IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 5628 of 2012 ------- Abdul Khalique Hussain son of Late Aabid Hussain, resident of Dhangar Toli, Ward No.2, Chatra, P.O. And P.S. Chatra, District Chatra; at present posted as Revenue Karmchari, at and P.O. Maurehant, P.S. Itkhori, District Chatra. ... Petitioner Versus 1.The State of Jharkhand; 2.Deputy Commissioner, Chatra, P.O. And District Chatra; 3.Additional Collector, Chatra, P.O. And District Chatra; 4.Deputy Collector Land Reforms, Chatra, P.O. And District Chatra; 5.Circle Officer, Chatra Circle, P.O. And District Chatra. … … Respondents ------ CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ------ For the Petitioner : Mr Afaque Ahmad, Advocate For the Respondents : Ms. Aanya, J.C to G.P. V ------ 05/Dated:
09. h November, 2016 Per Pramath Patnaik, J.: In the accompanied writ application, the petitioner has inter alia prayed for quashing the office order as contained in memo dated 07.07.2012, whereby punishment of (i)withholding of two increments with cumulative effect and (ii)only payment of subsistence allowance will be made to the petitioner during suspension, as contained in Annexure 7 to the writ application, has been imposed upon the petitioner and further direction upon the respondents to make payment of full salary in favour of the petitioner for the suspension period.
2. Sans details, the facts as disclosed in the writ petition, is that initially the petitioner was appointed as Moharrir in Chakbandi Office at Deo Block, Aurangabad. While continuing as Halka Karamchari, the petitioner was placed under suspension vide order dated 21.09.2010 on the basis of report submitted by the Additional Collector, Chatra on the allegation of manipulation of records relating to Ward No. 4 (old) and New Ward No. 18 concerning Khewat No. 1 of Municipal Holding No. 38/A of Register -II. Thereafter, charges were framed against the petitioner in Form-Ka, as evident from Annexure 2 to the writ application. It has been contended in the writ application that the report prepared by the Circle Officer, Chatra, which was forwarded to Deputy Commissioner, Chatra vide letter dated 25.05.2010, reveals that no manipulation was made by the petitioner in Register II, as evident from Annexure 3 to the writ application. It has further been contended that the Executive Magistrate-cum- Presentation Officer, Chatra has also written letter vide letter dated 25.05.2011 to Land Reforms Deputy Collector-cum- Conducting Officer that no evidence whatsoever has been found against the petitioner for the alleged manipulation in Register-II, as evident from Annexure 4 to the writ application. It is specific plea made by the petitioner, that after conclusion of the enquiry, the enquiry report was submitted to the concerned authority which was never supplied to the petitioner. However, the petitioner obtained the same under Right to Information Act, 2005 vide memo dated 30.07.2012. It has further been contended that when no action was taken by the respondents for revocation of suspension after submission of enquiry report, the petitioner being aggrieved with the order of suspension moved this Court by filing W.P. (S) No. 1974 of 2012, which was disposed of vide order dated 16.04.2012 directing respondent no. 2-the Deputy Commissioner, Chatra to take decision upon the enquiry report within a period of four weeks from the date of receipt of copy of the order. Thereafter, the Deputy Commissioner, Chatra issued the order dated 07.07.2012, by which, impugned punishment has been imposed upon the petitioner.
3. Being aggrieved and dissatisfied with the impugned order at Annexure 7, the petitioner left with no alternative, efficacious and speedy remedy has approached this Court for redressal of his grievances invoking extraordinary jurisdiction under Article 226 of the Constitution of India.
4. Learned counsel for the petitioner, during course of argument has vehemently submitted that the impugned order at Annexure 7 is fraught with procedural irregularities, which has caused gross prejudice to the petitioner. Learned counsel for the petitioner further submitted that the impugned order of punishment is a major punishment and second show cause notice ought to have been issued prior to infliction of such major punishment, which in the case at hand has not been issued, hence, the impugned order is not legally sustainable. Learned counsel for the petitioner further submitted that even otherwise also there is absolutely no material against the petitioner so as to inflict major punishment, therefore, the impugned order at Annexure 7 is not legally sustainable and is liable to be quashed.
5. Learned counsel for State, J.C to learned G.P. V has assiduously submitted that there is absolutely no infirmity or illegality in the impugned order and reiterated the submissions made in the counter affidavit. During course of hearing, learned counsel for the State referring to paragraph 11 to the counter affidavit submitted that in compliance of order dated 16.04.2012 passed by this Court in W.P. (S) No. 1974 of 2012, the Deputy Commissioner, Chatra passed the reasoned order invoking the suspension order of the petitioner imposed the impugned punishment, which never warrants interference by this Court.
6. After hearing learned counsel for the parties at length and on perusal of the records, I am of the considered view that petitioner has been able to make out a case for interference due to the facts, reasons and judicial pronouncements: (i).In the instant case the petitioner has been aggrieved by the impugned order of punishment dated 07.07.2012, vide Annexure 7 to this writ application. It appears that the charges which have been leveled against the petitioner has not been proved in the enquiry proceeding but the respondents for the reasons best known to them has erroneously came to the conclusion that the charges have been proved, which is contrary to the findings of the enquiry officer, as evident from Annexure-5 of the writ application. Therefore, the impugned order has been passed without application of mind, which is not legally sustainable. (ii).Furthermore, there is no gainsaying of the fact that in the disciplinary proceeding, the supply of enquiry report is sine qua non for the just and fair departmental proceeding and non supply of the enquiry report has caused serious prejudice to the case of the petitioner and averment to this effect made by the petitioner in the writ appliction has not been controverted by the respondent in the counter- affidavit, therefore, that assertion of the petitioner goes uncontroverted and is acceptable on the doctrine of non- traverse. In this context, it would be apposite to refer, the decision rendered in the case of Managing Director, ECIL, Hyderabad & Ors v. B. Karunakar & Ors, as reported in (1993) 4 SCC727 wherein the Hon'ble Apex Court has in unequivocal terms has enunciated that enquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right. (iii).On perusal of the impugned order dated 07.07.2012, it is evident that withholding of two increments with cumulative effect is a major punishment as per the law laid down by Hon'ble Apex Court in the case of Kulwant Singh Gill Vs. The State of Punjab as reported in 1990 (6) SLR73 Since the impugned order of punishment is a major punishment, prior to infliction of such punishment issuance of second show cause is also an essential condition, which ought to have been complied with but the same has not been complied with in the instant case, hence, on that ground also, the impugned order has become vulnerable to judicial interference.
7. On the cumulative effect of the aforesaid facts, reasons and judicial pronouncements, the impugned order bearing memo No. 477 dated 07.07.2012 (Annexure 7), is hereby quashed and set aside. Resultantly, the respondents are directed to extend the monetary benefit for the period of suspension to the petitioner.
8. With the aforesaid observations and directions, the writ petition stands allowed. (Pramath Patnaik, J.) Alankar/Pankaj