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2009 DIGILAW 94 (JHR)

State of Jharkhand v. Emil Minz

2009-01-20

D.G.R.PATNAIK, RAMESH KUMAR MERATHIA

body2009
JUDGMENT R.K. Merathia, & D.G.R. Patnaik, JJ.Both these Letters Patent Appeals have been filed by the State of Jharkhand and Bihar against the order dated 30.3.2005 passed by the learned Single Judge in W.P. (S) No. 698 of 2003, whereby the order of punishment passed against the respondent no. 1-writ petitioner was quashed and the appellants were directed to pay all the retiral dues including the arrears of pension with statutory interest to the writ petitioner. 2. Learned counsel appearing for the State of Jharkhand and Bihar submitted that there was no procedural error in the departmental proceeding and the writ petitioner was rightly held guilty and, therefore, the order of punishment should not have been interfered with by the learned Single Judge. 3. Mr. M.S. Anwar, learned senior counsel appearing for respondent no.1-writ petitioner, on the other hand supported the impugned order. 4. A departmental proceeding was initiated against the writ petitioner-Emil Minz in the year 1997 on the allegation that due to his negligence and dereliction in duty, he caused loss to the State Government to the tune of Rs. 1,88,153.00. The enquiry officer found him guilty. The writ petitioner retired on 31.1.2000. In the departmental proceeding, order of punishment was passed on 24.5.2001 directing for recovery of the said amount of Rs. 1, 88,153.00 and deduction of 10% of the pension. The writ petitioner challenged the said order of punishment by filing writ petition being W.P. (S) No. 3465 of 2001. The said writ petition was disposed of on 3.1.2002. It was, inter alia, held that the enquiry report was not based on evidence and was based on mere submission of the Presenting Officer. Accordingly, the order of punishment dated 24.5.2001 and the consequential order dated 3.7.2001 were set aside with liberty to the appellants to pass order in accordance with law. 5. Then on 7.1.2003, the order of punishment in question was passed against the writ petitioner-for deduction of 10% of the pension amount and recovery of 50% of the said amount of the alleged revenue loss to the department from the writ petitioner. 5. Then on 7.1.2003, the order of punishment in question was passed against the writ petitioner-for deduction of 10% of the pension amount and recovery of 50% of the said amount of the alleged revenue loss to the department from the writ petitioner. The writ petitioner again challenged the said order by filing writ petition being W.P. (S) No. 698 of 2003, which was allowed by the impugned order dated 30.3.2005 which reads as under: “ Having heard the learned counsel and considered their submissions as well as the facts and materials on record, I find that the impugned order does not speak about the basis of calculating the amount of loss. There is not an iota of evidence or any material on record to provide the basis for apportionment of the liability on the different delinquents and for holding the petitioner liable for 50% of the total alleged loss alone while two others jointly for remaining 50%. While passing its order dated 03.02.2003 in W.P. (S) No. 3465 of 2001, this Court had the occasion to consider the inquiry report. It was found that the said inquiry report was not based on any evidence and the order of punishment was passed on the basis of bare submissions of the Presenting Officer. While quashing the said order, this Court had given an opportunity to the respondents to pass order in accordance with law. But again, on the basis of the same inquiry report and without any application of mind, the impugned order of punishment has been passed by the respondents. While passing the said order, and this time holding the petitioner guilty, jointly with others, the petitioner was not given any opportunity of representation and hearing. The order is cryptic, non-speaking and based on no reasons. The impugned order (Annexure 6) being violative of Article 14 of the Constitution of India is unsustainable and is quashed.” 6. As already noticed, it was held on the earlier occasion that the enquiry report was not based on any evidence, but the said enquiry report was made the basis for holding the petitioner guilty. While passing the impugned order of punishment, no finding has been recorded by the disciplinary authority as to on what basis, the writ petitioner was found guilty. It is also not recorded as to how the petitioner was liable to pay 50% of the loss. While passing the impugned order of punishment, no finding has been recorded by the disciplinary authority as to on what basis, the writ petitioner was found guilty. It is also not recorded as to how the petitioner was liable to pay 50% of the loss. Moreover, the basis of assessment of loss sought to be recovered from the petitioner has also not been indicated. 7. After hearing the parties and on going through the materials on record carefully, we do not find any reason to interfere with the aforesaid findings recorded by the learned Single Judge. 8. In the result, both the Letters Patent Appeals are dismissed. However, no costs.