Ashok Kumar vs State of Jharkhand and Others

Rongon Mukhopadhyay, J—In this writ application, the petitioner has prayed for quashing the office order as contained in Memo No. 6013 (S) dated 11.10.2010 issued by the respondent No. 4 whereby and whereunder the petitioner has been inflicted with punishment of:

(i) Stoppage of two annual increments with cumulative effect,

(ii) Non-payment of any other amount except subsistence allowance during the suspension period, and

(iii) Posting of the petitioner for next three years on the post of non-work post (as contained in Annexure-11 to this writ application).

The petitioner has also prayed for quashing letter No. 4682(S) dated 02.08.2011 issued by the respondent No. 3 whereby and whereunder the appeal preferred by the petitioner had been rejected. Challenge has also been made to Memo No. 938 dated 20-8-2011 issued by me respondent No. 5 wherein it has been stated that pay increment to the petitioner will be made available from 01.07.2009, 01.07.2010, 01.07.2011 and 01.07.2012 and the office order No. 52 as contained in Memo No. 793 dated 20.07.2011 granting increment in pay with effect from 01.07.2011 had been withdrawn.

The petitioner while posted as a Junior Engineer at Bundu Block under the Road Construction Department, Government of Jharkhand in the year 2008 was assigned the work of rural development at block level. An explanation was sought for from the petitioner and others vide letter No. 904 dated 07.05.2008 with respect to non-payment of wages in the construction of ponds at village Dumra Toli, Gitildih under NREGA Scheme. In the said letter certain irregularities with respect to non-maintenance of muster roll and in regard to implementation of the scheme was pointed out wherein the petitioner and others were asked to give an explanation. The explanation as sought for was submitted by the petitioner to the Deputy Commissioner, Ranchi which was forwarded by the Deputy Commissioner, Ranchi vide letter dated 10.12.2008 to the Commissioner, State Rural Employment Guarantee Scheme (respondent No. 6) wherein it was also indicated that with respect to maintenance in muster roll and other irregularities there seems to be no fault on the part of the officers and employees concerned; and that the explanation so submitted can be accepted. However, the Joint Secretary, Rural Development Department, Government of Jharkhand vide letter No. 2255 dated 24.03.2009 addressed to the respondent No. 2 held the petitioner prima facie responsible for laches in supervision. Consequent thereto vide office order as contained in Memo No. 1778 (S) dated 04.04.2009 issued by the Deputy Secretary, Road Construction Department, Government of Jharkhand, the petitioner was suspended for dereliction of duty. Charge in Format ''Ka'' followed the order of suspension and in spite of explanation submitted by the petitioner, the departmental proceeding was initiated. The report of the Conducting Officer-cum-Additional Collector, Ranchi dated 26.03.2010 mentioned that charge Nos. 1 and 2 were not proved against the accused person, but opinion was given for sorting out various other problems including labour payment. The respondent No. 4, however, issued a second show-cause notice enclosing the inquiry report of the Conducting Officer holding him guilty for dereliction of duty. The petitioner on receipt of letter dated 16.08.2010 gave an explanation vide letter dated 28.08.2010 and thereafter by impugned order as contained in Memo No. 6013 (S) dated 11.10.2010 inflicting several punishments to the petitioner was passed by the respondent No. 4. An appeal was preferred by the petitioner before the respondent No. 2, but however, the Special Secretary, Road Construction Department, Government of Jharkhand vide letter No. 4682 (S) dated 02.08.2011 rejected the appeal and thereafter, the petitioner has preferred the present writ application.

Heard Mr. Md. Sohail Anwar, learned senior counsel for the petitioner and Mr. Prabhat Singh, learned J.C. to A.G.

Mr. Sohail Anwar, learned senior counsel for the petitioner has submitted that even though the charges against the petitioner has not been proved, but in spite of same, the disciplinary authority has disagreed with the findings of the Inquiry Officer as contained in second show-cause notice dated 16.08.2010, although the disciplinary authority has not given any reasons as to what occasioned disagreement with the report of the inquiry officer. It has further been submitted that the petitioner was never given an opportunity to answer the views of the disciplinary authority while disagreeing with the findings of the inquiry officer and in such circumstance it has been contended by the learned senior counsel for the petitioner that the same is in violation of the principles of natural justice. Mr. Sohail Anwar, learned senior counsel has further submitted that the Appellate Order which is scribed by the respondent No. 3 does not contain any reason to justify the dismissal of the appeal. The Appellate Order therefore being a non-speaking order also deserves to be set aside. Learned senior counsel with respect to the office order as issued by the respondent No. 5 as contained in Memo No. 938 dated 20.08.2011 has submitted that the earlier order granting increment in salary has also been withdrawn without giving any notice to the petitioner.

Mr. Prabhat Singh, learned J.C. to A.G. on the other hand, has submitted that the Inquiry Officer did not fully exonerate the petitioner from the charges leveled against him and sufficient reasons were read into the inquiry report by the disciplinary authority to issue a second show-cause notice for proposed punishment to the petitioner. It has further been submitted that the Appellate Order issued by the respondent No. 3 discloses that the order of the disciplinary authority inflicting punishment upon the petitioner had been looked into and thereafter the appeal was dismissed. In such circumstances, it has been submitted by learned J.C. to A.G. that the rules of natural justice were never violated; and that the explanation/show-cause/appeal submitted by the petitioner in the various hierarchy of the authorities were duly taken note of and appropriate orders were passed which were in accordance with law.

It has to be examined on the touch stone of the argument advanced on behalf of both the sides that whether the disciplinary authority was justified in disagreeing with the report of the Inquiry Officer and whether the order passed by the respondent No. 3 dismissing the appeal preferred by the petitioner contains sufficient reasons or not so as to cause interference by this Court.

In the case of " S.P. Malhotra Vs. Punjab National Bank and Others, (2013) 9 AD 205 : AIR 2013 SC 3739 : (2013) 138 FLR 780 : (2013) 9 JT 309 : (2013) 14 JT 388 : (2013) LabIC 4097 : (2013) LLR 897 : (2013) 9 SCALE 113 : (2013) 7 SCC 251 : (2013) 7 SCC(L&S) 673 : (2013) 4 SCT 135 : (2013) 3 SLJ 115 , in the context of non-supply of the copy showing disagreement with the inquiry report, it was held as follows:

"In fact, not furnishing the copy of the recorded reasons for disagreement from the enquiry report itself causes prejudice to the delinquent and therefore, it has to be understood in an entirely different context than that of the issue involved in ECIL."

In the case of G. Vallikumari Vs. Andhra Education Society and Others, AIR 2010 SC 1105 : (2010) 125 FLR 1048 : (2010) 3 JT 75 : (2010) 2 SCALE 1 : (2010) 2 SCC 497 : (2010) 1 SCC(L&S) 406 : (2010) 2 SLR 173 : (2010) 2 UJ 741 , it was held thus:

".........................The requirement of recording reasons by every quasi-judicial or even an administrative authority entrusted with the task of passing an order adversely affecting an individual and communication thereof to the affected person is one of the recognized facets of the rules of natural justice and violation thereof has the effect of vitiating the order passed by the authority concerned."

The second show-cause notice issued by the disciplinary authority dated 16.08.2010 differing with the findings of the Inquiry Officer is virtually a replica of the opinion given by the Inquiry Officer. Nothing has been put forward by the disciplinary authority as to what occasioned or what caused him to record the findings of guilt against the petitioner in the second show-cause notice. This fact has also escaped the attention of the Appellate Authority - respondent No. 3 who had merely in a cryptic and laconic manner has rejected the appeal submitted by the petitioner. The Appellate Order is absolutely devoid of any reason which cannot be sustained in the eye of law.

In the result, while setting aside and quashing the Appellate Order as contained in Memo No. 4682 (S) dated 02.08.2011, the matter is remanded back to the Appellate Authority (respondent No. 3) to consider the appeal preferred by the petitioner in its proper perspective and thereafter pass a reasoned order within the period of 6 weeks from the date of production/receipt of a copy of this order. Since the matter has been remanded back to the respondent No. 3 to decide the issue of appeal afresh and whether the order passed by the disciplinary authority as contained in Memo No. 6013 (S) dated 11.10.2010 is in accordance with law or not, the fate of the office order as contained in Memo No. 938 dated 20.08.2011 which is also under challenge in the present writ application shall be dependent upon the result of the appeal. This writ application is disposed of in the aforesaid terms. Pending I.As. if any automatically stands disposed of.