RAGHUBANSH MANI LAL Vs. THE STATE OF JHARKHAND

JUDGEMENT

(1.) In the instant writ application, the petitioner has inter alia prayed for quashing the resolution dated 27.09.2008 (Annexure -8) pertaining to imposition of punishment of censure for the period 1998 -99, withholding of three increments, depriving from getting salary during the period of suspension except subsistence allowance and for direction to the respondents to consider and grant promotion to the petitioner on the higher post of Deputy Commissioner of Commercial Taxes from the date when other similarly situated persons and junior to the petitioner got the said benefits along with consequential benefits within stipulated period.

(2.) Bereft of unnecessary details, the facts, as disclosed in the writ application, in a nutshell are that initially the petitioner was appointed on the post of Commercial Taxes Officer in the Government of Bihar and after undergoing the training the petitioner was posted as Commercial Taxes Officer at Dhanbad. Thereafter the petitioner was posted as Treasury Officer in Giridih Treasury, Giridih. On detection of some illegal withdrawal of money from the Treasury, the petitioner on 31.08.1999 reported the matter to the Deputy Commissioner, Giridih. The Deputy Commissioner, Giridih constituted an enquiry committee headed by Additional Collector, Giridih to enquire into illegality pointed out by the petitioner. The Committee conducted the enquiry and submitted a report on 01.09.1999 holding therein that information given by the petitioner were correct and consequent thereupon, by letter dated 01.09.1999, the Deputy Commissioner, Giridih directed the Assistant Commissioner, Giridih to lodge a criminal case against the erring officials. Accordingly, a report was lodged to the Officer - in -Charge, Giridih vide Giridih (T) P.S. Case No.192 of 1999 registered under Sections 409, 419, 420, 467, 468, 471, 472 and 120(B) of the Indian Penal Code, in which petitioner was cited as prosecution witness. The police submitted charge sheet against the named official and the petitioner was shown to be a prosecution witness. On 19.10.1999, the petitioner was placed under suspension on the allegation of departmental negligence in respect of illegal withdrawal from Giridih Treasury despite he being a prosecution witness. On 01.12.1999, the petitioner was served with a charge sheet containing charges of negligence and lack of alertness on the part of the petitioner and Joint Commissioner (Administration), Hazaribagh Division was appointed as enquiry officer. On 21.12.1999, 30.12.1999, 07.03.2000, 19.04.2000 and 16.06.2000, the petitioner requested the inquiry officer to provide copies of the documents, basing on which charges have been framed. On receipt of the charge, the petitioner submitted his show cause with liberty to file supplementary show cause after getting the relevant documents. The enquiry officer completed the enquiry, so far as Charge Nos.2, 3, 5 and 6 are concerned, the enquiry officer found and held that the department failed to prove the said charges and the petitioner was not found guilty of the said charges. However, on 21.06.2001, the petitioner was served with a show cause notice proposing major punishment of demotion from post while disagreeing with the findings recorded by the enquiry officer. The petitioner challenged the order of suspension in W.P.(S) No.5051 of 2001 which was disposed of by an order dated 08.10.2001 directing the respondents to pass final order in the departmental proceeding within two months and on failure the order of suspension would stand revoked on completion of two months. Thereafter, the order of suspension was revoked as no final order was passed in the departmental proceeding within the time fixed by this Hon'ble Court. The petitioner preferred another writ application being W.P. (S) No.4162 of 2004 challenging the departmental proceeding and also for consideration of his case for promotion on the post of Deputy Commissioner of Commercial Taxes. However, the aforesaid writ application was disposed of with a direction to comply with the earlier order and pass a final order in the departmental proceeding within four weeks from the date of receipt/production of a copy of this order, failing which the petitioner was given liberty to move this Hon'ble Court for initiation of contempt proceeding and to quash the departmental proceeding. On 20.03.2006 (Annexure -3), the respondent no.2 imposed an order of punishment of demotion from the post of Assistant Commissioner of Commercial Taxes to the post of Commercial Taxes Officer. Being aggrieved by such order of demotion, the petitioner filed memorial before the Hon'ble Governor of Jharkhand and thereafter, the petitioner preferred a writ petitioner being W.P.(S) No.2929 of 2006 challenging the order of demotion. The aforesaid writ petition was disposed of by this Hon'ble Court setting aside the order of demotion dated 20.03.2006 and the mtter was remanded to the disciplinary authority (respondent no.2) with directions. The petitioner preferred L.P.A No.03 of 2008 against the part of the judgment dated 05.12.2007 passed in W.P.(S) No.2929 of 2006, which was dismissed by an order dated 17.01.2008 with direction upon the respondent no.2 that the amount of arrear and current salary which is due to the petitioner be paid to him without any further delay. Against the said order the petitioner preferred SLP (C) No.3293 of 2008 before the Hon'ble Supreme Court which was disposed of by an order dated 18.02.2008 with a direction to the enquiry officer to dispose of the departmental enquiry preferably within three months. In utter violation of the order passed in W.P.(S) No.2929 of 2006 the enquiry officer submitted report to the respondent no.2 but the copy of the said enquiry report has not been provided to the petitioner nor the copy of the second show cause notice was issued to the petitioner. Thereafter, vide order dated 27.09.2008 (Annexure -8), the impugned order of punishment has been issued. It has been further averred in the writ application that in the year 2009 (Annexure - 10 to the writ application) Commercial Taxes Department, Government of Jharkhand promoted as many as 16 Assistant Commissioner of Commercial Taxes to the post of Deputy Commissioner of Commercial Taxes and the promotees at serial no.5 to 16 are juniors to the petitioner. After coming to know about the promotion of juniors, the petitioner submitted representation to respondent no.2 for consideration of his case for promotion since the effect of punishment does not survive after 2002. Again vide notification dated 29.06.2010 (Annexure -11) the Commercial Taxes Department of the Government of Jharkhand promoted as many as 17 Assistant Commissioner of Commercial Taxes on the post of Deputy Commissioner of Commercial Taxes ignoring the case of the petitioner. Being aggrieved by and dissatisfied with the aforesaid order, the petitioner on 01.07.2010 (Annexure -12) submitted representation before the respondent no.2 with request to consider his case for promotion from the date on which other similarly situated persons or even juniors got such posts. Being aggrieved by the impugned order of punishment and non consideration of his case for promotion, 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.) A counter affidavit has been filed on behalf of respondent nos.2 and 3 repelling the contentions made in the writ application. In the counter affidavit, it has been submitted that it is not mandatory to serve a second show cause notice and so far as non -supply of the enquiry report is concerned, it has been submitted that petitioner cannot take any advantage by making an averment that prejudice has been caused to him due to non - supply of the enquiry report. The prejudice has to be shown and proved by the petitioner but the petitioner has failed to do so. So far as promotion is concerned, it is submitted that the departmental promotion committee in its meeting on 12.05.2010 and 13.05.2010 decided against the promotion of the petitioner due to currency of punishment and the proceeding of departmental promotion committee is annexed as Annexure -A to the counter affidavit.