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2008 DIGILAW 194 (JHR)

Prasanna Narayan v. State Of Jharkhand

2008-02-19

N.N.TIWARI

body2008
ORDER Narendra Nath Tiwari, J. 1. In this writ petition the petitioner has sought to challenge the departmental proceeding initiated against her by Memo No 1360 dated 16.3.2007. 2. The petitioner has challenged the initiation of proceeding mainly on two grounds. (i) The departmental proceeding has been sought to be initiated on the alleged irregularities which took place in 1993-94. There is in ordinate delay in initiation of the proceeding without any explanation and in view of the decisions of the Supreme Court, the initiation of proceeding after inordinate delay is wholly unfair and unjust and the same is not sustainable. (ii) In the year 1996 a memorandum of charge was served on the petitioner for the same alleged irregularities/allegations. The petitioner had filed her written reply as far back as on 6.7.1996. Thereafter the respondents did not choose to proceed against the petitioner and the matter was dropped. The petitioner was allowed to work as usual and subsequently she was given promotion. For the same allegations of irregularities, the proceeding cannot be initiated for the second time and that too after lapse of number of years. 3. The petitioner holds the post of Deputy Collector-Class-II as Under Secretary, Government of Jharkhand. 4. The petitioner after competing in the Bihar Public Service Commission (BPSC) Examination joined the service as a Deputy Collector on 15.6.1989. Her first posting was as B.D.O., Khunti in November 1990. 5. After creation of the State of Jharkhand under the provisions of the Bihar Reorganisation Act, 2000 she was allocated Jharkhand Cadre. The petitioner was given promotion to the Junior Selection Grade w.e.f 24.12.2005 and was promoted to the cadre of the Deputy Collector-Class-II Service by Notification No. 4655 dated 24.12.2005. 6. The petitioner was transferred to the Head Quarter as Under Secretary in the Cabinet Secretariat and Coordination Department, Government of Jharkhand. 7. While the petitioner was posted as such, she received Memo No. 1360 dated 16.3.2007 issued by the Secretary, Department of Personnel, Administrative Reforms and Rajbhasa, Government of Jharkhand, Ranchi whereby a departmental proceeding was sought to be initiated against the petitioner for alleged irregularities committed by her while she was posted as B.D.O. Khunti in 1993-94. The Commissioner, South Chotanagpur Division was appointed enquiry officer. 8. The Commissioner, South Chotanagpur Division was appointed enquiry officer. 8. The petitioner surprisingly found that the same allegations and charges, which were served in 1996 and against which she had submitted her reply and thereafter the department had not preferred to proceed against the petitioner, has been again served initiating the departmental proceeding afresh. 9. The petitioner contended that the departmental proceeding once initiated and deferred after submission of the written explanation accepting the same, another proceeding on the same allegations/charges and that too after several years, is not permissible in law. Further, that the departmental proceeding sought to be initiated in connection with the irregularities committed about more than 12 years ago is holly unjust and unfair and the same is not maintainable. 10. The petitioner, in the meantime. has been given promotion to the Junior Selection Grade in the year 2005. It has been contended that giving promotion in the year 2005 itself goes to show that explanation furnished by the petitioner in the earlier departmental proceeding was accepted. The respondents cannot, thereafter, reopen the said matter over again. The petitioner cannot be subjected to further jeopardy and harassment. The impugned memo of charge and the entire departmental proceeding are. thus, liable to be quashed. 11. The respondents contested the writ petition contending, inter alia, that after creation of the State of Jharkhand and allocation of cadre of the Deputy Collector to the State of Jharkhand, the relevant files were sent to the Personnel, Administrative Reforms and Rajbhasa Department, Government of Jharkhand. After going through the files, it appeared that the memo of charge was issued to the petitioner vide Letter No. 5329 dated 24.5.1996. The petitioner had submitted her explanation to the charges. Thereafter, there was no further order on proceeding against her The Personnel Administrative Reforms and Rajbhasha Department, Government of Jharkhand then decided to initiate the departmental proceeding against the petitioner in view of the said allegations or irregularities and the memo of charge has been served on the petitioner. The proceeding has been sought to be initiated only after receipt of the relevant papers from the State of Bihar. The proceeding has been sought to be initiated only after receipt of the relevant papers from the State of Bihar. The said decision for initiation of the departmental proceeding has been taken on the basis of the report of the Rural Development Department which is the Cadre Controlling Department of the petitioner, It has been stated that there is no deliberate delay in initiation of the departmental proceeding and there is no substance in the allegation of the petitioner that there is no satisfactory explanation for the delay and the departmental proceeding is liable to be quashed. 12. Mr. A.K. Sinha. learned Sr. counsel appearing on behalf of the petitioner, submitted that by the Impugned memo of charge the petitioner has been sought to be departmentally proceeded for the second time without any fresh material on record and the same is wholly illegal and arbitrary. It has been stated that admittedly the chargesheet was issued by the then Government of Bihar in the year 1996 for the same irregularities and allegations. The petitioner had submitted his written reply. Thereafter, the Government did not proceed against the petitioner further. Further proceeding on the same set of charges and that too after a delay of 11 years, is thus wholly unjust and impermissible in law. Learned Counsel relied on the decision of the Supreme Court in the State of M.P. v. Bani Singh and Anr. and submitted that the departmental proceeding initiated against an employee after more than 12 years has been held to be unfair and illegal. Learned Counsel submitted that the charge memo relates to an incident of 1993-94 regarding the departmental records. The enquiry was initiated by serving memo of charge and after giving written explanation the same was dropped. The fresh enquiry after about 11 years is not permissible in law. Learned Counsel referred to and relied on the decisions of this Court in Gaya Singh v. The Chairman, Coal India Ltd. and Ors. reported in 2003 (2) JCR 514 (SC) : 2003 (2) JLJR 258 and Khagendra Kumar v. State of Jharkhand and Ors. . Learned Counsel submitted that the initiation of fresh enquiry is intentional and at the instance of the interested persons as the petitioner is under the zone of consideration for further promotion. 13. Mr. reported in 2003 (2) JCR 514 (SC) : 2003 (2) JLJR 258 and Khagendra Kumar v. State of Jharkhand and Ors. . Learned Counsel submitted that the initiation of fresh enquiry is intentional and at the instance of the interested persons as the petitioner is under the zone of consideration for further promotion. 13. Mr. P. Modi, learned G.P.-I, on the other hand, submitted that though it is true that a memo was served on the petitioner for the same allegation in the year 1996 by the then Government of Bihar, the same was not the memo of charge and the same does not amount to initiation of proceeding. It was a mere show cause and in view thereof, the impugned memo of charge issued by Annexure-2 cannot be said to be the second initiation of the proceeding on the same charge. He further submitted that there is no deliberate delay or laches in initiation of proceeding against the petitioner. The circumstances have been fully explained by the respondents which caused delay in initiation of the proceeding. It is true that the incident for which the departmental proceeding has been sought to be initiated is of the year 1993-94, but there was delay mainly due to reorganisation of the State of Jharkhand. The respondents have decided to initiate the proceeding after receipt of all the files relating to the Deputy Collector from the State of Bihar. The Rural Development Department, which is the controlling department of the petitioners cadre, has submitted its report on receipt of the files and thereafter there was no delay in initiation of the proceeding. The proceeding against the petitioner, thus, cannot be said to be bad either on the ground of delay or on the ground of alleged fresh initiation of the proceeding on the same charge. Learned Counsel relied on a decision of the Supreme Court in the State of M.P. v. Bani Singh and Anr. and submitted that If the delay is explained, the initiation of proceeding after delay cannot be said to be unfair. Learned Counsel relied on a decision of the Supreme Court in the State of M.P. v. Bani Singh and Anr. and submitted that If the delay is explained, the initiation of proceeding after delay cannot be said to be unfair. He has also referred to and relied on a decision in State of A.P. v. N. Radhakishan and submitted that the delay cannot be said to have caused prejudice to the charged officer, if it cannot be shown that he is to blame for the delay or if there is proper explanation for the delay in con-ducting the disciplinary proceedings. 14. Having heard learned Counsel for the parties and considered the materials available on record, I find that earlier the memo of charge in "Prapatra Ka" was issued by the Department of Personnel and Administrative Reforms, Government of Jharkhand by Letter No 5329 dated 24.5.1996 to the petitioner in respect of the alleged irregularities of the year 1993-94. The petitioner had filed her written explanation (Annexure-3). There was no further proceeding against her. Thereafter in the year 2005 the petitioner was given promotion to the Junior Selection Grade by Notification No. 4655 dated 24.12.2005, The State of Jharkhand was created under the provisions of Bihar Reorganisation Act. 2000. Obviously after filing her explanation, from 1996 to 2000 there was no further action against the petitioner by the Government of Bihar. The impugned memo of charge has been issued to the petitioner by Memo No. 1360 dated 16.3.2007 i.e. after about 7 years of creation of the State of Jharkhand. The respondents have tried to explain the delay by stating that the Jharkhand State came into existence in 2000 and the Cadre of the Deputy Collector was finally bifurcated in the month of May 2003 in which the petitioner was allocated Jharkhand Cadre. After allocation of Cadre the files and documents relating to the Deputy Collector were made available to the Personnel, Administrative Reforms and Rajbhasa Department, Government of Jharkhand and on receipt of the opinion/recommendation of the Rural Development Department, the decision was taken to proceed against the petitioner. 15. Even if it is accepted that the concerned department of the Government of Jharkhand received its files in 2003, there is no cogent explanation for delay of about 4 years in taking decision for initiation of the proceeding in 2007. 15. Even if it is accepted that the concerned department of the Government of Jharkhand received its files in 2003, there is no cogent explanation for delay of about 4 years in taking decision for initiation of the proceeding in 2007. In that view, the reference of Bani Singh case (supra) as also N. Radhaklshan case (supra) made by learned Counsel for the respondents has no relevance for them. In N. Radhakishan case, the Honble Supreme Court has held that the delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. In Bani Singh case, supra, the disciplinary proceeding initiated against the petitioner after more than 12 years was quashed by the High Court of M.P. which was affirmed by the honble Supreme Court. In case of re-initiation of proceeding after lapse of several years, this Court had quashed the proceeding on the ground of delay in the case of Gaya Singh, (supra), as well as in the case of Khagendra Kumar, (supra). In the case of Khagendra Kumar (supra), this Court relying on a decision of the Supreme Court in K.R. Dev v. The Collector of Central Excise, Shillong held that the fresh initiation of enquiry on the same set of charges is wholly arbitrary, illegal and unjust. 16. in view of the above discussions, it is held that the fresh initiation of departmental proceeding by Memo No. 1360 dated 16.3.2007 against the petitioner regarding the incident and alleged irregularities of the year 1993-94 is wholly unjust, arbitrary and vitiated. The impugned proceeding also amounts to initiation of a fresh proceeding on the same memo of charge issued to the petitioner in the year 1996 against which the petitioner had submitted his written explanation and thereafter there was no further proceeding against her. She was even given promotion in the year 2005. The initiation of fresh proceeding on the same charges, by the impugned order, is vexatious, unjust and improper. The impugned memo of charge and follow up proceeding against the petitioner are, thus, unsustainable and are, hereby, quashed. This writ petition is allowed. There shall be no order as to costs.