Nageshwar Prasad Yadav vs State of Jharkhand and Others

Sujit Narayan Prasad, J.—Instant writ petition has been filed on behalf of petitioner for quashing office order dated 5.1.2001 by which the order of punishment of recovery of Rs. 2,20,508/- has been inflicted upon the petitioner with a direction to enter the same in the service book and the order of appellate authority dated 4.3.2004 by which order dated 5.1.2001 has been affirmed as well as to consider and grant him promotion to the post of Forest Range Officer on the ground that the juniors to him have already been granted promotion.

It has been submitted on behalf of petitioner that petitioner was appointed on 16.2.1980 on the post of Forester at Training School, Chaibasa and thereafter he was deputed in the post of Range Officer In charge in Bihar State Forest Development Corporation, Patna and was posted at Minor Forest Produce Project Division, Gumla at Simdega Range.

It has further been submitted that while the petitioner was posted at Simdega a complaint was made by one Kalindra Prasad before the Divisional Manager, Gumla and similar complaints were also made by Prem Chand Thakur, Uadi Pratap Prasad and Lalan Singh with respect to preparation of forged vouchers. The Divisional Manager, Minor Forest Produce Project Division, Gumla had conducted an enquiry and submitted a report to the General Manager, Minor Forest Produce Project Circle, Ranchi alleging therein commission of irregularity in the matter of transportation of charges of Kendu leaves. Thereafter on the basis of said irregularity a memorandum of charge had been served upon the petitioner vide Office Order No. 79 dated 19.9.1992 alleging therein that the petitioner had transported kendu leaves on higher rates and higher expenditure had been shown on the basis of forged signature in the vouchers in the matter of making payment to the transporters and thereby forgery had been committed. Enquiry officer had submitted his report before the disciplinary authority which was accepted and order of punishment was passed on 5.1.2001 inflicting the punishment of recovery of Rs. 2,20,508/- and same to be entered in the service book of the petitioner.

It has further been submitted that petitioner has filed an appeal before the appellate authority who has passed an order on 4.3.2004 affirming the order passed by the disciplinary authority on 5.1.2001. The petitioner being aggrieved with the order of punishment has preferred instant writ petition.

The grounds taken by the petitioner in assailing the impugned order is:

i. That the enquiry officer has submitted a report in which he has not considered all aspect of the matter which had been deposed by the witnesses and also by the complainants. The enquiry officer has made observations in the enquiry report that the contradictory statement had been given by the complainant but ignoring the same the inquiry officer has come to the conclusion that the charge has been found to be proved.

ii. That the copy of enquiry report had not been supplied to the petitioner before inflicting order of punishment of recovery and same to be entered in the service book of the petitioner.

iii. An F.I.R. was also instituted in which twice final form had been submitted and police had found lack of evidence against the charges levelled against the petitioner.

Thus, it has been submitted that since the enquiry officer has not considered all these aspects hence, inquiry report is perverse and on the basis of which no order of punishment can be passed.

So far as prayer regarding promotion is concerned the submission has been advanced on behalf of petitioner that although the petitioner was entitled for promotion on the post of Forest Range Officer in the year 1994, the date when the case of the other juniors to him have been considered and they have been granted promotion but his promotion has not been considered on the ground of pendency of the departmental proceeding.

Thus, the submission has been made that the petitioner has already sufficiently been punished since the departmental proceeding was initiated in the year 1991 and concluded in the year 2001 and during the entire period his case for promotion has not been considered while there was no order of withholding promotion. Hence, submission has been made that even assuming that the order of punishment has been passed on 5.1.2001 then also in view of the circular of the State government of the year 1992 a delinquent employee can be deprived from the benefit of promotion only for a period of three years from the date of charge, however the same was subsequently been modified in the year 2012 that the employee cannot be given promotion for a period of three years from the date of punishment but the subsequent Circular will not be applicable since it has been issued in the year 2012 rather, the Circular issued in the year 1992 will be effective for the purpose of consideration of promotion and the said period of three years was completed in the year 1994 hence, non consideration of the case of petitioner for promotion in 1994 is absolutely incorrect and illegal.

Counsel appearing on behalf of respondent-state has argued out the case and has submitted that the inquiry officer has found the charges proved against the petitioner. Counsel for the respondents has drawn the attention of the Court towards last paragraph of the inquiry report wherein it has been stated that certain amounts had not been paid to the transporters which amounts to commission of forgery by making manipulation in the official documents. It has further been submitted that the order of punishment is for recovery of certain amounts from the salary of the petitioner, the same is minor in nature in view of the provision contained in Rule 49 wherein at Clause IV recovery from salary has been made as one of the punishment which according to description of Rule 55A of Civil Services (Classification, Control and Appeal) Rule, 1930 is as a minor punishment. Rule 55A speaks that while imposing minor punishment only a show cause notice is sufficient requirement.

Hence, submission has been made on behalf of respondents that the sufficient requirement of law has been followed and thereby order of punishment has been passed. The further submission is that entire matter has been again re-appreciated by the appellate authority and who on the basis of materials on record and after perusing the inquiry report has declined to interfere with the order of punishment dated 5.1.2001.

Heard both parties and perused the documents on record.

It appears that a departmental proceeding had been initiated in the year 1992 on the basis of commission of certain financial irregularities against the petitioner while he was posted as Forest Range Officer in the Minor Forest Produce Project Division, Gumla at Simdega Range wherein two charges have been leveled:

For charging higher rate of transportation of Kendu leaves i.e. in place of 9 Rs. Per bag it has been charged as 30 Rs. Per bag.

That the persons who were engaged in the transportation of Kendu leaves had not been paid their actual remuneration and being aggrieved with the same they had made complaint, and accordingly charge of less payment had been alleged by making manipulation in the official record.

Admittedly petitioner was posted as Forest Range Officer and the defence has been taken by the petitioner that whatever had been done was on the basis of direction of the higher authorities but no document is on record which can suggest that higher authorities have issued any direction for taking higher charge. Other than the fixed price of Rs. 9 Per bag any rate fixed by department is based upon the tender process and the ground of the petitioner that the same has been done on the basis of the oral direction the same cannot be accepted in view of the fact that the Divisional Manager is not the ultimate authority of the corporation rather it is the cumulative decision of corporation for fixing the rate. If an employee is charging above than the prescribed rate the same is certainly an irregularity.

The other charge that the petitioner had not paid actual remuneration to the transporter, for analyzing the same all the transporters had been summoned before the enquiry officer and they reported that they had been given less remuneration than the transportation cost. In course of inquiry it has also come that certain mischief has been committed by the petitioner by way of manipulation in official record that admittedly cannot be expected from a government employee. The department had directed to conduct an enquiry for reaching conclusion and accordingly, enquiry was conducted and the petitioner was been given full fledged opportunity to rebut the charges. The facts regarding charging excess rate of Kendu leaves per bag although has been admitted by the petitioner since it has come on record that the same has been done on the basis of oral direction of the Divisional Manager.

So far as allegation of payment of less remuneration to the transporters, all the transporters have stated that the part payment has been made but, rest of payment has not been made and accordingly enquiry officer has come to the conclusion that the petitioner misused his official position and thereby caused loss to the government. The enquiry officer after considering all these aspects of the matter has come to the conclusion that the charge has been proved.

The submission of the learned counsel appearing on behalf of petitioner that enquiry report is perverse, the same cannot be accepted in view of the fact that enquiry report can only be said to be perverse when the defence of the delinquent employee had not been considered.

But, from perusal of the enquiry report it appears that the enquiry officer has considered each and every aspects of the matter and, thereafter, after making calculation regarding the amount he had come to the conclusion that the transporters were paid less amount. The enquiry officer has also come to the conclusion on the basis of the vouchers produced before him that certain manipulation had been made in the official documents like vouchers. As such, the contention of the learned counsel for the petitioner that the enquiry report is perverse can not be accepted.

So far as the other arguments advanced on behalf of petitioner that the copy of the enquiry report was not supplied is not tenable, since the petitioner has not stated anything in the writ petition that due to non supply of the copy of enquiry report what prejudice has been caused to him. It is requirement of law that enquiry report has to be supplied to the delinquent employee before passing punishment order but not in each and every case due to non supply of inquiry report will vitiate proceeding rather delinquent employee will have to come out with a specific case that the prejudice has been caused to him.

In case of Haryana Financial Corporation and Another Vs. Kailash Chandra Ahuja, , it has been held by Hon''ble Apex Court that failure to supply a report of enquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. Paragraph 21 of the said judgment is quoted hereinbelow:

"21. From the ratio laid down in B. Karunakar it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer''s report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside." 19. Thus, on the basis of the materials on record and taking into consideration the findings of enquiry officer the disciplinary authority has also accepted the same and order of punishment has been passed.

So far as the contention that the disciplinary authority has not given any reason in the impugned order and only in one line has stated that since the charge has been proved by the enquiry officer, the order of punishment has been imposed thus the order passed by the disciplinary authority is cryptic and without any reason. With respect to this argument it is not necessary for the disciplinary authority to write everything which has come in the enquiry report and there is no requirement to give detailed judgment when the petitioner is given full opportunity to participate in the enquiry and detailed inquiry report has been produced by the enquiry officer, disciplinary authority can accept the same.

Here it needs to refer the judgment rendered in the case of Ram Kumar Vs. State of Haryana 1987 (Suppl) SCC 582 wherein at Para 8 Hon''ble Apex Court held as follows:

"In view of the contents of the impugned order, it is difficult to say that the punishing authority had not applied his mind to the case before terminating the services of the appellant. The punishing authority has placed reliance upon the report of the Enquiry Officer which means that he has not only agreed with the findings of the Enquiry Officer, but also has accepted the reasons given by him for the findings. In our opinion, when the punishing authority agrees with the findings of the Enquiry Officer and accepts the reasons given by him in support of such findings, it is not necessary for the punishing authority to again discuss evidence and come to the same findings as that of the Enquiry Officer and give the same reasons for the findings. We are unable to accept the contention made on behalf of the appellant that the impugned order of termination is vitiated as it is a non-speaking order and does not contain any reason. When by the impugned order the punishing authority has accepted the findings of the Enquiry Officer and the reasons given by him, the question of non-compliance with the principles of natural justice does not arise. It is also incorrect to say that the impugned order is not a speaking order." 22. In that view of the matter, the order of punishment needs no interference.

So far as the second prayer for consideration of promotion the ground taken by the petitioner that the petitioner became entitled to be considered for promotion with effect from 7.5.1994, the date when the other juniors to him have been granted said promotion which although has been accepted by the respondents in the counter affidavit that due to departmental proceeding case of the petitioner has not been considered but the submission of the respondent state cannot be accepted on the ground that admittedly in this case departmental proceeding was initiated in the year 1992 for the charge occurred in the year 1991 and in view of the fact that even in case of a departmental proceeding the same ought to have been considered by keeping decision in sealed cover, but the same has not been done.

The ground taken by the respondents that the petitioner is not entitled for promotion on the ground of pendency of departmental proceeding cannot be accepted due to two reasons:

Even assuming that a departmental proceeding was pending then also the case of the petitioner was to be considered for promotion but the findings of the committee to be kept in sealed cover to be opened after the conclusion of the disciplinary proceedings as employee has right to be considered for promotion in view of judgment pronounced in the case of Union of India Vs. K.V. Jankiraman, etc. etc., and in view of the government circular dated 20.11.2008. But the respondents have not chosen to consider the case of the petitioner for promotion ignoring the fact that employee has right to be considered for promotion. If the case of the petitioner would have been considered along with other juniors in the year 1994 then certainly after the conclusion of the departmental proceeding the effect of the said promotion would have been given to the petitioner because in the order of punishment dated 5.1.2001 there was no order for withholding promotion of the petitioner rather it is only order of recovery which admittedly a minor punishment.

Withholding promotion is not mentioned in the list as prescribed under Rule 49 of the Civil Services (Classification, Control and Appeal) Rule, 1930.

As such, since the petitioner has already suffered from the year 2001 and his case for promotion has not been considered due to pendency of departmental proceeding hence, the appropriate direction can be issued in this regard for consideration of his case for promotion if he is eligible by placing his case in next departmental promotion committee.

In that view of the matter the first prayer regarding order of punishment since needs no interference on the ground aforesaid.

So far as the case of promotion of the petitioner the respondents are directed to consider his case for promotion within a reasonable period preferably within twelve weeks from the date of receipt of copy of this order if he otherwise eligible to be promoted in accordance with service Rule.

Instant writ petition stands disposed in terms indicated above.

In this case although counter affidavit was filed by the State but in lieu of W.P.(S) No. 3539 of 2006 (instant writ petition) the same was filed in W.P.(S) 3589 of 2006. Hence, office if directed to place copy of the counter-affidavit in this case.