Shri Jhimi Lal Paswan vs The State of Jharkhand and Others

P.P. Bhatt

Heard the learned counsel for the petitioner as well as learned counsel for the State. Perused the papers.

With consent of learned counsel for the parties, this case is taken up for final hearing.

Learned counsel appearing for the Respondent-State waives service of notice on behalf of the State.

4.The petitioner by way of the present writ petition under Article 226 of the Constitution of India has prayed for issuance of an appropriate writ/order/direction, directing the Respondents for quashing and setting aside the impugned order as contained in Memo No. 2630, dated 03.08.2006, issued under the signature of the Director, Primary Education, Jharkhand (Respondent No. 3) by which a minor punishment of withholding of two increments upon the petitioner has been imposed and also for quashing the order dated 09.02.2007, as contained in Memo No. 463, dated 21.02.2007, issued under the signature of the Principal Secretary, Human Resources Development Department, Government of Jharkhand, Ranchi (Respondent No. 2) by which the departmental appeal of the petitioner has been rejected. The petitioner has also prayed for consequential reliefs, if the prayer of the petitioner in this writ petition is granted in his favour.

The learned counsel for the petitioner submitted that departmental proceeding was initiated against the petitioner vide order dated 29.04.2004, issued by the Director, Primary Education, Human Resources Development Department and the enquiry officer was appointed. The petitioner submitted his explanation before the enquiry officer on 25.05.2004. It is further submitted that the enquiry officer submitted his report vide letter No. 1223, dated 06.09.2004 and thereby recorded the findings against each of the charges levelled against the petitioner by holding that the charges levelled against the petitioner have not been proved and therefore, the disciplinary authority recommended for exoneration of the petitioner from the charges levelled against the petitioner. It is further submitted that despite favourable findings given by the enquiry officer, the disciplinary authority without assigning any reason whatsoever inflicted punishment of stoppage of two increments with non-cumulative effect. It is further submitted by the learned counsel for the petitioner that before taking decision, no second show-cause notice was issued upon the petitioner. It is also submitted that though the disciplinary authority differed with the findings recorded by the enquiry officer, the required procedure for passing a reasoned order i.e., assigning reason and giving a fresh notice calling upon the petitioner to render his explanation, was not undertaken by the disciplinary authority at any point of time before reaching to the conclusion of inflicting punishment. Therefore, on this count alone, the order passed by the disciplinary authority is required to be quashed and set aside. It is further submitted that the appellate authority also did not consider the various grounds raised before it and passed an order dated 21.02.2007 rejecting the appeal preferred by the petitioner and thereby confirmed the order passed by the disciplinary authority. The learned counsel for the petitioner further submitted that on perusal of the order passed by the appellate authority, the petitioner surprisingly came to know that since the findings recorded by the enquiry officer were not convenient to the disciplinary authority, he passed an order of second inquiry on the same set of charges and obtained report holding the petitioner responsible for the charges levelled against the petitioner and on the basis of the said report, being the disciplinary authority, he passed an order inflicting punishment upon the petitioner. It is also submitted that there is nothing on the record to show that in the second inquiry show cause notice was ever issued or the petitioner was asked to submit his explanation or to participate. It is submitted that the said inquiry was conducted ex parte. In support of his submissions, the learned counsel for the petitioner has referred to and relied upon the judgment delivered in the case of (2003) 3 LLJ 557 SC Union of India v. K.D. Pandey and Anr. .

As against that, the learned counsel appearing for the Respondent-State, by referring to the several paragraphs of the counter affidavit, filed on behalf of the Respondent-State, tried to justify the order passed by the disciplinary authority as well as the appellate authority and submitted that there is no procedural lacunae and the authorities have not committed any error while passing the said orders. It is also submitted that the principles of natural justice have been followed while conducting departmental inquiry. It is also submitted that the disciplinary authority has a right to take a different view from the findings recorded by the enquiry officer and therefore, there is no illegality committed by the disciplinary authority while passing the impugned order.

Considering the aforesaid rival submissions and on perusal of the materials on record, it transpires that the departmental proceedings were initiated against the petitioner. The inquiry report, dated 06.09.2004 (Annexure-3) clearly indicates that the charges levelled against the petitioner were not proved and accordingly, the report was submitted by the enquiry officer with a recommendation to exonerate the petitioner from the charges levelled against him. However, the disciplinary authority by differing with the views expressed by the enquiry officer and also without assigning any reason whatsoever passed an order of inflicting punishment of stoppage of two increments with non-cumulative effect. Thereafter, the petitioner preferred an appeal before the appellate authority by raising various grounds in support of his case including the ground of non-observance of the principles of natural justice as the second show cause notice was never served upon the petitioner before inflicting minor punishment of stoppage of two increments with non-cumulative effect by the disciplinary authority. However, the appellate authority also confirmed the order passed by the disciplinary authority and thereby rejected the appeal preferred by the petitioner. On perusal of the order passed by the appellate authority, surprisingly the fact came in the light that the disciplinary authority passed an order inflicting punishment by conducting the second inquiry report submitted by the enquiry officer, as the previous inquiry report dated 06.09.2004 (Annexure-3) was not found suitable and convenient to her. It appears that at no point of time, notice was ever issued upon the petitioner in respect of this second inquiry, which was ordered by the disciplinary authority. The petitioner was never allowed to participate in the said inquiry and the inquiry was conducted ex parte by the authorities. The said conduct of the Respondent-authority clearly indicates that the authorities were bent upon to inflict a punishment upon the petitioner. I have perused the judgment cited by the learned counsel for the petitioner rendered in the case of (2003) 3 LLJ 557 SC Union of India v. K.D. Pandey and Anr. . The ratio laid down by the Hon''ble apex Court is relevant for the purpose of deciding the present case. The Hon''ble apex Court while dealing with the said case held as under : From the order made by the Railway Board as well as from that part of the file where the inquiry report made earlier is discussed, it is clear that specific findings have been given in respect of each of the charges after discussing the matter. Hence, in such case, the matter could not have been remitted to the enquiring authority for further inquiry. Indeed this resulted in second inquiry and not in a further inquiry on the same set of charges and the material on record. If this process is allowed the inquiries can go on perpetually until the view of the enquiring authority is in accord with that of the disciplinary authority and it would be abuse of the process of law.

In the light of the facts and circumstances discussed hereinabove as well as on the basis of principle/ratio laid down by the Hon''ble apex Court, the arguments advanced by the learned counsel for the Respondent-State cannot be accepted and the order passed by the disciplinary authority, which was confirmed by the appellate authority, is also required to be quashed and set aside. Accordingly, this writ petition is allowed. The impugned order as contained in Memo No. 2630, dated 03.08.2006, issued under the signature of the Director, Primary Education, Jharkhand (Respondent No. 3) as well as the order dated 09.02.2007, as contained in Memo No. 463, dated 21.02.2007, issued under the signature of the Principal Secretary, Human Resources Development Department, Government of Jharkhand, Ranchi (Respondent No. 2) by which the departmental appeal of the petitioner has been rejected is quashed and set aside.