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IN THE HIGH COURT OF JHARKHAND AT RANCHI
HON'BLE MR. JUSTICE SANJAY PRASAD, J.
Israil Ansari - Petitioner
Versus
The State of Jharkhand, through its Chief Secretary, Government of Jharkhand & Ors. - Respondents
W.P.(S) No. 7567 of 2017
Decided On : 21-02-2024
[DISCIPLINARY PROCEEDINGS] - [SERVICE DISMISSAL] - [Article 14, Article 21, Article 311(2) of the Constitution of India; Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors. (1993) 4 SCC 727; KRUSHNAKANT B. PARMAR Vs. UNION OF INDIA (2012) 3 SCC 178; Ram Pravesh Sharma Vs. State of Jharkhand (2020) 4 JLJR 433] - [The court emphasized the necessity of adhering to principles of natural justice in disciplinary proceedings, particularly the right of the employee to receive the enquiry report and a second show-cause notice before any punitive action is taken. The court interpreted Articles 14, 21, and 311(2) of the Constitution, asserting that failure to provide these rights constitutes a violation of due process and renders the disciplinary action invalid. The court's decision was influenced by established precedents that mandate fair procedures in disciplinary matters.]
Fact of the Case:
The petitioner challenged his dismissal from service due to alleged unauthorized absence. He argued that the disciplinary proceedings were flawed as he was not provided with the enquiry report or a second show-cause notice before the dismissal. The disciplinary authority had dismissed him based on a total absence of 624 days, while the charges were only for 149 days. The petitioner contended that the absence was not willful and that he was not given a fair opportunity to defend himself.
Finding of the Court:
The court found that the disciplinary authority failed to comply with the legal requirements of providing the enquiry report and a second show-cause notice, which are essential for ensuring a fair hearing. The court noted that the absence of the petitioner was not proven to be willful, and the disciplinary proceedings were marred by irregularities.
Issues: Whether the disciplinary authority violated the principles of natural justice by not providing the enquiry report and a second show-cause notice before dismissing the petitioner. Whether the absence of the petitioner was willful and constituted misconduct.
Ratio Decidendi: The court held that the right to receive the enquiry report and a second show-cause notice is integral to the principles of natural justice and is mandated by Article 311(2) of the Constitution. The court reiterated that the absence must be proven willful to constitute misconduct, and the failure to provide necessary documents to the petitioner constituted a denial of a fair opportunity to defend himself.
Final Decision: The court set aside the dismissal order and remitted the matter back to the disciplinary authority, directing that the petitioner be provided with the enquiry report and a second show-cause notice, and that the disciplinary proceedings be conducted afresh.
JUDGMENT :
Sanjay Prasad, J.
This writ petition has been filed on behalf of the petitioner challenging the order of punishment dated 31.01.2016, by which the petitioner has been dismissed from service on account of his absence (Annexure-2), the Appellate Order as contained in Memo No 829 dated 23.09.2016 (Annexure-5) affirming the order of punishment and the Revisional Order as contained in Memo No. 274 dated 28.11.2017 (Annexure-7) affirming the appellate order.
2. Heard Mr. A.K. Sahni, learned counsel for the petitioner and Mr. Abhinay Kumar, learned A.C. to G.A.I.
3. Learned counsel for the petitioner has submitted that the impugned orders, i.e. Order of punishment dated 31.01.2016, Appellate Order dated 23.09.2016 and the Revisional Order dated 28.11.2017, contained in Annexures 2, Annexure 5 and Annexure 7 respectively are illegal, arbitrary and not sustainable in the eye of law.
It is submitted that before passing the order of dismissal neither the enquiry report has been served nor second show-cause has been issued upon the petitioner. It is submitted that even the evidence of witnesses, who were examined in the Departmental Proceeding, was not served upon the petitioner and as such Memo No. 600 dated 31.01.2016 passed by the Superintendent of Police, Dhanbad is liable to be set aside. It is submitted that the Appellate Authority, i.e. the D.I.G., Coal Region, Bokaro has also not considered this fact while dismissing the departmental appeal vide order dated 23.09.2016 as contained in Annexure 5.
It is further submitted that the revisional order contained in Memo No. 274 dated 28.11.2017 passed by the D.G.P. (Annexure-7) was passed in violation of the judgment passed by the Hon’ble Supreme Court in the case of Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors. reported in (1993) 4 SCC 727, which has been followed in the case of Ram Pravesh Sharma Versus State of Jharkhand reported in 2020 (4) JLJR 433, passed by a Bench of this Court.
It is further submitted that the Disciplinary Authority, i.e. Respondent No.4, Superintendent of Police, Dhanbad and the Enquiry Officer have failed to prove that the absence of the petitioner is willful.
In support of his contention, learned Counsel for the petitioner has relied upon the Judgment of the Hon’ble Supreme Court passed in the case of KRUSHNAKANT B. PARMAR Versus UNION OF INDIA AND ANOTHER reported in (2012) 3 SCC 178.
It is further submitted that even the disciplinary authority had passed the order of termination beyond the charges framed against the petitioner as the charges were framed for absence of the petitioner for 149 days, whereas the order of dismissal shows that while passing the said order, the disciplinary authority took into consideration the absence of 624 days and as such the impugned orders may be set aside and this writ petition may be allowed.
4. On the other hand, learned counsel for the State has submitted that the impugned orders, i.e. Order of punishment dated 31.01.2016, Appellate Order dated 23.09.2016 and the Revisional Order dated 28.11.2017, contained in Annexures-2, Annexure-5 and Annexure-7 respectively are fit and proper and no interference is required from this Court. It is submitted that the petitioner was a habitual offender and he had willfully neglected his duties. It is submitted that the petitioner had taken compensatory leave for 12 days, but he remained willfully absent for a period of 149 days, which is evident from the chargesheet as contained in Annexure-1. It is further submitted that both the Disciplinary Authority and the Appellate Authority have taken into consideration the fact the petitioner remained absent for a period of around 624 days and It is further submitted that the even the petitioner failed to submit his reply with respect to charge of willful absence against him, hence the authorities were left with no option but to pass the impugned orders, hence there is no illegality in the impugned orders and as such the writ
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