TaxTMI 
TaxTMI 
2010 (7) TMI 1106
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....est Singhbhum at Chaibasa with the request that an inquiry be got conducted into the matter and appropriate action against the person who got published the misleading news. 4. The High Court of Jharkhand took cognizance of the newspaper report adversely commenting upon the conduct of the appellant and passed an order dated 5.7.2003 whereby he was placed under suspension and his headquarter was fixed at Chaibasa with a direction that he shall not leave the headquarter without obtaining prior permission from the Registrar General of the High Court. 5. In the meanwhile, the appellant appears to have submitted an application to the District Judge on 4.7.2003 for permission to go to Ranchi for his treatment and also avail holiday on 6.7.2003. After receiving the order of suspension, the appellant submitted an application to the Registrar General of the High Court stating therein that as per the advise of the doctor, he has to take complete rest for one month and, therefore, he is unable to return to Chaibasa. The appellant also indicated that he would join the headquarters after recovery from illness. This prayer of the appellant was rejected by the High Court and he was informed ....
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....st Singhbhum, Chaibasa. Though during the period of suspension you are not supposed to attend duty or sign any Attendance Register but you are supposed to remain in the Headquarters and cannot leave the Headquarters without any permission of the competent authority, but you remained absent from headquarter from 6.7.2003 after making over charge to SDJM, Porahat on 5.7.2003 and you remained out of headquarter without any information till 10.9.2003. The aforesaid action on your part and violation of Court's order amounts insubordination and misconduct. Charge No.3. You, Shri Indu Bhushan Dwivedi, SDJM, Chaibasa (under suspension) when asked by the District & Sessions Judge, West Singhbhum at Chaibasa as to why you have not returned to headquarter by letter No.2501/G dated 10th of July, 2003 and to report you submitted reply and used derogatory words against the Court by your letter No. 5(P) of 2003 dt. 19th July, 2003 using expression "Merciless Direction of the Hon'ble Court". The aforesaid remarks by you reflects on your conduct amounting to insubordination, indiscipline and unbecoming a Judicial Officer. Shri Dwivedi has been charged of misconduct reckles....
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....orted by A.W.1 Prabhakar Singh. A.W.2 has further stated that the delinquent was not in an intoxicated condition when the accused was produced for remand. The said Havildar, A.W.3, has also nowhere stated in his evidence that the delinquent was in an intoxicated state. 12. On careful examination of the evidence oral and documentary, adduced by the parties and in view of the aforesaid discussions, I am of the view that the Charge No.1 that the delinquent was in an intoxicated condition when the accused was produced before him for remand, could not be proved by cogent evidence and similarly, this has also not been proved that the delinquent had assaulted the accused Anup Kumar and the Havildar Sheo Pujan Baitha. So, the Point No.4(i) and (ii) are decided in favour of the delinquent." 9. The Inquiry Officer then dealt with other three points and held that the delinquent (appellant herein) appears to have managed the medical prescription from the doctors to justify non-compliance of the direction given by the High Court not to leave the headquarter without obtaining permission from the Registrar General and concluded that his action amounted to insubordination and indiscipl....
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....itiated due to violation of the rules of natural justice because while recommending his dismissal from service, the High Court had considered un-communicated adverse remarks recorded in the Annual Confidential Report without informing him that the same were being relied upon for deciding the quantum of punishment. Another ground taken by the appellant was that the punishment of dismissal from service was totally disproportionate to the charges found proved against him. 13. The Division Bench of the High Court first considered the question whether the past adverse record could be considered for imposing the punishment of dismissal, referred to the judgment of the Constitution Bench in State of Mysore v. K. Manche Gowda AIR 1964 SC 506 as also the judgment in State of U.P. v. Harish Chandra Singh AIR 1969 SC 1020 and held that when the High Court proposed the punishment of dismissal from service and the appellant himself made a request in paragraph 17 of his reply that his past record may be considered, no prejudice can be said to have been caused to him on account of consideration of the adverse reports. Paragraphs 21 and 22 of the impugned order which contain the reasoning of th....
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....e Gowda Educational Trust v. State of Karnataka (2006) 1 SCC 430, and held: "Even at the threshold, it should be stated that, the disciplinary proceedings were initiated and suspension order was passed mainly on the basis of the report of an officer in the Civil Court complaining that the delinquent-petitioner, in an intoxicated condition, assaulted the accused who was produced before him for remand as well as the constable, who produced before the delinquent. This is truly a very serious charge. If this charge is proved, it would have been a very serious misconduct on the part of the judicial officer, which would entail him to maximum punishment. But, in this case, the inquiry officer has not only observed the charge is not proved, but also indicated that the delinquent had been falsely implicated at the instance of the police personnel of the local police station with whom relationship of delinquent was not cordial. It is true that merely, because the first charge had been held to be false, we cannot hold the other charges do not need any serious consideration. Other charges also are serious, but it shall be remembered that they are not so serious as that of the first....
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....cy Yes Reputation Yes Attitude towards Good behaviour Colleagues Relation with Bar & Public Good behaviour Net Result Good Officer There is no reason as to why the respondent No. 2 has not chosen to refer to these entries in relation to his good behaviour. The respondent No. 2 only was particular about giving reference about the earlier years in which some adverse remarks had been passed against him, but in the later year, as indicated above, he got an entry from the District Judge ....
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....esh decision as to the quantum of punishment. Only in extreme and rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, can the court substitute its own view as to the quantum of punishment. 35. In the light of the above rule, we are vested with the power to review the punishment. As we are of the view that the Wednesbury principles have been violated in this case, we are constrained to review the quantum punishment. As Supreme Court would observe, this Court would normally remit the matter to the disciplinary authority to take a fresh decision as to the quantum of punishment. However, this Court is no inclined to do the same, as in this case there has been a long delay in the time taken by the disciplinary proceedings as well as in the time taken in this Court. The proceedings were started in the year 2003. We are in 2007. Therefore, instead of remitting the matter, we ourselves inclined to review the punishment. In our view, instead of dismissing the petitioner from service, it would be appropriate to impose the punishment of compulsory retirement, which would meet the ends of justice." 16. Shri Raj....
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.... K. Manche Gowda (supra). The facts of that case were that while the respondent was holding the post of an Assistant to the Additional Development Commissioner, Planning, Bangalore, the Government of Mysore appointed Shri G.V.K. Rao (Additional Development Commissioner) to conduct a departmental enquiry against him in respect of the false claims for allowances and fabrication of vouchers. The Enquiry Officer framed four charges against the respondent. After holding an enquiry in accordance with relevant rules, the Enquiry Officer submitted report with the recommendation that the respondent might be reduced in rank. However, the government issued a notice to the respondent requiring him to show cause as to why he may not be dismissed from service. After considering his reply, the Government dismissed the respondent from service. The respondent challenged his dismissal by filing writ petition under Article 226 of the Constitution of India. The High Court quashed the order of dismissal on several grounds including the one that the respondent had not been foretold about the proposed consideration of his past adverse record. This Court approved the view taken by the High Court and obser....
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....uld be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. We cannot accept the doctrine of "presumptive knowledge" or that of "purposeless enquiry", as their acceptance will be subversive of the principle of "reasonable opportunity". We, therefore, hold that it is incumbent upon the authority to give the government servant at the second stage reasonable opportunity to show- cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give an explanation." (emphasis supplied) 18. The proposition laid down in the above noted judgment represents one of the basic canons of justice that no one can be condemned unheard and no order preju....
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....unishment i.e. removal from service was imposed upon him. The respondent in that case had joined Police Department in 1947. He was dismissed from service on 21.6.1951 but was reinstated in January, 1952. He was finally removed from service in 1956. In the year 1951 itself, punishment of reduction to the lowest scale of the post for a period of three years was imposed on the respondent. In 1955, his pay was reduced for a period of two years. In the course of service, the respondent had earned fifteen rewards and commendations. In the departmental inquiry which led to his removal from service in 1956, the respondent was found guilty of three charges of gross negligence in the performance of his duty of investigating the cases registered under various sections of the Indian Penal Code. The trial Court dismissed the suit filed by the respondent. On appeal, Additional District Judge, Varanasi decreed the same. The High Court confirmed the appellate judgment and dismissed the second appeal preferred by the State by observing that the respondent had not been given opportunity to explain the past punishments which were considered by the Deputy Inspector General of Police in arriving at his....
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....the previous record of the Government servant, the Government might not have imposed the penalty of dismissal on him and might have accepted the recommendations of the Enquiry Officer and the Public Service Commission. This order, therefore, indicates that the show cause notice did not give the only reason which influenced the Government to dismiss the respondent from service." 20. An analysis of the two judgments shows that while recommending or imposing punishment on an employee, who is found guilty of misconduct, the disciplinary/competent authority cannot consider his past adverse record or punishment without giving him an opportunity to explain his position and considering his explanation. However, such an opportunity is not required to be given if the final punishment is lesser than the proposed punishment. 21. In the light of the above, we shall now consider whether the High Court could have while recommending the appellant's dismissal from service taken into consideration un-communicated adverse Annual Confidential Reports and whether the Division Bench of the High Court was right in distinguishing the judgment of the Constitution Bench in Manche Gowda's case ....
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....ant had been told about this and given an opportunity to have his say against the un-communicated adverse remarks, he could have offered appropriate explanation and tried to convince the concerned authority that the remarks were either unfounded or were totally unjustified. He would have surely pleaded that after 1996-1997 no adverse comments were made about his work, conduct, behaviour and integrity and he had earned good reports (even the Division Bench of the High Court had noted that his confidential report for the year 2002-2003 was good on all counts). It is thus clear that the appellant was seriously prejudiced on account of non- disclosure of the fact that while recommending his dismissal from service, the High Court had taken into consideration un-communicated adverse remarks recorded in his four Annual Confidential Reports. 24. The inquiry was held against the appellant on three charges, the most serious of which was that after having consumed liquor, he had misbehaved and manhandled an accused and a constable. That charge was not found proved. The other two charges were that he had left headquarter without seeking permission from the Registrar General of the High Cour....