2025:JHHC:10333 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 3918 of 2015 ------- Harihar Prasad Mandal, son of late Fagu Lal Mandal, resident of village- Pargodih, P.O Susni, P.S. Deodanr, District- Godda ... .. Petitioner(s) -Versus- 1. The State of Jharkhand 2. The Secretary, Primary Education, Government of Jharkhand, Ranchi, Project Building, Dhurwa, Ranchi. 3. The Director, Primary Education, Govt. of Jharkhand, Ranchi, Project Building, Dhurwa, Ranchi. 4. The Deputy Commissioner, Dumka. 5. The District Superintendent of Education, Dumka. ..Respondents. ------ CORAM : SRI ANANDA SEN, J. ------ For the petitioner(s): M/s Rajesh Kumar & Mayank Deep, Advocates. For the State: Mr. Suresh Kumar, SC (L&C)-II. ------ 11/03.04.2025: Heard the learned counsel for the parties. 2. In this writ petition, the petitioner has prayed for quashing the order dated 6.10.2005 as contained in Memo No. 2002, whereby the punishment of withholding of two annual increment with cumulative effect has been imposed upon the petitioner. 3. The petitioner is a Headmaster. He has been departmentally proceeded after the charge-sheet was issued against him. The allegation in the Departmental Chargesheet is that he was absent from the school when there was inspection on 26.2.2004 at 10:00 a.m. Further there is allegation that when the teachers were asked about some documents and register of the school, the teacher namely Kamlakant explained that all the documents related to the school has been kept by the petitioner in his house, who happens to be the Headmaster of the School. There is allegation that since the petitioner is a resident of the same village, he seldom take classes, rather indulges in quarreling with the villagers, when asked to take class. There is further allegation that he did not maintain the attendance register properly. Lastly, it is alleged that the petitioner did not take interest in teaching. On these allegations, departmental chargesheet was issued on 15.04.2004. The petitioner's reply was considered and thereafter it was decided to proceed departmentally. 4. The departmental proceeding was initiated by appointing an Enquiry Officer. In the Departmental Proceeding, the Enquiry Officer submitted 1 2025:JHHC:10333 its report with findings that the misconduct of this petitioner is proved. Thereafter vide impugned order dated 6.10.2005 (Annexure-4) as contained in Memo No. 2002 the punishment of stoppage of two increments with cumulative effect was inflicted upon the petitioner. It was further held that during the period, he was kept under suspension, he will not receive his salary except subsistence allowance. 5. Counsel for the petitioner argues that the order, which was passed is against the principle of natural justice. He submits that neither the second show cause notice nor the enquiry report was issued/served to the petitioner. He also submits that there is nothing on record to suggest that the charge levelled against the petitioner stands proved. 6. Counsel for the State by referring para 11 and 25 of the counter affidavit submits that the enquiry report was served upon the petitioner. So far as second show cause notice is concerned, he admits that there is nothing in the counter affidavit which suggests that the same has been sent/served upon the petitioner. He submits that the allegation levelled against the petitioner is serious and grave. During course of arguments, both the parties submit that the petitioner has already superannuated in the year 2014. 7. In exercise of jurisdiction under Article 226 of the Constitution of India, especially in judicial review, scope of interference by this Court in the departmental proceeding is very limited. The Hon’ble Supreme Court, in the case of “Director General of Police, Railway Protection Force and Others versus Rajendra Kumar Dubey” reported in 2020 SCC OnLine SC 954 at paragraph 21.1 thereof has held that it is well settled that High Court cannot act as an Appellate Authority and re-appreciate the evidence, which was led before the enquiry officer. By referring to judgment in the case of State of Andhra Pradesh versus S. Sree Rama Rao [1963 AIR SC 1723], the Hon’ble Supreme Court has held that it is not the function of the High Court to review the findings and arrive at a different finding. In a departmental proceeding, scope is very limited and it is well settled that the High Court can interfere where the departmental authority has acted against the principles of natural justice or where the findings are based on no evidence or in violation of the statutory rules provided. Further, if the punishment imposed is excessive, the Court can also interfere. It has also been held by the Hon’ble Supreme Court that under Article 226 and 227 of the Constitution of India, the High Court shall not:- 2 2025:JHHC:10333 (i) re-appreciate the evidence; (ii) interfere with the conclusions in the enquiry, in the case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based; (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience. 8. Further, in the case of Deputy General Manager (Appellate Authority) and Others versus Ajay Kumar Srivastava reported in (2021) 2 SCC 612, the Hon’ble Supreme Court at paragraph 24 thereof has held as under:- “24. It is thus settled that the power of judicial review, of the constitutional courts, is an evaluation of the decision making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.” 9. In paragraph 25 of the aforesaid judgment (Ajay Kumar Srivastava) the Hon’ble Supreme Court has narrated the scope, which reads as follows:- “25. When the disciplinary enquiry is conducted for the alleged misconduct against the public service, the court is to examine and determine: (i) whether the enquiry was held by the competent authority; (ii) whether rules of natural justice are complied with; (iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion.” 10. One of the ground of interference is when the principle of natural justice is violated. In this case, the main ground taken by the petitioner in this case is that neither the second show cause notice nor the enquiry report was furnished to the petitioner. In this regard, there is specific averment made by the petitioner in this petition i.e. in paragraph 14 to 17. In paragraph 18 of the 3 2025:JHHC:10333 writ petition, the petitioner has taken a plea that the second show cause notice was not served to him. The respondent in paragraph 11 and 25 of the counter affidavit has replied that the enquiry report was served to the petitioner. 11. Now in view of these two contrary statements, this Court has to decide as to whether actually the enquiry report has been handed over to the petitioner or not. The petitioner has not annexed the enquiry report as it is his case that he has not been served with the same. The specific stand of the respondent is that they have served the enquiry report but surprisingly they have also not brought any document nor the enquiry report clarifying that the same was served upon the petitioner or issued. It is well settled that negative assertion cannot be proved. The positive assertion in this case is made by the respondents to the effect that they have issued /served the enquiry report, but no proof has been put forth by the respondents in support of their contention. The enquiry report has not been brought on record by them in the counter affidavit nor any document to suggest that the petitioner has received the same. Even the impugned order of punishment does not suggest that the enquiry report was handed over to the petitioner. 12. From perusal of the impugned order, I could understand that a report was submitted and on the basis of the same, the misconduct/guilt of the petitioner has been proved. If at all, the report was handed over to the petitioner, that should have been mentioned in the impugned order which could have suggested that the same was served upon the petitioner. Thus, I come to the conclusion that the enquiry report was not served to the petitioner. 13. So far as service of second show cause notice is concerned, in paragraph-18 of the writ petition, the petitioner has taken a specific plea that the second show cause notice was not served to him. This statement of the petitioner has not been specifically rebutted by the respondents, as no such averments have been made in the counter affidavit. Further, the impugned order of punishment also does not suggest that any second show cause notice has been served/sent upon the petitioner. 14. Non-issuance of the second show cause notice along with enquiry report and thereafter punishing the delinquent, based on the said enquiry report, amounts to the violation of the principle of natural justice. The punishment herein is of stoppage of two increments with cumulative effect, which is a major punishment. Without issuing the second show cause notice along with the enquiry report, the respondent cannot inflict major punishment. 4 2025:JHHC:10333 15. The Hon'ble Supreme Court in the case of Managing Director, ECIL Hyderabad and Ors. Vs. B. Karunakar and Ors. reported in (1993) 4 SCC 727 has held that non-supply of the second show cause notice along with the enquiry report vitiates the punishment order. In the aforesaid judgment, the Hon'ble Supreme Court has held that if the second show cause notice along with the enquiry report is not served, the process has to be re- started from the stage of issuance of second show cause notice. But in this case, since the petitioner has already attained the age of superannuation and has superannuated and there is no rule of the State that only for the purpose of departmental enquiry, he can be kept in the rolls of the Company, thus this Court cannot direct the respondent to re-start the proceeding afresh from the stage of issuance of second show cause notice. It is well settled that until and unless, there exists an employee and employer relationship, the departmental proceeding cannot be initiated. 16 In this case, the employee and employer relationship has come to an end to this effect from 31.1.2014 i.e. on the date when the petitioner has superannuated. Further, there is no rule which will deem that he is in service even after superannuation even for limited purpose. Thus, it will not be proper in law to remand the matter to the respondents to re-start the proceeding from the stage of issuance of second show cause notice. 17. Thus from what has been discussed above, it is concluded that the infliction of punishment against the petitioner by the impugned order dated 6.10.2005 as contained in Memo No. 2002 without issuing the second show cause notice along with the copy of enquiry report is in violation of principle of natural justice. Thus, the impugned order of punishment is set aside. 18. The respondents are directed to re-calculate the retiral benefits of the petitioner and disburse the same to the petitioner, as early as possible. 19. With the aforesaid observations and directions, this writ petition stands allowed. Anu/-Cp2 (ANANDA SEN, J.) AFR 5