Awadhesh Prasad Mehta vs State Of Jharkhand And Ors

Heard Mr. Sumeet Gadodia, learned counsel for the petitioner and Mr. Manoj Kumar No. 3, learned counsel for the respondent-State.

This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising

due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been

heard.

The petitioner has preferred this writ petition for quashing of order dated 10.11.2015 whereby departmental proceeding initiated against the

petitioner vide order dated 27.03.2009 under the Provisions of Rule 55 of Civil Services (Classification, Control & Appeal) Rules, 1930 has been

converted into a proceeding under Rule 43(b) of the Jharkhand Pension Rules, 2000. Prayer has also been made for payment of consequential

benefits. Further prayer has been made for quashing of order dated 14.02.2017 whereby punishment order has been passed for forfeiture of 10%

pension of the petitioner for a period of 5 years under Rule 43(b) of Jharkhand Pension Rules, 2000.

The petitioner was working as Junior Engineer under the respondent-Water Resources Department. The petitioner superannuated from service

w.e.f. 31.07.2010 from the post of Junior Engineer. While the petitioner was in service, vide Resolution dated 27.03.2009, a Departmental Proceeding

was initiated against the petitioner under Rule 55 of the Civil Services (Classification, Control & Appeal) Rules, 1930 (hereinafter referred to as ""Rule,

1930"") on the alleged ground that the petitioner has committed gross irregularities and misconduct during his posting as Junior Engineer while he was

posted at Waterways Division, Medninagar. The petitioner was served with chargesheet under the requisites format. The departmental proceeding

was initiated against the petitioner in the year, 2009 itself and the petitioner has superannuated on 31.07.2010 and till superannuation of the petitioner

the departmental proceeding was not concluded. After retirement of the petitioner, order dated 10.11.2015 was passed by the respondent under Rule

55 of the Civil Services (Classification, Control & Appeal) Rules, 1930 which has been converted into a proceeding under Rule 43(b) of the Jharkhand

Pension Rules, 2000. Pursuant to notice in the departmental proceeding, petitioner participated, second-show cause was issued which was replied by

the petitioner. Thereafter under order dated 14.02.2017 punishment order for forfeiture of 10% pension of the petitioner for a period of 5 years under

Rule 43(b) of Jharkhand Pension Rules, 2000 has been passed. Aggrieved with this, the petitioner moved before this Court by way of filing this writ

petition.

Mr. Sumeet Gadodia, learned counsel for the petitioner assailed the impugned order on the ground that departmental proceeding was initiated in the

year, 2009 itself which was converted into proceeding under Rule 43(b) of Jharkhand Pension Rules, 2000 vide order dated 10.11.2015. He submitted

that this was not spirit to Rule 43(b) of Jharkhand Pension Rules. He submitted that for such a long period enquiry was kept pending and only after

superannuation, the said order has been passed. He submitted that four years riders in the Provisions of Rule 43(b) are helping the petitioner. To

buttress his argument, learned counsel for the petitioner relied on judgment in the case of ""Lal Bahadur Singh Vs. State of Bihar"" reported in (2017)4

PLJR 130 in which it has been held as under:

Learned counsel for the petitioner has also placed reliance on paragraph - 22 of a judgment of the Apex Court reported in (1999) 7 SCC 409

(Zunjarrao Bhikaji Nagarkar v. Union of India and others), which is quoted herein below: ""22. In the case of Madan Mohan Choudhary v. State of

Bihar (1999) 3 SCC 396 this Court set aside the order of compulsory retirement of the appellant, a member of the Bihar Superior Judicial Service, on

the ground that there was no material on record to reasonably form an opinion that compulsory retirement of the officer was in public interest.

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Miss Divya Verma, learned A.C. to Addl. Advocate General - 3 has vehemently opposed the prayer of the petitioner. it was argued by her that at

the time of judicial review by this Court, the only requirement is to examine as to whether in the departmental proceeding, decision taking process was

justified or not. According to her, the disciplinary authority was wellcompetent to differ with the enquiry report and only requirement was to issue

notice to the delinquent with his reason to differ with the enquiry report. According to Miss Verma, the second show cause notice, in clear term,

indicates reason assigned by the disciplinary authority for differing with the enquiry report. She has taken the Court to Annexure-7 to the writ petition,

which is a letter dated 12-11-2009 issued by the disciplinary authority whereby the disciplinary authority, after examining the enquiry report of the

conducting officer, had found that charge no. 4 was proved against the petitioner and as such, he asked the petitioner to submit his reply to the second

show cause notice. Since the reply to the second show cause notice was not satisfactory, the disciplinary authority has rightly passed order of

punishment i.e. Annexure-1 to the writ petition, which according to her, requires no interference.

Learned counsel for the petitioner further submitted that enquiry proceeding has been passed on no evidence. He submitted that only on certain

documents, enquiry report has been submitted. He further submitted that it is well-settled law that without examining any witness if the enquiry report

is submitted that is said to be illegal. To buttress his argument, learned counsel for the petitioner relied on judgment in the case of ""Roop Singh Negi

Vs. Punjab National Bank & Others"" reported in (2009) 2 SCC 570 in which the Hon'le Supreme Court has held as under:-

Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them

have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the

appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been

taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some

evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of

natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been

sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high

may be, can under no circumstances be held to be a substitute for legal proof.

Learned counsel for the petitioner further submitted that in the enquiry report, the enquiry officer found the main charge levelled against the

petitioner not proved. He submitted that in respect of charge no. 3, it was held that the same has been partially proved. He submitted that the

Disciplinary Authority without differing with the findings of the enquiry officer, has proceeded to issue second show-cause to the petitioner which is

erroneous. He submitted that the enquiry proceeding was also vitiated which was decided only on the basis of defence reply of the petitioner and after

hearing, the enquiry officer has formed its opinion with respect to the charges levelled against the petitioner. To buttress his argument, the learned

counsel for the petitioner relied on judgment in the case of ""Chamoli District Coop. Bank Ltd. v. Raghunath Singh Rana,"" reported in (2016) 12 SCC

204 in which the Hon'ble Supreme Court has held as under:-

The compliance with natural justice in domestic/disciplinary inquiry is necessary has long been established. This Court has held that even there

are no specific statutory rules requiring observance of natural justice, the compliance of natural justice is necessary. Certain ingredients have been

held to be constituting integral part of holding of an inquiry. The Apex Court in Sur Enamel and Stamping Works Ltd. v. Workmen has laid down the

following: (AIR p. 1916, para 4) ""4. ... An enquiry cannot be said to have been properly held unless, (i) the employee proceeded against has been

informed clearly of the charges levelled against him, (ii) the witnesses are examined--ordinarily in the presence of the employee--in respect of the

charges, (iii) the employee is given a fair opportunity to cross-examine witnesses, (iv) he is given a fair opportunity to examine witnesses including

himself in his defence if he so wishes on any relevant matter, and (v) the enquiry officer records his findings with reasons for the same in his report.

The Apex Court again in SBI v. R.K. Jain held that if an inquiry is vitiated by violation of principles of natural justice or if no reasonable

opportunity was provided to the delinquent to place his defence, it cannot be characterised as a proper domestic inquiry held in accordance with the

rules of natural justice. In para 23, the following was laid down: (SCC pp. 316-

17) ""23. ... As emphasised by this Court in Ananda Bazar Patrika (P) Ltd. v. Workmen, the termination of an employee's service must be preceded by

a proper domestic inquiry held in accordance with the rules of natural justice. Therefore, it is evident that if the inquiry is vitiated by violation of the

principles of natural justice or if no reasonable opportunity was provided to a delinquent to place his defence, it cannot be characterised as a proper

domestic inquiry held in accordance with the rules of natural justice.

Per Contra, Mr. Manoj Kumar No. 3, learned counsel appearing on behalf of the respondent-State submitted that while the petitioner was posted as

Junior Engineer he was entrusted with the execution of restoration work of canal system of Batre Reservoir Scheme. Technical sanction was

accorded for Rs. 34.90 lakh by the Chief Engineer, Water Resources Department, Medininagar on proposal for restoration of canal system. He

submitted that during review meeting dated 21.02.2006 it was decided to get the said restoration work enquired by the Department Flying Squad Team

and enquiry report was submitted by the Departmental Flying Squad Team on 29.03.2006 and on scrutiny of the enquiry report at department level,

irregularities were found in the execution of the said work. He submitted that show-cause was issued to the petitioner along with others on 17.12.2007

and a reply was submitted by the petitioner on 21.01.2008 thereafter, departmental proceeding was initiated against the petitioner. He further

submitted that the enquiry report dated 25.02.2016 was submitted by the Conducting Officer-cum-Superintending Engineer which envisages that the

petitioner was given ample time of hearing to place his defence against charges framed against him as well as in writing. He submitted that the

petitioner was served second show-cause notice dated 14.06.2016 to which he replied on 01.07.2016. He submitted that the petitioner was provided

ample time and opportunity to present his defence and only after considering it, decision was taken by the respondents and as such there was no

violation of the principle of natural justice. He submitted that the reply of the petitioner was again carefully examined and it was found that no new

facts or logic have been placed in his defence by the petitioner and thereafter on approval of competent authority punishment order dated 14. 02.2017

has been passed. He submitted that the grounds in the earlier departmental proceeding taken by the petitioner, is not tenable in view of judgment of the

Full Bench rendered in the case of ""Shambhu Saran Versus State of Bihar & Others"" reported in 2000 (1) PLJR 665 in which it has been held as

under:

The other point to be noticed is that a distinction is made in Rule 43(b) between a case where a disciplinary enquiry is already pending at the time

of such superannuation and where no such disciplinary enquiry is pending at the time of retirement. Certain safeguards have been provided so that

there may be no undue harassment after retirement when no proceeding had been initiated before his retirement. Even though there is no pending

disciplinary proceeding at the time of such retirement, certain conditions, as contemplated by clauses (i), (ii) and (iii) thereof, are imposed for

safeguarding the interest of the Government Servant concerned. Certain limitations on the powers of the authority concerned to initiate a fresh

proceeding after retirement, where no such proceeding was initiated before such retirement, have been provided for to prevent any misuse of such

power. But the question of providing such safeguard does not arise if there is already a disciplinary proceeding pending at the time of the

superannuation of the Government Servant concerned. There is no question of any harassment in such a case and, accordingly, no condition has been

imposed. These is a good reason for the same. Unless that power is conferred by virtue of the said provision, once a retirement takes place, then the

employee concerned can easily say that he was beyond the scope of any action whatsoever. In that view of the matter, this provision has been made

in the rule itseif and the rule itself contemplates that a disciplinary proceeding, if already initiated, can be continued even after retirement. As we have

already stated, that can be spelt out from the language of the provision itself, and, in any view of the matter, that can be spelt out by necessary

implication. Accordingly, in our view, it is open to an authority concerned to continue with a disciplinary enquiry which was initiated before his

retirement. In our opinion, once such proceeding is started, even if the person concerned retires from service, such proceeding can be continued and it

is not required that there must be any Government order to that effect before it can be allowed to continue. No such condition has been laid down in

rule 43 in respect of a case where such a proceeding has already been initiated as required by the three conditions in respect of initiation of a fresh

proceeding after such retirement. We cannot import the requirement of such a condition which is not in the rules. This would be against the principle

of cassus omissus. If we accept the contention that such an order of the Government is required before such proceeding can be continued, then we

shall be introducing a condition in the rule, which the rule does not provide for. In that view of the matter, we agree with the views expressed by the

latter Division Bench and we hold that the Division Bench decision in the case of Singheshwari Sahay V/s. State of Bihar and others reported in 1979

BBCJ 735 has not been correctly decided.

Learned counsel for the respondent-State further submitted that the Full Bench Judgement was again considered in the case of "" The State of Bihar

& Ors. Versus Bhima Nand Jha"" reported in (2001) 1 PLJR 59 (D.B.) in which it has been held as under:-

9 In the background of the facts noticed above, in our view, the decision of the learned Single Judge in the case of Ram Ekbal Sharma V/s. State of

Bihar and Ors. (supra) that in case of a pending departmental proceeding after the retirement of the Government servant, the authority will be

required to pass a specific order for its continuity is certainly against the views expressed by the Full Bench

Leaned counsel for the respondent-State submitted that this aspect of the matter was again considered by the Division Bench in the case of "" The

State of Bihar Versus Ram Awadhesh Sharma"" reported in (2001) 1 PLJR 152 in which it has been held as under:-

From perusal of the rule 43(b) of the rules as extracted above, it is clear that the conditions for initiation of a fresh proceeding after

superannuation of the government servant has been laid down in the proviso to rule 43(b) of the rules. One of the conditions as provided in proviso to

rule 43(b) of the rules is this that the said proceeding should be with regard to event which took place before four years of the initiation of fresh

proceeding. The said condition has no application at all to the departmental proceeding pending before and continued for the purpose of passing an

order 43(b) or 139 of the Rules. The learned Single Judge for coming to the aforesaid conclusion has relied upon the decision of the Supreme Court in

the case of State of Bihar and others V/s. Mohd. Idris Ansari [1995 Supp (3) Supreme Court Cases 56;1995(2) PLJR(SC) 51]. It appears that in the

said case respondent Md. Idris Ansari was working as an employee of the Irrigation Department of the appellant-State. A misconduct was alleged

against the respondent which related to period 1986-87. A notice was issued in 1987 asking him as to why appropriate action be not taken against him

and on 6.6.1992 an order for punishment was passed with regard to alleged misconduct. He challenged the aforesaid order before this High Court in

CWJC No. 6696 of 1992 and the order of punishment was set aside on the ground of violation of principles of natural justice and an opportunity was

given to the State Government to proceed afresh against the respondent Md. Idrish Ansari. Before any fresh proceeding could be initiated, he

superannuated on 31.1.1993. Thereafter again a notice was issued to submit his explanation on 17.7.1993, but before any further steps could be taken

in the said notice, a second show cause notice was also issued on 27.9.1993 intimating that as he had already superannuated from service and the

period of charges were prior to four years, no action can be taken against him under rule 43 (b) of the rules and accordingly, the Government had

decided to issue show-cause notice under rule 139(a) and (b) of the Rules withholding 70% of his pension payable to him. The said order was

challenged before the High Court and the High Court set aside the aforesaid order which was challenged before the Supreme Court by the State of

Bihar. Dealing with the said matter, the Apex Court held that as the notice was issued under rule 139(a) and (b) of the Rules on the ground of alleged

misconduct and the said misconduct was committed prior to four years from the date on which a show cause dated 27.9.1993 was issued to him, the

appellant- authority has no power to invoke rule 139(a) and (b) of the rules against the respondent on the ground of proved misconduct. It was further

held that no order can be passed under rule 139 (a), as a conjoint reading of rule 43(a) and Rule 139(a), there is no escape from the conclusion that as

the alleged misconduct was committed by the respondent prior to 4 years from the date on which the show cause notice dated 27.9.1993 was issued.

On these grounds, learned counsel for the respondent-State submitted that the respondents followed the rules, regulations and strictly adhered to

the principles of natural justice before passing punishment order dated 14.02.2017. He submitted that the action of the respondents was not arbitrary

and was done in accordance with law.

On the premises of above facts and considering the submissions of the learned counsel for the parties, the Court has ventured to go through the

materials on record. It is an admitted position that enquiry proceeding was initiated in the year, 2009 against the petitioner which was not concluded till

the retirement of the petitioner and after retirement of the petitioner on the strength of Rule 43(b) of Jharkhand Pension Rules, 2000, punishment order

dated 14.02.2017 has been passed. The contention of the learned counsel for the petitioner with regard to rider of four years is not helping the

petitioner in view of Full Bench Judgment relied by the learned counsel for the respondent-State. Before retirement, departmental proceeding was

already initiated against the petitioner. On perusal of enquiry report, it transpires that no witness has been examined to prove the charges levelled

against the petitioner. In the enquiry proceeding, it was requirement to prove the charges by way of adducing certain evidences, but this has not

happened in the case in hand in view of judgment in the case of ""Roop Singh Negi"" (supra). The main charge levelled against the petitioner was not

proved. So far as charge no. 3 is concerned, the enquiry officer has come to the conclusion that it was partially proved and without appreciating the

enquiry report and without differing with the opinion of the enquiry officer, the disciplinary authority has passed the impugned order. The alleged

charge regarding irregular payment of Rs. 1,44,266.89 has said to have been partially proved against the petitioner. The enquiry officer has stated that

it has not been proved against the petitioner and on the other hand the said enquiry officer has stated that the charge has been partially proved against

the petitioner. This is contradictory statement itself. So far as charge with regard to irregular payment of Rs. 3,42,977.00 is concerned that was

categorically held to be not proved against the petitioner. Thus, all the charges levelled against the petitioner also not proved against him. Further no

witness has been examined in the enquiry proceeding and impugned order dated 14.02.2017 has been passed. Now sufficient amount has already been

deducted from the petitioner.

As a cumulative effect of the discussions made above, the impugned orders cannot be sustained in the eye of law accordingly, impugned orders

dated 10.11.2015 and 14.02.2017 are quashed.

The writ petition stands allowed and disposed of.