Pankaj Kumar v. The Block Development Officer, Hussainabad, Palamau
Case at a glance
Outcome
Dismissed
petition stands dismissed
Provisions considered
- Constitution of India arts. 226, 227, 311, 311(2)
Key paragraphs
- Para 1010. The Hon’ble Apex Court in case Union of India & Ors. Vrs. P. Gunasekaran (supra) has held that: “20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Articles 226/227 of the Constitution of India, to go into…
- Para 1212. Petitioner has been held guilty of gross misconduct, which has been duly proved in the departmental proceeding. The conduct of the petitioner is unbecoming of a government employee. It is better to weed out the dead woods as early as possible. As a sequitur…
Judgment
Mr. Sameer Sahay, learned counsel appearing for the petitioner strenuously urges that the impugned order is not sustainable in the eyes of law and the same is fit to be quashed and set aside. The Disciplinary Authority, without giving opportunity to the petitioner to file reply
RC 3 against finding of the enquiry report, bypassing a vital stage, directly issued second show-cause, asking reply from the petitioner in respect to the proposed major punishment, which is not tenable in the eyes of law. Learned counsel further submits that after amendment of Article 311 of the Constitution of India, it is not mandatory for the department to issue second show-cause notice asking reply against proposed punishment but it is mandatory for the Disciplinary Authority to provide enquiry report to the concerned and it is further mandatory to give fair and reasonable time to the concerned to file reply against finding of the enquiry officer made in the enquiry report. After perusal of reply of the delinquent against finding of the enquiry report, if Disciplinary Authority think it fit to impose major punishment, then second show-cause notice is issued asking reply against the proposed punishment.
In this matter, a complete step has been bypassed by the Disciplinary Authority which is not sustainable in the eyes of law. Learned counsel further argues that it is settled law that if Disciplinary Authority has issued second show cause notice against the proposed punishment of termination, then even petitioner has given reply against finding of the enquiry officer mentioned in inquiry report, then the Disciplinary Authority has the to look into quantum of punishment only. The direction to file reply against proposed punishment and direction to file reply against the enquiry report are two different types of show-cause notices. Even after 42nd Amendment in Constitution of India in respect to Article 311(2), the provision of issuance of show-cause notice against the proposed punishment has been taken away. Petitioner has already rendered more than eleven years of service without any complaint and only in order to cover up the mistakes of certain authorities, he has been made scapegoat and impugned order has been passed.
Due to election duty, he could not maintain the books. Petitioner has served the department diligently without any compliant from any corner. Petitioner was not the competent person to arrange generators etc. during the election rather he was the person to work under the instructions of superiors. Just to cover up the mistakes of higher authorities, he has been punished. For the purpose of uninterrupted electricity supply and supervision of CCTV Camera, RC 4 Rozgar Sewaks had been appointed and as such for inconvenience, if any, they are responsible and not the petitioner. So far the fooding facilities to the polling party is concerned, it had to be arranged by Aanganbari Sewika who had been deputed for the said purpose by the Block Development Officer. Learned counsel further argues that in the instant case, neither witnesses have been examined in presence of delinquent nor opportunity of cross examination has been given to the petitioner by the respondents, which is erroneous, arbitrary and not tenable in the eyes of law and is totally in conflict with the provisions as contained in Article 311(2) of the Constitution of India.
While affirming penalty against the petitioner, the respondents could not justify that in absence of any written office order by the competent authority regarding work allotted to the petitioner, how the same has been proved against him. Learned counsel emphatically submits that the impugned order is illegal, arbitrary and against the principles of natural justice and the same is fit to be quashed.
To sum-up, learned counsel for the petitioner has assailed the impugned order mainly on the following grounds: (i) The charge memo has been served to the petitioner without approval of the competent authority and as such the entire proceeding itself vitiates. (ii) The second show-cause notice is bad in law as the same reflects punishment awarded, which is against the provisions of law. (iii) The opportunity of cross examination of witnesses was not provided, which prejudiced the petitioner. (iv) The enquiry report also becomes redundant as the enquiry officer has recommended for punishment. The presenting officer has become a witness to the enquiry.
To substantiate his arguments, learned counsel places heavy reliance upon the Judgment rendered in the case of ECIL Vs. B. Karunakar reported in (1993) 4 SCC 727 and refers para-25 thereof, which reads as under: “25. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the RC 5 disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted.
It is the second right exercisable at the second stage which was the Forty-second taken away by Amendment.” Further reliance has been placed by the petitioner in the case of Union of India Vs. B.V. Gopinath reported in (2014) 1 SCC 35 and in the case of Sunny Abraham Vs. Union of India reported in 2021 SCC OnLine SC 1284 and submits that the second show cause is bad in law in which disciplinary authority awarded punishment to the petitioner. The whole inquiry report vitiated because inquiry officer recommended punishment in his report which is not tenable in the eyes of law. The inquiry officer has no role in awarding or indicating punishment. Same view has been reiterated in the case of State of Uttaranchal v. Kharak Singh reported in (2008) 8 SCC 236. Para-14 of the said Judgment reads as under: “14. In regard to the question whether an enquiry officer can indicate the proposed punishment in his report, this Court, in a series of decisions has pointed out punishing/disciplinary appropriate punishment and enquiry officer has no role in awarding punishment.
It is useful to refer to the decision of this Court in A.N. D'Silva v. Union of India [AIR 1962 SC 1130 : 1962 Supp (1) SCR 968] wherein it was held: (AIR p. 1134, para 6) impose authority
6. In the communication addressed by the enquiry officer the punishment proposed to be imposed upon the appellant if he was found guilty of the charges could not properly be set out. The question of imposing punishment can only arise after enquiry is made and the report of the enquiry officer is received. It is for the punishing authority to propose the punishment and not for the enquiring authority.
The opportunity of cross examination in presence of delinquent has not been provided to the petitioner which is against the observations made by this Court in its order dated 06.02.2020 in the case of Amar RC 6 Kumar Sinha Vs. The State of Jharkhand and others passed in W.P.(S) No. 5246 of 2013. Further reliance has been placed in the case of Union of India Vs.
Ram Lakhan Sharma reported in (2018) 7 SCC 670 and it has been argued that cardinal principles of natural justice has been given a complete go-bye. In a case where the disciplinary authority proposes to award punishment of dismissal i.e. capital punishment, a full fledged departmental proceeding is warranted. But in the instant case, there is no full fledged departmental proceeding and as such impugned orders are fit to be quashed. SUBMISSION ON BEHALF OF RESPONDENTS Per contra, counter-affidavit has been filed on behalf of respondents. Mr. Ashok Kumar, learned AAG-IV assisted by Ms. Piyushita Meha Tudu, learned counsel appearing on behalf of the State submits that petitioner had filed reply to second show-cause which was not found satisfactory. He did not utter a word to demand inquiry report prior to filing of second show cause. Ample opportunity was given to the petitioner during course of enquiry and the departmental proceeding has been concluded following the procedures.
Nothing has been brought on record to show that any folly was committed during course of enquiry. It has further been argued that the enquiry officer has returned the finding holding the petitioner guilty of charges/ the second show-cause notice was fully in accordance with law and justified. The punishment imposed on the petitioner is proportionate to the charges and hence no interference is warranted in the instant writ petition. Leaner counsel further argues that it is well settled that the decision of a case cannot be based on the ground outside the pleadings of the parties and it is the case pleaded that has to be found. Without amendment of the plaint, no relief can be granted by the Court. No prayer was ever made to amend the plaint so as to incorporate any alternative remedy. Petitioner filed amended writ petition but did not amend his plaint. Justifying the impugned order, it is being argued that there is no scope of any
RC 7 interference by this Court and hence the writ petition is fit to be dismissed. There is no illegality or any infirmity and no interference is warranted. The writ petition is fit to be dismissed. FINDINGS OF THE COURT
Having heard rival submission of the parties across the bar, this Court is of the considered view that no interference is warranted in the instant writ petition. Following the procedures, the departmental proceeding has been concluded. No folly has been pointed out in the entire departmental proceeding. Ample opportunity of hearing has been given at all the stages. The enquiry officer has held the petitioner guilty of charges and agreeing with the findings of the enquiry officer, the disciplinary authority has inflicted order of punishment. The second show-cause notice is fully justified and the punishment order is proportionate to the charges.
The Hon’ble Apex Court in case Union of India & Ors. Vrs. P. Gunasekaran (supra) has held that: “20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Articles 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford Dictionary is “moral uprightness; honesty”. It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence, etc. In short, it depicts sterling character with firm adherence to a code of moral values. uprightness, rectitude,
The impugned conduct of the respondent working as Deputy Office Superintendent in a sensitive department of Central Excise, according to the disciplinary authority, reflected lack of integrity warranting discontinuance in service. That view has been endorsed by the Central Administrative Tribunal also. Thereafter, it is not open to the High Court to go into the proportionality of punishment or substitute the same with a lesser or different punishment. These aspects have been discussed at quite length by this including B.C. Court decisions several RC 8 68] , Coal Ltd. v. Mukul the recent one Chaturvedi v. Union of India [(1995) 6 SCC 749 : 1996 SCC (L&S) 80 : (1996) 32 ATC 44] , Union of India v. G. Ganayutham [(1997) 7 SCC 463 : 1997 SCC (L&S) 1806] , Om Kumar v. Union of India [(2001) 2 SCC 386 : 2001 SCC (L&S) 1039] , Coimbatore District Central Coop. Bank v. Employees Assn. [(2007) 4 SCC 669 : (2007) 2 SCC (L&S) Kumar India Choudhuri [(2009) 15 SCC 620 : (2010) 2 SCC (L&S) 499] in Chennai Metropolitan Water Supply [Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108 : (2014) 1 SCC (L&S) 38] . 24. The Central Administrative Tribunal, in the order dated 1-2-2001 in OA No. 521 of 2000, after elaborately discussing the factual as well as the legal position, has come to the conclusion that the punishment of compulsory retirement is not outrageous or shocking to its conscience, it was not open to the High Court to interfere with the disciplinary proceedings from stage one and direct reinstatement of the respondent with back wages.”
Operative part
Petitioner has been held guilty of gross misconduct, which has been duly proved in the departmental proceeding. The conduct of the petitioner is unbecoming of a government employee. It is better to weed out the dead woods as early as possible. As a sequitur to the aforesaid rules, guidelines, judicial pronouncement, no interference is warranted. Consequently, the writ petition stands dismissed. (Dr. S.N. Pathak, J.)
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: petition stands dismissed
Which statutory provisions did this judgment involve?
Constitution of India — arts. 226, 227, 311, 311(2).
Which court decided this case, and when?
Jharkhand High Court, on 19 Feb 2024. The bench was S N PATHAK.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.