Jawahar Kumar v. The State of Jharkhand

Learned counsel for the petitioner submits that the petitioner was appointed as a Cinema Operator on 28.1.1980 under the then Information & Public Relation Department of erstwhile, Government of Bihar. He was promoted as Assistant Public Relation Officer on 2.1.1988. After re-organization of the State of Bihar, the petitioner was allocated Jharkhand cadre and there was a merger of the cadre of Assistant Public Relation Officer into Additional District Public Relation Officer in the year

2004. In the year 2013, while the petitioner was posted as Additional District Public Relation Officer at Deoghar and was 3 also in-charge District Public Relation Officer, Deoghar, an F.I.R. being Deoghar P.S. Case No. 150/2013 was registered against him and one Ashok Prasad (Sub Divisional Welfare Officer & I/C District Welfare Officer, Deoghar) on 20.4.2011 for allegedly committing offence punishable u/s 376 of the Indian Penal Code on 17.03.2011. The petitioner was apprehended on 20.4.2013 and after being taken into custody, he was put under suspension w.e.f. 22.04.2013 vide notification as contained in memo no. 239 dated 25.4.2013 issued under the signature of respondent no.3.

3. Thereafter, a departmental proceeding was initiated against him vide order as contained in memo no. 431 dated 21.8.2013 passed by the respondent no.2 and accordingly memo of charge in ‘Prapatra-Ka’ was served to him alleging sexual exploitation of a lady. Since the petitioner was in custody, necessary permission was sought by the enquiry officer- respondent no.5 from the competent court to conduct hearing of the departmental proceeding in jail which was granted by the District and Additional Sessions Judge-II, Deoghar vide letter no. 608 dated 09.05.2014.

4. The petitioner submitted his reply to the enquiry officer on

01.06.2014 through the jail authorities denying the charges levelled against him. The enquiry officer vide letter dated

4.9.2014 submitted enquiry report stating that conclusion of the departmental proceeding would be subject to outcome of the criminal proceeding continuing in the court against the 4 petitioner and said Ashok Prasad since both were in judicial custody.

5. The petitioner was convicted by the learned trial court in Sessions Trial No.425 of 2013 vide judgement dated

29.09.2016 passed and he was sentenced to undergo rigorous imprisonment for 7 years with fine of Rs.30,000/-. Aggrieved by the said judgment of conviction and order of sentence, the petitioner preferred an appeal being Cr. Appeal (S.J.) No.1198/2016 before this court and was granted bail during the pendency of the appeal vide order dated 21.10.2016 passed by a Bench of this court in I.A. No. 7090 of 2016. After grant of bail, the petitioner submitted his joining on 27.10.2016 and requested for revoking his suspension, however, no order was passed on the same.

6. It is further submitted that co-accused and co-delinquent, namely Ashok Prasad was imposed a major punishment of reduction to a lower grade, post or service vide notification as contained in memo no.320 dated 23.01.2017 and his suspension was revoked. Subsequently, after acquittal of said Ashok Prasad in the criminal case by this court, the impugned order of punishment passed against him was cancelled and he was exonerated from the charges levelled against him as well as payment of remaining part of salary for the period of suspension was also made. Thus, respondents discriminated the petitioner as against co-accused Ashok Prasad. 5

7. Meanwhile, I.A. No.3883 of 2017 was filed in Cr. Appeal (S.J.) No.1198/2016 for modification in the 2nd last paragraph of earlier order dated 21.10.2016 passed in I.A. No. 7090 of 2016 which was modified vide order dated 08.05.2017 to the extent that during pendency of the said appeal, the sentence imposed upon the petitioner would be suspended. Thereafter, he made a representation before the Principal Secretary, Department of Information and Public Relation, Government of Jharkhand on

15.5.2017, requesting to accept his joining by revoking his suspension w.e.f. 27.10.2016. In the meantime, another enquiry officer was appointed for conducting departmental proceeding after release of the petitioner from judicial custody on bail with respect to the charges levelled against him.

8. The said enquiry officer vide report dated 24.5.2017 recommended for revocation of suspension of the petitioner after his release on bail and proposed for stoppage of annual increments due to be granted to him during the imprisonment period. However, the Deputy Secretary, Department of Information and Public Relation, Government of Jharkhand without recording any disagreement with the findings of the enquiry officer only communicated him letter no.1561 dated

6.7.2017 stating that the enquiry report submitted after concluding the departmental proceeding was not related to the charges framed against the delinquent officer in ‘Prapatra-Ka’ and asked him to send factual enquiry report relating to the charges framed against the petitioner in ‘Prapatra-Ka’. 6 Thereafter the enquiry officer submitted the detailed enquiry report on 11.7.2017 observing that the charges levelled against the petitioner in ‘Prapatra-Ka’ were not found proved. In fact, in the light of aforesaid enquiry report, the petitioner ought to have been exonerated from the charges, however, vide order as contained in memo no. 612 dated 19.9.2017, departmental proceeding against the petitioner was re-initiated and another enquiry officer was appointed to look into the charges levelled against him.

9. In the meantime, the petitioner superannuated from service on

30.9.2017 and on the same day prior to his superannuation, his suspension was revoked vide notification dated 30.9.2017. The said enquiry officer submitted its report on 7.12.2017, wherein no finding regarding guilt of the petitioner was recorded, rather it was stated that Cr. Appeal (S.J.) No.1198 of 2016 was pending adjudication before this court and since, the petitioner had superannuated from service, prompt disposal of the matter pending against him could be done by taking decision in accordance with law at the departmental level.

10. It is further submitted that subsequently the petitioner was acquitted and the judgment of conviction and order of sentence passed by the 3rd Additional Sessions Judge, Deoghar in S.T. No.425 of 2013 was set aside vide judgment dated

21.08.2018 passed in Cr. Appeal (S.J.) No. 1198 of 2016. Hence, in view of the said judgment, the very foundation of 7 the charges framed against the petitioner in the departmental proceeding also gets demolished as the enquiry report finds corroboration with the order of acquittal in appeal. In the meantime, the petitioner was paid the amount of Provident Fund and G.I.S., however, other admissible retiral dues were not paid to him.

11. It is also submitted that for payment of the outstanding dues including pension and part of the full salary for the period of suspension, the petitioner also served pleader’s notice dated

19.02.2019 upon the respondent nos. 1 and 2, however no heed was paid to his grievance.

12. It is further submitted that the disciplinary authority was empowered under law to disagree with the findings of the enquiry officer after recording the reason, however, in the instant case, the disciplinary authority vide order contained in memo no. 145 dated 6.3.2019, directed for initiation of a fresh departmental proceeding without recording any reason, which is impermissible in the eyes of law. Even for converting the pending departmental proceeding into a proceeding under Rule 43(b) of the Jharkhand Pension Rules, 2000, there is requirement of approval by the Government, which has not been obtained in the present case.

13. It is also submitted that in view of acquittal of the petitioner in the said criminal appeal, he is entitled for payment of the retiral dues along with statutory as well as penal interest. The action of the disciplinary authority to reinitiate the departmental 8 proceeding against the petitioner even after receiving the report of the enquiry officer is illegal and unsustainable in the eyes of law. Moreover, during pendency of the writ petition, the Special Secretary, Department of Information and Public Relation, Government of Jharkhand passed the order as contained in memo No. 463 dated 13.08.2019 without any authority or jurisdiction imposing punishment of deduction of 10% amount from the pension of the petitioner for a period of 5 years as well as that he would not be entitled for getting any allowance other than the subsistence allowance for the suspension period. Thus, the order dated 13.08.2019 has been passed in violation of the principles of natural justice as well as the provisions of Rule 43(b) of the Jharkhand Pension Rules,

14. On the contrary, learned counsel for the respondents submits that the petitioner was suspended with effect from 22.04.2013 vide notification no.239 dated 25.04.2013 in accordance with rule 99 of Jharkhand Service Code. It is further submitted the previous enquiry was not concluded and due to the said reason, the department was not satisfied with the earlier enquiry report and thus a new enquiry was ordered to be initiated. The departmental enquiry was not dependent upon the criminal charge, rather the same was initiated for the charge of moral turpitude, conduct totally unbecoming of an officer, violation of conduct rules, breach of department's directives and established rules and norms. As such, the 9 petitioner was not entitled to be exonerated from the charge in departmental proceeding on the basis of the acquittal in criminal case. It is also submitted that since the petitioner was released on bail and departmental enquiry was pending, he was not allowed to join the office.

15. Heard the learned counsel for the parties and perused the materials available on record.

16. Thrust of the argument of the learned counsel for the petitioner is that no opportunity of hearing was given to the petitioner by the disciplinary authority before differing with the enquiry report submitted in the departmental proceeding and he straightaway directed for fresh enquiry. Thus the action of the disciplinary authority is not in accordance with the settled proposition of law.

17. The learned counsel for the petitioner puts reliance on the judgment rendered by the Hon’ble Supreme Court in the case of Union of India Vs. K.D Pandey & Another, reported in (2002) 10 SCC 471. In the said case, it has been held that the disciplinary authority cannot remit the matter to the enquiry officer for further enquiry merely on the ground that he is not satisfied with the enquiry report. It has further been held that further enquiry on the same set of charge and the materials available on record would amount to second enquiry and if this process is allowed, the inquiries can go on perpetually until the view of the inquiry officer is in accord with 10 that of the disciplinary authority and it would be an abuse of the process of law.

18. To appreciate the contention of the learned counsel for the petitioner, this Court has also perused the judgment rendered by the Hon’ble Supreme Court in the case of Vijay Shankar Pandey Vs. Union of India & Another, reported in (2014) 10 SCC 589, wherein it has been held as under:- “24. Be that as it may, the question is whether the disciplinary authority could have resorted to such a practice of abandoning the enquiry already undertaken and resort to appointment of a fresh enquiring authority (multi-member)? The issue is not really whether the enquiring authority should be a single member or a multi-member body, but whether a second inquiry such as the one under challenge is permissible. A Constitution Bench of this Court in [K.R. Deb v. CCE, (1971) 2 SCC 102], examined the question in the context of Rule 15(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. It was a case where an enquiry was ordered against a Sub-Inspector, Central Excise (the appellant before this Court). The enquiry officer held that the charge was not proved. Thereafter the disciplinary authority appointed another enquiry officer “to conduct a supplementary open inquiry”. Such supplementary inquiry was conducted and a report that there was “no conclusive proof” to “establish the charge” was made. Not satisfied, the disciplinary authority thought it fit that “another enquiry officer should be appointed to inquire afresh into the charge”.

25. The Court in [K.R. Deb v. CCE, (1971) 2 SCC 102] held that: (SCC p. 105, paras 12-13) “12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the disciplinary authority may ask the enquiry officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the inquiring officer or officers does not appeal to the disciplinary authority. The disciplinary authority has enough powers to 11 reconsider the evidence itself and come to its own conclusion under Rule 9.

13. In our view the Rules do not contemplate an action such as was taken by the Collector on 13-2-

1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the Rules but was harassing to the appellant.” (emphasis supplied)

26. It can be seen from the above that the normal rule is that there can be only one enquiry. This Court has also recognised the possibility of a further enquiry in certain circumstances enumerated therein. The decision however makes it clear that the fact that the report submitted by the enquiring authority is not acceptable to the disciplinary authority, is not a ground for completely setting aside the enquiry report and ordering a second enquiry.”

19. It is, now well settled that the disciplinary authority cannot reject a report submitted by the enquiry officer merely on the ground that the same is not acceptable to him. There must be a cogent ground to completely brush aside the enquiry report and to order for conducting second inquiry.

20. In the case in hand, it would appear that the first enquiry officer had submitted enquiry report on 04.09.2014, observing that the result of the departmental proceeding would be subject to the decision of the criminal case which was pending adjudication in S.T. No.425 of 2013. The said enquiry report was not accepted by the disciplinary authority and he directed for fresh inquiry to be conducted by another enquiry officer. Thereafter, second enquiry officer submitted the enquiry report on 24.05.2017 recommending revocation of the suspension of the petitioner upon grant of bail by this court in Cr. Appeal (SJ) No.1198 of 2016 and proposed for imposing 12 punishment of stoppage of his annual increments due to be granted during the period of imprisonment. However, this time also the disciplinary authority did not accept the enquiry report submitted by the second enquiry officer stating that the said report was not related to the charges framed against the petitioner under “Prapatra-Ka”.

21. Pursuant to the said order, the second enquiry officer submitted another enquiry report dated 11.07.2017 observing that the charges levelled against the petitioner were not found proved, however, the disciplinary authority did not exonerate the petitioner from the charges, rather appointed third enquiry officer to make a fresh enquiry upon the charges levelled against him. In the meantime, the petitioner superannuated from service on 30.09.2017 and thereafter the third enquiry officer submitted enquiry report wherein no finding regarding guilt of the petitioner was recorded. However, the said enquiry report was also not accepted by the disciplinary authority and a proceeding under Rule 43(b) of the Pension Rules, 2000 was initiated against him by framing fresh charges under “Praptra- Ka” whereafter the disciplinary authority passed the impugned order of punishment dated 13.08.2019 against him on receiving the report of the conducting officer, namely, Ajay Nath Jha, Deputy Director, Public Relation.

22. Thus, the enquiry report submitted by the first enquiry officer was not accepted by the disciplinary authority and thereafter two enquiry reports submitted by the second enquiry officer 13 were also not accepted by it, rather a fresh enquiry was ordered to be conducted by third enquiry officer under Rule 43(b) of the Jharkhand Pension Rules, 2000. It further transpires from the impugned order that during the proceeding initiated under Rule 43(b) of the Jharkhand Pension Rules, 2000 after superannuation of the petitioner, no opportunity of hearing was given to him to controvert the charges as well as he was not served the copy of enquiry report submitted by the conducting officer vide letter no. 132 dated 23.07.2019 and the impugned order of punishment was passed against the petitioner merely by reviewing the enquiry report at the departmental level.

23. Thus, this Court is of the view that the impugned order of punishment against the petitioner was passed in complete disregard to the settled proposition of law laid down by the Hon’ble Supreme Court as also the provisions of Rule 43(b) of the Jharkhand Pension Rules, 2000.

24. Another limb of the argument of the learned counsel for the petitioner is that, on the one hand, co-accused, namely, Ashok Prasad was exonerated from the charges and payment of salary for the period of suspension was directed to be paid to him and, on the other hand, 10% of pension of the petitioner was ordered to be deducted for five years as well as he was not allowed to receive any amount except subsistence allowance during the suspension period. Thus, the respondent authorities have adopted different standards with respect to 14 similarly situated persons which is violative of Article 14 of the Constitution of India.

25. Learned counsel for the petitioner puts reliance on the judgment rendered by the Hon’ble Supreme Court in the case of Rajendra Yadav Vs. State of Madhya Pradesh, reported in (2013) 3 SCC 73, wherein it has been held as under:- “9. The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co- delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The disciplinary authority cannot impose punishment which is disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences.”

26. There must be parity among co-delinquents while imposing punishment against them. Learned counsel respondents has failed to explain any cogent reason for making such distinction between the petitioner and the co-accused/ co-delinquent namely Ashok Prasad. Thus, this Court is of the considered view that the impugned order also suffers from discrimination between similarly situated persons.

27. It is true that the judgment of acquittal passed in a criminal case cannot be a ground to exonerate the delinquent in disciplinary proceeding since the standard of proof required in the said proceeding is different from that required in a criminal case. In a departmental proceeding, the standard of proof is one of preponderance of the probabilities, whereas in the 15 criminal case, the charge has to be proved by the prosecution beyond the shadow of reasonable doubt. However, when the co-delinquent, namely, Ashok Prasad had been exonerated in the present case from the charges levelled against him on the basis of the judgment of acquittal passed in the criminal case, there was no justified reason to pass the impugned order of punishment against the petitioner. Thus, the same is also vitiated being in violation of Article 14 of the Constitution of India.

28. In view of the aforesaid discussions, the order as contained in Memo No.463 dated 13.08.2019 issued by Special Secretary, Department of Information and Public Relation, Government of Jharkhand is hereby quashed. The respondent authorities are directed to pay arrears of salary to the petitioner for the period from 22.04.2013 to 30.09.2017 as well as to sanction and pay annual increments for the period of imprisonment which were withheld on the ground of pendency of the departmental proceeding and criminal case. The respondent authorities are also directed to pay all retiral benefits to the petitioner within six weeks from the date of receipt/production of a copy of this order.

29. The writ petition is accordingly allowed. Sanjay/AFR (Rajesh Shankar, J.) 16