The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Binod Kumar W.P.(S). No. 6030 of 2012 ---------- Versus ………. Petitioner 1. State of Jharkhand. 2. Principal Secretary, Human Resource Development Department, Govt. of Jharkhand, Ranchi. 3. Director, Primary and Secondary Education, Ranchi. 4. Deputy Commissioner, Koderma. 5. District Superintendent of Education, Koderma. ………. ---------- Respondents. CORAM: HON'BLE DR. JUSTICE S.N.PATHAK For the Petitioner For the Respondents
Legal Reasoning
14/ 12.10.2023 Heard the parties. ----------- : : ----------
Legal Reasoning
Mr. Sandip Verma, Advocate Mr. O.P. Tiwary, GP-III 2. Petitioner has approached this Court with a prayer for quashing the order dated 26.03.2012, passed by the District Superintendent of Education- cum-Sub-Divisional Education Officer, Koderma, by which the respondent No. 5 has passed order of punishment withholding the increment during the period of suspension and awarding censure. 3. Shorn of unnecessary details, while the petitioner was working as Incharge Principal of Middle School-cum-Upgraded High School, Gajhandi, Koderma, a complaint was lodged by some unknown person before the Deputy Commissioner, Koderma against the petitioner alleging therein that he has illegally realized Rs.600/- from a student of the School concerned and no receipt thereof was provided to the guardians of the said student. Upon receipt of such complaint, the District Superintendent of Education issued show-cause notice to the petitioner directing him to submit his reply and the petitioner was put under suspension. The petitioner submitted his reply alleging therein that as per instruction of Jharkhand Academic Council, examination fee of Rs.490, half yearly fee of Rs.97.50, donation for Saraswati Puja of Rs.30/- was asked from the said Student. 2 4. However, being not satisfied with the reply submitted by the petitioner, a departmental proceeding was initiated. The Enquiry Officer after conducting the enquiry properly, submitted his report dated 06.07.2011 exonerating the petitioner from the charges levelled against him. However, differing with the enquiry report and taking into account the charges levelled against the petitioner, the respondent No. 5-District Superintendent of Education-cum-District Education Officer, Koderma has passed following order of punishment:- i) the petitioner will not get any other amount save and except subsistence allowance for the period of suspension; ii) no increment will be extended during the period of suspension; iii) censure; iv) the petitioner will be transferred to some other place. Aggrieved by the order of punishment, the petitioner has been constrained to knock the door of this Court. 5. Mr. Sandip Verma, learned counsel appearing for the petitioner assailing the impugned order, vociferously argues that the same is not tenable in the eyes of law in view of the fact that without taking into consideration Rules 9(ka) and 9(kha) of the Jharkhand Government Secondary School (Service Conditions) Rules, 2004, the punishment order has been passed. Learned counsel submits that even taking into consideration the contention of counsel for the State that District Superintendent of Education-cum-District Education Officer, Koderma was fully empowered as the order has been passed in view of decision of the District Establishment Committee, headed by the Deputy Commissioner, but any order which is not in consonance with the Rules, cannot be said to be an order and the same is non est in the eyes of law. Learned counsel submits that even the order of punishment has been passed without issuance of 2nd show-cause notice and without supplying the copy of enquiry report to the petitioner to submit his reply and as such, the order of punishment is not tenable and is fit to be quashed and set aside. 6. Learned counsel appearing for the respondent-State by opposing the contention of learned counsel for the petitioner submits that impugned order is fully justified as the DSE-cum-DEO was fully empowered to pass such 3 orders as the decision was taken by the District Establishment Committee to impose punishment. Regarding 2nd show-cause notice, learned counsel submits that the same was issued and reply was submitted by the petitioner and as such, it cannot be said that it is in violation of principles of natural justice. Justifying the impugned order, learned counsel for the respondent- State argues that since the petitioner was Incharge Principal, the DSE-cum- DEO was fully competent to pass order of punishment and there is no illegality in the same. Learned counsel submits that for the aforesaid facts
Decision
and reasons, the writ petition is not maintainable and it should be dismissed in limine. 7. Having gone through the rival submissions of learned counsel for the parties across the bar, this Court is of the considered view that case of the petitioner needs consideration for the following facts and reasons: I) II) Admittedly, order was passed in view of decision taken by the District Establishment Committee and thereafter, the same was issued under the signature of DSE-cum-DEO. The contention of learned counsel for the respondents that since petitioner was Incharge Principal therefore, DSE-cum-DEO was fully empowered to pass such order. The said contention of learned counsel for the respondents is not tenable in the eyes of law and the same is deprecated. III) Order of punishment has been passed in complete violation of Rules 9(ka) and 9(kha) of the Jharkhand Government Secondary School (Service Conditions) Rules, 2004 and the DSE-cum-DEO was not having power to pass such orders. IV) Second show cause notice is sine qua non for imposing major punishment. Admittedly, petitioner has been exonerated by the Enquiry Officer, it was incumbent upon the respondent- Disciplinary Authority to issue 2nd show-cause notice and get reply of the petitioner and thereafter pass order of punishment. The same was not done. 4 The Hon’ble Apex Court in paras-17 & 19 of the judgment passed in case Punjab National Bank & Ors. v. Kunj Behari Misra, reported in (1998) 7 SCC 84 has held that: to be overturned by 17. These observations are clearly in tune with the observations in Bimal Kumar Pandit case8 quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the enquiry officer had given an adverse finding, as per Karunakar case4 the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In is of ultimate departmental proceedings, what importance is the finding of the disciplinary authority. ………. ……… ……… 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 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 takes 5 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.” V) The respondent-authorities without adhering to the cardinal principle of natural justice have passed the impugned order which is not tenable in the eyes of law. 8. In normal circumstances the matter ought to have been remitted back to the respondents for passing an order after issuance 2nd show-cause notice but since the matter relates to the year 2012 and almost 12 years have passed and petitioner has already been superannuated, it would be proper to quash and set aside the impugned order. 9. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the impugned order dated 26.03.2012 is hereby quashed and set aside and the respondents are directed to extend the consequential benefits to the petitioner within a period eight weeks from the date of receipt/ production of a copy of this order. 10. With the aforesaid observations and directions, the writ petition stands allowed. kunal/- (Dr. S.N. Pathak, J.)