Basant Kumar Verma … … v. 1. The State of Jharkhand 2. The secretary-cum-Inspector General
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 4978 of 2014 Basant Kumar Verma … … … Petitioner Versus 1. The State of Jharkhand 2. The secretary-cum-Inspector General (Registration), Department of Registration, Government of Jharkhand, Project Building HEC, Dhurwa, Ranchi 3. The Deputy Commissioner-cum-District Registrar, Koderma 4. The District Sub Registrar, Koderma. … … Respondents CORAM: HON'BLE DR. JUSTICE S. N. PATHAK For the Petitioners For the Respondents : : Mr. Prabhat Kumar Sinha, Advocate Mr. Satyam Parmar, AC to SC-VI 12/05.02.2024 2.
Legal Reasoning
Heard the parties. Petitioner has thrown challenge to the order dated 04.09.1991 (Annexure-3) passed by the disciplinary authority and appellate order dated 23.01.2017, passed by the respondent no. 2 affirming the order of the disciplinary authority. 3. According to the petitioner, he was initially appointed as Extra Clerk and subsequently his service was taken into regular establishment and petitioner was appointed on the post of Temporary Clerk on 23.05.1981. Subsequently, petitioner was appointed by way of promotion on the post of Permanent Clerk vide memo no. 592, dated 22.04.1999. In course of his service, petitioner was suspended on the charge of indiscipline, disobedience, unauthorized absence, misconduct vide order dated 07.06.1989. The order of suspension was challenged before the then Ranchi Bench of Hon’ble Patna High
Decision
Court vide C.W.J.C. No. 1909 of 1990 (R), which was disposed of on 21.12.1990 directing the respondents to initiate departmental proceeding against the petitioner and conclude the same within four months from the date of receipt of a copy of the order, failing which order of suspension was directed to stand revoked. Thereafter, the proceeding was initiated against the petitioner and finally vide letter no. 1503, dated 11.05.1991, the District Sub Registrar, Hazaribagh RC/k 2 submitted the enquiry report to the Inspector General of Registration, Bihar, Patna. It is specific case of the petitioner that without serving copy of the enquiry report and without issuance of second show- cause notice, major punishment has been imposed against the petitioner i.e. stoppage of three annual increments with cumulative effect and also that petitioner shall get only subsistence allowance for the suspension period. 4. Against the order of disciplinary authority, petitioner preferred an appeal which remained pending for long years till there was direction of this Court to dispose of the same. On direction of this Court, after filing fresh representation, after bifurcation of the State, the said Appeal was disposed of vide order dated 23.08.2017. It is further case of the petitioner that it is only after filing of the instant writ petition, the appeal preferred by the petitioner was disposed of and the same was brought on record by way of supplementary counter affidavit, which is also subject matter of challenge in this writ petition. 5. Mr. Prabhat Kumar Sinha, learned counsel appearing on behalf of the petitioner strenuously urges that the impugned orders are not tenable in the eyes of law on the ground that mandatory provisions of rules have not been adhered to by the respondent authorities. It has further been argued that as per Rule 18 of the CCS Rule, it is the statutory as well as mandatory requirement for the respondents to furnish a copy of the enquiry report. In absence of enquiry report as well as second show-cause notice, learned counsel argues that petitioner was not in a position to defend his case. What was the material before the respondents – disciplinary authority to hold the petitioner guilty of charges, would have been furnished to the petitioner then only petitioner would have been in a position to defend the same. In absence of the same it can very comfortable be said that petitioner was very much prejudiced and non-serving of the enquiry report along with the second show-cause notice becomes cogent ground for quashment of the impugned orders. Learned counsel assailing the appellate order, submits that the same is RC/k 3 mechanical, cryptic and capricious as contention of the petitioner in appeal was never shown any consideration. 6. Opposing contention of petitioner, Mr. Satyam Parmar, AC to learned SC-VI submits that petitioner was nowhere prejudiced by non-serving of the enquiry report as well as the second show-cause notice. Learned counsel further argues that it is incumbent upon the petitioner to prove that he was prejudiced but the same has not been proved. It can be inferred that petitioner was not prejudiced by non- serving of the enquiry report along with the second show-cause notice and as such since ample opportunity was given to him in appeal, it can be said that the orders impugned are justified and no interference is warranted. 7. Having heard rival submission of the parties, this Court is of the considered view that any order visiting with civil or evil consequences, the cardinal principles of natural justice has to be adhered to. Serving of the enquiry report along with the second show-cause notice is sine-qua-non. It was incumbent upon the respondents to serve enquiry report along with the second show- cause notice. Petitioner was very much prejudiced by non-serving of the same. What was material before the disciplinary authority to hold the petitioner guilty of charges, was never known to the petitioner. If it would have been made petitioner known about the charges and what was going on in minds of the disciplinary authority by way of second show-cause notice regarding inflicting of punishment, petitioner would be in a position to reply the contention of the disciplinary authority as well as finding derived upon by the enquiry officer. 8. The issue fell for consideration before the Hon’ble Apex Court in the case of ECIL Vs. B. Karunakar reported in (1993) 4 SCC 727 and it has been held in para-25 thereof, as under: “25. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the the takes disciplinary authority findings in the report, the right to show cause against the into consideration RC/k 4 penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment.” In the case of Union of India Vs. B.V. Gopinath reported in (2014) 1 SCC 35 and in the case of Sunny Abraham Vs. Union of India reported in 2021 SCC OnLine SC 1284 similar view has been taken by the Hon’ble Court. In the case of State of Uttaranchal v. Kharak Singh reported in (2008) 8 SCC 236, para-14 of reads as under: to “14. In regard to the question whether an enquiry officer can indicate the proposed punishment in his report, this Court, in a series of decisions has pointed out that it is for the impose appropriate punishing/disciplinary authority punishment and enquiry officer has no role in awarding punishment. It is useful to refer to the decision of this Court in A.N. D'Silva v. Union of India [AIR 1962 SC 1130 : 1962 Supp (1) SCR 968] wherein it was held: (AIR p. 1134, para 6) “6. In the communication addressed by the enquiry officer the punishment proposed to be imposed upon the appellant if he was found guilty of the charges could not properly be set out. The question of imposing punishment can only arise after enquiry is made and the report of the enquiry officer is received. It is for the punishing authority to propose the punishment and not for the enquiring authority.” The opportunity of cross examination in presence of delinquent has not been provided to the petitioner which is against the observations made by this Court in its order dated 06.02.2020 in the case of Amar Kumar Sinha Vs. The State of Jharkhand and others passed in W.P.(S) No. 5246 of 2013. Further in the case of Union of India Vs. Ram Lakhan Sharma reported in (2018) 7 SCC 670 it has been held that cardinal principles of natural justice cannot be given a complete go-bye. In a case where the disciplinary authority proposes to award punishment RC/k 5 of dismissal i.e. capital punishment, a full fledged departmental proceeding is warranted. But in the instant case, there is no full fledged departmental proceeding and as such impugned orders are fit to be quashed. 9. Without serving of the enquiry report and issuance of the second show-cause notice, any order vitiates. Further, it has been argued by the respondents that merely because copy of the enquiry report has not been served, the impugned orders/ punishment order cannot be quashed mechanically. In the instant case the impugned order of punishment was issued in the year 1991 and the respondents slept over the appeal for decade. It was only after direction issued by this Court they arose from deep slumber on pending appeal. The contention of learned counsel for the respondents that no provision has been brought on record to show that it is mandatory requirement, is totally misconceived. Law is well settled. What is well settled, cannot be unsettled by the respondents. 10. In view of aforesaid observations, rules, guidelines, this Court is of the view that impugned order dated 04.09.1991 (Annexure-3) passed by the disciplinary authority and appellate order dated 23.01.2017, passed by the respondent no. 2 affirming the order of the disciplinary authority orders are fit to be quashed and set aside and the same are hereby quashed and set aside. Respondents are directed to grant consequential benefits to the petitioner. 11. 12. The writ petition stands allowed. As a sequel to the aforesaid, pending Interlocutory Application, if any, also stands disposed of. (Dr. S.N. Pathak, J.) RC/k