on the entire matter and without considering the replies submitted by the petitioners, imposed the penalty of stoppage of three increments with cumulative effect and that they shall not be entitled to get any salary other than subsistence allowance during the period of suspension.
10W.P.(S) No. 2257 of 2020 & other cases
18. The entire exercise was challenged by all the petitioners by filing their respective individual writ petitions and all the writ petitions were heard together and were allowed by a Coordinate Bench of this Court vide order dated 18.3.2017. While allowing all the writ petitions, the Coordinate Bench of this Court by way of citing the celebrated judgements of the Hon'ble Supreme Court and other various judgments, held that the disciplinary authority while differing with the findings of the enquiry officer ought to have given cogent reasons of disagreement before infliction of punishment and the same having not been done, the impugned orders of punishment cannot be legally sustainable and the same was quashed and set aside. However liberty was there with the respondents to proceed afresh from the stage of issuance of fresh second show cause notice to the petitioners, indicating tentative disagreement with the findings of the enquiry officer and to conclude the same within six months.
19. In compliance of the observations made by a Coordinate Bench of this Court, the respondents started the proceeding afresh from the stage of issuance of second show cause, but after lapse of more than a year from the date of the order passed by this Court on 18.3.2017. The respondents- disciplinary authority once again enumerating the same contents / charges as mentioned in the earlier second show cause notices, issued fresh second show cause notice upon the petitioners, mentioning the same proposed punishments, as was there in the earlier notice. The charges, as mentioned, in the fresh second show cause notices dated 21.5.2018, 21.05.2018 and 17.4.2018 respectively are as follows:-
(a) The copy of hand receipts enclosed with the defence statement contain the incomplete address and;
(b) The said hand receipt did not contain the signature of the witnesses.
20. Thereafter, the same punishment of withholding of three increments with cumulative effect and no payment of any amount over and above subsistence allowance for the period of suspension was imposed upon the petitioners Mirtunjay Kumar and Rantneshwar Das. So far as the petitioner Surendra Prasad is concerned, though initially he was exonerated from the charges and departmental proceeding was ordered to be closed however, the same was reviewed by the order of Joint Secretary to the 11 W.P.(S) No. 2257 of 2020 & other cases Government, Road Construction Department and he held the said petitioner guilty and an order of recovery of 5% of pension for next five years was passed against him as he had retired during that time.
21. Now the question arises as to whether once this Court held that the impugned punishment orders are not sustainable in law as the Disciplinary Authority has passed the punishment without giving its cogent reasons of disagreement with the findings of full exoneration of the petitioners by the enquiry officer, the present and same impugned punishment as earlier imposed is sustainable in the eyes of law or not in view of the fact that once again the Disciplinary Authority in the same fashion and manner without recording its tentative reasons of disagreement with the findings arrived at by the enquiry officer has imposed the same punishments.
22. It is well settled that when the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings does not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer, but it is equally well settled that when the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, an opportunity of hearing has to be granted to the charged officer. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of taking defence and opportunity to represent before the disciplinary authority before the said authority varies its view and differs with the enquiry officer's report and records a finding of guilt and imposes punishment on the said officer.
23. In the case at hand, earlier the disciplinary authority without assigning any cogent reasons for differing with the findings of the enquiry officer, by which, the petitioners were fully exonerated, issued second show cause notices and finally held the petitioners as guilty of the charges. The concerned second show cause notices even contained the penalties proposed to be inflicted upon the petitioners and the final punishment order was passed in the same line. The said punishment orders were quashed and set aside by a Coordinate Bench of this Court in earlier round of litigation with the observation that the respondents may proceed afresh with the departmental proceeding from the stage of issuing second show cause notice. Once again, 12 W.P.(S) No. 2257 of 2020 & other cases the respondents in the same manner and fashion, committed same act of issuing second show cause notice without giving any reasons for disagreement from the findings arrived at by the enquiry officer and again the same punishments have been imposed upon the petitioner Mirtunjay Kumar and Ratneshwar Das vide notifications dated 22.08.2019. In both the orders, the said petitioners were held guilty by the disciplinary authority on the charges that there is incomplete address and signature of the witnesses in hand receipts submitted the petitioners. In this context, Rule 86 of the P.W.A. Code, is quoted herein below:-
"That person actually making the payments should make initial and date, payment certificate in case of works, the accounts of which are kept by sub head the account chargeable to each sub head should be specified by the Disbursing Officer. Payment should be attested by some known person when the payee, acknowledgment is given of mark seal or thumb impression."
24. From bare reading of the aforesaid provision, it is clear that there is no requirement of signature of witnesses where the beneficiary itself is signing and the witness signature is required only when the beneficiary is making a thumb impression. Therefore, the charges, having being found to be proved by the disciplinary authority, are baseless and without application of mind.
25. In the facts and situation of the case, it can conveniently be said that the procedures adopted by the respondents in departmental proceeding are dehors the Rules. Once the Enquiry officer has taken note of the fact that the charges levelled against the petitioners could not be proved and the petitioners were given benefit of the charges not proved against them, the disciplinary authority should have essentially given the tentative reasons of disagreement from the findings of the Enquiry Officer before infliction of punishment against the petitioners, however such condition has not been fulfilled and there is no compliance of the said mandatory condition. Law is well settled, in a catena of judgments of the Hon'ble Supreme Court that the tentative reasons for disagreement must be recorded by the disciplinary authority in the cases when it seeks to differ with the view of the Enquiry Officer and before he passes order of punishment. In the case of Managing 13 W.P.(S) No. 2257 of 2020 & other cases Director, ECIL & Ors. v. B. Karunakar & Ors., reported in (1993) 4 SCC 727 the Hon'ble Supreme Court has held that:
"26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the 5 findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it."
26. Further in case of Ram Kishan v. Union of India, reported in (1995) 6 SCC 157, the Hon'ble Apex Court has held as under :
14W.P.(S) No. 2257 of 2020 & other cases "10. ............. The purpose of the show-cause notice, in case of disagreement with the findings of the inquiry officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the inquiry officer for the reasons given in the inquiry report or he may offer additional reasons in support of the finding by the inquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show cause on the basis of which the findings of the inquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the inquiry officer. In the absence of any ground or reason in the show-cause notice it amounts to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the disciplinary authority cannot cure the defect."
27. The Hon'ble Apex Court in case of Punjab National Bank & Ors. v. Kunj Behari Misra, reported in (1998) 7 SCC 84, has held that:
"Whenever the disciplinary authority disagrees with the enquiring authority on any article of charge then before it records its findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry office containing its findings will have to be conveyed and the delinquent office will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."
28. There is another aspects of the matter, which vitiates the entire proceeding conducted against the petitioners. It is apparent that all the petitioners were charge-sheeted for the same charges, but petitioner Surendra Prasad was exonerated by the disciplinary authority itself by notification dated 8.2.2019 and the departmental proceeding was ordered to be closed as against him. But later on the said order dated 08.02.2019 was reviewed by the order of the Joint Secretary to Government, Road Construction Department and a recovery of 5% of pension for next five years was ordered under the provisions of Rule 43(b) of the Jharkhand Pension Code. Admittedly, no show cause notice was issued to the said petitioner under 15 W.P.(S) No. 2257 of 2020 & other cases Rule 43(b) of the Pension Rules before infliction of such punishment, which is the requirement of law.
29. It is true that the Hon'ble Apex Court in some cases have sustained certain orders of review of punishment in exceptional cases, but the position in law still remains the same that in absence of power of review an order of punishment once passed and given effect to, cannot be enhanced to the detriment of the delinquent. The said review order was to be passed only on the opinion of the Department but the same has been passed by the officer other than the disciplinary authority, which is not permissible in the eyes of law. This aspect of the matter in fact stands settled by the Hon'ble Supreme Court of India in the case of State of Assam and Anr. Vs. J.N. Roy Biswas, reported in (1976) 1 SCC 234, wherein it has been held at para-4 as under:-
"We may however make it clear that no government servant can urge that if for some technical or other good ground, procedural or other, a second enquiry cannot be launched. It can be; but once a disciplinary case has closed and the official reinstated, presumably on full exoneration a chagrined Government cannot restart the exercise in the absence of specific power to review or revise, vested by rules in some authority. The basics of the rule of law cannot be breached without legal provision or other vitiating factor invalidating the earlier enquiry. For the present, this is theoretical because no such deadly defect is apparent on the record."
(emphasis supplied)
30. This issue has further been fortified by a judgment of the Division Bench of the Patna High Court in the case of Bihar State Electricity Board Vs. Braj Mohan Prasad, reported in 2004(2) PLJR 291, wherein, it has been held that :-
" It cannot be laid down as absolute proposition of law that in absence of the Rule in no case the authority can review or revise the earlier order passed in a concluded departmental proceeding. The situation may arise whether the earlier order has been passed either in total breach of principles of natural justice or in breach of the Rules regarding conduct of the disciplinary proceeding or is based on forged and fabricated documents or suppression of material evidence. In such a situation second enquiry is not barred. But in absence of rule, the authority cannot have power to reopen the concluded departmental proceeding only for the purpose of reconsideration of the 16 W.P.(S) No. 2257 of 2020 & other cases matter on the ground that on reconsideration a different view could be taken or that after a second thought a decision has been taken to reopen the proceeding. In the case of J.N. Roy Biswas (supra) the Rule did not permit to reopen finally concluded departmental proceeding. Dealing with the said matter the Apex Court held that in absence of the Rule once a Disciplinary proceeding concluded and employee has been exonerated the proceeding cannot be reopened or reviewed except in special circumstances showing deadly defect on the record i.e. if some technical and other procedural or other good ground or infirmities were there in the earlier proceeding. In this connection it is useful to refer paragraph 4 of the judgment which runs as follows:
"We may however make it clear that no Government servant can urge that if for some technical or other good ground, procedural or other, the first enquiry or punishment or exoneration is found bad in law that a second enquiry cannot be launched. It can be; but once a disciplinary case has closed and the official re- instated, presumably on full exoneration, a chagrined Government cannot re-start the exercise in the absence of specific power to review or revise, vested by rules in some authority. The basics of the rule of law cannot be breached without legal provision or other vitiating factor invalidating the earlier enquiry. For the present, this is theoretical because no such deadly defect is appearing on the record."
31. Admittedly, in the present case also, the same misconduct was gone into by the respondent authority while passing the earlier order of punishment against the petitioner. Therefore, this Court is in full agreement with the view that if the initial action is not in consonance with law, the subsequent proceeding will not sanctify the same. Once the basis of the proceeding is vitiated by exonerating the petitioners in the enquiry proceeding, all consequential acts, action, orders are automatically set aside and this principle of consequential order is applicable to judicial and quasi judicial proceeding.
32. As a sequel of the aforesaid rules, guidelines, judicial pronouncements and facts and circumstances, this Court is of the view that the impugned order dated 22.8.2019 passed in W.P.(S) No. 2257 of 2020 and W.P.(S) No. 2290 of 2020, as also the impugned order dated 20.8.2019 passed in case of petitioner of W.P.(S) No. 4949 of 2019 are not tenable in the eyes of law and as such, the same are hereby quashed and set aside. The 17 W.P.(S) No. 2257 of 2020 & other cases respondents are directed to extend all consequential benefits with back wages to the petitioners, which the petitioners are legally entitled, within a period of six weeks from the date of receipt/ production of a copy of this order. It is made clear that if any amount towards pension has been recovered from petitioner Surendra Prasad, the same shall be refunded to him within the aforesaid period.
Resultantly, the writ petitions stand allowed.
(Dr. S. N. Pathak, J.) RC