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TMI Blog2010 (7) TMI 1106X X X X Extracts X X X X X X X X Extracts X X X X ..... iry 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 through the District Judge to comply with the direction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion 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 recklessness in discharge of his duties along with insubordination a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cated 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 indisciplined behaviour unbecoming of a responsible judicial officer. 10. The High Court accepted the inquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 the High Court on this issue are extracted below: 21. Thus, the ratio decided in the above case is where th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 charge. As indicated above, the petitioner, himself, requested the disciplinary authority to take into consideration the past ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nquent to take into consideration the recent entry made by District Judge, Chaibasa commending his work. Admittedly, the suspension order was issued on 05.07.2003. His suspension was not revoked during the pendency of the inquiry. The inquiry commenced and the charges have been framed only on 16.12.2003. The inquiry officer was appointed only on 28.05.2004. Thereafter inquiry held. The inquiry report was submitted on 04.06.2005. Show cause notice was issued on 30.06.2005. Show cause reply was sent on 22.07.2005. Ultimately, dismissal order was passed only on 26.02.2006. Thus, he was facing inquiry from 2003 to 2006. Admittedly, during the said period his suspension was not revoked and he was continued to be under suspension. Thus, he was facing inquiry for two years and seven months approximately and during that long period, he was constrained to stay at Chaibasa at Headquarters as per the direction of this Court. So, this aspect of the long delay as well as the good conduct certificate obtained by the delinquent in the recent past from the District Judge would be the relevant aspect which ought to have been taken into consideration by the disciplinary authority, while imposing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on taken against the appellant is not only against the basics of natural justice but is wholly arbitrary, unreasonable and unjustified. Learned counsel emphasized that none of the four Annual Confidential Reports mentioned in paragraph 30 of the impugned order were communicated to the appellant so as to enable him to represent against the adverse remarks recorded therein and argued that the same could not have been considered for the purpose of imposing the punishment of dismissal without giving him opportunity to offer his explanation. Learned counsel submitted that even if the findings recorded by the Inquiry Officer in respect of charges No.1 and 2 are held to be correct, there was no justification to impose the punishment of dismissal ignoring that in his long service career of 24 years the appellant was not found guilty of any other act of insubordination or indiscipline. Learned counsel argued that when charge No.1, which was extremely serious in nature was not found proved, the High Court could not have imposed extreme penalty of dismissal from service by simply relying upon un-communicated adverse remarks recorded in his Annual Confidential Reports. Learned counsel criticiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the Government servant must be told of the grounds on which it is proposed to take such action: see the decision of this Court in State of Assam v. Bimal Kumar Pandit, Civil Appeal No.832 of 1962 D/- 12-2-1963 : (AIR 1963 SC 1612). If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment: he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment was mainly based upon the previous record of a government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the knowledge of the government servant. It would be no answer to suggest that every government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties or empowered to make an order which prejudicially affects the rights of any individual or visits him with civil consequences is duty bound to act in consonance with the basic rules of natural justice including the one that material sought to be used against the concerned person must be disclosed to him and he should be given an opportunity to explain his position. This unwritten right of hearing is fundamental to a just decision, which forms an integral part of the concept of rule of law. This right has its roots in the notion of fair procedure. It draws the attention of the authority concerned to the imperative necessity of not overlooking the cause which may be shown by the other side before coming to its decision. When it comes to taking of disciplinary action against a delinquent employee, the employer is not only required to make the employee aware of the specific imputations of misconduct but also disclose the material sought to be used against him and give him a reasonable opportunity of explaining his position or defending himself. If the employer uses some material adverse to the employee about which the latter is not given notice, the final decision gets vitiated on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court referred to the factual matrix of the case and held that when the final punishment was lesser than the proposed punishment, consideration of the past adverse record was inconsequential. The Court referred to the arguments urged on behalf of the State and observed: The learned counsel for the State contends that on the facts of this case it is clear that the plaintiff had notice that his record would be taken into consideration because the Superintendent of Police had mentioned it towards the end of his order, a copy of which was supplied to the plaintiff. In the alternative he contends that if the record is taken into consideration for the purpose of imposing a lesser punishment and not for the purpose of increasing the quantum or nature of punishment, then it is not necessary that it should be stated in the show- cause notice that his past record would be taken into consideration. It seems to us that the learned counsel is right on both the points. The concluding para of the report of the Superintendent of Police, which we have set out above, clearly gave an indication to the plaintiff that his record would be considered by the Deputy Inspector General of Police and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 1996-1997 were not communicated to him. It can reasonably be presumed that if the adverse remarks were communicated to him, the appellant would have made representation for expunging the same. However, as the adverse remarks were not communicated to him, the appellant could not avail that opportunity. He did not even know what were the adverse remarks and who had recorded the same. This Court cannot speculate about the appellant's fate if the High Court had informed him that there were adverse remarks in his Annual Confidential Reports which were being relied upon for the purpose of determining the quantum of punishment and that he can submit his representation against the same. If the appellant was made aware that the adverse remarks relate to his work, conduct or behaviour, he may have represented and successfully demonstrated that the remarks were recorded by the concerned officer without looking into the quality and quantity of the work done by him and that there was no complaint from any quarter regarding his conduct and behaviour. He could have also shown that in the past no such adverse remark had been entered in his Annual Confidential Report. If the remarks containe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant was bound to comply with the direction given by the High Court to stay at the headquarters but singular violation of such directive or use of intemperate language in representation dated 19.7.2003 were not that serious which warranted imposition of the extreme penalty of dismissal from service. In our view, the adverse remarks recorded in the Annual Confidential Reports of the appellant seems to have weighed heavily with the High Court while recommending his dismissal from service. 25. Since the un-communicated adverse remarks contained in the Annual Confidential Reports of the appellant became foundation of the decision taken by the High Court to recommend his dismissal from service and he was not noticed about the proposed consideration of those remarks, it must be held that the appellant was seriously prejudiced. We have mentioned all this only to reinforce the ratio of the judgment in Manche Gowda's case that consideration of the past adverse record without giving an opportunity to the delinquent to explain the same can cause serious prejudice to him. 26. The Division Bench of the High Court clearly misread the representation made by the appellant and disti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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