Sukar Koeri … v. 1. 2. 3. 4. 5. 6. Damodar Vallery Corporation through its Chairman cum Managing
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 3576 of 2019 Sukar Koeri …. Petitioner Versus 1. 2. 3. 4. 5. 6. Damodar Vallery Corporation through its Chairman cum Managing Director, having its registered office at DVC Towers, Kolkata. The Secretary, Damodar Valley Corporation, having its registered office at DVC Towers, Kolkata. The Additional Secretary, Damodar Valley Corporation, having its registered office at DVC Towers, Kolkata. Executive Director cum Appellate Authority, Damodar Valley Corporation, having its registered office at DVC Towers, Kolkata. Director, Soil Conservation and HOP, Damodar Valley Corporation, Soil Conservation Department, Hazaribagh. Director, R & L.A., Damodar Valley Corporation, Hazaribagh. …. Respondents ------ CORAM : HON’BLE DR. JUSTICE S.N. PATHAK For the Petitioner For the Respondents
Legal Reasoning
------ : Ms. Swati Shalini, Advocate : Mr. Srijit Choudhary, Advocate Ms. Tanya Roy, Advocate 12/ 01.10.2024 Heard the parties. ----- 2. The petitioner has approached this Court with a prayer for quashing of the order dated 07.12.2018 by which the petitioner has been removed from service. The appellant order dated 26.6.2019 affirming the penalty order is also under challenge. 3. Briefly stated, the petitioner was initially engaged in DVC as Mazdoor on daily wages. The petitioner thereafter moved this Court in
Decision
CWJC No. 1907 of 1992 seeking regularization, which was disposed of on 22.07.1993 with direction to consider his case. Pursuant thereto, the service of the petitioner was regularized. On the basis of complaint made by one Gangadhar Mahto, a charge-sheet was issued on 11.05.2017 to the effect that the petitioner has impersonated himself to be Sukar Koeri, who is his elder brother and after his death, he is continuing in service in his place with the respondent, though his actual name is Budhan Mahto. The petitioner submitted his reply denying the allegation. The enquiry officer concluded the enquiry and returned findings against the petitioner, which led to 1 removal of the petitioner from service by the order of disciplinary authority. The appellant authority has also taken note with the findings of the disciplinary authority confirmed the penalty order. Challenging the said orders, the petitioner has filed the present writ petition. 4. Assailing the impugned orders, Ms. Swati Shalini, learned counsel appearing for the petitioner submits that the very charge, which is the basis of the impugned order of removal is not sustainable in the facts and circumstances of the case. Learned counsel submits that on the basis of a complaint, the charge sheet was drawn up, but the said complainant has never turned up to fortify the allegation leveled against the petitioner and this fact has also been discussed by the enquiry officer in his report itself at serial no. 18 that during the course of entire proceedings, the complainant has never appeared to verify his identify. Learned counsel submits that without examination of the complainant, the charge could not be proved. In support of her contention, she refers the judgment of the Hon’ble Supreme Court in the case of Hardwari Lal Vs. State of U.P. & Ors., reported in (1999) 8 SCC 582. Learned counsel further submits that mere production of documents in absence of non-observance of the complainant would not be sufficient to prove the charge. As such, the enquiry report holding the petitioner to be guilty of charge is perverse and it is a case of no evidence. Learned counsel also places heavy reliance upon the judgment delivered in the case of Kuldeep Singh Vs. Commissioner of Police & Ors., reported in (1999) 2 SCC 10 and Roop Singh Negi Vs. Punjab National Bank & Ors., reported in (200(0 2 SCC 570. 5. Referring to these judgments, learned counsel submits that it is a fit case in which interference by this Court is warranted and the petitioner is fit to be reinstated in service with back wages. 6. Controverting the arguments advanced by learned counsel for the petitioner, Mr. Srijit Choudhary, learned counsel assisted by Ms. Tanya Roy, learned counsel submits that no interference is warranted in the writ petition, as the petitioner has been held guilty of the charges in a full- fledged departmental proceeding complying the cardinal principle of natural 2 justice. He further submits that in a departmental proceeding, interference of the Court is limited unless the enquiry report is perverse. Nothing has been brought on record to show that there is perversity in the enquiry report. The allegation of impersonation alleged by the complainant has been proved by the documents given by the complainant itself. The complainant was non- else than the nephew of the petitioner, who has very well knowledge about the petitioner. The enquiry officer based on the documents produced by the complainant held the petitioner to be guilty of the charge, which was affirmed upto to the appellate authority. Referring to the judgment of the Hon’ble Apex Court in the case of State of Andhra Pradesh Vs. S. Sree Rama Rao, reported in AIR 1963 SC 1723, learned counsel submits that there is no scope of judicial review in the instant case since ample opportunity has been given to the petitioner before passing the impugned order. The cardinal principle of natural justice has been adhered to and the order of dismissal has been passed in a regular departmental proceeding following the procedure, which requires no interference. 7. Having heard the learned counsel for the parties and upon perusal of the records, this Court is of the view that the case of the petitioner needs consideration for the following facts and reasons:- (i) Admittedly, the very memo of charge leading to removal of the service of the petitioner is based on the complaint of one Ganga Dhar Mahto. It is complained that the petitioner impersonating himself to be his elder brother, namely, Sukar Mahto, who is father of the complainant, after his death in the year 1979, got employment in the DVC and continuing as such. This complaint was made to the office of DVC without mentioning date by the complainant, though the receiving date in the office of DVC is mentioned as 17.8.2016. (ii) From perusal of the records, it is further revealed that Sukar Koeri was appointed in the year 1974 as daily wager and as per complaint, impersonation could have been made after the death of his father in the year 1979 and at that time, Sukar Koeri was a daily wager. It is further a matter of record that Sukar Koeri and others filed CWJC 3 No. 1907 of 1992 before this Court for regularization of their cases and pursuant to the direction of this Court, in the year 1994, the petitioner was appointed in regular establishment followed by interview. Hence, it can be said that the complaint of the complainant is itself doubtful. (iii) In the entire departmental proceeding, the complainant has never turned up to substantiate his complaint against the petitioner. It is well settled that without examining the complainant, which is the basis of initiation of departmental proceeding, causes serious defect in the departmental proceeding and it vitiates the entire charge. Reference in this context may be made to the judgment in the case of Hardwari Lal (supra), in particular paragraphs-3 to 5 thereof:- “3. Before us the sole ground urged is as to the non- observance of the principles of natural justice in not examining the complainant, Shri Virender Singh, and the witness, Jagdish Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellant that the non-examination of those two persons has prejudiced his case. Examination of these two witnesses would have revealed as to whether the complaint made by Virender Singh was correct or not and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been an important witness to prove the state or the condition of the appellant. We do not think the Tribunal and the High Court were justified in thinking that non-examination of these two persons could not be material. In these circumstances, we are of the view that the High Court and the Tribunal erred in not attaching importance to this contention of the appellant. 4. However, Shri Goel, the learned Additional Advocate General, State of Uttar Pradesh has submitted that there was other material which was sufficient to come to the conclusion one way or the other and he has taken us through the same. But while appreciating the evidence on record the impact of the testimony of the complainant cannot be visualised. Similarly, the evidence of Jagdish Ram would also bear upon the state of inebriation, if any, of the appellant.” 5. In the circumstances, we are satisfied that there was no proper enquiry held by the authorities and on this short ground we quash the order of dismissal passed against the appellant by setting aside the order made by the High Court 4 lapse of time before affirming the order of the Tribunal and direct that the appellant be reinstated in service. Considering the fact of a long the date of dismissal and reinstatement, and no blame can be put only on the door of the respondents, we think it appropriate to award 50 per cent of the back wages being payable to the appellant. We thus allow the appeal filed by the appellant. However, there shall be no order as to costs.” (iv) The Hon’ble Apex Court in the case of Kuldeep Singh (supra) held that the person, who is the complainant of the case, must be produced before the enquiry officer in a departmental proceeding to prove the charge and unless and until, the complainant is cited as a witness / or examined as a witness in the departmental proceeding, the charge cannot be said to be proved against the delinquent and it would be a case of no evidence. Their Lordship in para-32 held as under:- to “32. Apart from the above, Rule 16(3) has to be considered in the light of the provisions contained in Article 311(2) of the Constitution to find out whether it purports to provide reasonable opportunity of hearing the delinquent. Reasonable opportunity contemplated by Article 311(2) means “hearing” in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them. Where a statement previously made by a witness, either during the course of preliminary enquiry or investigation, is proposed to be brought on record in the departmental proceedings, the law as laid down by this Court is that a copy of that statement should first be supplied to the delinquent who should thereafter be given an opportunity to cross-examine that witness.” (v) Similar view has been expressed by the Hon’ble Apex Court in the case of Commissioner of Police, Delhi & Ors. Vs. Jai Bhagwan, reported in (2011) 6 SCC 376 that non-examination of the complainant during the departmental proceeding has denied the delinquent of his right of cross-examination and thus caused violation of Rules. (vi) From perusal of the findings returned in the enquiry report itself, it is 5 evident that the enquiry report is perverse, as it is mentioned in the enquiry report itself that the complainant has never appeared before the enquiry officer during the course of departmental proceeding to verify his identity for the procedural examination. The enquiry officer has further returned his finding that it is not clear as to why the complainant has raised this issue at the fag end of service career of the petitioner. Despite these findings returned by the enquiry officer, the charge was proved only on the basis of documents. In this context, in the case of Roop Singh Negi (supra), the Hon’ble Apex Court held that mere producing the documents without examining of witness, the charge could not have been proved. The relevant paragraph no.14 is reads as under:- “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 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.” (vii) The Hon’ble Supreme Court further in the case of State of Uttar Pradesh & Ors. Vs. Saroj Kumar Sinha, reported in (2010) 2 SCC 772 held that charges could not said to be proved on mere production of document, unless the witness proves the contents thereof. The important paragraph-28 is quoted herein below:- “28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the 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 6 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.” (viii) In view of these backdrops of the case, it can comfortably be said that there is serious procedural illegality in concluding the departmental proceeding. Though the power of judicial review by this Court sitting under Article 226 of the Constitution of India is limited, but the Constitution takes in its stride the departmental enquiry as well, and it can very well be interfered by this Court, if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictate of the superior authority. Though in these type of cases, where there is serious procedural illegality, this Court usually directs the authority to initiate fresh departmental proceeding complying the principle of natural justice, but in the present case, this could not have been possible, as the petitioner has already retired and now the relationship of employee and employer has already ceased. 8. As a sequitur to the aforesaid rules, regulations, guidelines and judicial pronouncements, the penalty order dated 7.12.2018 and the appellate order dated 18.06.2019 are hereby quashed and set aside. Since the petitioner has already attained the age of superannuation, no order of reinstatement can be passed. However, the petitioner is entitled for all consequential benefits and he is entitled for 25% of back wages from the date of termination till the date of his actual superannuation. Let the entire benefits be extended to the petitioner within a period of eight weeks from the date of receipt of a copy of this order. 9. With the aforesaid observations and directions, this writ petition stands allowed. R.Kr. (Dr. S. N. Pathak, J.) 7