Upendra Turia … v. The State of Jharkhand through the Principal Secretary, Department of Home, Prison and Disaster
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 2475 of 2019 Upendra Turia … … Petitioner 1. 2. 3. 4. Versus The State of Jharkhand through the Principal Secretary, Department of Home, Prison and Disaster Management, Ranchi. The Commissioner, Palamau Division, Palamau. The Deputy Commissioner, Garhwa. The Superintendent of Police, Garhwa. … … Respondents ------ CORAM : HON’BLE DR. JUSTICE S.N. PATHAK ------ : Ms. Aprajita Bhardwaj, Advocate For the Petitioner For the Respondent-State : Ms. Rishi Bharti, AC to AAG-III 9/ 03.10.2024 Heard the parties. ----- 2. Aggrieved by and dissatisfied with the order contained in Memo No. 856 dated 07.12.2018, the petitioner has filed this writ petition, by which the Secretary to the Commissioner, Palamau Division, Palamau has reviewed the appellate order contained in Memo No. 305 dated 10.05.2018 passed by the Commissioner, Palamau Division, allowing the appeal preferred by the petitioner against the dismissal order contained in Memo No. 573 dated 10.12.2014. The petitioner has further prayed for his reinstatement in service upon setting aside of the impugned order contained in Memo No. 856 dated 07.12.2018 rejecting the appellate order dated 10.5.2018. 3.
Legal Reasoning
The brief facts, which are necessitated to be incorporated in this order, are that the petitioner was appointed as Chowkidar on compassionate ground on 6.9.2010. After rendering more than four years of satisfactory service, a memo of charge contained in Prapatra-Ka dated 18.02.2014 was framed with the allegation that the educational certificates submitted by the petitioner at the time of initial appointment are differing with each other. Thereafter, departmental proceeding was initiated, which was culminated into his dismissal order dated 10.12.2004. Aggrieved there-against, the petitioner preferred appeal, which was allowed by the order of appellate authority i.e. Commissioner of Palamau Division vide order dated 10.05.2018. It was also directed by the appellate authority that the petitioner is fit to be reinstated in service. Thereafter, the petitioner gave his joining on 1 15.5.2018. However, the joining of the petitioner has not been accepted and finally, the appellate order was reviewed, by the Secretary to the Commissioner, Palamau Division vide order dated 07.12.2018, by which the appellate order dated 10.5.2018 passed by the Commissioner, Palamau Division has been rejected. 4.
Legal Reasoning
Assailing the order impugned dated 07.12.2018, Ms. Aprajita Bhardwaj, learned counsel appearing for the petitioner vehemently argues that once the dismissal order has been quashed and set aside by the appellate authority i.e. the Commissioner of Palamau Division, the same could not have been quashed and set aside by a lower rank officer i.e. the Secretary to the Commissioner, Palamau Division. Learned counsel further submits that the appellate authority after examining every aspect of the matter has found that there is serious procedural illegality in the departmental proceeding and hence, the dismissal order was quashed directing reinstatement of the petitioner. Learned counsel further submits that even the Commissioner has no power to review its own order, which violates the principle settled under the law and in the present, the order was reviewed by a lower ranking officer to the appellate authority, which is not sustainable in the eyes of law. To fortify her arguments, learned counsel places heavy reliance upon the judgment in the case of R.T. Rangachari Vs. Secretary of State for India in Council reported in 1937 0 AIR (PC) 27 to contend that after a decision has been acted upon by a duly competent and authorized official, his/her successor-in-office cannot purport to enter upon a reconsideration of the matter. In the present case, the appellate order was reviewed by a lower ranked officer than the appellate authority, hence the order impugned is fit to be quashed and set aside. 5. Ms. Rishi Bharti, learned counsel appearing for the respondents submits that there is no illegality and infirmity in the impugned order dated 07.12.2018. She submits that the appellate authority relying on letter no. 3849 dated 19.07.2016 issued by the Chief Secretary to the Government has allowed the appeal, which speaks that if the certain procedure mentioned therein are violated in conducting departmental proceeding, the punishment inflicted upon the delinquent be quashed. Thereafter, the matter was verified 2 thoroughly and it was found that there is no such letter issued from the office of Chief Secretary to the Government and hence, the appellate order directing the petitioner for reinstatement has been reviewed and quashed. 6. Having heard the learned counsel for the parties and upon perusal of the records, the impugned review order dated 07.12.2018 is neither sustainable in facts nor on law for the following reasons:- (i) Admittedly, the petitioner was proceeded departmentally, which culminated into his termination from service. The appellate authority after examining the entire aspects of the matter, including the fact that there was no presenting officer appointed, no opportunity of hearing was afforded to the petitioner, no witness was examined and even no second show cause notice was issued to the petitioner, has set aside the termination order and directed for reinstatement of the petitioner. (ii) The plea of the respondents is that the appellate authority relying on the letter no. 3849 dated 19.07.2016 issued from the office of Chief Secretary to the Government has allowed the appeal and quashed the termination order and after it came to the notice of the authority that there was no such letter issued from the office of Chief Secretary to the Government, the appellate order was reviewed and the termination order was restored. This plea of the respondents is not at all tenable in the eyes of law, even if there was no such letter issued from the Chief Secretary, the Commissioner of Palamau Division (appellate authority) having well known to the departmental proceeding has quashed the termination order, as there was serious procedural lacuna in the departmental proceeding. In the present case, it is a fact that no presenting officer was appointed, which debars the petitioner to produce his evidence. No opportunity was afforded to the petitioner and even no second show cause notice was issued to him, which violates the cardinal principle of natural justice. Therefore, it can safely be said that the order passed by the Divisional Commissioner is a well-reasoned and justified order. Law is well settled in a catena of judgments delivered by the Hon’ble Apex Court as well as this Court that if the procedure adopted by the authority is dehors the Rules and 3 it violates the cardinal principle of natural justice, the whole departmental proceeding including the punishment inflicted upon the delinquent is not at all tenable. (iii) The review of the Commissioner’s order by the lower ranked Officer i.e. the Secretary to the Commissioner is contrary to the settled principle of law and the same is not at all permissible in the eyes of law. Even the Commissioner, Palamau Division has no power and jurisdiction to review its own order, unless the law / rule permits. Law is well settled that the same authority cannot review its own order, as it is clear from the executive rules of business. This issue fell for consideration right from the year 1937 in the Privy Council in the case of R.T. Rangachari Vs. Secretary of State for India in Council reported in 1937 0 AIR (PC) 27, wherein it has been held that “in a case in which after government officials, duly competent and duly authorised in that behalf, have arrived honestly at one decision, their successor-in-office, after the decision has been acted upon and is in effective operation, cannot purport to enter upon a reconsideration of the matter and to arrive at another and totally different decision.” The same view has been reiterated in the case of State of M.P. Vs. Mansinghra reported in AIR 1958 MP 413. (iv) Further, in case of H.C. Suman and Another Vs. Rehabilitation Ministry Employees Cooperative House Building Society Ltd., New Delhi and Others, reported in (1991) 4 SCC 485, the Hon’ble Apex Court has held that “once a quasi-judicial order becomes final, it cannot be reviewed by the same authority passing the same order unless such power is conferred by statute or the authority”. (v) The Hon’ble Apex Court in case of S. Nagaraj and Ors. Vs. State of Karnataka and Anr., reported in 1993 Supp. (4) SCC 595, has observed as under:- “12....Law on the binding effect of an order passed by a court of law is well settled. Nor there can be any conflict of opinion that if an order had been passed by a court which had jurisdiction to pass it then the error or mistake in the order can be got corrected by a higher court or by an application for clarification, modification or recall of the order and not by ignoring the order by any authority 4 actively or passively or disobeying it expressly or impliedly. Even if the order has been improperly obtained the authorities cannot assume on themselves the role of substituting it or clarifying and modifying it as they consider proper. In Halsbury's Laws of England (Fourth Edn., Vol. 9 p. 35, para 55) the law on orders improperly obtained is stated thus: “The opinion has been expressed that the fact that an order ought not to have been made is not a sufficient excuse for disobeying it, that disobedience to it constitutes a contempt, and that the party aggrieved should apply to the court for relief from compliance with the order.” Any order passed by a court of law, more so by the higher courts and especially this court whose decisions are declarations of law are not only entitled to respect but are binding and have to be enforced and obeyed strictly. No court much less an authority howsoever high can ignore it. Any doubt or ambiguity can be removed by the court which passed the order and not by an authority according to its own understanding.” (vi) Further, the Hon’ble Apex Court in the case of Naresh Kumar & Ors. Vs. Government (NCT of Delhi), reported in (2019) 9 SCC 416 held that power of review can be exercised only when the statute provides for the same and such power of review cannot be exercised by the authority concerned. (vii) The legal course for reviewing the order is that the Commissioner could have sent the matter to the higher authority, but the same has not been done in the present case. As such, on this score itself, the impugned order is bad and not sustainable in the eyes of law. 7. In view of the aforesaid rules, regulations, guidelines and judicial pronouncements, the impugned order contained in Memo No. 856 date 07.12.2018 is hereby quashed and set aside. The respondents are directed to reinstate the petitioner on the post he was working with full back wages, if he was not gainfully employed anywhere during the period he was kept out of service on account of review order. Let the entire exercise be completed within a period of six weeks from the date of receipt of a copy of this order. 8.
Decision
The writ petition is, accordingly, allowed. R.Kr. 5 (Dr. S. N. Pathak, J.)