The State of Jharkhand v. Dr. Arvind Kumar Lal

The State of Jharkhand has challenged the writ Court’s decision to interfere with the punishment of dismissal awarded to the respondent by an order dated 31st March 2022 as contained in Memo No. 218 (18). The writ Court interfered with the punishment order on the grounds that (i) no substantive evidence was produced in the departmental inquiry (ii) the departmental inquiry was initiated after about a decade and (iii) the charge memo in Prapatra Ka was not approved by the competent authority.

#4. The aforesaid findings of the writ Court has been challenged by the State of Jharkhand only on the ground that a serious misconduct cannot be overlooked and the departmental inquiry in respect thereof cannot be scuttled for the reason that the inquiry was proposed after some delay.

#5. Briefly stated, the respondent joined the Bihar Health Services on 6th November 1990 and while posted as Medical Officer at the Additional Primary Health Centre in the district of Vaishali within the State of Bihar, he submitted his resignation to the Secretary of the Department of Health, Medical Education and Family Welfare, Patna, Bihar, intending to contest the Assembly Election. In anticipation of his resignation to be accepted, he filed his nomination in the year 2005 for the Jhanjharpur constituency in the State of Bihar and was polled 2737 votes. This is the case of the respondent that in spite of his intimating the department about his intention to contest the election his resignation from service was not accepted and he was allowed to continue in service. In the year 2006, the respondent was allotted Jharkhand cadre and his joining was accepted vide letter dated 12th December 2006. More than a decade thereafter, the respondent was served a show-cause notice along with charge memo dated 16th December 2016.

#6. The charge against the respondent was that he contested the Assembly Elections in the year 1995, 2000 and 2005 in the State of Bihar. After conclusion of the departmental inquiry, the respondent was directed to submit a reply to the second show-cause notice and in the reply thereto he demanded certain documents. As the inquiring officer has recorded, the presenting officer had also requested for submission of such documents but those documents were never made available to either the respondent or the presenting officer. However, on the basis of the affidavit submitted by the respondent to the Election Commission of India the inquiring officer came to 3 L.P.A No.357 of 2023 a conclusion that the charge nos. 1 and 3 were proved which consequently led to issuance of a second show-cause notice and the dismissal of the respondent from the service.

#7. The writ Court held as under: “Although the resolution by virtue of which the enquiry proceeding was initiated against the petitioner was approved by the competent authority but there is nothing on record to indicate that the said authority had approved the charges which was served upon the petitioner. The same is also contrary to the settled principles of law laid down in the case of “Union of India and Others versus B.V. Gopinath” (supra). The disciplinary authority while passing the order of dismissal vide Memo No. 218(18) dated 31.03.2022 has not considered the fact that the petitioner was deprived from properly defending his case in absence of certain important documents which were repeatedly sought by him as well as the Enquiry Officer and the Presenting Officer and, therefore, in absence of such documents the Enquiry Officer could not have found Charge Nos. 1 and 3 proved against the petitioner especially in view of the fact that the issue of resigning from service prior to contesting the election had already been settled by the concerned department in the State of Bihar wherein the joining of the petitioner was accepted and thereafter he was allotted Jharkhand Cadre. Learned AC to AG has submitted that the petitioner has an alternative remedy of appeal. However, in view of the fact that the petitioner has not been given an opportunity to appropriately defend himself apart from the fact that initiation of the departmental proceeding was after more than a decade from the time he had contested the elections and there being other frailties with respect to initiation of the proceeding and its conduct as well as its culmination, this Court has the jurisdiction under Article 226 of the Constitution to interfere in such matters and, therefore, such plea of the learned AC to AG also is negated. On conclusion, therefore, since the impugned order dated 31.03.2022 vide Memo No. 218(18) issued by the respondent no. 5 dismissing the petitioner from service is not in consonance with the legal provisions, the same is hereby quashed and set aside. The respondent no. 5 is directed to pass necessary orders for reinstatement of the petitioner. So far as the salary and other consequential benefits are concerned, the respondent no. 5 shall consider the same and pass appropriate order within a period of six weeks from the date of receipt/production of a copy of this order This writ application stands allowed. Pending I.A., if any, stands disposed of.”

#8. Mr. Ajit Kumar, the learned senior counsel for the respondent contends that refusal to supply copies of the documents to the respondent vitiated the entire departmental proceeding against the respondent and the order of punishment was rendered illegal. The learned senior counsel has referred to “Kashinath Dikshita v. Union of India & Ors.” (1986) 3 SCC 229 wherein the Hon’ble Supreme Court observed as under: “10. ... When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant 4 L.P.A No.357 of 2023 statements and documents to be used against him are made available to him. In the absence of such copies, how can the concerned employee prepare his defence, cross-examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? …”

#9. The imputations of charge against the respondent as contained in Prapatra Ka refer to the respondent contesting elections in the year 1995, 2000 and 2005. In the departmental proceeding, no proof as regards the respondent contesting the elections in the year 1995 and 2000 was produced and the charge in respect thereof was found not proved. Mr. Ajit Kumar, the learned senior counsel for the respondent would submit that inclusion of such irrelevant charge had caused prejudice to the respondent and he was therefore not able to defend himself as respect the first charge also. This is true that the delinquent government employee must be informed clearly about the charge proposed against him and, therefore, vagueness in the charge shall be a ground to hold the punishment order bad in law. In “M.V. Bijlani v. Union of India & Ors.” (2006) 5 SCC 88 the Hon’ble Supreme Court observed that the inquiring officer performs a quasi-judicial function and is required to render a decision on a preponderance of probability on the basis of the materials on record and while doing so he cannot take into consideration any irrelevant fact as also cannot refuse to consider the relevant facts. This is also a fundamental requirement in every departmental inquiry that all necessary documents should be provided to the delinquent government employee so as to afford him sufficient opportunity to defend himself. The inquiring officer has recorded at more than one places that necessary documents were not provided to the delinquent government employee for about two years. The presenting officer also made a statement that since those documents were not made available to him the same could not be provided to the respondent.

#10. Except the explanation offered by the respondent and information retrieved from the website of the Election Commission of India, no other evidence was laid in the domestic inquiry against the respondent. To establish the misconduct under Rule 6 of Bihar Government Servant’s Conduct Rules, 1976, not even a witness was examined by the department. The stand taken by the respondent is that he could not withdraw his nomination on expiry of the notified date for withdrawal as his resignation was not immediately refused by the disciplinary authority and thus there was a state of confusion. This stand of the respondent is sought to be controverted 5 L.P.A No.357 of 2023 by producing the information available with the Election Commission of India that he secured 2737 votes in the Assembly Election of 2005. Even if this information is not disputed by the respondent, the same is not sufficient to controvert his statement that he could not withdraw his nomination after the notified date for withdrawal on account of the confused state of affairs prevailing at that time as he was permitted to continue in service. In the absence of any other material against the respondent to controvert his stand, the preponderance of probability leans in his favor but the disciplinary authority overlooked this vital lacuna in the inquiry report and passed the punishment order mechanically. In the Assembly Election, the respondent was a candidate and if he was polled some votes it cannot be legally inferred that he had actively participated in the election. No evidence was laid in the departmental inquiry against the respondent that he actively canvassed for vote or, that, before the election he did not submit his resignation. In the circumstances of the case, mere filing of the nomination paper by the respondent shall not amount to taking part in the election and the expression “to take part in an election” under sub-rule 4 to Rule 6 has to be construed accordingly.

#11. Rule 6 of the Bihar Government Servant’s Conduct Rules, 1976 provides as under: “6. Taking part in politics and election.-(1) No Government servant shall be a member of or be otherwise associated with any political party or any organization which takes part in politics nor shall he take part in, subscribe in aid of, or assist in any other manner, any political movement or activity. (2) It shall be the duty of every Government servant to endeavour to prevent any member of the family from taking part in, subscribing in aid of or assisting in any other manner any movement or activity, which is or tends directly or indirectly to be, subversive of the Government as by law established and where a Government servant is unable to prevent a member of his family from taking part in, or subscribing in aid of, assisting in any other manner, any such movement or activity, he shall make a report to that effect to the Government. (3) If any question arises whether any movement or activity falls within the scope of sub-rule (2) the decision of the Government thereon shall be final. (4) No Government servant shall canvass or otherwise interfere with, or use his influence in connection with or take part in, an election to any legislature or local authority; Provided that- (i) a Government servant qualified to vote at such election may exercise his right to vote but where he does so he shall give no indication of the manner in which he proposes to vote or has voted; (ii) a Government servant shall not be deemed to have contravened the provision of this sub-rule by reason only that he assists in the conduct of an election in the due performance of a duty imposed on him by oi under any law for the time being in force. 6 L.P.A No.357 of 2023 Explanation.- the display by a Government servant on his person, vehicle or residence of any electoral symbol shall amount to using his influence in connection with an election, within the meaning of this sub-rule.” The writ Court took note of the decision in “State of Madhya 12. Pradesh v. Bani Singh & Anr.” (1990) (Supp) SCC 738 which was pressed into service by the respondent to challenge the very initiation of the departmental proceeding against him. However, the department did not put forth any reason why a decision to start the departmental proceeding against the respondent vide resolution dated 12th June 2018 was taken more than a decade after the alleged misconduct was committed by him and a charge memo was issued to him after about a decade.

#13. Apart from the aforementioned irregularities, there is one more aspect as regards the charge memo in Prapatra Ka not being approved by the competent authority that goes to the root of the matter. This is a mandatory requirement in law that the charge memo in Prapatra Ka must be approved by the competent authority and if not done the entire departmental proceeding shall vitiate and the punishment order shall be rendered illegal. In “Union of India & Ors. v. B. V. Gopinath” (2014) 1 SCC 351 the Hon’ble Supreme Court held that the provision seeking approval of the charge memo subsequent to the decision taken by the competent authority for initiation of the departmental proceedings is in consonance with the mandate under Article 311(1) and (2) of the Constitution of India. The stand taken by the respondent in this regard that the draft charge memo in Prapatra Ka dated 20th October 2016 was not approved by the competent authority has not been challenged by the State of Jharkhand and while so, the punishment order of dismissal from service passed on 31st March 2022 must be held illegal.

#14. Finally, in a desperate attempt to challenge the writ Court’s order, Mr. Manish Kumar, the learned Sr. SC-II would submit that the matter is required to be remanded to the disciplinary authority for proceeding afresh. To oppose this plea, Mr. Ajit Kumar, the learned senior counsel for the respondent refers to a decision in “Shri Bhagwan Lal Arya v. Commissioner of Police, Delhi & Ors.” (2004) 4 SCC 560 and “Allahabad Bank & Ors. v. Krishna Narayan Tewari” (2017) 2 SCC 308”. The normal procedure adopted by the writ Courts is to remand the matter to the departmental authority but this is only one of the options before the Court and in appropriate cases the Court may refuse to direct the government employee to undergo the rigors of 7 L.P.A No.357 of 2023 the departmental inquiry. In “P.V. Mahadevan v. Managing Director, T.N. Housing Board” (2005) 6 SCC 636” the Hon’ble Supreme Court observed that the disciplinary inquiry against a government employee should not be permitted to continue for the mistake committed by the department. As noticed above, it was the mistake of the department that approval of the competent authority was not taken before the charge memo was served upon the respondent. In “P.V. Mahadevan” the Hon’ble Supreme Court held as under: “11. … The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.”

#15. In “M. V. Bijlani” the Hon’ble Supreme Court took a view that on account of a long lapse of time the matter was not required to be remitted to the disciplinary authority and the government employee was reinstated in service. Similarly, in “Krishna Narayan Tewari” the Hon’ble Supreme Court held as under: “8. There is no quarrel with the proposition that in cases where the High Court finds the enquiry to be deficient, either procedurally or otherwise, the proper course always is to remand the matter back to the authority concerned to redo the same afresh. That course could have been followed even in the present case. The matter could be remanded back to the disciplinary authority or to the enquiry officer for a proper enquiry and a fresh report and order. But that course may not have been the only course open in a given situation. There may be situations where because of a long time-lag or such other supervening circumstances the writ court considers it unfair, harsh or otherwise unnecessary to direct a fresh enquiry or fresh order by the competent authority. That is precisely what the High Court has done in the case at hand.”

#16. Having regard to the aforesaid facts and circumstances in the case, we are not inclined to interfere with the writ Court’s order dated 3rd April 2023 passed in W.P.(S) No. 1855 of 2022.

#17. Accordingly, L.P.A No. 357 of 2023 is dismissed. 8 L.P.A No.357 of 2023

#18. The respondent no. 1 shall be reinstated forthwith upon receipt of a copy of this order.

#19. I.A No. 6801 of 2023 stands dismissed. (Shree Chandrashekhar, A.C.J.) (Arun Kumar Rai, J.) Jharkhand High Court, Ranchi Dated: 7th February 2024 Amit/ A.F..R