Kajal Kumar Dubey, aged about 42 years, son of Late Dhirendra Kumar Dubey, resident v. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 235 of 2024 ---- Kajal Kumar Dubey, aged about 42 years, son of Late Dhirendra Kumar Dubey, resident of Village-Bandelwar, P.O. & P.S.-Pathargama, District-Godda. 1. The State of Jharkhand 2. Director General and Inspector General of Police, Versus … … Appellant Jharkhand, Police Head Quarter, P.O. & P.S.-Dhurwa, District-Ranchi. 3. Director General of Police (Head Quarter), Police Head Quarter, P.O. & P.S.-Dhurwa, District-Ranchi. 4. Additional Director General of Police (Abhiyan), Police Head Quarter, P.O. and P.S.-Dhurwa, District-Ranchi. 5. Deputy Inspector General of Police (Personnel), Police Head Quarter, P.O. and P.S. –Dhurwa, District-Ranchi. 6. Deputy Inspector General of Police, South Chhota Nagpur, P.O. and P.S.-Dhurwa, District-Ranchi. 7. Superintendent of Police, Gumla, P.O. and P.S. –Gumla, District-Gumla. … … Respondents ------- CORAM: HON’BLE THE ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE ARUN KUMAR RAI ------ For the Appellant For the Respondents : Mr. Ravi Prakash Mishra, AC to AAG II -------- : Mr. Manoj Tandon, Advocate Order No. 04 : Dated 30th July, 2024 Sujit Narayan Prasad, ACJ: I.A. No. 6003 of 2024 1. The instant application has been filed for condonation of delay of 33 days in filing the appeal. 2. Heard learned counsel for the parties. - 1 - L.P.A. No. 235 of 2024 3. In view of reason assigned in the application, the delay in filing the appeal is condoned. 4. Accordingly, I.A. No. 6003 of 2024 stands disposed of. L.P.A. No. 235 of 2023 Prayer: 5. The instant intra-court appeal, preferred under Clause 10 of the Letters Patent, is directed against the order/judgment dated 09.02.2024 passed in W.P. (S) No. 1731 of 2020 whereby and whereunder the learned Single Judge has declined to interfere with the impugned order of punishment of one black mark, as contained in memo no. 666 dated 18.02.2020, by dismissing the writ petition. Facts of the case: 6. Brief facts of the case, as per the pleadings made in the writ petition, which are required to be enumerated herein, read as under: - 7. The petitioner while working as Sub-Inspector of Police and posted as Officer-in-charge Kamdara Police Station in
Facts
the year 2018, an FIR was lodged by Informant Jyoti Devi, which was registered as Gumla Mahila (Kamdara) P.S. Case No. 09 of 2018 dated 21.10.2018 under Section 376 I.P.C. 8. The aforesaid case was entrusted to the present petitioner for investigation. In the supervision report, the Dy. S.P. (Head Quarter), Gumla has mentioned that place of - 2 - L.P.A. No. 235 of 2024 occurrence was the house of informant but it has wrongly been mentioned in the Case Diary that the place of occurrence is house of Bhola Singh. Therefore, it was alleged that petitioner has committed gross negligence towards his duties. 9. For the said allegation, memo of charge was served upon the petitioner and Enquiry Officer was appointed who conducted the enquiry. After completion of enquiry, the Enquiry Officer submitted its report dated 07.09.2019, holding the petitioner not guilty of the charges. 10. Thereafter, the Superintendent of Police, Gumla has issued show-cause notice to the petitioner vide letter dated 01.11.2019 to which the petitioner submitted his reply. However, the Disciplinary Authority i.e. the Superintendent of Police, Gumla, without considering the reply of petitioner and differing with the opinion of enquiry report, vide order as contained in memo No. 666 dated 18.02.2020 has awarded punishment of one black mark against the petitioner. 11. Against the said order of punishment petitioner filed departmental appeal before the Deputy Inspector General of Police, South Chhotanagpur, Ranchi which stood dismissed vide order dated 26.05.2020 confirming order of punishment passed by the disciplinary authority. 12. It is the further case of petitioner that due to said - 3 - L.P.A. No. 235 of 2024 punishment, the petitioner was declared unfit by the Selection Committee, headed by Director General of Police- cum-Inspector General of Police, Jharkhand, Ranchi for promotion to the post of Inspector of Police. Therefore, the petitioner approached this Court by filing writ petition, which was dismissed, hence, the present appeal. 13. It is evident from the factual aspect that the writ petitioner while working as Officer-in-charge Kamdar Police Station, investigation of case being Gumla Mahila (Kamdara) P.S. Case No. 09 of 2018 under Section 376 I.P.C. was entrusted to him. 14. In the supervision report, the Dy. S.P. (Head Quarter), Gumla has mentioned that place of occurrence was house of informant but it has wrongly been mentioned in the Case Diary the house of Bhola Singh. Therefore, it was alleged that petitioner has committed gross negligence towards his duties. In view thereof, decision was taken for initiation of departmental proceeding against the petitioner. 15. Accordingly, a memo of charge was served upon him and Enquiry Officer was appointed to conduct the enquiry. The petitioner participated in the enquiry. After completion of enquiry, the Enquiry Officer submitted his report dated 07.09.2019 holding the petitioner not guilty of the charges. 16. However, the disciplinary authority has issued show- - 4 - L.P.A. No. 235 of 2024 cause notice to the petitioner vide letter dated 01.11.2019 to which the petitioner replied. The Disciplinary Authority i.e. the Superintendent of Police, Gumla, differing with the opinion of enquiry report, vide order as contained in memo No. 666 dated 18.02.2020 awarded punishment of one black mark to the petitioner, against which the petitioner filed departmental appeal which stood dismissed vide order dated 26.05.2020. 17. Therefore, the petitioner approached this Court by filing writ petition mainly on the ground that in a case where the charge is found to be not proved by the enquiry officer, the procedure which required to be adopted by the disciplinary authority was to apprise the writ petitioner with the difference of opinion by giving specific reason so that the delinquent employee may file reply in his defence and it is only thereafter appropriate order ought to have been imposed. 18. It has further been stated that the consequence of the aforesaid legal position is of paramount importance, since, herein the punishment is of one black mark which is major punishment under the Jharkhand Police Manual. 19. Further ground has been taken that due to said punishment, the petitioner was declared unfit by the Selection Committee for promotion of the petitioner. But the - 5 - L.P.A. No. 235 of 2024 learned Single Judge has not agreed with the same rather has considered the issuance of second show cause for the purpose of providing opportunity by differing with the enquiry report having said to be in compliance of the law settled in this regard and accordingly, dismissed the writ petition on the aforesaid ground, against which, the present intra-court appeal. Argument on behalf of appellant-writ petitioner:
Legal Reasoning
the writ petitioner to take the ground that the position of law in such circumstances has not been followed. 23. Learned counsel for the State has further submitted that even otherwise also if there is technical lapses the matter may be remitted before the disciplinary authority for passing order afresh after following due procedure of law. Response of argument made on behalf of petitioner- appellant: 24. Mr. Tandon, learned counsel for the petitioner, in response to the argument advanced on behalf of respondents-State on the issue of remand has submitted that the departmental proceeding has been initiated in the year 2019 and since then five years has already lapsed and when the law is already settled, it was incumbent upon the authority concerned to take the procedure of law and if the procedure of law has not been followed then the delinquent employee cannot be made to suffer for the lapses/laches committed on the part of disciplinary authority which if will be allowed then the delinquent employee will be made to suffer for no fault of his own. - 7 - L.P.A. No. 235 of 2024 25. It has been submitted that he has already suffered by depriving the benefit of promotion due to the imposition of major punishment of one black mark, therefore, it is not a fit case to remand. Analysis 26. This Court has heard learned counsel for the parties and gone across the finding recorded by the learned Single Judge as also the finding recorded by the administrative authorities while passing impugned order of punishment. 27. The issue, which is to be decided in the present lis, is that what recourse is available to the disciplinary authority in the case where the charge has not been found to be proved by the enquiry officer. 28. The law in this regard is well settled by Hon’ble Apex Court in the case of Punjab National Bank & Ors v. Kunj Behari Misra, [(1998) 7 SCC 84] wherein proposition has been laid down that in a case where the enquiry officer has found the charge not proved against the delinquent- employee, the disciplinary authority while disagreeing with such finding must has to record its reason(s) for such difference. For ready reference, the relevant paragraph 19 of the said judgment is quoted hereunder: “19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority - 8 - L.P.A. No. 235 of 2024 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.” 29. It is evident from the aforesaid judgment that although in the relevant Conduct Rule there is no stipulation to the effect that what would be the recourse available to the disciplinary authority in case the enquiry officer has found the charge not proved and in order to fill up the gap by virtue of judicial pronouncement rendered in the aforesaid case the procedure has been laid that in such circumstances, the disciplinary authority cannot be said to be remediless rather the option available with the disciplinary authority is by differing with the opinion of the enquiry officer but by assigning reason which is to be supplied to the delinquent officer for the purpose of providing an opportunity to put his defence before inflicting punishment. 30. The factual aspect herein is that the on the alleged misconduct of some lapses in conducting investigation, - 9 - L.P.A. No. 235 of 2024 charge was framed against the petitioner. 31. For ready reference, the charge, which is in Hindi, is quoted as under: vkjksi& iq0v0fu0 dkty dqekj nqcs ds fo:) vuq”kklughurk] d(cid:217)kZO;ghurk] ykijokgh ,oa ,d v;ksX; iqfyl inkf/kdkjh gksus dk vkjksi yxk;k tkrk gS fd & ;s dkeMkjk Fkkuk esa Fkkuk izHkkjh ds in ij inLFkkfir FksA bl (cid:216)e esa iq0v0fu0 ljLorh dqekjh feat] Fkkuk izHkkjh efgyk Fkkuk }kjk xqeyk efgyk …dkeMkjk‰ Fkkuk dkaM la0&09@18] fnukad 21-10-18 /kkjk&376 Hkk0n0fo0 ntZ dj dkaM ds vuqla/kku dk Hkkj iq0v0fu0 dkty dqekj nqcs dks lkSaik x;kA ;g dkaM okfnuh T;ksfr nsoh ifr lqcks/k flag] lk0$Fkkuk&dkeMkjk] ftyk&xqeyk ds fyf[kr vkosnu ds vk/kkj ij izkFkfedh vfHk;qDr eulk flag is0 Lo0 jke flaxklu flag] lk0& fdjdslk] iks0&lksugu dSeqj] Fkkuk&HkHkqvk …fcgkj‰ orZeku l0v0fu0 ds in ij dkeMkjk Fkkuk esa inLFkkfir ftyk&xqeyk ds fo:) dkaM dh okfnuh ls bPNk ds fo:) “kkjhfjd laca/k cukus ds vkjksi esa ntZ djk;k x;kA iqfyl mik/kh{kd …eq0‰ xqeyk }kjk mDr dkaM esa vius dk;kZy; ds Kkikad&1441@18] fnuakd 15-11-18 ds ek/;e ls Ik;Zos{k.k fVIIk.h esa mYys[k fd;k x;k gS fd mDr dkaM dk ?kVukLFky okfnuh ds vyosLVj ;qDr edku ij vofLFkr gS] ijUrq vuqla/kkud iq0v0fu0 ds }kjk ?kVukLFky Hkksyk flag ds edku dks ?kVukLFky ekudj nSfudh esa vafdr fd;k x;k] tcfd Hkksyk flag ,oa okfnuh dk edku djhc 100 xt dh nwjh ij gSA vuqla/kkud iq0v0fu0 ds }kjk fnuakd 12-11-18 dks Ik;Zos{k.k fd;s tkus ds Ik”pkr~ okfnuh ds edku dk voyksdu dj ?kVukLFky nSfudh ds dafMdk&52 esa vafdr fd;k x;k rFkk fnuakd 30-10-18 dh frfFk esa lefiZr n”kkZ;k x;k] tks dk;kZy; esa fnukad 14-11-18 dks miyC/k djk;k x;kA vuqla/kkud iq0v0fu0 ds }kjk vuqla/kku ds izfr bl rjg dk ykijokgh djuk vuqla/kku ds izfr ?kksj ykijokgh dk ifjpk;d gSA bl ykijokgh ds fy, vuqla/kkud iq0v0fu0 dkty dqekj nqcs] Fkkuk izHkkjh dkeMkjk Fkkuk ds fo:) foHkkxh; dk;Zokgh izkjaHk djus dh vuq”kalk dh x;h rFkk izfrosnu&02 esa fo0dk0 izkjaHk dh tk jgh gS] ;g mYysf[kr fd;k x;kA rRi”pkr~ mDr dkaM ds laca/k esa Jh nhid dqekj] vuq0iq0ink0 cfl;k dks Kkikad&8143@ j0dk0] fnukad 22-12-18 ,oa Kkikad&442@j0dk0] fnukad 12-01-19 ds }kjk tkap izfrosnu lefiZr djus gsrq vkns”k fn;k x;kA bl laca/k esa vuq0iq0ink0 cfl;k }kjk vius dk;kZy; ds Kkiakd&80@19] fnuakd 18-01-19 ds ek/;e ls tkap izfrosnu lefiZr fd;k x;k gS fd&vuqla/kkud(cid:217)kkZ iq0v0fu0 dkty dqekj nqcs }kjk izFke ?kVukLFky dk fujh{k.k fnuakd 22+-10-18 dks fd;k x;k tks dafMdk&06 esa vafdr gS] ;g ?kVukLFky okfnuh ds edku ds :Ik esa vafdr gSA okfnuh ds edku dk nks ckj ?kVukLFky ds :Ik mYys[k fd;s tkus dk dkj.k Li’V ugha gSA rhljs ?kVukLFky dk fujh{k.k fnuakd 09-11-18 dks fd;k x;k tks dafMdk&69 esa vafdr gSA ;g ?kVukLFky - 10 - L.P.A. No. 235 of 2024 …CykWd dk DokVj‰ lkf{k;ksa ds c;ku esa izdk”k esa vk;k gS …dafMdk&61] 67] 68‰ tks fnuakd 09-11-18 dks gh fy;k x;k gSA ;g dkaM /kkjk&376 Hkk0n0fo0 cykRdkj tSls xaHkhj vkjksi ls lacaf/kr gSA vr% bl dkaM ds vuqla/kkudrkZ iq0v0fu0 dkty dqekj nqcs }kjk ,d gh fnu esa lHkh ?kVukLFkyksa dh tkudkjh izkIr dj fujh{k.k fd;k tkuk pkfg, Fkk] ijarq vuqla/kkudrkZ }kjk vyx&vyx fnuksa esa ?kVukLFky dk fujh{k.k fd;k x;k tks vuqla/kkudrkZ dh ykijokgh dks n”kkZrk gSA vuqla/kkudrkZ iq0v0fu0 }kjk fnuakd 30-10-18 dks lefiZr fd;s x, dkaM nSfudh dks fnuakd 14-11-18 dks dk;kZy; esa miyC/k djk;k x;kA ;g dk;Z vkjksfir iq0v0fu0 ds vuq”kklughurk] d(cid:217)kZO;ghurk] ykijokgh ,oa ,d v;ksX; iqfyl inkf/kdkjh gksus dk ifjpk;d gSA mijksDr vkjski ds fy, vkjksfir iq0v0fu0 }kjk lefiZr Li’Vhdj.k dks valrks’ktud ikrs gq, vuq0iq0ink0 cfl;k ds dk;kZy; Kkiakd&80@19 fnuakd 18-01- 19 ds ek/;e ls lefiZr tkWap izfrosnu ds vk/kkj ij Kkiakd&1967@j0dk0] fnukad 01-03-19 ds ek/;e ls foHkkxh; dk;Zokgh izkjaHk dh x;hA 32. On the basis of said charge, the enquiry officer conducted enquiry and has considered the entire evidence, both documentary and oral, and has found the charge not proved. 33. For ready reference, the relevant portion of enquiry report is quoted as under: eUrO;%& iznZ”kksa ds voyksdu] lkf{k;ksa ds c;ku ,oa vipkjh iq0v0fu0 dkty dqekj nqcs }kjk lefiZr Li’Vhdj.k ls irk pyrk gS fd vuqla/kku ds (cid:216)e esa okfnuh T;ksfr nsoh }kjk vius ifjokj ds lnL;ksa ds le{k vuqla/kkudrkZ dks izFke ?kVukLFky dks viuk edku crk;k tks Hkksyk flag dk gSA xokgksa ds c;ku esa mDr ?kVukLFky ij l0v0fu0 eulk flag ,oa okfnuh ds cjkcj feyus dh ckr dk leFkZu fd;k x;k gSA Hkksyk flag ds c;ku esa Hkh Li’V rkSj ij crk;k x;k gS fd Hkksyk flag tc Hkh vius iq”rSuh xkaWo tkrs Fks rks okfnuh rFkk ifjokj ds vU; lnL; buds gh ?kj esa jgrh FkhA Hkksyk flag vius c;ku esa ;g Hkh crk;k gS fd okfnuh T;ksfr nsoh ,oa l0v0fu0 eulk flag dks vius ?kj esa feyrs&tqyrs dbZ ckj ns[ks gSA iqu% xokgksa ds c;ku ds vk/kkj ij ;g ckr izdk”k esa vk;h fd l0v0fu0 eulk flag cjkcj T;ksfr nsoh ds ?kj tkrs Fks] mlds vk/kkj ij vuqla/kkudrkZ }kjk nwljk ?kVukLFky vafdr fd;k x;kA iqu% xokgksa ds c;ku ds vk/kkj ij vuqla/kkudrkZ }kjk r‘r; ?kVukLFky CykWd DokVZj vafdr fd;k x;k tks l0v0fu0 eulk flag dk fuokl LFky FkkA - 11 - L.P.A. No. 235 of 2024 vuqla/kkudrkZ }kjk dkaM nSfudh fnukad 30-10-18 dh frFkh rd vafdr dj Ik;Zos{k.k gsrq Fkkuk ys[kd dks u Hkstdj pkSdhnkj ds }kjk vuq0iq0ink0 cfl;k ds dk;kZy; esa Hkst fn;k x;k] bl otg ls iqfyl mik/kh{kd …eq0‰ xqeyk dks fnuakd 14-11-18 dks foyEc ls miyC/k djk;k x;kA efgyk Fkkuk dkaM la0&09@18 fnuakd 21-10-18 esa okfnuh T;ksfr nsoh dk ekuuh; U;k;ky; esa /kkjk&164 n0iz0la0 ds vUrxZr c;ku ntZ djk;k x;k ftlesa okfnuh us vius c;ku esa cgdkos esa vkdj dkaM ntZ djus dh ckr crkbZ ftlds vk/kj ij dkaM esa vuqla/kkuksijkar vafre izfrosnu la0&39@18] fnuakd 11-11-18 /kkjk&376 Hkk0n0fo0 ds vUrxZr rF; dh Hkwy lefiZr fd;k x;k gSA mijksDr ls ,slk izrhr gksrk gS fd bl dkaM dh okfnuh }kjk cgdkosa esa vkdj ;g dkaM ntZ djk;k x;k gS rFkk vuqla/kkudrkZ dks fnXHkzfer dj izFke ?kVUkLFky Hkksyk flag ds edku dks viuk edku crk;k x;k gSA vr% eSa vipkjh dks funksZ’k ikrk gwWA 34. The disciplinary authority, after receipt of enquiry report, issued second show cause in order to provide an opportunity to the delinquent employee-writ petitioner to have his defence for its consideration before inflicting punishment. The disciplinary authority, after receipt of said show cause reply inflicted the punishment of one black mark upon the petitioner. 35. The matter would have been different if the disciplinary authority and enquiry officer are the same then in such circumstances there is no need to issue second show cause notice for the reason that whatever material has come before the enquiry officer-cum-disciplinary authority he is already aware with all the factual aspect by taking into consideration the defence which has been put before him while exercising the power of enquiry officer and the same authority in the - 12 - L.P.A. No. 235 of 2024 capacity of disciplinary authority is to pass order of punishment but that will not be available if the enquiry officer and disciplinary authority are two different identity and that is the reason in such circumstances, a second show cause notice is required to be issued by the disciplinary authority for the purpose of consideration of the adverse finding recorded by the enquiry officer but in the situation if the enquiry officer has not found the charge proved then the same has been dealt with by Hon’ble Apex Court in the case of Punjab National Bank & Ors v. Kunj Behari Misra (supra) that in such circumstances the reason of difference with the opinion of the enquiry officer is to be recorded and is to be provided to the delinquent employee for the purpose of putting his defense before inflicting punishment. 36. Here, the learned Single Judge has considered the aforesaid implication by taking note that second show cause has been issued. 37. The question is that when charge has not been found to be proved by the enquiry officer since there is no occasion for issuance of second show cause notice, therefore, the aforesaid consideration made by learned Single Judge is contrary to the law laid down by Hon’ble Apex Court in the case of Punjab National Bank & Ors v. Kunj Behari Misra (supra). - 13 - L.P.A. No. 235 of 2024 38. It is admitted fact that where there is difference of opinion with the finding recorded by enquiry officer to that of disciplinary authority then opportunity is required to be provided to the delinquent employee as such there is non- compliance of the settled procedure. Therefore, the order of punishment suffers from serious procedural lapses. 39. We are conscious of the law that the interference with the order of punishment in exercise of power of judicial review under Article 226 of the Constitution of India is very limited. 40. Reference in this regard be made to the judgment rendered in Union of India & Others vs. P. Gunasekaran [(2015) 2 SSC 610 wherein at paragraphs 12 and 13, the following guidelines have been laid down for showing interference in the decision taken by the disciplinary authority and not to interfere with the decision, which reads hereunder as: “12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: - 14 - L.P.A. No. 235 of 2024 a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf; c. there is violation of the principles of natural justice in conducting the proceedings; d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence. 13. Under Article 226/227 of the Constitution of India, the High Court shall not: (i). re-appreciate the evidence; (ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii). go into the adequacy of the evidence; (iv). go into the reliability of the evidence; (v). interfere, if there be some legal evidence on which findings can be based. (vi). correct the error of fact however grave it may appear to be; (vii). go into the proportionality of punishment unless it shocks its conscience.” 41. The Hon’ble Apex Court in Central Industrial Security Force and Ors. v. Abrar Ali [(2017) 4 SCC 507], have laid down following guidelines for interference by the High Court in the matter of punishment imposed on conclusion of the - 15 - L.P.A. No. 235 of 2024 departmental proceeding. The extract of relevant passages, i.e., para 13 and 14, are referred herein below: “13. Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to reappreciation of evidence. It is settled law that re-appreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India. 14. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, [(2011) 4 SCC 584], this Court held as follows: "7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. … … … … … … …" 42. It is, thus, evident from the judgment rendered in Union of India & Others vs. P. Gunasekaran (Supra) and Central Industrial Security Force and Ors. vs. Abrar Ali - 16 - L.P.A. No. 235 of 2024 (Supra) that the guidelines have been formulated that in which condition interference can be made to the order of disciplinary authority and in which condition there cannot be any interference with such decision. 43. Here, we have come to the conclusion that there is procedural lapses in imposing punishment therefore, order of punishment is required to be interfered with, which the learned Single Judge has failed to do so. 44. Accordingly, the order passed by the administrative authorities by inflicting punishment of one black mark is hereby quashed and set aside. 45. Now so far the issue of remand, which is the alternate argument of learned counsel for the respondents-State is concerned, is also required to be dealt with. 46. It has been argued that on the technical lapses, nobody can be allowed to take advantage and in that circumstance, the matter is required to be remitted before the disciplinary authority for passing order afresh by following the procedure as laid down by Hon’ble Apex Court in the case of Kusheshwar Prasad Singh vs. State of Bihar and Ors., (2007) 11 SCC 447, wherein at paragraphs-14, 15 and 16, the Hon’ble Apex Court has observed as under: “14. In this connection, our attention has been invited by the learned counsel for the appellant to a decision of this Court in Mrutunjay Pani v. Narmada Bala Sasmal [AIR 1961 SC - 17 - L.P.A. No. 235 of 2024 1353] wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim commodum ex injuria sua nemo habere debet (no party can take undue advantage of his own wrong). 15. … This Court (at SCC p. 142, para 28) referred to Broom’s Legal Maxims (10th Edn.), p. 191 wherein it was stated: “It is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure.” 16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has 37 occasioned. To put it differently, “a wrongdoer ought not to be permitted to make a profit out of his own wrong”.” 47. We are not in dispute that lapses in technicality cannot be allowed to be taken advantage of rather the matter is required to be remitted for the purpose of passing order afresh. But the question herein is that when the law is already there way back in the year 1998 in the case of Punjab National Bank & Ors v. Kunj Behari Misra (supra) then the disciplinary authority ought to have taken recourse of issuance of second show cause notice. 48. The law is also equally settled that if any wrong has been committed by any authority of the State or anybody no advantage can be taken by such authority or the State or the - 18 - L.P.A. No. 235 of 2024 illegal doer. Reference in this regard be made to the judgment rendered in the case of Punjab National Bank & Ors v. Kunj Behari Misra (supra). 49. Now, coming back to the factual aspect of the present case as also taking aid of paragraph 19 of the judgment rendered in the case of Punjab National Bank & Ors v. Kunj Behari Misra (supra) wherein exactly the similar issue has been dealt with, although the fact of the present case to that of the case of Kunj Behari Misra the only difference is that the respondent- Kunj Behari Misra was already superannuated from service as would be evident from paragraph 19 of the judgment. Thus, the question/issue which has been taken into consideration that is why the employee is put on rigour of the pending departmental proceeding for no fault of his own. 50. This Court applying the aforesaid principle herein also in the facts and circumstances of the case that the departmental proceeding was initiated five years back in the year 2019 then the question is that why the writ petitioner will again be allowed to put the rigour of departmental proceeding for the laches committed on the part of disciplinary authority. 51. It has been contended in course of argument that the writ petitioner has already made to suffer by depriving the - 19 - L.P.A. No. 235 of 2024 benefit of promotion by the Selection Committee since the nature of punishment is major one. 52. This Court, considering the aforesaid fact, is of the view that it is not a fit case for remand due to the laches committed on the part of respondents-State otherwise it will be giving premium to the wrong doer particularly the State- respondent. 53. Accordingly, the alternate argument with respect of issue of remand raised by learned counsel for the respondents-State is answered. Conclusion: 54. In the result, the instant intra-court appeal stands
Arguments
20. Mr. Manoj Tandon, learned counsel appearing for the writ petitioner-appellant has submitted that it is settled position of law that in a case where the charge has not been found to be proved by the enquiry officer then the disciplinary authority is having with the full remedy to inflict punishment but recourse available to the disciplinary authority is to differ with the opinion of the enquiry officer by assigning reason so that the same be referred to the delinquent employee for the purpose of putting his defence. 21. But the said procedure has not been followed and hence the impugned order either passed by the disciplinary authority or the appellate authority or the learned Single Judge refusing to interfere with the order passed by the administrative authority is not sustainable in the eye of law and the same is fit to be quashed and set aside. Argument on behalf of respondents-State - 6 - L.P.A. No. 235 of 2024 22. Mr. Ravi Prakash Mishra, learned AC to AAG II appearing for the respondents-State has defended the impugned order by taking the ground that there is no error since second show cause itself contains the reason of difference of opinion and hence it is incorrect on the part of
Decision
allowed. Consequently, the writ petition also stands allowed. (Sujit Narayan Prasad, A.C.J.) (Arun Kumar Rai, J.) Alankar/ A.F.R. - 20 - L.P.A. No. 235 of 2024