Nagina Hazari vs The State of Jharkhand and Others

D.G.R. Patnaik, J.—The petitioner is aggrieved with the order dated-16.06.2004, passed by the Respondent No. 4, whereby the punishment of forfeiture of increments in salary for a period of one year, was imposed against the petitioner. Challenging the aforesaid order of punishment as being illegal, the petitioner has also challenged the order dated 03.07.2007, passed by the Appellate Authority, namely, the Respondent No. 3 dismissing the Appeal filed by the petitioner against the impugned order of punishment.

The petitioner''s case in brief is as follows:

The petitioner was posted as a Constable under the District Commandant, Jharkhand Home Guard in the district of Garhwa and was allotted the work of Cash Messenger.

The Disciplinary Authority had found reason to put the petitioner under suspension on the ground of misconduct and to initiate a disciplinary proceeding against him for specific charges.

During the period of his suspension, the petitioner was paid subsistence allowance.

At the conclusion of the enquiry, the Enquiry Officer found the charge against the petitioner not proved.

However, the Disciplinary Authority proceeded to inflict the punishment of stoppage of increment for one year, equivalent of two black marks against the petitioner.

Being aggrieved with the impugned order dated 16.06.2004 inflicting punishment of forfeiture of increments in salary for one year, the petitioner filed an appeal before the Appellate Authority (Respondent No. 3),

During this period, a Notification was issued, whereby upon cadre bifurcation, the petitioner was allotted the Bihar Cadre and wasf relieved from his duty in the State of Jharkhand with effect from 01.04.2005.

Pursuant to the cadre allotment and upon his being relieved from his post in Jharkhand, the petitioner joined his post in Bihar on 06.04.2005.

Since the Appeal filed by the petitioner against the impugned order of punishment was not being disposed of promptly, the petitioner filed a writ application before this Court vide W.P. (S) No. 7849 of 2006. This Court by order dated 06.04.2007, while disposing of the writ application, directed the Deputy Commandant General, Home Guard, Ranchi, namely, the Respondent No. 3 to consider and dispose of the petitioner''s Appeal, which was pending since 2004 and to pass appropriate orders in accordance with law within a period of two months from the date of receipt/production of a copy of the Court''s order.

Pursuant to the directions as contained in the aforesaid writ application, the Appellate Authority disposed of the appeal by passing the impugned order dismissing the same by the impugned order dated-03rd July, 2007.

Assailing both the impugned orders, Mr. Dhananjay Kr. Dubey, learned Counsel for the petitioner would submit inter alia, the following grounds:

(i) Admittedly, the Enquiry Officer did not find the petitioner guilty of the charge levelled against him.

(ii) The Disciplinary Authority was though competent to differ from the findings of the Enquiry Officer and to proceed on the basis of his own findings inferred from the materials on record, but before doing so, it was legally incumbent upon the Disciplinary Authority to serve a second show cause notice upon the petitioner assigning reasons as to why he chooses to differ from the findings of the Enquiry Officer after serving a copy of the Enquiry Report and after giving opportunity to the petitioner to explain as to why the proposed extreme punishment should not be imposed against him.

(iii) Before passing the impugned order, the petitioner was neither served with any second show cause notice nor supplied a copy of the Enquiry Report and above all, the Disciplinary Authority did not assign any reason for differing with the findings of the Enquiry Officer.

Learned Counsel adds that the punishment under such circumstances is against the principles of equity and natural justice and illegal and cannot be sustained in law.

Learned Counsel for the Respondent-State, by referring to the facts of the case, would concede that as it appears, before passing the impugned order of punishment, the petitioner was not served with the second show cause notice nor was a copy of the Enquiry Report served upon the petitioner and neither were any reasons assigned by the Disciplinary Authority for differing from the findings of the Enquiry officer and to this extent, the impugned order of punishment could possibly be assailed by the petitioner.

Learned Counsel, however, invites attention to certain relevant issues by referring to the order of this Court, passed in the earlier writ application. Learned Counsel explains that the petitioner was made aware of the fact that he was allotted the State of Bihar on cadre bifurcation and was relieved from duty on and from 01.04.2005. In the earlier writ application, the petitioner does not appear to have challenged the impugned order of his punishment. Rather, the only prayer of the petitioner was based on his grievance that the appeal preferred by him, was not being disposed of expeditiously by the Appellate Authority. Learned Counsel adds that considering the present position that the petitioner is no more a Government servant under the State of Jharkhand, his remedy, if at all would be before the appropriate Forum in the State: where he is presently posted, namely, the State of Bihar.

Having heard the learned Counsel for the parties and having gone through the facts of this case, I find that the impugned order of punishment does suffer from perversity and illegality in as much as, it has been passed without observing the principles of natural justice and without observing the mandatory Rules of procedure, as laid down under the Service Code. As such, the impugned order of the petitioner''s punishment (Annexure-1) and the impugned order of the Appellate Authority (Annexure-7) are hereby set aside. The matter is however, remitted to the concerned disciplinary authority of the petitioner in the concerned Department, in the State of Bihar where the petitioner is presently employed, to reconsider the Enquiry Report submitted in respect of the petitioner and to take an appropriate decision on the same by passing a reasoned and speaking order. Such decision must however, be communicated effectively to the petitioner.