Madan Mohan Jaiswal vs State Of Jharkhand And Ors

Heard the parties.

Petitioner has approached this Court with a prayer for quashing the disciplinary proceeding as contained in letter dated 06.06.2019 (Annexure-3),

issued by respondent No. 4, on the allegation that petitioner has committed financial irregularities and indulged in corruption with regard to

implementation of the scheme related to tank renovation and dova. Further prayer has been made for quashing the subsequent order of suspension of

the petitioner as contained in memo dated 17.07.2019.

As per the factual matrix, petitioner was working under the respondent-Department and from time to time, he was transferred to different places

and presently, is posted at Amrapara, Pakur. According to the petitioner, while working at Pakur, respondent No. 2 vide its letter dated 19.09.2018,

informed the petitioner that a preliminary enquiry has been conducted against the petitioner on a complaint received from one Manoj Kumar Rai and

Sukhdev Thakur and explanation was asked from the petitioner. After receiving the said letter, petitioner sent several request letters to the

respondents for furnishing the copies of the schemes for which he has been alleged to have committed irregularities. It is the further case of the

petitioner that in absence of explanation from the petitioner, the respondents held the petitioner guilty of the charges levelled against him and decided

to initiate departmental proceeding. It is the further case of the petitioner that to his utter surprise, he received letter dated 06.06.2019, which reveals

that a departmental proceeding has already been initiated against him in terms of Rule 17 of the Jharkhand Government Servants (Classification,

Control & Appeal) Rules, 2016 (for short ‘CCA Rules, 2016’), finding the petitioner to have committed financial irregularities and his indulgence

in corruption with regard to implementation of the Scheme related to tank renovation and dova. Subsequently, vide letter dated 17.07.2019, the

petitioner was put under suspension in accordance with Rule 9(1)(a) of CCA Rules, 2016. The petitioner had also contacted the appointed Enquiry

Officer, who denied to have received any information regarding initiation of the said Departmental Proceeding against the petitioner. Moreover, as per

memo No. 5946 dated 24.07.2019, the said Enquiry Officer was not even a Disciplinary Authority of the Agriculture Department. From the aforesaid

facts it is clear that the respondents have initiated a Departmental Proceeding against the petitioner without any functional Enquiry Officer to conduct

the disciplinary proceeding and yet the petitioner is put under suspension.

Aggrieved by the said action of the respondents, the petitioner has been constrained to knock the door of this Hon’ble Court.

Mr. Rajiv Sinha, learned senior counsel appearing for the petitioner, strenuously urges that the impugned order as contained in letter dated

06.06.2019 is non est in the eyes of law and the same is contrary to the Rules as envisaged in the CCA Rules, 2016. Further, the initiation of

departmental proceeding (Annexure-3) followed by suspension order (Annexure-5) are without service of any memo of charges to the petitioner and

as such, the same are illegal and amounts to colourable exercise of power by the respondent-authorities. The suspension of the petitioner vide letter

dated 17.07.2019 (Annexure-5) is bad in law, as on the date of suspension no disciplinary proceeding was contemplated or was pending against the

petitioner in terms of Rule 9(1)(a) of the CCA Rules, 2016. Learned senior counsel further argues that the Enquiry Officer namely, Shrawan Soy as

referred in the impugned order dated 06.06.2019 (Annexure-3), has been newly empanelled as departmental enquiry officer by the Department of

Personnel, Administrative Reforms and Rajbhasha, vide order dated 24.07.2019 (Annexure-6), i.e. after more than a month of issuance of the

impugned order dated 06.06.2019 and that too he was not empanelled for the Department of Agriculture, Animal Husbandry and Co-operative.

Learned senior counsel places heavy reliance on Rule-17 of the CCA Rules, 2016, which is reproduced herein below:

“17. Procedure for imposing major penalties.-

(1) No order imposing any of the penalties specified in clauses (v) to (xi) of rule 14 shall be made without holding an inquiry, as far as may

be, in the manner provided in these Rules.

(2) Wherever the Disciplinary Authority is of the opinion that there are grounds for inquiring about the truth of any imputation of

misconduct or misbehaviour against a Government Servant, he may himself inquire into it, or appoint under these Rules, an authority to

inquire about the truth thereof.

EXPLANATION. - Where the Disciplinary Authority himself holds the inquiry, any reference in sub rule (7) to sub rule (20) and in sub rule

(22) of this rule to the inquiring authority shall be construed as a reference to the Disciplinary Authority.

(3) Where it is proposed to hold an inquiry against a Government Servant under this rule, the Disciplinary Authority shall draw up or cause

to be drawn up:-

(i) The substance of the imputations of misconduct or misbehaviour as a definite and distinct article of charge.

(ii) A statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain:-

(a) A statement of all relevant facts including any admission or confession made by the Government Servant;

(b) A list of such document by which, and a list of such witnesses by whom, the articles of charge are proposed to be sustained.

EXPLANATION. - Where Criminal case is pending against a Government Servant the Departmental Proceeding and Criminal Proceeding

may be conducted simultaneously, but the set of evidence of Departmental Proceeding shall be different from the Criminal Proceeding. In

such case the article of charges shall be based on administrative lapses and misconduct committed by the Government Servant.â€​

In support of his contention, learned senior counsel appearing for the petitioner places reliance on the judgment passed by the Hon’ble Apex

Court in case of State of Punjab Vs. V.K. Khana & Ors., reported in (2001) 2 SCC 330.

On the other hand, Mr. Anoop Kumar Agrawall, learned counsel appearing for the respondents submits that there was allegation against the

petitioner for taking bribe in pond renovation and dova construction scheme. To enquire the allegation levelled against the petitioner, a two member

Committee was formed by the Department vide letter dated 29.06.2018 and the Committee submitted its report on 19.09.2018, according to which,

there were many irregularities found in the execution of the said scheme. On the report of the Committee, the petitioner was asked to submit his

show-cause reply but after issuance of three such letters, the petitioner submitted his reply to the show-cause vide his letter dated 01.03.2019. The

Department found his show-cause reply as unsatisfactory and decided to initiate departmental proceeding against the petitioner. For the said purpose,

Sankalp dated 06.09.2019 was issued, in which it is clearly mentioned that there is a prima facie case against the petitioner. The said Sankalp along

with memo of charge and evidence are sent to the petitioner on 04.09.2019 at his present address available with the respondent-Department. Learned

counsel further submits that the petitioner was suspended not only on the ground of departmental proceeding pending against him but as there were

other complaints also received after initiation of departmental proceeding, more particularly vide letter dated 12.07.2019, issued by the MLA of Godda

regarding irregularity being committed by the petitioner in execution of the said scheme. A case against the petitioner is also pending before the

Hon’ble Lokayukta, Jharkhand. Thus, finding such complaints, the respondent-Department decided to suspend the petitioner. After suspension,

again a complaint was received against the petitioner regarding taking of bribes. The Deputy Commissioner, Godda has also reported that the

petitioner is not taking interest in execution of the Schemes and thus, he should be transferred. Learned counsel further submits that appointment of

Shrawan Soy is in accordance with Rule 17 Sub-rule 5(b) of CCA Rules, 2016. Learned counsel lastly submits that for the reasons stated above, the

impugned order is fully justified and the writ petition amounts to be dismissed outrightly.

Be that as it may, having heard the rival submissions of the parties and upon perusal of the documents brought on record, this Court is of the

considered view that the case of the petitioner needs consideration for the following facts and reasons:

(I) From the impugned order dated 06.06.2019, it appears that Praptra ‘Ka’ has been issued and a prima facie case has been found to be

proved and as such, a decision has been taken to initiate departmental proceeding against the petitioner.

(II) It is an admitted fact and has not been denied by the respondent-State that the memo of charge and evidences were not served on the date of

issuance of letter No. 1275 dated 06.06.2019 and also before passing of the order dated 14.08.2019 by this Court. It is a settled principle of law that

the departmental proceeding is said to be initiated on the date the charge-sheet is issued and drawn. In the instant case, on the date of issuance of

impugned order dated 06.06.2019, there was no charge-sheet and the same was not served to the petitioner.

(III) The impugned order is contrary to the procedure as laid down in Rule 17 of the CCA Rules, 2016. Rule 17(4) of CCA Rules, 2016 is reproduced

herein below:

“17.(4) The Disciplinary Authority shall deliver or cause to be delivered to the Government Servant a copy of the articles of charge, such

statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charge is

proposed to be sustained and shall require the Government Servant to submit, within such time as may be specified, a written statement of

his defence and to state whether he desires to be heard in person.â€​

(IV) The order of suspension dated 17.07.2019 is passed on the basis or order dated 06.06.2019. Since the order dated 06.06.2019 is itself bad in law

and smacks malafide as on the said date, a departmental proceeding is said to be initiated without serving the copy of memo of charges and evidences

to the petitioner, the order of suspension is not sustainable in the eyes of law. The entire proceeding is malice and against the provisions of law.

(V) Suspension order has been issued in contemplation of a departmental proceeding which is found to be vitiated as on 06.06.2019, there was no

departmental proceeding pending against the petitioner.

(VI) The respondent-authorities have tried to put-curtain over the matter by issuance of amended Sankalp dated 26.09.2019 appointing another

Conducting Officer and Presenting Officer, which is also not tenable in the eyes of law.

(VII) Petitioner is entitled for a copy of the charges, copy of the evidence and other documents on which the respondents want to proceed in the

enquiry and in absence of such documents any departmental enquiry is not tenable in the eyes of law.

(VIII) It is a settled principle of law that the contents of the impugned order cannot be improved by way of counter-affidavit. Law has already been

set at rest by the Hon’ble Apex Court in case of Commissioner of Police, Bombay Vs. Gordhandas Bhanji, reported in AIR 1952 SC 1,6 wherein

in para 9 the Hon’ble Court has held that:

“9. An attempt was made by referring to the Commissioner’s affidavit to show that this was really an order of cancellation made by

him and that the order was his order and not that of Government. We are clear that public orders, publicly made, in exercise of a statutory

authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what

was in his mind or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to

affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used

in the order itself.â€​

The same view has been reiterated by the Hon’ble Apex Court in case of Mohinder Singh Gill Vrs. Chief Election Commissioner, reported in

(1978) 1 SCC 405, para-8 of which reads thus:

“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be

judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an

order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought,

out. We may here draw attention to the observations of Bose J.in Gordhandas Bhanji2:.

Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the

officer making the order of what he meant, or of what was in his mind, or what he intended to, do. Public orders made by public authorities

are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be

construed objectively with reference to the language used in the order itself.

Orders are not like old wine becoming better as they grow older.â€​

The respondents have pre-judged the entire things before initiation of the departmental proceeding.

The Courts have held that in the event there is an element of malice or malafide, motive involved in the matter of issue of a charge-sheet or the

authority concerned is so biased that the enquiry would be a mere farcical show and the conclusions are well known then and in that event law Courts

are otherwise justified in interfering at the earliest stage so as to avoid the harassment and humiliation of a public official.

The Hon’ble Apex Court in case of State of Punjab Vs. V.K. Khanna & Ors., reported in (2001) 2 SCC 330 has clearly held that:

“It is not a question of shielding any misdeed that the Court would be anxious, it is the due process of law which should permeate in the

society and in the event of there being any affectation of such process of law that law courts ought to rise up to the occasion and the High

Court in the contextual facts has delved into the issue on that score. On the basis of the findings no exception can be taken and that has

been the precise reason as to why this Court dealt with the issue in so great a detail so as to examine the judicial propriety at this stage of

the proceedings.â€​

Further, the Hon’ble Apex Court in case of State of Orissa V. Bimal Kumar Mohanty, reported in AIR 1994 SC 2296 has held that the suspension

order cannot be passed automatically and it has to be as per the procedure enshrined under the law. The relevant para of the said judgment is

reproduced herein below:

“It is thus settled law that normally when an appointing authority or the disciplinary authority seeks to suspend an employee, pending

inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of

omission and 5 1993 Supp (3) SCC 483: 1994 SCC (L&S) 67: (1993) 25 ATC commission, the order of suspension would be passed after

taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed

before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority

should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It

would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the

alleged misconduct or the nature of the allegations imputed to the delinquent employee. The Court or the Tribunal must consider each case

on its own facts and no general law could be laid down in that behalf. Suspension is not a punishment but is only one of forbidding or

disabling an employee to discharge the duties of office or post held by him. In other words it is to refrain him to avail further opportunity to

perpetrate the alleged misconduct or to remove the impression among the members of service that dereliction of duty would pay fruits and

the offending employee could get away even pending inquiry without any impediment or to prevent an opportunity to the delinquent officer

to scuttle the inquiry or investigation or to win over the witnesses or the delinquent having had the opportunity in office to impede the

progress of the investigation or inquiry etc. But as stated earlier, each case must be considered depending on the nature of the allegations,

gravity of the situation and the indelible impact it creates on the service for the continuance of the delinquent employee in service pending

inquiry or contemplated inquiry or investigation. It would be another thing if the action is actuated by mala fides, arbitrary or for ulterior

purpose. The suspension must be a step in aid to the ultimate result of the investigation or inquiry. The authority also should keep in mind

public interest of the impact of the delinquent's continuance in office while facing departmental inquiry or trial of a criminal charge.â€​

As a sequitur to the aforesaid observations, rules, guidelines and judicial pronouncements, the order of suspension dated 17.07.2019 based on the

order dated 06.06.2019 is hereby quashed and set aside.

With the aforesaid observations and directions, the writ petition stands disposed of.