IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P. (S) No. 6984 of 2007
...
Nagina Hazari ... ... Petitioner
-V e r s u s-
1. The State of Jharkhand
2. The Inspector General, Jharkhand Home Guard, Ranchi.
3. The Deputy Inspector General, Jharkhand Home Guard, Ranchi.
4. The Commandant, Jharkhand Home Guard Head Quarter, Ranchi.
5. The District Commandant, Jharkhand Home Guard, Garhwa.
6. The District Commandant-cum-Enquiry Officer, Jharkhand Home
Guard, Garhwa.
7. The State of Bihar.
8. The Commandant General, Bihar Home Guard, Patna.
9. The Deputy Commandant General, Jharkhand Home Guard, Patna.
... Respondents.
...
CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.
...
For the Petitioner : - M/s. Dhananjay Kr. Dubey
& S. S. Choudhary, Advocates.
For the Respondent-State of Jharkhand: - J.C. to A.G.
For the Respondent-State of Bihar: - J.C. to Mr. S.P. Roy (G.A.), Bihar.
...
6/15.10.2009
The petitioner is aggrieved with the order dated-16.06.2004,
passed by the Respondent No. 4, whereby the punishment of forfeiture of
increments in salary for a period of one year, was imposed against the petitioner.
Challenging the aforesaid order of punishment as being illegal, the petitioner has
also challenged the order dated 03.07.2007, passed by the Appellate Authority,
namely, the Respondent No. 3 dismissing the Appeal filed by the petitioner
against the impugned order of punishment.
2. The petitioner’s case in brief is as follows: –
The petitioner was posted as a Constable
under the District Commandant, Jharkhand Home
Guard in the district of Garhwa and was allotted the
work of Cash Messenger.
The Disciplinary Authority had found
reason to put the petitioner under suspension on the
ground of misconduct and to initiate a disciplinary
proceeding against him for specific charges.
During the period of his suspension, the
petitioner was paid subsistence allowance.
At the conclusion of the enquiry, the
Enquiry Officer found the charge against the
petitioner not proved.
However, the Disciplinary Authority
proceeded to inflict the punishment of stoppage of
increment for one year, equivalent of two black
marks against the petitioner.
[2]
[W.P. (S) No. 6984 of 2007]Being aggrieved with the impugned order
dated 16.06.2004 inflicting punishment of forfeiture
of increments in salary for one year, the petitioner
filed an appeal before the Appellate Authority
(Respondent No. 3),
During this period, a Notification was
issued, whereby upon cadre bifurcation, the
petitioner was allotted the Bihar Cadre and was
relieved from his duty in the State of Jharkhand
with effect from 01.04.2005.
Pursuant to the cadre allotment and upon his
being relieved from his post in Jharkhand, the
petitioner joined his post in Bihar on 06.04.2005.
Since the Appeal filed by the petitioner
against the impugned order of punishment was not
being disposed of promptly, the petitioner filed a
writ application before this Court vide W.P. (S) No.
7849 of 2006. This Court by order dated
06.04.2007, while disposing of the writ application,
directed the Deputy Commandant General, Home
Guard, Ranchi, namely, the Respondent No. 3 to
consider and dispose of the petitioner’s Appeal,
which was pending since 2004 and to pass
appropriate orders in accordance with law within a
period of two months from the date of
receipt/production of a copy of the Court’s order.
Pursuant to the directions as contained in the
aforesaid writ application, the Appellate Authority
disposed of the appeal by passing the impugned
order dismissing the same by the impugned order
dated-03rd July, 2007.
3. Assailing both the impugned orders, Mr. Dhananjay Kr. Dubey,
learned counsel for the petitioner would submit inter alia, the following grounds: –
(i) Admittedly, the Enquiry Officer did not find
the petitioner guilty of the charge levelled against
him.
(ii) The Disciplinary Authority was though
competent to differ from the findings of the Enquiry
Officer and to proceed on the basis of his own
[3]
[W.P. (S) No. 6984 of 2007]findings inferred from the materials on record, but
before doing so, it was legally incumbent upon the
Disciplinary Authority to serve a second show
cause notice upon the petitioner assigning reasons
as to why he chooses to differ from the findings of
the Enquiry Officer after serving a copy of the
Enquiry Report and after giving opportunity to the
petitioner to explain as to why the proposed extreme
punishment should not be imposed against him.
(iii) Before passing the impugned order, the
petitioner was neither served with any second show
cause notice nor supplied a copy of the Enquiry
Report and above all, the Disciplinary Authority did
not assign any reason for differing with the findings
of the Enquiry Officer.
Learned counsel adds that the punishment
under such circumstances is against the principles
of equity and natural justice and illegal and cannot
be sustained in law.
4. Learned counsel for the Respondent-State, by referring to the facts
of the case, would concede that as it appears, before passing the impugned order
of punishment, the petitioner was not served with the second show cause notice
nor was a copy of the Enquiry Report served upon the petitioner and neither were
any reasons assigned by the Disciplinary Authority for differing from the findings
of the Enquiry officer and to this extent, the impugned order of punishment could
possibly be assailed by the petitioner.
5. Learned counsel, however, invites attention to certain relevant
issues by referring to the order of this Court, passed in the earlier writ application.
Learned counsel explains that the petitioner was made aware of the fact that he
was allotted the State of Bihar on cadre bifurcation and was relieved from duty on
and from 01.04.2005. In the earlier writ application, the petitioner does not appear
to have challenged the impugned order of his punishment. Rather, the only prayer
of the petitioner was based on his grievance that the appeal preferred by him, was
not being disposed of expeditiously by the Appellate Authority. Learned counsel
adds that considering the present position that the petitioner is no more a
Government servant under the State of Jharkhand, his remedy, if at all would be
before the appropriate Forum in the State where he is presently posted, namely,
the State of Bihar.
[4]
[W.P. (S) No. 6984 of 2007]
6. Having heard the learned counsel for the parties and having gone
through the facts of this case, I find that the impugned order of punishment does
suffer from perversity and illegality in as much as, it has been passed without
observing the principles of natural justice and without observing the mandatory
Rules of procedure, as laid down under the Service Code. As such, the impugned
order of the petitioner’s punishment (Annexure-1) and the impugned order of the
Appellate Authority (Annexure-7) are hereby set aside. The matter is however,
remitted to the concerned disciplinary authority of the petitioner in the concerned
Department, in the State of Bihar where the petitioner is presently employed, to
reconsider the Enquiry Report submitted in respect of the petitioner and to take an
appropriate decision on the same by passing a reasoned and speaking order. Such
decision must however, be communicated effectively to the petitioner.
(D.G.R. Patnaik, J.)
APK