1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 3721 of 2011 Tesha Prasad Sah S/o Late Dudh Nath Sahu, Resident of village-Kund, P.S- Dinara, P.O. Kund, District-Rohtash, At present residing at Bhandaridih, P.S., P.O. & District-Giridih. ….. Petitioner Versus 1. The State of Jharkhand through Secretary, Rural Development Department, Govt. of Jharkhand.
2. Deputy Commissioner, Giridih.
3. Deputy Development Commissioner, Giridih.
4. Executive Engineer, Rural Development Special Division, Giridih. …… Respondents --------- CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ---------- For the Petitioner : Mr. P.P.N. Roy, Sr. Adv. For the Respondents : Mr. Anup Kumar Agrawal, J.C. to S.C.V. 5/Dated:18th October, 2016 Per Pramath Patnaik, J.:
1. In the instant writ application, the petitioner has inter alia prayed for quashing part of the order dated 05.03.2011 issued by the Deputy Secretary, Rural Development Department, Govt. of Jharkhand vide Annexure-6 to the writ application.
2. Sans details, the facts, as disclosed in the writ application, is that initially the petitioner was appointed as Gauze reader in the year 1970 in the office of Hydrological Investigation, Hazaribagh. Thereafter, in due course he was appointed as Accounts Clerk in Rural Development, Special Division, Giridih since 1998. On the basis of the allegation with regard to irregular payment to the President and Secretary of the Labhuk Samittee for an amount of Rs.3,64,076/- a First Information Report was lodged against the petitioner and other persons, who were responsible for the payment of all the aforesaid amount vide Bagodar (Sariya) P.S. Case No.53/2010 corresponding to G.R. Case No.591/2010 for the offence punishable under Sections 419, 420, 409, 406/34 of the Indian Penal Code. In pursuance to the criminal case, the petitioner was placed under suspension and thereafter, departmental proceeding was initiated against the petitioner. In the departmental proceeding the petitioner was asked to submit his reply and accordingly, the petitioner submitted his reply. The matter was inquired into 2 and the inquiry officer submitted his report. Basing on the inquiry report, the impugned order of punishment vide Annexre-6 dated 05.03.2011 has been passed which is the subject matter of dispute in this writ application. Being aggrieved by the impugned order of punishment, the petitioner being constrained, has approached this Court under Article 226 of the Constitution of India, invoking extraordinary jurisdiction of this Court for redressal of his grievance.
3. Mr. P. P. N. Roy, learned senior counsel for the petitioner submits that the impugned order of punishment vide Annexure-6 has been passed, without supply of the inquiry report and the averments of the petitioner has not been controverted in the counter affidavit. Learned senior counsel for the petitioner further submits that non-supply of the inquiry report during pendency of the disciplinary proceeding has caused serious prejudice to the petitioner, which has affected the outcome of the disciplinary proceeding. Learned senior counsel further submits that the supply of inquiry report is sine qua non for a fair disciplinary proceeding and in the instant case the same having not been supplied, the very proceeding has been vitiated. In this respect, learned senior counsel for the petitioner has referred to the decision of the Hon’ble Apex Court reported (1993) 4 SCC727(Managing Director, ECIL, Hyderabad and Ors. vs. B. Karunakar and Ors.). It is further submitted that during pendency of the writ application, I.A. No.5600 of 2015 was filed by the petitioner and the same was disposed of vide order dated 15.01.2016 wherein this Court has directed that pendency of the writ application shall not be bar upon the respondents for payment of admissible retirement benefits.
4. Controverting the averments made in the writ application, a counter affidavit has been filed by the respondent nos.2 to 4, wherein it has been submitted that the petitioner has never demanded the copy of the inquiry report and therefore, it was not supplied to the petitioner. Mr. Anup Kumar Agrawal, J.C. to S.C.V has assiduously submitted that the impugned order of punishment is of minor nature so there was no need for supply of the inquiry report. Learned counsel for the State further submits that in view of the seriousness of the charges and allegations, the punishment inflicted on the petitioner appears to be just, proper and commensurate to the gravity of offence. 3 5. During course of hearing, learned counsel for the State has referred to the supplementary counter affidavit dated 05.05.2016, wherein it has been submitted that G.P.F amount of Rs.6,78,902/- has been issued by the District Provident Fund Officer, Giridih vide letter no.413 dated 04.08.2012 as per Annexure-C to the said affidavit and Rs.1,69,527/- towards Group Insurance Scheme and 90% of the Gratuity, amounting to Rs.5,77,057/- has also been sanctioned to the petitioner. So far as Earned Leave Encashment of the petitioner is concerned, the same has not been paid to the petitioner as evident from Annexure-J to the supplementary affidavit.
6. After hearing learned counsel for the respective parties at length and on perusal of the records, I find that the petitioner has been able to make out a case for interference, due to the following facts and reasons: (I) Admittedly in the instant case, the inquiry officer was appointed to find out the veracity of the allegations and the report of the inquiry officer was submitted to the disciplinary authority and the disciplinary authority has passed the order of punishment. Admittedly, no inquiry report has been supplied to the petitioner, which has caused serious prejudice and therefore, as per the decision of the Hon’ble Apex Court, the fair proceeding in culmination of infliction of punishment is vitiated. The view of this Court gets fortified by the decision of the Hon’ble Apex Court reported in (1993) 4 SCC727(Managing Director, ECIL, Hyderabad and Ors. vs. B. Karunakar and Ors.) wherein at paragraph 57, it has been held as under:
“57. …… The denial of the 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 the 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 4 report is, thus, a sine qua non for a valid, fair, just and proper procedure to defend the delinquent himself effectively and efficaciously. The denial thereof is not only offending Article 311(2) but also violates Articles 14 and 21 of the Constitution.”
7. In view of the aforesaid legal proposition and as a logical sequitur to the aforesaid reasons, the part of the impugned order of punishment dated 05.03.2011, vide Annexure-6 to the writ application, is quashed and set aside and the respondents shall be at liberty to initiate the proceeding from the stage of supply of inquiry report after giving opportunity of hearing to the petitioner and conclude the same as early as possible, preferably within a period of six months from the date of receipt of a copy of the order. In the meantime, the unpaid admissible post retirement benefits be paid to the petitioner in accordance with law.
8. With the aforesaid direction, the writ application stands disposed of. (Pramath Patnaik, J.) Saket/-