Allowed

Shambhu Nath Pal v. the State of Jharkhand and Ors. `

Jharkhand HC8 Aug 2016LPA/20/2016

Case brief

AI extract

What is this about?

High Court held that a departmental inquiry dismissed a state employee from service in violation of natural justice due to lack of notice, failure to supply the enquiry report, and absence of cross-examination. The appeal was allowed, setting aside the impugned penalty order.

What did the court decide?

The penalty order dated 24.12.2009 dismissing the petitioner from service is set aside; the writ petition and appeal stand allowed.

Shambhu Nath Pal Vs the State of Jharkhand and Ors. ` — Service and Employment | Jharkhand HC (2016)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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L.P.A. No. 20 of 2016

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Shambhu Nath Pal, son of Late Haradhan Pal, resident of vill-Mukhrali, PO&PS-Dumka(Muffasil), District-Dumka, Jharkhand

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... … Appellant

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Versus

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The State of Jharkhand

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Deputy Commissioner, Dumka

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Deputy Development Commissioner, Dumka

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Sub-Divisional Officer, Dumka

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Circle Officer, PO&PS-Dumka, District-Dumka

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Block Development Officer, Shikaripara, PO-Shikaripara, PS-Dumka, District-Dumka ... ... Respondents ----- For the Appellant : Mr. Manoj Tandon, Advocate Mr. Ranjit Kumar, Advocate For the Respondents : Mr. Shadab Bin Haque, J.C. to G.P. I

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CORAM: HON’BLE MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

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-----

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05/Dated: 08th August, 2016 Per Shree Chandrashekhar, J.

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The only question which calls for consideration is, whether the appellant was afforded reasonable opportunity to defend himself ?

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2. The facts, which are not in dispute are recorded hereunder;

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The appellant-writ petitioner (hereinafter referred to as petitioner) was appointed on a Class-IV post in the year 1980 and he was promoted to Class-III in the year 1992. While he was working as In-charge Nazir, Shikaripara Block, a preliminary enquiry was conducted by the Block Legal Supervisor in which certain irregularities were found. A charge-memo in Prapatra-K was served upon the petitioner on 31.05.2007 and he was put under suspension. He submitted

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his explanation to the charges vide his representation dated 24.10.2008. He was issued a second show-cause notice on 04.04.2009, in response thereof, he submitted representation dated 29.04.2009. The Deputy Commissioner, Dumka passed order dated 24.12.2009 dismissing the petitioner from service.

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3. During the course of hearing Mr. Shadab Bin Haque, J.C. to G.P. I, the learned counsel for the State has drawn our attention to the second show-cause notice dated 04.04.2009 which refers to enquiry report dated 06.03.2009, to contend that in a properly constituted enquiry, charges framed against the petitioner have been found proved and while so, the learned Writ Court has rightly dismissed the writ petition.

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4. It is not in dispute that Civil Services (Classification, Control and Appeal) Rules, 1930 would regulate the departmental proceeding initiated against the petitioner. Rule 49 enumerates the penalties which may, for good and sufficient reason, be imposed upon members of the services comprised in any of the clauses (i) to (v) specified in Rule 14. Rule 55-A provides that any of the penalties specified in clauses (i), (ii) or (iv) of Rule 49 may be imposed on any government servant provided he has been given an adequate opportunity of making representation. Clauses (i), (ii) or (iv) do not provide penalty of removal from service or dismissal from services. Rule 55 is attracted in the case of the petitioner which provides that grounds on which an action is proposed shall be reduced to the form of definite charge or charges which shall be communicated to the charged officer together with a statement of allegation. It further provides that if the charged officer so desires or if the authority concerned so directs, an oral enquiry shall be held.

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5. In his reply to the second show-cause notice, the petitioner has specifically asserted that it was not made known to him whether any witness was examined during the enquiry and the documents on which the department placed reliance were not

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supplied to him. He has also taken a specific plea in his reply dated 29.04.2009 to the second show-cause notice that a copy of the enquiry report was not served upon him. No doubt, the second show-cause notice dated 04.04.2009 refers to enquiry report dated 06.03.2009, however, a copy of the said enquiry report was not produced in the writ proceeding. The penalty order dated 24.12.2009 nowhere discusses the evidence led before the enquiry officer. The specific stand taken by the petitioner challenging the enquiry conducted against him has also not been discussed in the penalty order dated 24.12.2009. The charge against the petitioner is of defalcation of more than 6.5 lacs.

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6. The petitioner has further pleaded that no notice was issued to him to present his case and this stand has not been controverted by the respondents. In the counter-affidavit filed before the Writ Court the respondents have merely reiterated that the disciplinary authority after issuing second show-cause notice passed order dated 24.12.2009, dismissing the petitioner from service. The petitioner in his reply to the charges framed against him has specifically denied all the charges. Another infirmity which has crept in order dated 24.12.2009, is that, except narrating the charges framed against the petitioner, the penalty order does not reflect consideration of the defence taken by the petitioner. The aforesaid facts narrated hereinabove, unerringly discloses that the petitioner was denied a fair opportunity to defend himself.

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7. The learned Single Judge committed an error in law in recording a finding that “from the date of initiation of the proceeding till its culmination, no procedural irregularity has been committed by the respondents so as to call for any interference”. The learned Single Judge declined to interfere in the matter on the ground that the fact finding given by the enquiry officer based upon the materials on record cannot be interfered with. However, the aforesaid finding overlooks the fact that neither any notice was given to the petitioner nor he was afforded an opportunity to cross examine the witness, if

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any, and the departmental enquiry was conducted in gross breach of the rules of natural justice.

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8. Considering the aforesaid facts, we are of the opinion that penalty order dated 24.12.2009 dismissing the petitioner from service has been passed in gross violation of the rules of natural justice and it is in teeth of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930. The impugned order dated 30.10.2015 passed in W.P.(S) No. 6677 of 2010 is not sustainable in law and accordingly, it is set-aside. The appeal on hand thus stands allowed, consequently, the writ petition also stands allowed.

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(Virender Singh, C.J.)

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(Shree Chandrashekhar, J.)

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Tanuj/-

Shambhu Nath Pal v. the State of Jharkhand and Ors. `

Case brief

What is this about?

What did the court decide?

Shambhu Nath Pal v. the State of Jharkhand and Ors. `

Case brief

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What did the court decide?

What the court decided

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