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2008 DIGILAW 548 (JHR)

Nand Kishore Sinha v. State of Jharkhand

2008-05-13

N.N.TIWARI

body2008
Order In this writ petition the petitioner has prayed for quashing the order dated 10.8.2007 contained in Annexure-8 whereby the petitioner has been dismissed from the service. 2. The petitioner is an Executive Engineer in the Water Resources Development Department, Government of Jharkhand. 3. He had joined the services of the State of Jharkhand on 17.10.2004 after bifurcation of the cadre under the provisions of the Bihar Reorganization Act, 2000. 4. Before bifurcation of the State, the petitioner was posted in the State of Bihar. While he was posted as the Executive Engineer, Irrigation Division, Birpur, Bihar, he was given a Bank Draft of Rs.34.23 Lacs to be handed over to the Indian Oil Corporation (LO.C.) for supply of Bitumen. The petitioner handed over the said Bank Draft to the LO.C. in April 1999, but the LO.C. did not supply the Bitumen. However, the petitioner was departmentally proceeded against alleging lapses and negligence on his part in not getting the supply of Bitumen causing loss to the Government. The enquiry was completed in all respects in 2003 by the State of Bihar. However, the final order was not passed. As aforesaid, the petitioner was allocated the Jharkhand Cadre after its creation as a separate State. Accordingly he joined in the State of Jharkhand on 17.10.04. The files relating to the petitioner was also sent to the State of Jharkhand. On receipt of the same, the Government of Jharkhand issued a show cause notice dated 16.5.05 to the petitioner. It was mentioned in the said notice that although there was no ill motive on the part of the petitioner, there were lapses on his part as the standard of precaution or awareness expected by him, was lacking and due to his negligence, the Government suffered loss. The petitioner filed his reply denying the same on 1.6.05. But even after lapse of a long time no final order was passed. The petitioner then filed writ petition being W.P.(S) No. 7467/ 06 praying for quashing the departmental proceeding and also for a direction on the respondents to consider his promotion which was being denied due to pendency of the departmental proceeding. The said writ petition was disposed of by order dated 19.12.06 of this Court directing the respondents to conclude the proceeding within two months. 5. The said writ petition was disposed of by order dated 19.12.06 of this Court directing the respondents to conclude the proceeding within two months. 5. In spite of the said order of this Court, the State Government did not pass the final order. 6. The petitioner then filed the instant writ petition again praying for quashing the departmental proceeding as no final order was passed by the State Government within the time prescribed by this Court in the aforesaid writ petition. During the pendency of the instant writ petition, it was informed by way of the counter affidavit that the Government of Jharkhand has passed the final order awarding punishment of dismissal from service to the petitioner by notification dated 10.8.07. 7. By an interlocutory application the petitioner prayed 'for amendment in the writ petition and for including the prayer in the writ petition for quashing the order of dismissal dated 10.8.07 and also for consequential benefits. The amendment prayed for was allowed and the said prayer challenging the petitioner's dismissal from service was added in the writ petition. It has been contended that there was no allegation of any kind of misappropriation, embezzlement or wrongful gain against the petitioner. From the impugned order it is clear that the petitioner has been held liable for the lapses on the ground that the higher standard of precaution and awareness was found lacking in the petitioner. The nature of allegation does not even constitute misconduct as no ill motive of the petitioner was proved. Even the allegation of loss was baseless. The Government of Bihar had filed a money suit being Money Suit No. 4/01 against the LO.C. for not supplying the Bitumen after receipt of the money. The said suit was decreed in favour of the Government and about double of the amount towards interest etc. was paid by the LO.C. In the said suit the petitioner was not made party as the authorities were fully conscious that the petitioner was not responsible for causing any loss to the Government. The order of dismissal is, thus, wholly unfounded, arbitrary and without jurisdiction. The punishment is also shockingly severe and disproportion ate to the allegation. The same is not based on any rational consideration and is liable to be quashed by this Court. 8. The respondents have contested the writ petition. The order of dismissal is, thus, wholly unfounded, arbitrary and without jurisdiction. The punishment is also shockingly severe and disproportion ate to the allegation. The same is not based on any rational consideration and is liable to be quashed by this Court. 8. The respondents have contested the writ petition. The contentions of the respondents, as made in the counter affidavit, inter alia, are that after depositing the amount of Rs.34.23 Lacs for supply of Bitumen to the LO.C. the petitioner did not receive the Bitumen as consignee which shows gross negligence and dereliction of duty on his part. In view of the said serious charge, the petitioner was awarded punishment of dismissal from service by the Government of Bihar after taking the concurrence of Hon' ble the Chief Minister, Government of Bihar and the B.P.S.C. Patna. 9. After bifurcation of the State when the petitioner joined the State of Jharkhand on 17.10.04, a show cause notice was issued to him giving him opportunity to file his reply. The reply filed by the petitioner was duly considered and the same being unsatisfactory, the order of dismissal from service was passed after getting the concurrence of the J.P.S.C., Ranchi and the approval of the Cabinet. Rule 49 of the Civil Services (C, C & A) Rules provides for imposition of penalty. Rule 56 of the said Rules provides for appeal against any such penalty. The disciplinary authority is fully empowered to award punishment of dismissal and keeping in view the magnitude and gravity of the misconduct of the petitioner, the said punishment has been rightly awarded. There is no illegality or infirmity in the impugned order and the same does not call for any interference of this Court in exercise of its writ jurisdiction. 10. I have heard learned counsel for the parties and considered the facts and materials on record. The petitioner has been charged for causing loss to the Government for not receiving the Bitumen from the L.O.C. for which an amount of Rs.34.23 Lacs was deposited. 11. Mr. K.M. Verma, learned counsel for the petitioner, submitted that there was no charge of misappropriation or embezzlement or wrongful gain against the petitioner. The petitioner had deposited the said amount for supply of Bitumen, but since the stock was not ready for delivery, the same was not supplied. 11. Mr. K.M. Verma, learned counsel for the petitioner, submitted that there was no charge of misappropriation or embezzlement or wrongful gain against the petitioner. The petitioner had deposited the said amount for supply of Bitumen, but since the stock was not ready for delivery, the same was not supplied. For withholding the supply even after deposit of the said amount, the State Government had filed a money suit against the L.O.C. The petitioner was not found at fault and as such he was not made party to the said suit. There was no ill motive on the part of the petitioner in depositing the said amount. The money was given for taking the delivery and there was fault on the part of the L.O.C. The petitioner was not instrumental for the delay in delivery. The Government claimed more than double of the amount deposited. In absence of any ill motive the petitioner was not guilty of any misconduct. Even the charge is not so grave to attract the punishment of dismissal. Learned counsel referred to and relied on the decisions rendered in Union of India & Drs. vs. J. Ahmed [ 1979(2) SCC 286 ], State of U.P & Drs. vs. Ramesh Chandra Mangalik [ 2002(3) SCC 443 ] and Yamuna Ram VS. State of Jharkhand & Drs. [ 2002(1) JLJR 407 ]. 12. Mr. S.K. Verma, learned S.C. (Mines), on the other hand, contended that the petitioner after depositing the amount of Rs. 34.23 Lacs did not make any effort to lift the stock of the Bitumen which shows clear negligence and dereliction of duty on his part. The petitioner caused loss of Rs. 34.23 Lacs to the Government. The departmental enquiry was initiated and completed in the State of Bihar. The order of dismissal was awarded by the Government of Jharkhand after bifurcation of the State and allocation of Jharkhand Cadre to the petitioner. The order of dismissal from service has been passed afresh after getting the concurrence of the J.P.S.C., Ranchi and the Cabinet Rule 49 gives power to the disciplinary authority for imposing such penalty. The said power is discretionary and keeping in view the gravity of misconduct, the petitioner has been awarded punishment of dismissal from service. This Court has limited scope of review of the order of the disciplinary authority. The said power is discretionary and keeping in view the gravity of misconduct, the petitioner has been awarded punishment of dismissal from service. This Court has limited scope of review of the order of the disciplinary authority. Learned counsel placed reliance on the following decisions:-B.C. Chaturvedi vs. Union of India [ 1995(6) SCC 749 ], Pradeep Kumar vs. Union of India & Ors. [2005(12) SCC 219], Govt. of A.P & Ors. vs. Mohd. Nasrullah Khan [ 2006(2) SCC 373 ], Principal Secretary, Government of A.P. & Anr. VS. M. Adinarayana [ 2004(12) SCC 579 ] and State of U.P vs. Raj Kishore Yadav [ 2006(5) SCC 673 ]. 13. On perusal of the second show cause notice dated 16.5.05 issued by the Water Resources Development Department, Government of Jharkhand, it is evident that the petitioner has been held responsible for the Ia.pses of not procuring the consignment after depositing the amount of Rs. 34.23 Lacs to the L.O.C. The petitioner has categorically explained that the L.O.C. is a Government of India undertaking and that the Bitumen is not always ready for delivery in the required quantity as at the relevant time Haldia Refinery was closed and Bitumen was not available in the Liberia Packaging Plant which was also communicated by the Indian Oil Corporation. The petitioner had pursued the 1.0.C. to deliver the Bitumen as soon as possible and in no way there was any lapse or negligence on the part of the petitioner. From perusal of the money decree passed in Money Suit No. 4/01 (Annexure-6), it is evident that the Government of Bihar has got a decree of Rs. 35 Lacs against the L.O.C. with 12% interest. On perusal of the said document, it is evident that the fault was found with the L.O.C. and the claim of the Government was decreed after taking into consideration the said lapses on the part of the LO.C. In the said suit the petitioner was not even impleaded as party. While deciding the said suit the 'Court has not found the petitioner responsible for causing the loss, otherwise the decree would have not been against the LO.C. and the petitioner would have been also held responsible for that. While deciding the said suit the 'Court has not found the petitioner responsible for causing the loss, otherwise the decree would have not been against the LO.C. and the petitioner would have been also held responsible for that. In the impugned order of dismissal it has not been mentioned or found that the stock of Bitumen was available and ready for delivery by the LO.C. and the petitioner neglected to lift the stock or receive the consignment. On perusal of the impugned order, it is evident that the petitioner has not been found guilty of any misappropriation, embezzlement or wrongful gain. It has been concluded in the order that "Yadi Inki Niyat Sandigdh Nahin Lekin Chuk To Hai" meaning thereby that his intention was not doubtful, but there was lapse on his part. It has been further held that it was an incident of the petitioner's negligence and dereliction of duty and on that basis the ultimate punishment of dismissal has been awarded to the petitioner. In the Union of India vs. J. Ahmed [ 1979(2) SCC 286 ], it has been held that an act or omission, lack of efficiency or failure to attain higher standard of the administrative ability may not itself amount to constitute misconduct. The same view was also reiterated in a decision of this Court in Ravindra Nath Pandey vs. State of Bihar [ 2000(4) PLJR 299 ]. Following the decision of the Supreme Court in J. Ahmed (supra), it was held by the Patna High Court in Samsul Bari case that the mere negligence or carelessness on the part of an employee cannot in normal course be said to be misconduct, much less grave misconduct. On scrutiny of the said decisions, it can be concluded that the lack of efficiency or administrative ability itself does not constitute misconduct. Any alleged negligence or lapse in discharge of duty in absence of the degree of negligence or lapse to be so irreparable resulting into damage in any degree cannot be termed as misconduct. In the instant case, the nature of charge and the finding arrived at is in the form of surmises. Even there is no firm finding of any lapse causing any loss and damage to the Government. The finding that "Chuk To Hai" itself is shaky and is not based on any evidence or material on record. In the instant case, the nature of charge and the finding arrived at is in the form of surmises. Even there is no firm finding of any lapse causing any loss and damage to the Government. The finding that "Chuk To Hai" itself is shaky and is not based on any evidence or material on record. The right emanating from employment is protected by the Constitution. Employment is the source of livelihood of the employees and his dependants. It attracts the elements of human right. Such valuable and important right cannot be lightly interfered with and taken away in a State of democratic set up having rule of law. 14. The nature of deficiency alleged and held against the petitioner cannot be said to constitute misconduct. The respondents could not justify the impugned order of dismissal of the petitioner. The said order suffers from the vice of arbitrariness, unreasonableness and impropriety and is wholly illegal and unsustainable. The decisions referred to and relied on by the State-respondents in the cases of B.C Chaturvedi, Pradeep Kumar, State of U.P. (supra) and other have no application to the facts of the instant case and the same do not support the impugned order which is not based on any evidence or material on record and the same is wholly perverse and vitiated. 15. For the reasons aforementioned, this writ petition is allowed. The impugned order dated 10.8.07 (Annexure-8) of the petitioner's dismissal from service is, hereby, quashed. The petitioner is held to be entitled for all consequential benefits. However, there is no order as to costs.