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2010 DIGILAW 882 (JHR)

Sudhanshu Shushan Ram v. State of Jharkhand

2010-09-09

AMARESHWAR SAHAY

body2010
Order Heard the parties and with their consent this writ petition is being disposed of at this stage itself. . 2. The petitioner has challenged the notice dated 3.11.2009 as well as the memo of charge attached with the notice issued by the Government of Jharkhand contained in Annexure-4, whereby he has been asked to submit his reply meeting the charges mentioned in the charge memo attached with the said notice. 3. The petitioner challenges the aforesaid impugned notice and memo of charge. mainly on two counts: (i) That the alleged incident i.e. the irregularities, which were subject matter, to be replied by the petitioner is said to have taken place in between the year 1984 to 1988 whereas the charge memo were prepared in July 2003 but the same was served on 'the petitioner vide notice dated 3.11.2009, i.e. after six years from the date of drawing up of the charge memo for the alleged irregularities which was committed 23 years ago i.e. in 1984, that also without giving any explanation for the inordinate delay in taking an action. (ii) The impugned notice has been issued only with a mala fide intention because the name of the petitioner has been sent for promotion to the IAS. cadre and if a departmental proceeding is initiated against the petitioner then he cannot get the said promotion to the IAS. cadre. 4. On the other hand, according to the respondents, the petitioner was posted at Ohamdaha as BOO in between 5.7.1984 to 9.12.1988 and during that period he paid the salary to a contingent peon, namely, Smt. Sanichari Devi., who was not validly appointed on permanent basis. In view of the order/direction/observation of Patna High Court pass in L.P.A. No. 1302 of 2002, action has been taken to initiate departmental proceeding and accordingly, the impugned notice contained in Annexure-4 alongwith charge memo has been issued asking the petitioner to submit his reply. Therefore, there is no illegality in issuing the impugned notice to the petitioner to submit his reply to charge memo attached with the said notice. 5. Therefore, there is no illegality in issuing the impugned notice to the petitioner to submit his reply to charge memo attached with the said notice. 5. Some background facts are necessary to be taken note of in order to appreciate the rival contentions of the parties, which are as follows: One Sanichari Devi (now dead) was employed as contingent peon and working as Sweeperess in the Block Development Office at Dhamdaha in the District of Purnea within the State of Bihar on daily wage basis since 1978. She was put on regular pay scale in the year 1981. She died in the year 1996 but till her death she drew her regular salary. After her death her son Rajendra Mehtar filed a writ petition before Patna High Court claiming retiral benefits of his mother and also prayed for appointment on compassionate ground. When he could not get relief in the writ petition, he filed a L.P.A. being L.P.A. No. 1302 of 2002 against the order passed in the writ petition. The Division Bench of Patna High Court by an order dated 10.3.2003, contained in Annexure-A to the counter affidavit, disposed of the said Letters Patent Appeal, making certain strong observations against the officials of the State Government after noticing the facts that the State while contesting the claim of the appellant Rajendra Mehtar in the said L.P.A., stated that late Sanichari Devi was not a permanent employee and, therefore, she was not entitled to the retiral benefit and her son was also not entitled to appointment on compassionate ground. It was further stated by the respondents that late Sanichari Devi was wrongly and illegally being paid regular pay scale, though she was not a regular permanent employee of the State Government. Some of the relevant observations made by the Division Bench of Patna High Court in the order dated 10.3.2003 in the aforesaid L.PA No. 1302 of 2002 are relevant to be noticed, which are extracted and quoted hereinbelow: "It appears that within the district somebody has made this case into a prestige issue against the ghost of an employee who is not there to defend herself to justify her death-cum-post retirement benefits whatever they might be. The counter affidavit which was filed in the writ petition did not reply to the petition and the submissions apparently were made on the basis of information derived from the record. The counter affidavit which was filed in the writ petition did not reply to the petition and the submissions apparently were made on the basis of information derived from the record. When the Court sought the record during the proceedings in the letters patent appeal a submission was made that the records are missing. If the contention or the defence of the State-respondents is that the appointment of the Sweepress Smt. Sahichari Devi was irregular and illegal and action is being taken against the officer, who made the appointment, then the Court has one answer. The State respondents may take their action to its logical conclusion and if the defence to deny the death-cum-post retirement benefits to a deceased employee has come to such a pass to take an inequitable stand which is inconsistent with the record, than those who indeed made the appointments should be dismissed straightaway, whether these officials were a Block Development Officer or a Collector". ...During the tenure of the service of the employee not a whisper is made that appointment are illegal but when they claim post retirement benefits bureaucracy within the bureaucracy jumps with defence that the appointments were illegal. If that is so then first dismiss those who made them; 6. It appears that pursuant to the aforesaid strong observation and direction made by the Patna High Court in the Letters Patent Appeal referred to above; the concerned authorities of the State of Bihar prepared a charge memo for taking action against the concerned officers by initiating departmental proceeding. The petitioner, who is presently posted as Deputy Development Commissioner, Latehar, was posted as Block Development Officer, Dhamdaha in between the period 5.7.1984 to 9.12.1988. The State of Bihar prepared a charge memo against the petitioner in the year 2003, but forwarded It in June 2009 to the State of Jharkhand asking the petitioner to submit his reply against the charge memo. Since the petitioner is now in the Jharkhand Cadre, consequently in the month of November 2009 the impugned notice contained in letter with charge memo i.e. Annexure-4 was issued to the petitioner by the State of Jharkhand asking him to submit his reply to the charges mentioned in the charge memo. 7. Since the petitioner is now in the Jharkhand Cadre, consequently in the month of November 2009 the impugned notice contained in letter with charge memo i.e. Annexure-4 was issued to the petitioner by the State of Jharkhand asking him to submit his reply to the charges mentioned in the charge memo. 7. In the case of State of Madhya Pradesh vs. Bani Singh and Another, reported in AI R 1990 Supreme Court 1308 cited by the petitioner, while dealing with the point of delay and laches in initiating a departmental proceeding against the Government servant, Supreme Court held that the Department was aware of involvement of the officer in alleged irregularities, but no satisfactory explanation for inordinate delay in issuing the charge memo was given and therefore, the disciplinary proceeding against the officer after more than 12 years cannot be initiated. Consequently, charge memo was quashed. Paragraph 4 of the aforesaid judgment is relevant in this regard, which is quoted hereinbelow: "The appeal against the order dt. 16.12.1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with the contention of the learned counsel. The irregularities which were the subject-matter of enquiry is said to have taken place between the years 1975-1977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal." 8. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal." 8. Relying on the aforesaid judgment, the Supreme Court in one another case i.e. in the case of P.V. Mahadevan vs. M.D., Tamil Nadu Housing Board, reported in AIR 2006 Supreme Court 207 while dealing with a case regarding a disciplinary enquiry initiated after an inordinate and unexplained delay of ten years in issuance of charge memo, held that initiation of a departmental proceeding at this distance of time will be prejudicial to the appellant. In protracted disciplinary enquiry against the Government employee should be avoided not only in interest of Government employee but in public interest and also in interests of inspiring confidence in minds of Government employees. At this stage it is necessary to draw curtain and to pay an end of the enquiry. 9. In the present case I find that the alleged irregularities if any were said to have been committed by the petitioner in between period 1984 to 1988 i.e. 23 years ago. It cannot be said that the authorities superior to the petitioner had no knowledge at all that the regular salary was, being paid to the said Smt. Sanichari Devi since 1981 i.e. prior to the period, this petitioner was posted as BDO at Dhamdaha despite the fact that she was not regular employee. Admittedly the said lady started getting regular pay scale since 1981 i.e. prior to the posting of the petitioner as Block Development Officer at Dhamdaha. It is not the case of the respondents that the petitioner was in any way responsible for her appointment/engagement as daily wager in the year 1978 or that the petitioner was the person who put her in regular pay scale in 1981 or that the petitioner started paying her regular scale of pay. The fault, if any, lies with the officer who put her in regular pay scale in 1981. 10. The fault, if any, lies with the officer who put her in regular pay scale in 1981. 10. In any view of the matter, as already noticed above, the charge memo was prepared in the year 2003, but the same was served on the petitioner in November 2009 after about 6 years and there is no explanation whatsoever as to why the respondents took six years' time in serving the charge memo on the petitioner. It is also not understandable as to why the respondents State of Sihar wake up to take action only after the order/ observations passed by the Patna High Court in the year 2003. 11. Taking into account. the entire facts and submissions of the parties, and after considering the two decisions of the Supreme Court referred to above, I come to the conclusion that notice as well as the charge memo dated 3.11.2009 contained in Annexure-4 to the writ petition cannot be sustaihed in law because of the fact that after such inordinate and unexplained delay for an incident which took place about 23 years ago, no departmental action against the petitioner can be initiated. 12. Accordingly, this writ petition is allowed and the notice as well as the charge memo dated 3.11.2009 contained in Annexure-4 to the writ petition is hereby quashed. 13. However, in the facts and circumstances of the case, there will be no. order as to the costs.