Sidharth Shankar Chaudhary ..… v. 1.The State of Jharkhand. 2.The Principal Secretary, the Personnel, Administrative Reforms and Rajbhasha Department
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P (S) No. 6891 of 2017 Sidharth Shankar Chaudhary ..…… Petitioner Versus 1.The State of Jharkhand. 2.The Principal Secretary, the Personnel, Administrative Reforms and Rajbhasha Department, Govt. of Jharkhand. 3.The Joint Secretary, the Personnel, Administrative Reforms and Rajbhasha Department, Govt. of Jharkhand. 4.The Deputy Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Govt. of Jharkhand. 5.The Secretary, Rural Development Department, Govt. of Jharkhand. 6.The Divisional Commissioner, Santhal Pargana Division, Dumka Respondents 7.The Deputy Commissioner, Dumka……. --------- CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD For the Petitioner For the State -------- : Mr. Krishna Murari, Advocate : Mr. Kishore Kumar Singh, S.C-V ----------- ORAL JUDGMENT IN COURT 05/Dated:22nd March, 2024 Initially this writ petition has been filed on behalf of the petitioner by challenging the Joint Enquiry Report dated 31.12.2015 as contained in Annexure-20, Second Show cause notice dated 23.11.2016 (i.e. Annexure-21) and the Revised Second Show cause dated 31.10.2017 (i.e.Annexure-23) on 27.11.2017. Subsequently the punishment order was passed and circulated by the Respondent no.3 on 02.05.2018 (i.e. Annexure-24) which has been challenged by the writ petitioner by filing I.A. No.4155 of 2018 on 08.05.2018 for quashing the office order dated 02.05.2018 as contained in Annexure-24 also and the amendment was allowed on 10.10.2018 by a Co-ordinate Bench of this Court. 1 2. Heard Mr. Krishna Murari, learned counsel for the petitioner and Mr. Kishore Kumar Singh, learned S.C-V appearing the State of Jharkhand. 3. Learned counsel for the petitioner has submitted that the punishment order dated 02.05.2018 passed by the respondent no.3 is illegal, arbitrary and not sustainable in the eye of law. It is submitted that even the Enquiry Report dated 31.12.2015 (i.e. Annexure-20) is also not sustainable and it has been submitted without conducting without proper departmental enquiry and the Second Show cause notice dated 23.11.2016 (i.e.Annexure-21) and the Reviewed Second Show cause dated 31.10.2017 (i.e.Annexure-23) are also illegal as the proposed punishment shows high handedness on the part of the authorities for proposing such punishment which may coerce the petitioner. 4. It has been submitted that the enquiry has not been conducted in the light of the guideline/circular dated 26.12.2012 issued even by the Chief Secretary in which certain guideline has been issued for holding departmental enquiry including the examination of witnesses and for production of the documents as contained in Annexure-16. It is submitted that neither any witness was examined nor any document was proved and the petitioner has been found guilty mainly on the basis of opinion of his superior authorities. 5. Learned counsel for the petitioner in support of his submission has placed reliance upon the judgments, which are as follows:- (i) Union of India and Others Vs. Gyan Chand Chattar reported in (2009) 12 SCC 78 (ii) State of Uttar Pradesh and Others vs. Saroj Kumar Sinha, reported in (2010) 2 SCC 772 2 (iii) Murari Bhagat Vs. State of Jharkhand & Others reported in 2019 (4) JBCJ 94, (iv) Sanat Kumar Mandal Vs. State of Jharkhand and Ors. reported in 2021 (2) JBCJ 485 and (v) Rajendra Ram Vs. the State of Bihar reported in 2018 (2) PLJR 10 6. In view of the above, it has been submitted that the impugned order may be quashed as the departmental proceeding has been concluded without examining any witnesses and producing any documents and no procedure has been followed under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 and this writ petition may be allowed. 7. On the other hand, learned counsel for the State has submitted that this writ petition is not maintainable. It is further submitted that this writ petition is also devoid of merit and no illegality has been committed by the Enquiry Officer while submitting his Enquiry Report (i.e. Annexure-5) and finding allegation true against him. It is submitted that the Second Show Cause notices were also issued to the petitioner showing him proposed punishments as on 23.11.2016 and 31.10.2017 as contained in Annexure-21 and Annexure-23 respectively. Finally vide Memo no.2863 dated 02.05.2018, vide Annexure-24, proposed punishment was passed by which the petitioner has been reduced to the pay scale of basic cadre and the pay scale shall be effective in basic cadre for further Ten (10) years and seniority of the petitioner shall remain unaffected in original seniority for the year 2003 in the Jharkhand Administrative Service. 8. It has been further submitted that in view of Rule 24 of the Jharkhand Government Servants (Classification, Control and 3 Appeal) Rules, 1916, the petitioner is eligible to file appeal. It is further submitted that the closed work of Jaldhara Yojna, 1996- 97 had been resumed at his level for his personal interest and Rs.5,87,924.00 available under this scheme had been embezzled and approval from the then Deputy Commissioner, Dumka had not been taken to resume the closed schemes of 1996-97. It is submitted that the petitioner was directed to submit his explanation vide letter dated 07.06.2013 which was submitted by him on 05.08.2013 which was reviewed by the department and it was found unacceptable. It is submitted that the charges levelled against the petitioner were very grave and serious in nature involving irregularities in various schemes and embezzlement of Government money and hence departmental proceeding was rightly initiated against him for the said charges. It is submitted that the Enquiry Officer had found him guilty of eleven (11) charges out of twelve (12) charges levelled against him. It is further submitted that the allegations against the petitioner, his defence statement and the Enquiry Report submitted by the Conducting Officer were reviewed and examined by the Department. In course of review, it was found that the petitioner was involved in grave irregularities in the implementation of schemes and embezzlement of Government money and thereafter it was decided to issue Second Show Cause to award penalty of withholding of four increments with cumulative effect for the established grave charges against the petitioner. Accordingly, second show cause was issued to him vide letter no.9878 dated 23.11.2016 enclosing the enquiry report of the Conducting Officer after obtaining the approval of the Hon‟ble Chief Minister, Jharkhand. It is further submitted that the petitioner did not submit his reply within stipulated time 4 and the matter was reviewed again in the light of the documents available to the Department and then it appeared that the quantum of proposed penalty was not at par with the gravity of charges. Therefore, the penalty of reduction to Lowest Basic Grade under Rule 14 (viii) of Jharkhand Government Servant (Classification, Control and Appeal) Rules 2016 was proposed for proved charges against the petitioner. The approval of the Hon‟ble Chief Minister, Jharkhand was obtained on it and accordingly revised second Show cause was issued to him vide letter dated 31.10.2017 and hence there is no illegality in the order passed by the authorities and therefore, the instant writ petition may be dismissed. 9. It transpires that the petitioner has joined State Civil Service on 03.10.2000 and after training, he was posted as Circle Officer, Sikaripara in the district of Dumka vide notification dated 07.06.2002. 10. It appears that while he was working as Block Development Officer, Sikaripara he said to have executed 111 works under Sampurna Gramin Rojgar Yojna (in short „SGRY‟)-I (22.5%) vide Deputy Commissioner Office Order No.273/2003 dated 24.12.2003, vide Annexure-1. 11. It transpires that on the basis of letter dated 17.10.2006 sent by the Secretary, Rural Development Department, the Deputy Commissioner, Dumka vide letter no.783 dated 08.12.2006 along with statement of allegation in „Prapatra-Ka‟ in consultation with the Director, National Employment Scheme had remitted the same to the Secretary, Rural Development Department, vide Annexure-3. Thereafter a report was called for from the Deputy Commissioner, Dumka on certain points and vide letter dated 27.02.2008 the Secretary to the Divisional 5 Commissioner, Dumka wrote to the Deputy Commissioner, Dumka to hear the petitioner before sending the report to Rural Development Department letter dated 27.02.2008 i.e. vide Annexure-5 and the petitioner submitted his explanation vide letter dated 04.06.2008, vide Annexure-6. 12. However, not being satisfied with the letter/reply of the petitioner, the matter was entrusted to the Additional Collector, Dumka for enquiry vide letter dated 18.12.2007 on certain points. 13. Thereafter the Additional Collector, Dumka in consultation with Block Development Officer, Sikaripara, the Assistant Engineer, Sikaripara conducted a spot enquiry and verified 111 schemes in which the irregularities were alleged to have been committed. But the Additional Collector, Dumka came to the conclusion that the petitioner is not guilty for any of the charges sought to be framed against him vide „Prapata-Ka‟ dated 08.12.2006 and the report of the Additional Collector dated 03.09.2009 has been enclosed as Annexure-7. 14. Thereafter the Deputy Commissioner, Dumka submitted the said report to then Commissioner, Dumka and also to the Personnel Administrative Reforms Department vide letter dated 08.09.2009 vide Annesure-8 and which was also concurred by the Secretary to the Commissioner, Dumka by letter dated 20.05.2010, vide Annexure-9. 15. Even the said Enquiry Report dated 03.09.2009 was considered by the Rural Development Department communicated to the Secretary and vide letter dated 06.07.2010 it was decided not to proceed in the matter and the charges against the petitioner were found to be non est and no material was found. 6 16. It has also been stated in the writ petition that even the Personal Administrative Reforms Department was satisfied and the file was consigned and no action was taken against the petitioner for more than three years. 17. Suddenly, vide letter no.5508 dated 24.06.2013 the petitioner was served with same stale memo of charges dated 08.12.2006, vide Annexure-11 and the petitioner submitted his reply vide letter dated 05.08.2013 vide Anexure-12 while he was posted as Deputy Administrator, Dhanbad Municipal Corporation. 18. However, the Personal Administrative Reforms Department not satisfied with the reply of the petitioner and then a proceeding was initiated vide Memo no.9600 dated 28.09.2013 by Deputy Secretary under Rule 55 of the Jharkhand Services (Classification, Control and Appeal) Rules by appointing one
Legal Reasoning
“Para 9:- The Form is also prescribed of issuing major penalties. Annexure-3 speaks about the list of documents. Annexure-4 speaks about list of witnesses. On perusal of enquiry report, the Court finds that not a single witness has been examined for proving the charge against the petitioner. It is well settled principle of law that even in departmental proceeding a document needs to be proved by way of adducing evidence and a major punishment has been passed against the petitioner and Statutory Rule i.e. Civil Services C.C. & A Rules, 1930 has not been followed. Reference in this regard may be made in the case of Roop Singh Negi vs. Punjab National Bank & Others reported in (2009) 2 SCC 570 particularly para 14 and 15 which is quoted hereinbelow:- “14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs 15 a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence. 15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left. 23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on 16 some evidence, which legally admissible. The is provisions of the Evidence Act may not be applicable in a departmental proceeding but principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof. that in Para 10:- The petitioner has been honorably acquitted in the criminal case and particularly by way of paragraph nos. 30, 40 and 78 of the said judgment, it the petitioner has been honorably transpires acquitted the criminal case. A departmental proceeding was initiated on the basis of criminal case. The departmental proceeding has not been conducted in terms of the Rule prescribed under Rule 55 of Civil Services C.C. & A Rules, 1930. This aspect of the matter has been considered by the Patna High Court in the case of Kumar Upendra Singh Parimar (supra)” 33. Lastly it has been held in the case of Rajendra Ram Vs. The State of Bihar through Chief Secretary & Ors. reported in 2018 2 PLJR 10 at paragraph 7 & 8 as follows: “Para-7:-………………………………………….. …………………………………………………….. Learned counsel for the petitioner has rightly argued that in a departmental proceeding for serious misconduct oral evidence was necessary. However, on going through the enquiry report, of course it was not required for this Court to examine it while exercising power of judicial review, but on going through the report it is evident that none of the witnesses were examined from the Department side to prove any charges against the petitioner. The issue regarding non-examination of witnesses in a departmental proceeding for serious charge has already been set at rest by a Bench of this 17 Court in Kumar Upendra Singh Parimar case (supra). In the said case one of the main reasons for interference with the punishment order was that no witness was examined to prove charge against the delinquent. It would be better to quote paragraph nos. 9 and 10 of Kumar Upendra Singh Parimar case (sura)….. …………………………………………………………… …………………………………………………………… for serious proceeding Para-8:- Similarly, this Court has already incorporated paragraph no.9 of Kumar Upendra Singh Parimar (supra) in this order. Nothing has been indicated as to what was the reason for non-examination of any witness the petitioner. In a to establish charge against departmental charges particularly in view of Rule 55 of the C.C.A. Rules, 1930 it was mandatorily required to examine oral witness. In the present case in specific term the petitioner vide his letter no. 3855 dated 24.8.2004 (Annexure-“8” to the writ petition) had requested the Departmental Enquiry Commissioner to allow him to produce oral evidence besides submitting his supplementary written defence before the Departmental Enquiry Commissioner however in prove of establishing charge no witness was examined in the proceeding. Accordingly, in view of non-prove of any charges by any of the witnesses on behalf of the Department, there was no occasion for holding that the charges were proved against the petitioner by the Conducting Officer and on this score alone the order of punishment aside. ………………………………………………………………… ………………………………………………………………..” liable set be to is 34. Although learned counsel for the State has contended that the petitioner should have filed departmental appeal and this writ petition is not maintainable as he has got an alternative remedy. However this submission is misconceived one. 35. It is well settled in the light of the judgment rendered in the case of Whirlpool Corporation vs. Registrar of Trade 18 Marks Mumbai reported in 1998 8 SCC 1 that alternative
Arguments
Shri Ashok Kumar Sinha, a retired IAS Officer as an Enquiry Officer and one Sunil Kumar Singh, District Transport Officer, Dumka as Presenting Officer, vide Annexure-13. 19. The petitioner also appeared before the Enquiry Committee and had submitted his preliminary objection. However, the Enquiry Officer asked the petitioner to submit his written argument and the petitioner vide letter dated 07.11.2014 reiterated his defence for the same set of charges and pointed out that he has been exonerated by the Co-ordinate Rural Development Department and the charge are stale one appertaining to the year 2004 i.e. for around more than 10 years and the charges are vague. 20. However, the Enquiry Officer sought opinion from the Deputy Commissioner, Dumka on the defence of the petitioner vide letter dated 14.12.2013 as per Annxure-18 series and the 7 Enquiry Officer further directed the petitioner to submit his written argument. The petitioner submitted his written argument on 15.09.2014, vide Annexue-19. 21. It further transpires that the Enquiry Officer after considering all the facts and Prapatra-Ka submitted its report on 31.12.2015 as contained in Annexure-20 and concluded 11 out of 12 charges have been proved against him except Charge No.4. 22. From perusal of the Enquiry Report, it would appear that although a comprehensive report has been prepared but only on the basis of documents i.e. the inter-se communication between the petitioner and the authorities of department concerned as well as the opinion of the Deputy Commissioner were kept on record. Neither any witness was examined nor any documents were supplied to the petitioner, nor any document showing relief given by the petitioner officially (i.e. by which earlier departmental proceeding was closed) nor any document of payment has been brought on record in support of the charges levelled against the petitioner. Even before concluding the departmental proceeding, the petitioner was not asked as to whether he wanted to examine any witness in support of his case or not and thus, he was not given proper opportunity to defend his case in the departmental proceeding by the Enquiry Officer. 23. Thus, the Enquiry Report has been submitted in violation of judgment of the Hon‟ble Supreme Court rendered in the case of Roop Singh Negi Vs. Punjab National Bank and Others reported in (2009) 2 SCC 570. 24. It further transpires that 1st Second Show Cause notice was issued to the petitioner vide letter dated 23.11.2016 by 8 which it was informed that the department proposes to impose punishment for withholding four increments with cumulative effects under Rule 14 (vi) of Jharkhand Government Servant (Classification, Control and Appeal) Rules 2016 and the petitioner was asked to submit his explanation. Pursuant to the said letter dated 23.11.2016 the petitioner has submitted his explanation on 12.05.2017 to the Deputy Secretary, vide Annexure-22. 25. It further transpires that the department being unsatisfied wtih the explanation submitted by the petitioner, sought for further enhancement of punishments to the petitioner to the extent: - (i) The petitioner will be reduced in basic cadre (Pay Scale PB-II, 9300-34800/- Grade Pay-5400, Revised Pay Scale-Level-9). (ii) The reduction in rank in basic cadre will be effective for the period of ten (10) years and after completion of its effect he will be entitled to be promoted to higher post/cadre on completion of Kalawadhi. (iii) His enter-se seniority shall remain unaffected in original seniority for the year 2003 in Jharkhand Administrative Service. 26. Thereafter, vide Memo No.2863 dated 02.05.2018 the Joint Secretary to Government informed that the department has imposed following punishments under the order of the Government as follows:- (i) The petitioner will be reduced in basic cadre (Pay Scale PB-II, 9300-34800/- Grade Pay- 5400, Revised Pay Scale-Level-9). 9 (ii) The reduction in rank in rank in basic cadre will be effective for the period of ten (10) years and after completion of its effect he will be entitled to be promoted to higher post/cadre on completion of Kalawadhi. (iii) His inter-se seniority shall remain unaffected in original seniority for the year 2003 in Jharkhand Administrative Service. 27. No doubt, the matter of the petitioner has also been placed before the concerned Department, Departmental Minister i.e. before the Chief Minister and after approval of the Hon‟ble Chief Minister, the punishment has been imposed upon the petitioner under the provisions of Rule 14 (vi) of Jharkhand Government Servant (Classification, Control and Appeal) Rules 2016. However, it also appears that the matter was not informed even before Hon‟ble the Chief Minister that at the time of submission of charge sheet, neither any witness was examined nor any document were supplied to the petitioner nor any document in support of charges have been marked as the Exhibits during entire departmental proceeding and therefore, this Court is of the view that the Departmental Minister or the Hon‟ble Chief Minister has also been misled by the authorities concerned. 28. It has been held in the case of Roop Singh Negi Vs. Punjab National Bank and Others reported in (2009) 2 SCC 570 at para 14,15 and 23 as follows:- “Para-14:- Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been 10 investigation by collected during proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported the evidence investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence. Para-15:- We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left. Para-23:- Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on legally admissible. The is some evidence, which provisions of the Evidence Act may not be applicable in 11 a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.” 29. It has been held in the case of UNION OF INDIA AND OTHERS Vrs. GYAN CHAND CHATTAR reported in (2009) 12 SCC 78, Para 33 and 35 as follows:- “Para 33:-In a case where the charge-sheet is accompanied with the statement of facts and the allegation may not be specific in charge-sheet but may be crystal clear from the statement of charges, in such a situation as both constitute the same document, it may not be held that as the charge was not specific, definite and clear, the enquiry stood vitiated. (Vide state of A.P. v. S.Sree Rama Rao.) Thus, where a delinquent is served a charge-sheet without giving specific and definite charge and no statement of allegation is served along with the charge-sheet, the enquiry stands vitiated as having been conducted in violation of the principles of natural justice. Para 35:- In view of the above, law can be summarized that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not should not be perverse or subjectively. Finding unreasonable, nor the same should be based on conjecture and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct.” 30. It has been held in the case of STATE OF UTTAR PRADESH AND OTHERS Versus SAROJ KUMAR SINHA, 12 reported in (2010) 2 SCC 772 at para 28, 30 and 33 as follows: of is not the “Para 28:- An inquiry officer acting in a quasi- judicial authority is in the position of an independent to be a adjudicator. He supposed representative department/disciplinary Authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents. a enquiry departmental Para 30:- When is conducted against the government servant it cannot treated as a casual exercise. The enquiry be proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in including dismissal/removal from service. punishment imposition of Para 33:- As noticed earlier in the present case not only the respondent has been denied access to documents sought to be relied upon against him, but he has been condemned unheard as the inquiry officer failed to fix any date for conduct of enquiry. In other words, not a single witness has been examined in support of the charges levelled against the respondent. The High Court, the entire rightly observed therefore, has proceedings are vitiated having been conducted in that 13 complete violation of the principles of natural justice and total disregard of fair play. The respondent never had any opportunity at any stage of the proceedings to offer an explanation against the allegations made in the charge-sheet.” 31. It has been held in the case of MURARI BHAGAT Vs. STATE OF JHARKHAND & ORS. reported in 2019 (4) JBCJ 94, Para 3 as follows:- “Para 3:-Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration. From perusal of Rule 17 of the CCA Rules, 2016 it appears that, (a) The disciplinary authority is to frame or get framed definite and distinct article of charge containing imputation of substance of misconduct or misbehaviour as also statement of allegation containing all relevant facts in support of article of charge as also a list of witnesses and a list of documents; the (b) The disciplinary authority is to serve the article of the charge, statement of allegation, etc. on government servant and is to call for a written statement of defence thereto from him; (c) On receipt of the written statement of defense the disciplinary authority is to then consider the same and decide whether to hold enquiry into the article of charge or not and in case, on a consideration it decides to hold enquiry then it could be by itself or through an enquiry officer; and (d) Once the disciplinary authority after such consideration decides to hold an enquiry through an enquiry officer then it is to transmit the records to the enquiry officer including the article of charge, statement of allegation, written defence of the government servant. 15. Thus, from perusal of the aforesaid rules it is crystal clear that in the instant case mandatory procedure has 14 been violated as the disciplinary authority prior to initiation of the departmental proceeding vide resolution dated 04.08.2017, did not call upon the petitioner to submit his written defence statement to the article of charge so as to decide whether to proceed further by holding an enquiry or not. It can be confortably inferred that the disciplinary authority not calling before itself the written statement of defence of the petitioner to the article of charge and also appointing an Enquiry Officer as well as Presenting Officer simultaneously thereunder with direction to the petitioner to appear before the Enquiry Officer, shows a clear predisposition and predetermination on the part of the disciplinary authority to hold enquiry against the petitioner without even waiting for his defence. The disciplinary authority acquiring jurisdiction to order for an enquiry to be held by the Enquiry Officer against the petitioner, the issue of waiver or acquiescence on behalf of the petitioner in the above proceeding does not arise.” 32. It has been held in the case of Sanat Kumar Mandal Vs. State of Jharkhand & Ors. reported in 2021 (2) JBCJ Page 485 (HC) at Para 9, 10 as follows:
Decision
remedy is no bar in filing of the writ petition and therefore, even if the petitioner has not filed the statutory appeal before the department concerned, the same does not preclude the right of the petitioner for moving before this Court. 36. The other ground for not approaching the Department by filing an Statutory Appeal against the departmental proceeding, it is also evident that in the case of the petitioner, fresh departmental proceeding was initiated on28.09.2013 even after closure of the enquiry by the Additional Collector vide his report dated 03.09.2009 i.e. Annexure-7 and which was approved up to the Personnel and Administrative Reforms Department and in case of severe punishment when the matter has been approved up to the Higher Authorities of the State, the department will not be in a position to review the order imposed as contained in Annexure-24 dated 02.05.2018. 37. The order dated 02.05.2018 communicated to the petitioner by the Joint Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Govt. of Jharkhand with the approval of the competent authority, is in complete violation of principles of natural justice and resulted into miscarriage of justice. 38. Thus, the office order dated 02.05.2018 as communicated to the petitioner vide Annexure-24 is set aside and the punishments imposed as mentioned above, is hereby quashed. 39. Accordingly, the Writ Petition is allowed and the petitioner is entitled to all consequential benefits. 19 40. After the order has been passed, the learned counsel for the petitioner submitted that the department may also be directed to grant monetary benefit and his case may be considered for promotion also. 41. Under the circumstances and in view of the discussions made above, it will be open to the respondents to pass necessary order, in accordance with law. (Sanjay Prasad, J.) Saket/- NAFR 20