1 W.P. (S) No. 3216 of 2009 … In the matter of an application under Article 226 of the Constitution of India. ... Shashi Kant Singh son of Late Ram Naresh Singh, resident of village Sadokhar via Chenari District Rohtas (Bihar) A/P Kumardhubi Station Road Sarora Pahari P.O. Kumardhubi P.S. Chirkunda District Dhanbad. … Petitioner -V e r s u s- 1. The State of Jharkhand .
2. The Secretary, Department of Animal Husbandary and Fisheries, Government of Jharkhand Project Building P.O. Hatia District Ranchi.
3. The Deputy Secretary, Department of Animal Husbandary and Fisheries, Government of Jharkhand Project Building P.O. Hatia District Ranchi.
4. The Regional Director South Chotanagpur Department of Animal Husbandary P.O. Kanke, Ranchi.
5. The Regional Director, North Chotanagpur, Department of Animal Husbandary, Hazaribagh.
6. The District Animal Husbandary Officer, Hazaribagh.
7. The District Animal Husbandary Officer, Chatra.
8. The Veternary Surgon Officer, Chatra PO Chatra District Chatra. … Respondents … For the Petitioner : - Mr. Anshuman Kumar, Advocate. For the Respondent-State : - Mr. Dhananjay Kumar Dubey, Sr. S.C. I. … P R E S E N T: - HON’BLE MR. JUSTICE PRAMATH PATNAIK. … C.A.V. On: -17.06.2016 Delivered On: - 27/10/2016 … Per Pramath Patnaik, J1 In the accompanied writ application, the petitioner has inter alia, prayed for quashing the order dated 04.04.2009, passed by the Deputy Secretary, Government of Jharkhand, Department of Animal husbandary and Fisheries wherein, following punishments have been imposed : - (a) Five increments have been stopped cumulatively (b) Salary of suspension period has been withheld, and (c) Salary has been withheld for unauthorized leave.
2. Sans details, the facts, as disclosed and delineated in the writ petition in a nutshell is that the petitioner is the permanent employee under the respondent and he is posted as Clerk. It has been averred in the writ application that the petitioner was posted as Clerk at Chatra in the year 2002 in the Office of veterinary Surgeon at Chatra the respondent no. 8 and his posting has been made by way of transfer, the letter issued by 2 respondent no.7 contained in memo No. 333 dated 21.5.2002. It has been further averred that the petitioner being posted as Clerk, he had to deal with accounts of the office and it is pertinent to mention that since he was in charge of the accounts he followed the norms rules and procedure with regard to the accounts in the office. It has been further averred that the respondent no. 8 on various occasions directed the petitioner to pay the salary in cash to other employees and to deal the accounts not strictly within rules to which the petitioner could not be agree as the same may occur future accounts problem. It has been further submitted that the respondent no. 8, thereafter took up the entire accounts work of the office in his hand and get it done by Class IV employee of the office for the year 2004. It has been further stated that the respondent no. 7 issued a letter contained in letter No. 394 dated 10.6.04 to the respondent No. 8 and has complained to him that the accounts details for the year 2004 is incorrect and defective and has also directed him to get the accounts work done only by the office employees. It has been further stated that the Respondent No. 8 however continued to get done the accounts work by outsider which occurred various irregularities in accounts details. It has been further averred that the respondent No. 5 issued a letter to the respondent No. 8, whereby the respondent No. 8 has been directed to enquire into the accounts as also with regard to the negligence of the petitioner and the charges made against the petitioner by Sri Nasiruddin Ansari former Veterinary Surgeon, Chatra. It has been further submitted that the Respondent No. 8 issued a letter contained in letter No. 23 dated 2.3.06 to the respondent No. 5, whereby the respondent No. 8 has confirmed the audit clearance of the accounts for the year 2003-04 and has stated that the petitioner is innocent. It has been further stated that the respondent No. 8 has issued another letter being letter No. 23 dated 10.3.06 to the respondent No. 5 to the similar effect wherein it is mentioned that, the details of account, for the year 2003-04 is correct as per the audit as such the petitioner is innocent and that a same and identical letter has been send under the certificate of posting. It has been further averred that the respondent No. 3 issued a letter contained in letter No. 884, dated 27.4.06 to the respondent No. 8 whereby he has been directed to report as to whether both the letters has been issued by him or 3 not. It has been further stated that the Respondent No. 8 thereafter issued two letters one being letter No. 59 dated 15.5.06 and another being letter No. 52 dated 15.5.06 and he has mentioned two different statements as in letter No. 52 it has clearly been mentioned that both the letters being memo No. 23 dated 2.3.06 as well as 10.3.06 has been issued by him and the same bears his signature, on the other in letter No. 59 it has been stated that both the letters have not been issued by him and the same has been issued by his forged signature. It has been further averred that since the respondent No. 8 did not allow the petitioner to deal with the accounts of the office and Dr. Nasiruddin Ansari the previous veterinary Surgeon as well as Sri R. Choudhary continued to get the accounts work done by unauthorized persons due to extraneous consideration therefore the respondent No. 7 issued a letter again on 7.7.06 vide letter No. 610 whereby the respondent No. 8 has been instructed to get the accounts work done by the clerk of the office. It has been further averred that he has been rendering his services regularly, however, the respondent No. 8 used to get the accounts work done by unauthorized person. It has been further stated that the respondent No. 8 has verified the services of the petitioner for the year March 2006 to April 2006 and has certified the same to be satisfactorily. It has been further submitted that the Respondent No. 8 has issued a letter contained in letter No. 96 dated 28.7.06 to the respondent No. 7 whereby the respondent No. 7 has been informed that the salary of the petitioner has been made for the period April 2006 to June 2006 and the period shown as absent shall be made after approval of his leave. It has been further averred that the salary to the employee in the office for the period of October 2006 and December 2006 has been made by cash payment in contravention of the letter No. 1371/F dated 22.5.06 issued by the Finance Department and the fund with regard to uniform has been withdrawn though no uniform was supplied to the employees, as such the petitioner submitted a representation before the respondent No. 8 for taking appropriate action into the same. It has been further averred that the respondent No. 3 issued an order contained in memo No. 1570 dated 28.6.07 whereby the petitioner has been informed that in respect of the charges referred in enclosure “Ka” a departmental proceeding has been started against him and he has been informed that the 4 respondent No. 4 has been appointed as enquiry officer for the said enquiry and the respondent No. 6 has been appointed as presenting officer in the said enquiry and charges as referred in the memo of charge is that (i) he has disobeyed the order of his controlling authority (ii) he remains absent/on authorized leave as apparent from the letter No. 73 dated 31.1.06 (iii) he is habituated to disobey his controlling authority and disobey his order and he has made forged signature on letter No. 23 dated 2.3.06. It has been further stated that the petitioner pursuant to the order contained in memo No. 1570, submitted his explanation before the enquiry officer on 17.7.07 and he has submitted that, there is no specification of date and the specification of order for which the charges has been made against him and he also submitted that his services has been found to be satisfactory as recorded by the controlling officer himself on 18.8.06 as such the allegation is not correct and he has further stated that the allegation of making forged signature is baseless as the controlling officer cum competent authority and maker of signature has stated vide his Letter No. 52 that the signature bore on the letter No. 23 is genuine and under his signature. It has been further stated that the respondent No. 3 issued a letter vide letter No. 1711 dated 11.7.07 to the respondent No. 4 whereby he has been directed to conduct enquiry. It has been further stated that the respondent No. 4, the enquiry officer issued a letter No. 709 as contained in memo No. 709 dated 13.7.07 to the petitioner whereby the petitioner has been directed to submit his written statement, evidence and defence before the respondent No.
6. It has been further averred that the enquiry in respect of the forged signature has been conducted by the respondent No. 5 and he has submitted his enquiry report wherein, it has been categorically stated that the “Dr. Choudhary has clearly stated that the letter No. 52 has been signed by him and the letter No. 59 has not been signed by him”. It has been further submitted that the Respondent No. 4, the enquiry officer has issued a letter of opinion in respect of the enquiry conducted by the respondent No. 5 and opinion arrived by the respondent No. 5 to the respondent No. 3 and this letter clearly shows that the enquiry officer has merely formally consented to the enquiry conducted by the respondent No. 5 as a disciplinary authority and in fact no enquiry has been held in accordance with law. It 5 has been further submitted that the enquiry officer, the respondent No. 4 has issued a letter as contained in letter No. 202 dated 14.2.08 to the respondent No. 2 whereby he has submitted an enquiry report and in respect of the charges referred in column 3 he has stated that it is not possible to establish the charge with regard forged signature. It has been further stated that the respondent No. 3 issued letter vide letter No. 1349 dated 16.7.08 contained in memo No. 2 whereby the petitioner has been informed that the certain part of the memo of charges as charge No. 1, 2, 3 (A) the enquiry Officer has consented to the enquiries of respondent No. 6 and he has been thereafter directed to submit his explanation. It has been further averred that since no enquiry report alongwith evidences was supplied to him alongwith the copy of the second show cause as such the petitioner was not able to submit his explanation. It has been further stated that the respondent No. 3 issued an order contained in memo No. 807 dated 4.4.09 whereby a supplementary order of punishment has been passed against the petitioner alleging that the part of charges of memo of charge in column 1, 2, 3 has been proved whereas charge 3 (A) is kept pending till the final order of punishment is passed and the punishment as herein (a) five increments cumulatively withheld (b) withholding the salary for the suspension period (c) withholding of the salary for the period he is found absent. Left with no other efficacious, alternative and speedy remedy, the petitioner has been constrained to approach this Court invoking the extraordinary jurisdiction under article 226 of the Constitution of India for redressal of their grievances.
3. Heard Mr. Anshuman Kumar, learned counsel for the petitioner and learned Sr. S. C. I for the respondent-State.
4. Mr. Anshuman Kumar, learned counsel for the petitioners has vehemently submitted that the impugned order of punishment as contained in memo No. 807, as mentioned hereinabove, is illegal and arbitrary as there is no provision in service law to pass a supplementary order of punishment during the pendency of the departmental proceeding and also for the second reason that such action is also against the norms of the principles of natural justice and thirdly for the reason that in case of five increments is being withheld cumulatively by way of punishment, the 6 eight increments is being withheld and the petitioner in the aforesaid circumstances has submitted a representation before the respondent No. 2 on 12.5.09. It has been further submitted that the petitioner has been transferred to Godda, in the office of Veterinary Surgeon, Godda on the post of Clerk vide memo No. 1148, dated 12.6.09 and he has joined the post. Learned counsel for the petitioner has further submitted that the enquiry held in respect of the departmental proceeding against the petitioner is illegal and unconstitutional and as such, the same is liable to be quashed. Learned counsel for the petitioner has further submitted that the domestic enquiry is absolutely not a formality as it has serious civil consequence as against the delinquent officer and as such the same is required to be conducted in the norms of the constitutional guidelines provided under Article 309 and 311 of the Constitution of India. Learned counsel for the petitioner has further submitted that the enquiry, as held against the petitioner is absolutely not an enquiry under the constitutional guidelines on the contrary, it is merely a travesty of service law, justice and enquiry. Learned counsel for the petitioner has further submitted that the procedure as to getting the enquiry conducted by another officer and not conducting the enquiry himself by the enquiry officer and thereafter putting consent on such enquiry is unknown to law and therefore, the case of the petitioner is seriously prejudiced. Learned counsel for the petitioner has further submitted that the supplementary order of punishment pursuant to the departmental proceeding is itself illegal and unconstitutional and as such is liable to be quashed.
5. Per contra Counter affidavit has been filed on behalf of the respondent no. 7, repelling the contentions made in the writ application. It has been inter alia, submitted in the counter affidavit, that the disciplinary authority has passed the impugned order, after due consideration of charges leveled against the petitioner as well as representation submitted by the petitioner and as such, quashing of impugned order does not arise. It has been further averred that as per procedure inquiry conducted by Secretary, Animal Husbandary, Govt. of Jharkhand and the Regional Director, Animal Husbandry, Ranchi and based upon the findings of the inquiry officer, the order has been passed by the competent authority vide order dated 06.04.2009. It has been further averred that the inquiry has 7 been conducted as per procedure and requirement of the disciplinary proceedings. It has been further averred that it is imperative and mandatory for conducting the inquiry by an independent authority to help incoming of the conclusion of the disciplinary proceedings as per charges, and representation submitted by the delinquent official in his defence against the disciplinary proceedings. It has been further averred that if the inquiry officer is not satisfied by the submissions in defence by the delinquent officer, the inquiry officer may accept or may not accept the evidences. It has been further averred that if the inquiry officer is not satisfied with the materials and evidences submitted by the delinquent official at the time of submission in his defence the inquiry officer may accept or may not accept the evidences. It has been further averred that as certain employees do not hold the account in the Bank, their salaries were paid in cash. It has been further averred that the DDO has full right to withdraw any work by way administration for smooth functioning of office without any delay or otherwise from any sub-ordinates, as such allegation mentioned in the plaint is baseless. It has been further averred that it was an error and incorrect statement lapses, which have been corrected during subsequent months. It has been further averred that the allegations mentioned in the plaint by the petitioner is baseless in that letters, as mentioned in these paragraphs and annexure there as quoted to refer 5 A is very clear since letters states regarding refusing of signatures on enclosures and not on signed on both letters dated 15.02.2009 of letters no. 52 and 53 respectively. It has been further averred that a meeting was called for by the then Veterinary Surgeon of Chatra regarding payment by cash due to some administrative problem owing to non opening of bank account by the employees in contravention of orders, and not hot discussion was ever made. It has been further averred that since the inquiry officer has expressed his inability, it does not bind the disciplinary authority to prove it by other media or methods. It has been further averred that as per procedure, the disciplinary authority has asked the delinquent Government official by giving chances to prove himself and as per procedural demand in that disciplinary authority correctly, rightly and procedurally. It has been further averred that the mere fact is that the petitioner has already enclosed the inquiry officer’s report in letter 8 referred in Annexure-15 forming part of the plaint and as such, the findings of the inquiry officer is well within the knowledge of the petitioner.
6. Mr. Dhananjay Kumar Dubey, learned Sr. S.C. I for the respondent- State has vociferously submitted that the disciplinary authority has passed the impugned order after following due procedure and after due consideration of the facts stated hereinbelow: (a) Charges framed against the petitioner; (b) Defence statement submitted in response to charge framed against the petitioner and (c) Based upon the findings of the inquiry officer report, impugned orders have been passed in accordance with law and, as such, requires no quashing of any part of the disciplinary proceedings and its orders thereon. Learned counsel for the respondent-State has further submitted that the inquiry was conducted under the order of the Secretary, Animal Husbandry as per the procedure of disciplinary proceedings and as per the directions contained in Jharkhand State Service Code. Learned counsel for the respondent-State has further submitted that the disciplinary authority has applied his mind meticulously after careful consideration of charges framed against the petitioner and his representation therewith and the inquiry officer report and his past services during various years conduct and as per the Service Book records and the punishment awarded to the petitioner is correct and hence, the petitioner does not deserve any relief, as submitted in his plaint and it is a fit case to be dismissed in limine by this Court.
7. Having heard the learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the petitioner has been able to demonstrate foundational facts and law to make out a case for interference due to the following facts and reasons : - (i) Admittedly, in the instant case, vide impugned order dated 04.04.2009 contained in memo No. 2 dated 06.04.2009 (vide Annexure-18), following punishments have been inflicted upon the petitioner : - (a) Five increments have been stopped cumulatively 9 (b) Salary of suspension period has been withheld, and (c) Salary has been withheld for unauthorized leave. Stoppage of increments with cumulative effect, is a major punishment, as has been held in the case of Kulwant Singh Gill v. State of Punjab reported in 1991 Supp (1) SCC504 (ii) The averment of the petitioner to the effect that the copy of the enquiry report has not been supplied to the petitioner, has not been controverted in the counter affidavit but the only ground taken in the counter affidavit is that the petitioner has enclosed the copy of the enquiry report, so the findings of the enquiry report is well within the knowledge of the petitioner and the petitioner has also taken the ground of prejudice, which has been caused to him due to non-supply of the enquiry report. In the service jurisprudence, the supply of the enquiry report is a sine qua non for a fair disciplinary proceedings. This view has been reiterated by the landmark judgment of the Hon’ble Apex Court in the case of Managing Director ECIL Vs. B. Karunakar as reported in (1993) 4 SCC727 wherein, it has been held as under: “The denial of supply of the copy, therefore, causes to the delinquent a grave prejudice and avoidable injustice which cannot be cured or mitigated in appeal or at a challenge under Article 226 of the Constitution or Section 19 of the Tribunal Act or other relevant provisions. Ex post facto opportunity does not efface the past impression formed by the disciplinary authority against the delinquent, however, professedly to be fair to be delinquent. The lurking suspicion always lingers in the mind of the delinquent that the disciplinary authority was not objective and he was treated unfairly. To alleviate such an impression and to prevent injustice or miscarriage of justice at the threshold, the disciplinary authority should supply the copy of the report, consider objectively the records, the evidence, the report and the explanation offered by the delinquent and make up his mind on proof of the charge or the nature of the penalty. The supply of the copy of the report is, thus, a since qua non for a valid, fair, just and proper procedure for the delinquent to defend himself effectively and efficaciously. 10 The proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. The principles of natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post-mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Article 14, 21 and 311 (2) of the Constitution, but also, the principles of natural justice.”
8. In view of the aforesaid factual as well as legal position and as a logical sequitor, the impugned order of punishment dated 04.04.2009, contained in memo No. 2 dated 06.04.2009 (Annexure-18) passed by the Deputy Secretary, Government of Jharkhand, Department of Animal husbandary and Fisheries, being not legally sustainable is hereby quashed and set aside. However, the matter is remitted to the respondent authorities to start the proceeding afresh from the stage of supply of the copy of the enquiry report and by giving reasonable opportunity of being heard to the petitioner and conclude the proceeding in accordance with law, as expeditiously as possible, since in the meantime, so many years have elapsed, preferably within a period of six months from the date of receipt/communication of a copy of the order.
9. With the aforesaid observations and directions, this writ petition stands disposed of. (Pramath Patnaik, J.) Jharkhand High Court, Ranchi Dated-27/10/2016 APK/N.A.F.R.