KISHORE KUMAR Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Heard counsel for the parties. The petitioner has challenged the order of his dismissal contained at Annexure-13 dated 7.10.2005 passed by the Deputy Commissioner, Hazaribagh by which he has been dismissed from service.

(2.) The short fact of the case as per the petitioner are that he was appointed as Assistant/Clerk on 27.6.1983 in Collectorate and served on different post in the district of Hazaribagh. He was placed under suspension on 12.9.1995 by the Deputy Commissioner, Hazaribagh (Annexure-1) and after 2 years he was served with charge-sheet on 1.3.1997 alleging 7 charges inter alia (1) without giving full charge on transfer went on casual leave and avoided to receive the order for handing of charge, charge Nos. (2), (3) also relates to refusal of the petitioner or his absence in handing over the charge and key of the office of which he was in-charge, charge no. (4) relates to not maintaining proper order sheet of the records, charge no. (5) relates to unauthorized absence, charge no. (6) relates to forged signature made by the petitioner for getting payments for the period for which he was absent and charge no. (7) relates to his indulgence in corrupt practice by issuing copy of judgment of D.C.L.R. and S.D.O. in doubtful Jamabandi case no. 5 of 1994. The petitioner furnished his reply to the charges vide Annexure-3 dated 27.5.1997. After the first Inquiry Officer was transferred, the second Inquiry Officer was appointed on 11.9.1998 who was directed to submit Inquiry Report within 6 weeks. The said Inquiry Officer submitted his Inquiry Report on 15.5.1999 (Annexure-4/1) by which he found that the charge nos. 1 to 5 were not proved and charge nos. 6 & 7 related to matter which are subjudice due to pendency of the criminal case being Barhi P.S. Case No. 43 of 1996. Petitioner has remained under suspension till September, 2000. In the meantime, the Deputy Commissioner, Hazaribagh appointed third Inquiry Officer after submission of the Inquiry Report by the second Inquiry Officer. The petitioner appeared in the said departmental proceeding also on notice while stating that he had not been given any notice for conducting fresh Inquiry by the third Inquiry Officer. The third Inquiry Officer submitted his report on 3.5.2001 (Annexure-7) by which he held the petitioner guilty of the charges levelled against him. It is submitted that he was found guilty of charge nos. 1 to 3, 6 & 7 by the third Inquiry Officer. The petitioner was, therefore, issued second show cause on 21.6.2002 by the Deputy Commissioner, Hazaribagh enclosing the second Inquiry Report vide Annexure-8. He furnished his reply vide Annexure-8/1. Thereafter, Deputy Commissioner, Hazaribagh proceeded to pass order of dismissal from service dated 6.9.2002 acting upon the second Inquiry Report furnished by third Inquiry Officer and held that on guilt being established against the petitioner, the punishment was commensurate to the charges found to be established against the petitioner. In appeal before the Commissioner, North Chhotanagpur Division, Hazaribagh being appeal no. 96 of 2002, the Commissioner reduced the punishment of dismissal from service and directed his reinstatement, however 5 increment was withheld with cumulative effect as also a censure was awarded to be entered in his service book. It was further directed that petitioner will not be paid any remuneration for the period in which he has not worked. Thereafter, petitioner joined his service on 18.3.2003. In the meantime, the Deputy Commissioner, Hazaribagh preferred a Service Revision before the Member, Board of Revenue being Service Revision No. 34/2003. The said revision was however decided by Member, Board of Revenue vide order dated 14.3.2005 (Annexure-11) quashing the order of the Deputy Commissioner as well as Divisional Commissioner and the matter was remanded to the Deputy Commissioner to pass a fresh order in accordance with the Rules and prescribed procedures. The ground for quashing the aforesaid order were that it was not open for the Disciplinary Authority after submission of the first Inquiry Report to appoint another Inquiry Officer in his place and, thereafter, to act upon the report of the subsequent Inquiry Officer. It was also observed that in case the Deputy Commissioner differed with the Inquiry Report of the Inquiry Officer who had exonerated the petitioner, it was open for the Deputy Commissioner to issue second show cause differing with the Inquiry report and asking the petitioner to furnish his reply as to why the proposed punishment should not be imposed upon him. However, after remand the impugned order contained at Annexure-13 has been passed by the Deputy Commissioner on 7.10.2005, which is under challenge.

(3.) It is contended by the counsel for the petitioner that the Deputy Commissioner, after remand has issued show cause on 14.5.2005 (Annexure-12) where he has once again relied upon the same second Inquiry Report submitted by third Inquiry Officer by which he has found the petitioner guilty. It is submitted that the Member, Board of Revenue had categorically held that it was not open for the Deputy Commissioner to constitute the second Inquiry for the same set of charges and to act upon the Inquiry Report of the third Inquiry Officer. Petitioner has, therefore, assailed the impugned order on the aforesaid grounds that the Deputy Commissioner acted contrary to the well settled principle for conduct of the Departmental Proceeding as has been held by the Hon'ble Supreme Court rendered in the case of K.R. Deb vs. The Collector of Central Excise, Shillong, 1971 AIR(SC) 1447 and in the case of Bhupinder Pal Singh vs. The Director General of Civil Aviation & Ors., 2003 3 SCC 633. According to the petitioner the aforesaid principle that the Disciplinary Authority cannot act upon the second Inquiry Report after submission of the first Inquiry Report have also been followed by this Court in the case of Arjun Ram vs. State of Jharkhand & Others in W.P.S. No. 3059 of 2003 dated 11.11.2003. Again in the case of the same person, wherein the same second Inquiry Report was once again relied upon by the Disciplinary Authority it was impugned and decided in W.P.S. No. 4826 of 2004 Ed.-- vide judgment dated 4.8.2005 quashing the impugned order of punishment thereunder on the same ground. It is further contended on behalf of counsel for the petitioner that the Trial Court has acquitted the petitioner and found him innocent vide judgment dated 29.8.2009 rendered by Judicial Magistrate, 1st Class, Hazaribagh in G.R. Case No. 450 of 1996/T.R. No. 528 of 2009. The said judgment in appeal has further been affirmed by the A.D.J., F.T.C.-1, Hazaribagh in Criminal Appeal No. 181/2009/S. No. 1 of 2010. As such, petitioner has been fully exonerated of the alleged charges against him.