Prem Shankar Prasad vs State Of Jharkhand And Ors

Heard learned counsel for the parties through V.C.

The instant writ application has been preferred by the petitioner for following reliefs;

(A) For quashing the impugned notification/office order no. 895 dated 26th August, 2000 (Annexure-12), office order no. 1082 dated 07.11.2000

(Annexure-14) and then office order no. 1123 dated 29.11.2000 (Annexure-16), whereby and where under the petitioner's promotion to the post of

Section Officer, benefits of Senior Selection Grade and Junior Selection Grade respectively are being canceled; in gross violation of principle of natural

justice, before the commencement of the Departmental Proceeding and in which the petitioner was ultimately exonerated and thus the same are also

in violation of Article 14, 19, 21 as well as 311 (2) of the Constitution of India;

(B) Further to quash the office order no. 221 dated 06.11.2006 (Annexure-23), whereby and where under the period of suspension of the petitioner

w.e.f. 11th August, 2000 to 17th June, 2003 has been although declared to be treated as continuous in service but it has been ordered that no

differential salary beyond the subsistence allowance shall be paid to the petitioner, which is absolutely baseless and thus illegal, unconstitutional as well

as wholly without jurisdiction;

(C) Further for quashing the latest impugned letter/order no. 6773 dated 6.12.2008 (Annexure-26) issued under the signature of Respondent no.-3,

whereby and where under instead of passing the final order exonerating the petitioner from the all the charges in terms with Dept. Enquiry Report as

well Judgment of acquittal of Criminal Court holding him not guilty for any of the charges the request has been made to the office of the Deputy

Commissioner/ District Magistrate, Chapra to cancel the Caste Certificates of the petitioner issued way back in the year 1992 and in Enquiry the same

have been found genuine and therefore the entire action is grossly malafide, arbitrary as well as in violation of 14,21 and 311 (2) of the Constitution of

India;

(d) Consequently for commanding the respondent to restore all the service benefits of Junior Selection grade, Sr. Selection Grade and promotion to the

post of Section Officer with retrospective effect as granted vide Annexure-6,7 & 8 respectively along with differential arrears of salary and all other

consequential monetary benefits along with interest 18% per annum besides being statutory interest of 5% ;

(e) To award suitable cost and compensation to the petitioner in the given facts and circumstance of the case for causing culpable mental and physical

harassment in perpetuation of the illegalities;

And/Or for any other relief (s) as your Lordships may deem fit and proper in the facts and circumstances of the case for doing conscionable justice to

the parties;

Mr. Krishna Murari, learned counsel for the petitioner submits that the case has a chequered history. He further submits that on 31.01.1992, the

Department of Welfare, Government of Bihar came out with one Circular vide memo no. 638 dated 31.01.1992; wherein a decision was taken to treat

the ""Tantis"" of the State as synonymous to that of ""Pan/Swanshis"" and accordingly to issue the Caste Certificates of Scheduled Caste after due

verification and satisfaction.

He further submits that pursuant to the aforesaid circular, the petitioner applied for issuance of Caste Certificate as member of Scheduled Caste

before the B.D.O. Chapra (Saran) and a Caste Certificate was duly issued in favour of the petitioner declaring him to be member of Scheduled Caste

vide memo/ Sl.no. 570 dated 16.03.1992 and the same was also confirmed by the S.D.O. Chapra vide his certificate bearing memo no. 76 dated

11.06.1993. Thereafter, the petitioner accordingly made a representation dated 21.04.1992 to the Secretary, Personnel and Administrative Reforms

Department, Govt. of Bihar, Patna and also before the Deputy Inspector General of Police, Chotanagpur Division, Ranchi enclosing copy of the said

Caste Certificate to make necessary correction and incorporation in his 'Service Book' and accordingly to allow consequential benefits including the

promotion etc. He further contended that the representation was thoroughly examined by the authorities concerned and an order was passed to make

necessary correction and incorporation in the 'Service Book' and treat the petitioner as member of Scheduled Caste vide memo no. 1623 dated

23.04.1992. Pursuant thereto, necessary correction was made in the Service Book and a final 'Gradation list' was issued by the Secretary, Personnel

and Administrative Reforms Department, Govt. of Bihar, Patna under letter no. 6015/275 dated 03.08.1992 and the name of the petitioner appeared at

sl.no. 955.

He further submits that the petitioner having completed more than ten years of service; was granted the benefits of Junior Selection Grade vide officer

order no. 6043/92/32 dated 27.01.1993 and was further granted the benefits of Senior Selection Grade along with others in the pay scale of Rs. 1800-

3300/- vide office order no. 1102/92/33 dated 29.01.1993. The petitioner was also granted promotion to the post/cadre of Section Officer in the revised

pay scale of Rs. 2000-3500/- vide notification no. 423 dated 16.10.1993.

Learned counsel contended that after a gap of more than one year of such promotion; in the year 1996, on a complaint that the petitioner had obtained

wrong Caste Certificate"", the Inspector General of Police, South Chotanagpur Division; on being asked, conducted an enquiry and submitted a report

vide memo no. 30.04.1996 holding the petitioner as innocent and found no irregularity in the matter of change of status of the petitioner as Scheduled

Caste. Thereafter, the services of the petitioner was sent back to the head quarter, Personnel and Administrative Reforms Department, Govt. of

Bihar, Patna vide South Chotanagpur Commissioner office order no. 413 dated 31.05.2000.

Learned counsel further contended that all of a sudden, the petitioner was suspended vide office order no. 836 dated 11.08.2000, in contemplation of

departmental proceeding allegedly for securing promotion on the basis of forged Caste Certificate. Thereafter, the promotion granted to the petitioner

to the rank of Section Officer vide memo. no. 423 dated 16.10.1993, was cancelled vide Notification no. 895 dated 26.08.2000 and a memo of charge

was issued vide Notification no. 1018 dated 26.09.2000 inter alia alleging therein that the petitioner had obtained forged Scheduled Caste Certificate of

Pan (Tanti) and had illegally obtained promotion to the post of Section Officer. During the pendency of the aforesaid proceeding, another order for

cancellation of Senior Selection Grade was also issued vides office order no. 1082 dated 07.11.2000.

Thereafter, vide notification no. 1087 dated 14.11.2000, the services of the petitioner was allocated to the Jharkhand Cadre. Afterwards, the

respondents-State of Bihar passed yet another office order under letter no. 1123 dated 29.11.2000 i.e. after the bifurcation of the State; cancelling the

benefits of Junior Selection grade.

Subsequently, a fresh memo of charge by Jharkhand State was issued to the petitioner reiterating the same allegations and appointed one Mr. Ranjit

Prasad Sah, Deputy Secretary, Finance as Inquiry Officer. The petitioner filed his show-cause reply dated 12.09.2002 contending that he is completely

innocent and denied each and every charge. The Inquiry Officer after following due procedure submitted his final report vide letter no. 2987 dated

26.11.2002 wherein he has exonerated the petitioner.

Pursuant to the enquiry report, the suspension of the petitioner was revoked awaiting the final outcome of the criminal case being Patna Harijan

(Schedule Caste and Schedule Tribe) P.S. Case No. 34/99; which was instituted against him for the same and similar charges.

However, the respondent issued second show-cause notice differing with the view of Inquiry Officer with proposed punishment of forfeiting all past

and future promotional benefits vide memo No. 370 dated 19.01.2006. The petitioner filed a detailed reply on 04.02.2006 denying all charges.

Thereafter, the final decision was kept in abeyance awaiting the verdict of the Criminal Court; however, an office order no. 2363 dated 15.05.2006

was issued withholding all the promotional benefits given to the petitioner subject to the final judgment of the criminal case. Subsequently, the

respondent authorities passed another order vide memo no. 221 dated 06.11.2006, whereby the nature of his period of suspension was determined in

terms Rule-97 of the Bihar/Jharkhand Service Code holding the same to be, although continuous but not entitled for any differential salary.

In the meantime, the petitioner was acquitted by the Court of learned Special Judge, SC & ST Act, Saran in connection with the aforesaid criminal

case being Patna Harijan (Schedule Caste and Schedule Tribe) P.S. Case No. 34/99 vide judgment dated 31.10.2007. Pursuant thereto, the petitioner

represented the competent authority with a request to restore all the benefits of Junior Selection Grade, Senior Selection Grade as well as to the post

of Section Officer with arrears of salary and interest thereof vide his letter dated 06.12.2007.

Learned counsel lastly submits that the respondents yet again issued a letter no. 6773 dated 06.12.2008, making a request to the District Officer, Saran

Chapra, Bihar to cancel the Caste Certificate of the petitioner issued by the B.D.O & S.D.O. Chapra, and to issue a fresh Caste Certificate in his

favour after due enquiry. He contended that after receiving the report from the said officer, Impugned order dated 23.07.2010 was passed whereby

the petitioner has been inflicted following punishment which is totally illegal, arbitrary and without jurisdiction:

a) Stoppage of one increment with cumulative effect;

b) The Regional Office Order no.342 dated 23.04.1992 by which the petitioner was transformed from backward class to schedule caste and

corresponding entry made by the order of DIG, South Chotanagpur has been cancelled;

c) Financial benefits taken by virtue of illegal promotion have been directed to be recovered on monthly basis.

Learned counsel concluded his argument by submitting that the core issue w.r.t. caste of the petitioner has already been decided by the Patna High

Court; as such, the Impugned Order deserves to be quashed and set-aside.

Mr. Devesh Krishna, learned counsel for the respondent-State of Jharkhand, submits that in the Service Book of Petitioner, in the column of

Caste/Reservation Category, nothing was entered which indicates that he was belonging to unreserved category at the time of appointment. After the

Letter No. 638 dated 31.01.1992, issued by Bihar State Welfare Department, petitioner managed to obtain a Caste-Certificate of Pan(Tanti) which

belongs to Schedule Caste Category vide Certificate No. 570 dated 16.03.1992 issued from the B.D.O., Sadar, Saran. He further submits that on the

basis of this certificate, his caste was recorded as Pan (Tanti) belonging to Schedule Caste Category and he obtained accelerated promotion as was

admissible to Schedule Caste Candidates.

Therefore, it is apparent that had that Caste Certificate not submitted by petitioner; the Department would have never granted him any promotions as

were admissible for S.C. employees. He further submits that in Criminal Trial, vide Sessions Trial No. 414/2004 in connection with Patna Harijan P.S.

Case No. 34/99 instituted against the petitioner, judgment was delivered on 31.10.2007 and in this trial 12 prosecution witnesses were examined and all

were declared hostile. Therefore, on account of lack of evidence, petitioner was acquitted by A.S.J., Saran. Most importantly, acquittal from the

charges by Cr. Sessions Trial Court in the year 2007, does not confirms the status of petitioner to be belonging to Schedule Caste.

He further submits that from Annexure-C to the 1st Counter-Affidavit, it will appear that enquiry was conducted by District officer, Saran at Chapra,

whereby after verification of Caste Certificate Register of the year 1993, it was found that nothing was mentioned regarding for which Caste,

petitioner was issued certificate and there is no office copy of the Caste Certificate issued to the petitioner and on further enquiry it revealed that

petitioner belonged to Backward Caste and not Schedule Caste. Therefore, genuineness of Caste- Certificate submitted by petitioner for obtaining

promotion has been disputed in the enquiry report of District Officer dated 20.05.2000.

When Disciplinary Authority differed from the finding of Inquiry Officer in departmental enquiry, 2nd Show-Cause was issued (Annexure 21), but

final decision was awaited till the pendency of Cr. Proceedings and when after the acquittal of petitioner, he submitted his representation with a prayer

for delivering final decision upon the departmental proceeding initiated against him; thereafter, through letter dated 6.12.2008 (Annexure 26), a request

was made to District Officer, Saran, Chapra to cancel the earlier Caste Certificate issued to the petitioner and issue a fresh and correct Caste

Certificate after conducting enquiry. In the 2nd counter affidavit, at Para 3, 4 & 5, details of manner in which enquiry was conducted regarding

issuance of Caste Certificate of the petitioner has been mentioned and it was found that till that period, Tatwa Caste comes under extremely

backward class as per the list issued by the State of Bihar at serial no.33 and petitioner does not belongs to Schedule Caste.

Thereafter, on the basis of fresh enquiry report of the year 2010, final order (Annexure- 27) was passed on 23.07.2010 in connection with Disciplinary

enquiry initiated against the petitioner. Accordingly, it is apparent that evidences before Sessions Court and Disciplinary authority were different, as

the enquiry report of District Officer, Saran was not adduced in the Cr. Proceeding.

He further submits that in the case Krishnakali Tea Estate v. Akhil Bhartiya Chah Mazdoor Sangh & Another as reported in (2004) 8 SCC 200,

Hon'ble Apex Court has held that where the acquittal was due to lack of evidence before criminal court and sufficient evidence were available before

the Labour Court, judgment in Captain M. Paul Anthony v. Bharat Gold Mines Ltd. & Another reported (1999) 3 SCC 67 9case cannot come to the

rescue of the workmen. Similar view has been taken by Hon'ble Supreme Court in the Judgment dated 16.09.2019 passed in the case ofK arnataka

Power Transmission Corporation Limited, represented by Managing Director (Admin. and HR) v. Sri C. Nagaraju & Anr.[ Civil Appeal No. 7279 of

2019 (Arising out of SLP (C) No. 25909 of 2013)] as reported in 2019 (10) SCC 36 7wherein it has been held that the Disciplinary Authority is not

bound by the judgment of the Criminal Court, if the evidence that is produced in the Departmental enquiry is different from that produced during the

criminal trial. He further submits that the object of a Departmental enquiry is to find out whether the delinquent is guilty of misconduct under the

conduct rules for the purpose of determining whether he should be continued in service. The standard of proof in a Departmental enquiry is not strictly

based on the rules of evidence. The order of punishment which is based on the evidence before the Inquiry Officer in the disciplinary proceedings is

different from the evidence available to the Criminal Court; as such, no illegality has been committed by Disciplinary authority in passing the order of

punishment (Annexure 27).

He lastly submits that the acquittal of petitioner in criminal proceeding could not be said to be a clean acquittal, as Judgment in favour of petitioner was

passed due to reason that all PWs were declared hostile.

Having heard learned counsel for the parties and after going through documents available on record and averments made in the respective

affidavits, it appears that the Department of Welfare Government of Bihar came out with one circular under Memo No. 638 dated 31.01.1992, to treat

the ""Tantis"" of the State as synonymous to that of ""Pan/Swanshis."" Pursuant to the aforesaid Circular dated 31.01.1992, the petitioner applied for

issuance of a Caste Certificate as a member of Schedule Caste before the BDO, Chapra (Saran) under whose jurisdiction his native village falls and

thereafter, a Caste Certificate was issued in his favour declaring him to be member of Schedule Caste.

It further transpires that all of a sudden, a complaint was made before the National Commission for Schedule Caste and Schedule Tribe to the effect

that the petitioner has wrongly obtained the Caste Certificate misrepresenting him to be the member of Schedule Caste, though he belongs to

backward communities. In pursuance thereof, the Inspector General of Police, South Chhotanagpur Division, was asked to conduct an enquiry. The

said Inspector General of Police submitted a report dated 30.04.1996 holding the petitioner totally innocent. Subsequently, after a gap almost four

years, again the same matter racked up that the petitioner has secured the forged certificate and thereafter, an order of suspension was issued in the

year, 2000 vide suspension order dated 11.08.2000 and vide order dated 26.08.2000 the promotion of the petitioner was cancelled.

After bifurcation of State, the State of Jharkhand issued a fresh memo of charge under Memo No. 4965 dated 29.08.2002 reiterating the same

allegation. The petitioner filed his show cause denying the charges leveled against him and finally the Inquiry Officer had recommended for

exoneration (Annexure-19).

Subsequently, vide order dated 17th June 2003 (Annexure-20), the suspension of the petitioner was revoked, however, no final order was passed. The

order dated 17th June, 2003 transpires that the order was not passed as a criminal case was filed against this petitioner for the same charge; that is for

procuring forged Caste Certificate and it was decided by the said order that final order shall be passed after the decision of the judgment passed in the

criminal case.

At this stage, it is pertinent to mention here that on 19.01.2006, the Disciplinary authority issued a show cause notice (Annexure-21), to the petitioner

differing with the view of Inquiry Officer by giving reasons and asking for a reply to which the petitioner filed a detailed reply and thereafter, an order

was passed under Memo 2363 dated 15th May, 2006 (Annexure-22) and it was decided to withhold all promotional benefits given to the petitioner;

however, to stay the recovery of the excess payments till final judgment in the criminal case being Patna Harijan (Schedule Caste and Schedule

Tribe), P.S. Case No. 34 of 99.

Thereafter, another order was passed against the petitioner on 06.11.2006 under Rule-97 of Bihar/Jharkhand Service Code for withholding the full

salary except the subsistence allowance during the period of suspension.

Subsequently, the final verdict came in the criminal case whereby, the petitioner was acquitted from all the charges. Pursuant thereto, the petitioner

made a representation before the concerned respondent for passing the final order. However, before passing the final order, the respondents through

letter dated 6.12.2008, requested the District Officer, Saran, Chapra for cancelling the earlier Caste Certificates issued in favour of the petitioner and

further requested for issuance of correct Caste Certificate after conducting enquiry. Subsequently, after receiving the report from the District Officer,

Saran, Chapra dated 22.05.2010, the impugned order dated 23.07.2010 (Annexure-27) has been passed.

From bare perusal of the order dated 15th May, 2006, it appears that the final order was not passed for the reason that since the criminal case was

pending on the same charges/offence; as such, it was ordered that the final order shall be passed after disposal of the case before the Competent

Court and recovery of excess payment shall remain stayed till disposal of the criminal case. However, when the criminal case was decided in favour

of the petitioner and he was acquitted in the criminal case, the department suo moto proceeded and requested the District Officer, Saran, Chapra vide

letter No. 6773 dated 06.12.2008 with a request to enquire into the matter of issuance of Schedule Caste Certificate in favour of petitioner and further

to cancel the earlier Schedule Caste Certificate which was issued in the year 1993; and after receipt of the report from the District Officer, Saran,

Chapra dated 22.05.2010, the impugned order has been passed.

After going through the aforesaid facts, this Court is of the opinion that the Impugned Order dated 23.07.2010 (Annexure-27), suffers from infirmity

due to following reasons;

(i) The order is perverse, inasmuch as, in para 6 of the impugned order, the Disciplinary authority has admitted that in the criminal case the petitioner

has been acquitted as all the witnesses became hostile. However, in paragraph 7 of the Impugned Order, the Disciplinary authority has held that after

going through the enquiry report given by the Inquiry Officer and the judgment passed in the Criminal Case it was found that the petitioner is not the

member of Schedule Caste which is against the record and as such, it is a perverse finding.

(ii) From paragraph no. 7 itself, it further transpires that the Disciplinary authority has issued a letter vide letter No. 6773 dated 06.12.2008 to the

District Officer, Saran, Chapra; requesting him to cancel the earlier certificate and issue a fresh certificate after due enquiry and from para 8 of the

impugned order it appears that the punishment has been imposed solely on the basis of the letter of District Officer which was sent to the Disciplinary

authority vide letter dated 442 dated 22.05.2010.

It is now well settled that the document which was neither mentioned in the charge-sheet nor part and parcel of the disciplinary proceedings; cannot

be relied upon for imposing the punishment. Further, this letter of District Officer Saran, Chapra dated 22.05.2010 was issued behind the back of the

petitioner, inasmuch as, the petitioner was not even informed about such development after the disposal of the criminal case. Further, it is also against

the principles of natural justice that the disciplinary authority cannot rely on any document which is not part and parcel of the disciplinary proceeding.

In this regard reference may be made to the case of Kuldeep Singh Vs. Commissioner of Police and Others as reported in (1999) 2 SCC 1,0 wherein

at para 39 the Hon'ble Apex has held as under;

From the findings recorded separately by the Deputy Commissioner of Police, it would appear that there is a voucher indicating payment of Rs

1000 to Rajpal Singh, one of the labourers, on 8-2-1990. This document was not mentioned in the charge-sheet in which only two documents were

proposed to be relied upon against the appellant, namely, copy of the report of SHO Lajpat Nagar dated 5-3-1990 against the appellant and the copy of

the labourers' statement. This document has, therefore, to be excluded from consideration as it could not have been relied upon or even referred to by

the Deputy Commissioner of Police. Moreover, according to the charge framed against the appellant, payment was made on 22-2-1990 and not on 8-

2-1990 as indicated in the voucher and, therefore, the voucher for this reason also has to be excluded"".

Further, the District Officer Saran, Chapra was also not the competent authority to cancel or to issue any Caste Certificate; rather it is the ""Caste

Scrutiny Committee"" which is competent to issue any Caste Certificate as laid down in the case of Kumari Madhuri Patil and Another Vs. Addl.

COMMR., Tribal Development, Thane and Others, as reported in (1997) 5 SCC 43, 7wherein the Hon'ble Apex Court has laid down the procedure

for issuance of the Caste Certificate.

In view of the aforesaid discussions and findings, the impugned order deserves to be quashed and set aside.

Consequently, order as contained in Memo No. 206 dated 23.07.2010, is hereby, quashed and set aside. The respondents are at liberty to pass a fresh

order by considering the grounds taken by the petitioner in his reply to the second show cause notice and by ignoring/excluding the letter of District

Officer, Saran, Chapra issued under letter no. 442 dated 22.05.2010, as the same was not part and parcel of the Charge Sheet and/or of the

departmental proceedings and was also issued behind the back of the petitioner. It is made clear that since the matter is very old, if the department

chooses to proceed and pass a fresh order then the same shall be passed within a period of four months from the date of receipt/production of copy of

this order, failing which the petitioner shall be entitled for all consequential benefits which was withheld pursuant to the Impugned Order (Annexure-

27).

The petitioner is also at liberty to file a representation before the competent authority along with copy of this order for necessary action.

With the aforesaid terms the instant writ application stands disposed of. The pending I.A. also stands disposed of.