Ram Sewak Rana …. … v. The State of Jharkhand through Chief Secretary, Ranchi. The Secretary cum Commissioner Commercial Taxes
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 2255 of 2015 Ram Sewak Rana …. …. Petitioner Versus The State of Jharkhand through Chief Secretary, Ranchi. The Secretary cum Commissioner Commercial Taxes, Govt. of Jharkhand, Ranchi. The Joint Commissioner, Commercial Taxes, State of Jharkhand, Ranchi. The Under Secretary, Commercial Tax Department, Ranchi. 1. 2. 3. 4. …. … Respondents ------ CORAM : HON’BLE DR. JUSTICE S.N. PATHAK ------ : : ----- For the Petitioner For the Respondents Mr. A.K. Sahani, Advocate Mr. Aman Kumar, AC to GP-I 8/ 13.02.2024
Legal Reasoning
Heard the parties. 2. The petitioner has assailed the order contained in Memo No. 5035 dated 10.09.2013 by which he has been inflicted with the punishment of censure. The petitioner has also prayed for regularisation of his service for the period from 4.8.2012 to 21.3.2013 and to pay the salary for the said period. Further prayer has also been made to promote him on the post of Joint Commissioner, Commercial Taxes from the date his junior has been promoted. 3. Briefly stated, the petitioner was appointed on 3.6.1987 in the erstwhile State of Bihar. After bifurcation, his service was allocated to the Jharkhand cadre. He was promoted to the post of Deputy Commissioner, Commercial Taxes on 25.3.2009. A memo of charge contained in Prapatra- Ka was framed on 28.5.2012. Thereafter, departmental enquiry was initiated on 11.6.2012, in which the petitioner demanded for several documents, but no paper was supplied. The departmental proceeding was finally heard and concluded, but no result thereof was ever given to the petitioner. However, on RTI application, the petitioner came to know that he was fully exonerated from the charges. The enquiry report dated 14.3.2013 is at Annexure-4 to the writ petition. It is further case of the petitioner that a Departmental Promotion Committee was held on 11.7.2013 for promotion to the post of Joint Commissioner and the case of the petitioner was also considered, but due to the order of censure, his result was kept in a sealed cover, whereas several juniors to the petitioner have 2 been promoted vide Memo No. 5949-5954 dated 30.11.2013. It is also the case of the petitioner that while he was posted at Daltonganj at the office of Joint Commissioner, Commercial Taxes (Administrative) Ranchi Division, from 4.8.2012 to 21.3.2013, he was not getting salary and the period was also not regularised. With the aforesaid facts and situation, the petitioner has knocked the door of this Court. 4.
Legal Reasoning
Mr. A.K. Sahani, learned counsel appearing for the petitioner strenuously urges that the order of punishment dated 10.9.2013 is not tenable in the eyes of law for the simple reason that the petitioner was fully exonerated from the charges and the disciplinary authority without differing with the findings arrived at the by the enquiry officer and without giving opportunity to the petitioner, has inflicted the punishment. He further submits that in the enquiry report, the petitioner was held not responsible for any of the charges. Learned counsel further submits that even the petitioner was not supplied the copy of enquiry report and he has obtained the same under the RTI Act vide letter dated 13.11.2013. Learned counsel further submits that though the DPC was held and several juniors to the petitioner have been promoted to the next higher post, but due to the punishment inflicted upon the petitioner, he was deprived from getting promotion. Learned counsel further adds that the result of DPC with respect to petitioner was kept in a sealed cover and it was never opened and finally the petitioner stood retired in the year 2016. Learned counsel submits that for the fault of the respondents, the petitioner has been made to suffer only because of the impugned punishment of censure, which is cryptic, capricious and not tenable in view of the settled propositions of law by the Hon’ble Apex Court in various judgments. It appears that the disciplinary authority inflicted the punishment mechanically and no consideration was shown to the enquiry report. Learned counsel also submits that the petitioner is also entitled for full salary for the period from 4.8.2012 to 21.3.2013 as he has worked for this period with the office of Joint Commercial, Commercial Taxes (Admn) in view of the order of the Headquarters. 5. On the other hand, learned counsel for the respondents vehemently opposes the contention of learned counsel for the petitioner and submits that it was after finding returned by the enquiry officer, a further 3 investigation was done and it was observed that the petitioner could not have been let-off by the enquiry officer, because the petitioner lacked administrative capability. As such, the disciplinary authority differed with the findings arrived at by the enquiry officer and the order of punishment has been imposed upon the petitioner, which is in accordance with law. So far as regularisation of service and salary for the period from 4.8.2012 to 21.3.2013 is concerned, learned counsel draws the attention of this Court towards paragraph-21 of the counter affidavit and submits that the same is under active consideration and a reasoned order thereof shall be passed and if it is found that the petitioner is entitled for the same, the benefits thereof shall be extended to him. 6. Having heard the learned counsel for the parties and upon perusal of the records, this Court is of the considered view that the impugned order is not tenable in the eyes of law for the following facts and reasons:- (i) Admittedly, the petitioner has been exonerated by the enquiry officer. It is also not in dispute that the copy of the enquiry report was never supplied to the petitioner and he obtained the same only under the RTI Act. (ii) Learned counsel for the respondents has empathically argued that after exoneration of the petitioner from the charges by the enquiry officer, the matter was reviewed and it was found that for administrative reason, it is necessary to inflict the punishment of censure upon the petitioner, as the petitioner has lacked administrative capability. This argument of the learned counsel for the respondents is not acceptable to this Court for the simple reason that nothing has been brought on record to show that after the enquiry report, the petitioner was noticed on the opinion derived by the disciplinary authority while differing with the findings of the enquiry officer with cogent reasons. In this regard, law is well settled that whenever the disciplinary authority differs with the findings of the enquiry officer, it was the requirement of law that before differing with the finding of the enquiry officer, the disciplinary authority ought to have offered a tentative reasons for such difference to the delinquent employee and after the response of the delinquent, 4 the finding of guilt could have been returned by the disciplinary authority. In absence of these formalities, the stand of the respondents is fit to be quashed and set aside. It appears that without following the cardinal principle of natural justice, the impugned
Decision
order of censure has been passed. As such, the impugned order is fit to be quashed and set aside. (iii) In the case of Punjab National Bank Vs. Kunj Bihari Misra, reported in (1998) 7 SCC 84, wherein the question arises for consideration that when the enquiry officer, during the course of disciplinary proceedings, comes to a conclusion that all or some of the charges alleging misconduct against an official are not proved, then can the disciplinary authority differ from that and give a contrary finding without affording any opportunity to the delinquent officer, Their Lordships relying on the aforesaid judgments held in para-19, which reads as follows:- thereof, whenever “19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into the Regulation 7(2). As a result disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer. (iv) Further from the counter affidavit filed by the respondents, it appears that the respondents have tried their level best after coming to know that the petitioner has been exonerated by the enquiry officer and such document has been supplied to the petitioner under the RTI Act, in order to save their skin, they came out with the stand that the petitioner’s services shall be regularized and the salary thereof be paid. This also shows the callous approach of the respondents. 5 (v) It was also brought to the notice of this Court that DPC was held on 11.7.2013 and the result of the petitioner for next higher promotion was kept under sealed cover due to the punishment of censure. Several juniors to the petitioner have been promoted by the DPC vide order dated 30.11.2013. 7. As a sequitur to the aforesaid rules, regulations, guidelines and judicial pronouncements, the impugned punishment order dated 10.9.2013 is hereby set aside. The respondents, in particular respondent no. 2, are directed to consider the case of the petitioner for promotion in view of the recommendation of the DPC held on 11.7.2023. Let it be made clear that if it is found that any junior to the petitioner has been considered and granted promotion, the petitioner is also entitled for the same consequential benefits. Respondents shall also release the payment and regularise the service period with effect from 4.8.2012 to 21.3.2023. Let the entire exercise be undertaken within a period of eight weeks from the date of receipt of a copy of this order. 8. With the aforesaid observations and directions, the writ petition is, accordingly, allowed. R.Kr. (Dr. S.N. Pathak, J.)