Girijesh Kumar, s/o late Ranjeet Sinha, r/o c/o Sri K.P. Yadav, Sudama Niwas, Manoram v. 1. State of Jharkhand. 2. Director General of Police, Jharkhand, PO & PS Dhurwa
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Review Jurisdiction) Civil Review Case No. 06 of 2018 ----- Girijesh Kumar, s/o late Ranjeet Sinha, r/o c/o Sri K.P. Yadav, Sudama Niwas, Manoram Nagar, Luby Circular Road, PO & PS Dhanbad, District Dhanbad, Jharkhand. …. .......Petitioner Versus 1. State of Jharkhand. 2. Director General of Police, Jharkhand, PO & PS Dhurwa, Ranchi. 3. Inspector General of Police, Coal Range, PO, PS & District Bokaro, Jharkhand. 4. Superintendent of Police, Dhanbad, PO, PS & District Dhanbad. 5. Enquiry Officer cum the then Superintendent of Police, Chatra, PO, PS & District Chatra. 6. Binod Ranjan, s/o late Rajendra Prasad, S.O. (I/C) Jharkhand High Court, Doranda, Ranchi, PO & PS Doranda, District Ranchi. 7. Kumar Ravi Ranjan, s/o Yogendra Mehra, Dealing Assistant, Jharkhand High Court, Doranda, Ranchi, PO & PS Doranda, District Ranchi. 8. Registrar General, Jharkhand High Court, Doranda, Ranchi, PO & PS … …. Opposite Parties Doranda, District Ranchi. CORAM : HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MR. JUSTICE RATNAKER BHENGRA ------- For the Petitioner For the State ------ : Mr. Dilip Kumar Prasad, Advocate Mr. Umesh Pathak, Advocate : Mr. Mrinal Kanti Roy, GA-I
Legal Reasoning
Mr. Rakesh Ranjan, AC to GA-I Mr. Sahil, AC to GA-I For the Opp. Party Nos. 6 to 8 : Mr. Sunil Singh, Advocate ------ 23rd January 2023
Decision
O R D E R Per, Shree Chandrashekhar,J. The petitioner has suffered the order of compulsory retirement dated 18th September 2009. 2. Mr. Dilip Kumar Prasad, the learned counsel for the petitioner has drawn our attention to the order dated 10th January 2018 passed in Special Leave to Appeal (C) No. 36801 of 2017 to submit that the present review petition has been filed by virtue of a liberty granted by the Hon'ble Supreme Court. 3. In the order dated 10th January 2018, the Hon'ble Supreme Court has observed as under: “Learned senior counsel appearing for the petitioner seeks permission to withdraw this Special Leave Petition to approach the High Court. According to the petitioners 2 Civil Review Case No. 06 of 2018 there are factual errors with regard to the date of supply of the Inquiry Report. The Special Leave Petition is permitted to be withdrawn with the above liberty. However, we make it clear that if a review is filed within thirty days from today the same may not be dismissed on the ground of delay. We further make it clear that we have not otherwise expressed any opinion on the merits of the matter.” 4. There is also an application for condonation of delay of 367 days in filing the present Civil Review Case No. 6 of 2018, stating as under: “5. That though petitioner move before Hon'ble Apex Court vide S.L.P. (Civil) No. 36801 of 2017 on 14.12.2017 which was disposed off on 10.1.2018 with an observation therein to the effect that if review petition is filed within 30 days of the order same shall not be dismissed on account of limitation. 6. That under the circumstances as stated herein above the delay of 367 days as pointed out by stamp reporter be condoned and the earlier application be heard on merit.” 5. To support the plea raised before the Hon'ble Supreme Court, the learned counsel for the petitioner submits that serious prejudice has been caused to the petitioner on account of non-supply of the enquiry report a copy of which has been obtained by the petitioner through RTI on 29th September 2009. The learned counsel for the petitioner has submitted that on account of non-supply of a copy of the enquiry report the delinquent government employee was deprived of an opportunity to put forth his stand against the adverse findings recorded in the enquiry report. 6. The plea based on non-supply of enquiry report taken by the petitioner has been dealt with by the writ Court in the following manner: “9. After bestowing my anxious consideration to the submissions made at Bar and on perusal of record, I am of the considered opinion that the petitioner has not been able to make out a case for interference due to following facts, reasons and judicial pronouncements: (I). Admittedly, in the instant case the charges levelled against the petitioner was grave in nature. On perusal of the said charges it smacks of insubordination and indiscipline committed by an employee of disciplined force. The charges have been duly enquired into and the conducting officer after affording reasonable opportunity to the petitioner has found the charges to be proved. Though, the petitioner has tried to make out a case that the copy of the enquiry report has not been supplied to the petitioner and further prejudicial documents have not been supplied to the petitioner, but from the averments made in the counter affidavit, such claim of the petitioner gets falsified and it appears that the enquiry report has been supplied to the petitioner at later stage and 3 Civil Review Case No. 06 of 2018 ultimately as the disciplinary authority on the basis of proved misconduct, a evidenced in the enquiry report, has imposed the punishment of compulsory retirement, which has has been confirmed by the appellate authority. Hence, from the initiation of departmental proceeding till its culmination no such procedural irregularities have been committed so as to warrant interference by this Court.” 7. A similar plea as regards non-supplying the enquiry report has been dealt in LPA No. 185 of 2017, as under: “5…...................................................................................... (V) Much has been argued out by the counsel appearing for the appellant that enquiry report was never supplied. We are not in agreement with this argument, mainly for the reason that looking to the Annexure 3 to the Letters Patent Appeal, dated 29th September, 2009, it appears that this appellant was supplied the report of the Enquiry Officer along with statements of all the witnesses. There were 27 pages supplied to him. Before the Disciplinary Authority passes an order, report of the Enquiry Officer was supplied and later on the Disciplinary Authority, i.e. the Deputy Director General of Police passed an order dated 18th September, 2009 (Annexure 8 to the memo of the L.P.A.) and the punishment inflicted upon this appellant was for compulsory retirement. Earlier this appellant delinquent was punished for misconducts and several times punishments, major and minor, have been inflicted upon him: (a) Seven major punishments have been inflicted upon him in the past (b) 32 minor punishments were also awarded. This appellant has served for 23 years and 39 punishments have been inflicted upon him. This is the behaviour of this appellant and he has maintained consistency in this regard. Government should have dismissed him much earlier. Enough is enough. Tolerance level of the high ranking administrative officers seems to be also very high. In a disciplined force like the Police Administration, discipline should be the paramount consideration for the police personnel.” 8. The effect of non-supply of the enquiry report to the delinquent government employee has been authoritatively dealt with by the Hon'ble Supreme Court in “Managing Director, ECIL, Hyderabad and others v. B. Karunakar & Ors.” (1993) 4 SCC 727, wherein the Hon'ble Supreme Court has observed as under: “31. Hence, in all cases where the enquiry officer’s report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced 4 Civil Review Case No. 06 of 2018 because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.” 9. This is a well-accepted procedure that wherever a plea of non-supply of the enquiry report is taken by the government employee the defect may be corrected by the appellate authority by directing supply of the enquiry report. The petitioner has stated that on 29th September 2009 a copy of the enquiry report was given to him and, therefore, he had the opportunity to make his defence before the appellate authority against the order of compulsory retirement dated 18th September 2009 with reference to the enquiry report. The writ Court and the appellate Court both have dealt with the stand put forth by petitioner and now he has raised a similar plea in the present review petition. The petitioner has failed to demonstrate how 5 Civil Review Case No. 06 of 2018 prejudice was caused to him on account of non-supply of the enquiry report. He has availed the opportunity of filing the departmental appeal wherein he could have raised his objection to the adverse findings recorded against him by the enquiring officer. However, the petitioner has not even averred that he raised objections before the appellate authority in this regard. The appellate authority did not find any substance in the grounds raised by him and dismissed the appeal vide order dated 28th June 2010. 10. In “Haryana Financial Corporation & Anr. v. Kailash Chandra Ahuja” (2008) 9 SCC 31 the Hon’ble Supreme Court after taking note of the judgment in the case of “B. Karunakar” has observed as under: “21. From the ratio laid down in B. Karunakar it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer's report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside.” 11. We do not see any plea akin to the grounds covered under Order XLVII Rule 1 of the Code of Civil Procedure which would be in substance the grounds for reviewing the order passed in LPA No. 185 of 2017. In the garb of a review petition, the petitioner has sought a full fledged re-hearing of the writ petition like an appeal. 12. In “Lily Thomas v. Union of India” (2000) 6 SCC 224 the Hon'ble Supreme Court has observed that the power of review can be exercised for correction of a mistake but not to substitute a view. In “Lily Thomas” the Hon'ble Supreme Court has observed as 13. under: “56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. .....” 14. We have also this in our mind that while dealing with this 6 Civil Review Case No. 06 of 2018 petition the Court may assess the stake of the parties and a probable injury which may be caused to the petitioner and while so the Court may enter into the merits of the matter to a limited extent so as to form a prima facie opinion whether the review petition has any merit, and having done so, we do not find any merit in this petition. 15. While the aforesaid being the background facts, we do not find any ground for interference in this matter and, accordingly, Civil Review Case No. 06 of 2018 is dismissed. (Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 23rd January, 2023 RKM-NAFR