Narendra Rao Bhosle vs State Of Chhattisgarh

This petition is filed under Article 226 of the Constitution of India by the petitioner against the orders dated 20.12.2012 (Annexure P/1), 14.12.2012 (Annexure P/2) & 19.07.2012 (Annexure P/3) passed by the respondent authorities.

Brief facts of the case as projected by the petitioner are that the petitioner was working as a Junior Assistant in Chhattisgarh State Civil Supplies Corporation Ltd., posted at Jagdalpur, District-Jagdalpur (C.G.) and was summoned by the J.M.F.C. Pithora, Distict- Mahasamund (C.G.) for examining himself before JMFC as a defense witness in Criminal Case No.113/2009 and after due process of law, the accused was acquitted of the charges by giving benefit of doubt. Thereafter, SHO Kotwali Mahasamund, District- Mahasamund (C.G.) wrote a letter to respondent No.3 and on the basis of said letter, respondent No.3 initiated departmental enquiry against the petitioner and passed the order (Annexure P/3) for termination of his service.

The petitioner appeared before the Court on the basis of summons and deposed as per the record available in the department but the respondent authorities terminated the service of petitioner. Against the order dated 19.07.2012 (Annexure P/3), the petitioner preferred an appeal before respondent No.2 who set aside the termination order and ordered that only in case the petitioner deposits a lump sum amount of Rs.5,00,000/- in favour of Chhattisgarh State Civil Supplies Corporation Ltd. in that condition, he shall be reinstated in services and after that his five annual increments with cumulative effect will be withheld and also his service period shall begin to be counted from that day onwards. Hence, this petition filed by the petitioner for the following reliefs:-

10.1 This Hon'ble Court may kindly be pleased to issue the writ of certiorary by quashing the impugned orders dated 14.12.2012 passed by respondent No.2 (Annexure P/2) and 20.12.2012 & 19.07.2012 (Annexure P/1 & P/3).

10.2 This Hon'ble Court may kindly be pleased to direct the respondents No. 2 to 5 to immediately reinstate the petitioner in services without imposing any stringent conditions.

10.3 Any other relief which this Hon'ble Court deems fit and proper under the fact and circumstances of the case and in the interest of justice. The cost of the petition may be awarded in favour of the petitioner.

Learned counsel for the petitioner submits that the petitioner has given his deposition because he was summoned by the concerned Court and appeared before the learned Court in the official capacity only. The petitioner was directed to appear with the official records. Till the judgment of acquittal dated 18.02.2010, no departmental action or any adverse proceeding was initiated by the police against the petitioner and there was no allegation whatsoever regarding his involvement in the said crime. The departmental proceeding initiated against the petitioner was defective in nature as in the earlier enquiry report dated 30.07.2008, there is nothing which suggests the involvement of the petitioner in the said scam but still the departmental proceedings were continued and then concluded by the concerned respondents and the impugned orders passed by the respondent authorities have been passed without proper consideration of the written submission in the form of various replies submitted by the petitioner.

4.1 It is further submitted that the conditional reinstatement order passed by the respondent authorities is also very stringent and in view of financial and economic condition of the petitioner, it is not at all feasible for him to fulfill the said condition precedent as he is only a Junior Assistant in the respondent’s corporation. The same allegation has been levelled by the police officer against District Manager namely Ashok Soni and against him also the department has started the departmental enquiry and punished by stopping three increments and the petitioner has been punished by giving higher punishment. Therefore, impugned orders are liable to be set aside. Reliance has been placed on the judgment rendered by Hon’ble Supreme Court in the matters of Kuldeep Singh Vs. The Commissioner of Police & Ors. decided on 17/12/1998, Allahabad Bank & Ors. Vs. Krishna Narayan Tewari reported in (2017) 2 SCC 308 & Chairman-cum-Managing Director, Coal India Limited and another Vs. Mukul Kumar Choudhari and Others reported in (2009)15 SCC 620.

Learned counsel for the respondents submits that the petitioner appeared before the CJM Court Mahasamund as a defence witness. This case was related to embezzlement of huge quantity of rice which was transported from Mahasamund to remote areas of Jagdalpur, in this regard one FIR was registered against several persons including the main transporter Atul Bagga and the trial was pending before CJM Mahasamund. The transporter Atul Bagga has given the name of the petitioner as defence witness before the trial Court and petitioner appeared before the learned trial Court and stated that rice was received at Jagdalpur and on that basis, the main accused was acquitted vide judgment dated 18.02.2010 (Annexure P/5). The Station House Officer, Mahasamund, informed the department and after preliminary enquiry, departmental enquiry was initiated against the petitioner and on the basis of enquiry report, the petitioner was terminated from service. When petitioner preferred an appeal, it was decided observing that termination was not proper and the petitioner was directed to deposit a sum of Rs.5,00,000/- and also his five annual increments were withheld with cumulative effect.

5.1 Entire departmental enquiry proceedings conducted against the petitioner are strictly in accordance with law and taking a lenient view, the termination order was modified as above which needs no interference by this Court. Therefore, the present petition being without any merit is liable to be dismissed.

Heard counsel for the parties and perused the material placed on record.

This is an admitted fact in this case that the petitioner appeared before the trial Court as a defence witness and departmental enquiry was conducted against the petitioner after acquittal of the accused. As per enquiry report, the petitioner was found guilty of giving false statement and supporting the accused person. As per Annexure P/3, service of the petitioner was terminated with immediate effect vide order dated 19.07.2012 (Annexure P/3). Against this order, the petitioner preferred an appeal and learned appellate Court by impugned orders dated 14.12.2012 (Annexure P/2) & 20.12.2012 (Annexure P/1) modified the penalty and set aside the order of termination and imposed penalty of Rs. 5,00,000/- and withheld his five increments with cumulative effect. Annexure P/1 reads as under:-

it is not in dispute that after the judgment of acquittal being passd by the trial Court on 18.02.2010, Station House Officer, P.S. Kotwali wrote a letter on 09.03.2010 (Annexure P/6) to respondent No.3 mentioning therein that from the deposition of the petitioner it appears that he has conspired with accused Atul Bagga in the aforesaid crime and accordingly charge-sheet was issued against the petitioner on 06.05.2010 (Annexure P/7) by respondent No.3. As per this charge-sheet, the following charges were framed against the petitioner which are as under:-

It is clear from this charge-sheet that charges have been framed against the petitioner on some embezzlement or misconduct done by the petitioner and after enquiry, he was found guilty. As per report, it is opined by enquiry officer that,

Challenging the order of termination, the petitioner preferred an appeal before respondent No.2 who considering the facts and circumstances of the case and the grounds raised by the petitioner in appeal, observed as under:-

Hon’ble Apex Court in the matter of Chairman-cum- Managing Director, Coal India Limited and another Vs. Mukul Kumar Choudhari and others reported in (2009) 15 SCC 620 has observed in paras 19 and 20 as under:-

The doctrine of proportionality is, thus, well-recognised concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision-maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review.

One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment.

In the present case also, the appellate authority having found that merely on the basis of statement given by the petitioner before the trial Court in favour of accused- Atul Bagga, he was not liable for termination from the service, modified the order of termination by imposing penalty of Rs.5,00,000/- and withholding his five increments with cumulative effect. However, the said punishment also is not proper because before awarding this modified punishment, no show-cause-notice was issued to the petitioner.

Hon’ble Apex Court in the matter of Khem Chand Vs. The Union of India and others reported in 1958 AIR 300 has laid down the principles for enquiry and punishment as under:-

To summarise: the reasonable opportunity envisaged by the provision under consideration includes-

(a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;

(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence and finally

(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and communicates the same to the government servant.

In the present case, the order of termination was not found in accordance with law and alternative punishment was imposed upon the petitioner of paying the penalty of Rs.5,00,000/- and withholding his five annual increments with cumulative effect which, in the given facts and circumstances of the case, also appears to be harsh one and that before awarding such punishment no opportunity of hearing or any show-cause-notice was given to the petitioner. The petitioner could not point out any illegality or irregularity in conducting departmental enquiry against him and this Court also does not notice any procedural lacuna in the departmental enquiry. Therefore, this petition deserves to be allowed only in part on the issue of punishment awarded to the petitioner by the appellate authority.

In the result, the writ petition is allowed in part. The impugned order dated 20.12.2012 (Annexure P/1) passed by the Appellate authority being not sustainable is hereby set aside. The Appellate authority is directed to issue show-cause-notice to the petitioner for imposing any penalty or other punishment and passed suitable order after hearing the petitioner.

15.1 It was also pointed out by the petitioner that despite there being in order of this Court staying the part of the impugned order imposing penalty of Rs.5,00,000/-upon the petitioner, the respondent authority did not allow the petitioner to join his duty. Once the order of termination of the petitioner has been set aside by the appellate authority and he was directed to be reinstated with certain conditions including payment of penalty of Rs.5,00,00/-, which part has been stayed by this Court, the respondent authority are directed to reinstate the petitioner on his post forthwith. However, the respondent authorities are free to pass order afresh in respect of the imposition of penalty on the petitioner after affording him reasonable opportunity of hearing by issuance of show-cause-notice in this regard.