Gopi Oraon vs State Of Jharkhand And Ors

Heard Mr. Rajendra Krishna, the learned counsel appearing on behalf of the petitioner and Mr. Prem Pujari Roy, the learned counsel appearing for

the respondent State.

This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising

due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been

heard.

The petitioner has preferred this writ petition for quashing the order dated 11.04.2019 contained at Annexure-8 whereby the petitioner has been

imposed punishment for withholding two increments with cumulative effect. The prayer is also made for quashing the impugned order dated

11.04.2019 on the ground that imposition of the same is disproportionate to the charges levelled against the petitioner.

The petitioner was posted as Block Development Officer, Mandar at Ranchi. A charge sheet was issued to the petitioner wherein charges has

been levelled as under :

(i) That 1st allegation against the petitioner is that the petitioner has committed gross negligence while exercising the duty as Supervisor upon which

he was deputed to coordinate the work of Civil Services Examination conducted by the Union Public Service Commission.

(ii) The 2nd allegation against the petitioner is that the petitioner in reply to the show cause, has denied the allegation levelled against him and thereby

he has supressed only concealed the realities from the authorities.

(iii) The 3rd allegation/charge against the petitioner is for gross negligence for carrying out the important examination being conducted by the Union

Public Service Commission.

The petitioner has been deputed to distribute the question paper at different centres where the Civil Services Preliminary Examination was to be

held in the year 2015 in the district of Ranchi. The Centre Superintendent who was deputed at Multipurpose Examination Building at Morabadi, Ranchi

has written a complaint to the Commissioner, South Chotanagpur Division, Ranchi in which the allegation was made against the petitioner that instead

of delivering 500 question papers, the petitioner at 7:30 a.m has delivered one black bag in which there was only 300 question papers. The aforesaid

Centre Superintendent has informed about the insufficiency of question papers and thereafter again he was received another bag which had 200

question papers. The aforesaid 500 question papers were although received prior to holding the examination and the examination was conducted

peacefully. The said examination was held on 23.08.2015 and the complaint was made on 27.08.2015. The show cause notice was issued to the

petitioner on 31.08.2015. The petitioner has filed reply on 02.09.2015. The petitioner was served with Prapatra(ka) on 23.10.2015. A departmental

proceeding was initiated. The petitioner appeared in the departmental proceeding. The inquiry report was submitted on 15.06.2017 and found the

charges against the petitioner proved. The second show cause has been issued against the petitioner and the petitioner has filed the reply to the second

show cause. Thereafter, the impugned order has been issued by which the punishment has been imposed upon the petitioner.

Mr. Rajendra Krishna, the learned counsel for the petitioner took the Court to the finding of the enquiry officer. In view of the enquiry report

brought on record, by way of Annexure-6 series, by way of referring the enqiry report, he submits that without adducing any evidence and only on the

basis of conjectures and surmisus the enquiry report has been submited. He submits that the petitioner has produced the receipt of delivery of the

question papers wherein it has been stated that 5 bags have been received in sealed cover. He further submits that the charges against the petitoner

has not been proved whereas only on the basis of conjectures and surmisus the petitioner has been punished by major punishment. To buttress his

arguments, he relied in the case of ""Roop Singh Negi v. Punjab National Bank"" reported in (2009) 2 SC 570. Paragraph nos. 14, 15 and 23 are quoted

hereinbelow :

Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled

against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration

the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused

by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents.

The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry

officer on the FIR which could not have been treated as evidence.

We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported

confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the

police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought

on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence.

The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the

basis that the offence was committed in such a manner that no evidence was left.

Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them

have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the

appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been

taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some

evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of

natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been

sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high

may be, can under no circumstances be held to be a substitute for legal proof.

Per contra, Mr. Prem Pujari Roy, the learned counsel appearing for the respondent State by way of referring paragraph no.6 of the writ petition

submits that the petitioner himself has admitted that there were some confusion that is why there was some delay in delivering the two bags.

He further submits that in the second show cause reply the confusion aspect has been taken. He submits that the charges against the petitioner has

been proved in view of the fact that the Centre Supeintendent has submitted the complaint before the Divisional Commissioner and in that view of the

matter, the charges has been proved against the petitioner. He further submits that for such laches only minor punishment has been imposed against

the petitioner in view of the fact that the examination was being conducted by the UPSC. He submits that it is well settled proposition of law that if the

punishment has been passed on proof, the High Court may restrain from interfering with the punishment order. He refers to the case rendered in the

matter of ""Workmen v. Firestone Tyre & Rubber Co. of India (P) Ltd."" reported in (1973) 1 SCC 813. Paragraph no.32 of the said judgment is quoted

hereinbelow:

From those decisions, the following principles broadly emerge:

(1) The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to

a Tribunal, the latter has power to see if action of the employer is justified.

(2) Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if

applicable, and principles of natural justice. The enquiry should not be an empty formality.

(3) When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced

at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the

decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation,

unfair labour practice or mala fide. (4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the

Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce

evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce

evidence contra.

(5) The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On

the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence

adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial

functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry. (6) The Tribunal gets jurisdiction to consider the

evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an

employer is found to be defective.

(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged

employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.

(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should

ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an

employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the

Tribunal itself to be satisfied about the alleged misconduct.

(9) Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time,

punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.

(10) In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this

Court in Management of Panitole Tea Estate v. Workmens within the judicial decision of a Labour Court or Tribunal.

Thus, there is no doubt and it is well settled that in the departmental proceeding the High Court is very slow in interfering with the punishment order

without any cogent ground.

The Court has perused the enquiry report and finds no evidence has been adduced on behalf of the respondent State to prove the charges against

the petitioner. The documents may be there but the documents are required to be proved by way of leading evidence and not even a single witness

has been examined to prove the charges and this aspect of the matter has been considered by the Hon'ble Supreme Court in ""Roop Singh Negi v.

Punjab National Bank"" case[supra]. The petitioner has produced the receipt showing that on one go he has produced five sealed bags to the said

Centre Superintendent. The conclusion given by the enquiry officer is also on the conjectures and surmises as the investigating officer has opined that

if the petitioner was alert to his duty he was required to deliver the bags by way of sealed box to the Centre Superintendent. Thus, it transpires that

who is guilty in this matter has not been proved in that enquiry proceeding and on reading the enquiry report no prudent person can come to the

conclusion that the charges against the petitioner has been proved, moreover, the punishment is also disproportionate to the charges levelled against

the petitioner.

In view of above discussions, the writ petition succeeds. The impugned order dated 11.04.2019 is quashed.

The matter is remitted back to the respondent no.2 who will take a decision on the proportionity of the punishment against the petitioner in

accordance with law.

The writ petition [W.P.(S) No.3196 of 2019] stands disposed of accordingly.