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2011 DIGILAW 792 (JHR)

Gaya Mahto v. State of Jharkhand

2011-08-18

R.R.PRASAD

body2011
JUDGMENT: Learned counsel appearing for the petitioner submits that the petitioner while was at the verge of his retirement from the post of Head Clerk in the office of Civil Surgeon, Hazaribagh, one Krishndeo Prasad Singh, Zila Mantri of Jharkhand Health Employees Union, Hazaribagh Branch made a complaint before the Commissioner, North Chhotanagpur Division, Hazaribagh, Respondent no.2 on 7.8.2003 putting forth so many allegations against the petitioner. On getting complaint, Respondent no.2 asked the Regional Deputy Director of Health Services, North Chhotanagpur Division, Hazaribagh, Respondent no.3 to make an enquiry with respect to allegation levelled against the petitioner, who on enquiry being entrusted with asked Krishndeo Prasad Singh to appear before him. Krishndeo Prasad Singh having appeared before the Respondent no.3 made specific statement that he has not made any complaint against the petitioner and the complaint petition never bears his signature. However, Respondent no.3 proceeded with the enquiry and did find that most of the allegations are true. Thereupon, Respondent no.3 asked the petitioner to submits his explanation as to why not a departmental proceeding be initiated against him. Pursuant to that, petitioner submitted his explanation before the Respondent no.3, who submitted its report to the Respondent no.2 recommending therein to initiate a proceeding against the petitioner. Upon which, Respondent no.2 asked the Respondent no.3 to initiate departmental proceeding. Accordingly, respondent no.3 passed an order dated 26.9.2003 (Annexure 7) for initiating a proceeding against the petitioner. The petitioner was asked to submit his explanation within three weeks. It was also ordered that the departmental proceeding shall continue even after superannuation of the petitioner and the payment of retiral dues shall be subject to result of the departmental proceeding. The petitioner did retire on superannuation on 30.9.2003. Thereupon the petitioner submitted his show cause on 16.10.2003 which was forwarded to the Civil Surgeon-cum-Chief Medical Officer, Dhanbad, Respondent no.5, the enquiry officer to proceed with the enquiry. In spite of submission of the show cause, when Respondent no.5 did not proceed with the matter, the petitioner made several requests before the Respondent no.5 to proceed with the matter but nothing was done in this respect and therefore, the petitioner made a complaint before the Respondent no.2, Commissioner, North Chhotangapur Division, Hazaribagh, who gave direction to conclude the proceeding at the earliest but it also went in vain and, therefore, the petitioner filed this writ application challenging initiation of the proceeding itself. However, during the pendency of the writ application, enquiry officer submitted its report on 26.8.2004 (Annexure 17) whereby he found the petitioner guilty for the charges. Thereupon the petitioner was asked to submit its second show cause. On submission second show cause, an order was passed as contained in memo no.931(5), Ranchi dated 7.12.2005 (Annexure 19) whereby an order was passed to withhold 15% of the amount of pension. Those orders as contained in Annexures 17 and 19 were sought to be quashed through an interlocutory application bearing no.3398 of 2007 which was allowed. Learned counsel appearing for the petitioner submits that the departmental proceeding was initiated on the following six charges. 1. Manipulation was done by the petitioner in his Service Book with respect to date of birth. 2. The petitioner in collusion with the Civil Surgeon, Hazaribagh made an unsuccessful attempt to absorb ten Non-Medical Assistant. 3. When the pay bill of one Dr.Jaimiar for the period during which he was absent was not passed by Dr. Subhas Prasad, In-charge, Medical Officer, Additional P.S.C, Hazaribagh, the petitioner got Dr. Jaimiar posted as drawing and disbursing officer in place of Dr. Subhas Prasad and assisted Mr.Jaimiar to draw his salary. 4. For years together no transfer of the Non-Medical Staff was made, though the committee had convened meeting at several occasions but no decision was taken and thereby the petitioner by putting other employees under threat of being transferred collected money. 5. In spite of the petitioner being relieved on his transfer, he did not join the post where he had been transferred, rather he moved to this Court and was instrumental in non-filing of the counter affidavit. 6. In spite of the order being passed by the Commissioner, North Chhotanagpur Division, Hazariagh, restraining the petitioner from withdrawing salary, the petitioner drew salary with the connivance of the Civil Surgeon, Hazaribagh. 3. 6. In spite of the order being passed by the Commissioner, North Chhotanagpur Division, Hazariagh, restraining the petitioner from withdrawing salary, the petitioner drew salary with the connivance of the Civil Surgeon, Hazaribagh. 3. It was submitted that on each and every charge, details show cause was submitted wherein it has specifically been stated that so far charge nos.2, 3 and 4 are concerned, the petitioner being incompetent to take decision cannot be said to be responsible for the alleged act as any order with respect to absorption is not supposed to be passed by this petitioner, rather the order in that respect would always be passed by the appointing authority and that drawing and disbursing officer is posted under the order of the Government and the petitioner has nothing to do in the matter of posting of one drawing and disbursing officer in place of other and that if the committee did not take decision for transferring the Non-Medical Staff, the petitioner can not be held responsible for that and that there has been absolutely no material to justify the allegation that the petitioner collected money under the threat of putting them to transfer, still the enquiry officer recorded the guilt of the petitioner for the aforesaid charges. 4. Further it was submitted that so far charge nos.5 and 6 are concerned, the petitioner on being transferred to other place, did approach to this Court and on account of the order of stay being passed, the petitioner did not join the place of posting and further did draw his salary under the order of this Court, in spite of the petitioner has been held guilty for the charge no.6. 5. Learned counsel further submits that so far charge no.1 is concerned, it had been alleged that some manipulation has been done with respect to date of birth as in the Service Book, date of birth of the petitioner was recorded 16.9.1945 instead of real date of birth as 16.9.1946 but that had been corrected way back in the year 1999 and still, the petitioner was made responsible on the ground that it is the handi work of the petitioner as the Service Book was in the custody which is quite incorrect as the Service Book never used to be in the custody of the petitioner and hence, any finding given is wrong, malicious and unjustified. Therefore, the enquiry report as contained in Annexure A ( corresponding to Annexure 17) and also the punishment order as contained in Annexure C (corresponding to Annexure 19) are fit to be set aside. 6. Having heard learned counsel appearing for the parties and on perusal of the record, I do find that none of the charges framed against the petitioner seems to have been proved, still the petitioner has been held to be guilty for the charges. 7. Coming to charge no.1, relating to manipulation in the date of birth, it has been recorded by the enquiry officer that when some overwriting was found in the entry with respect to date of birth recorded as 16.9.1945, the matter was verified and then Civil Surgeon, Hazaribagh vide its order dated 5.2.1999 rectified the date of birth as 16.9.1946 in place of 16.9.1945. At that point of time, the petitioner never seems to have made responsible for any manipulation. After more than a decade, the said chapter was reopened and without there being any finding that it was the handi work of the petitioner, the petitioner was held guilty on presumption that it is the handi work of the petitioner as he was custodian of the Service Book which finding appears to be beyond the record as nothing has come during the proceeding that the petitioner was custodian of his Service Book whereas it had been denied by the petitioner that the Service Book was used tobe in his custody. 8. So far charge nos.2 and 3 are concerned, it is beyond any comprehension as to how the petitioner would be responsible for the Act alleged when the petitioner cannot do anything in the matter of posting of drawing and disbursing officer and also with respect to absorption of the staff. Therefore, any finding recorded against the petitioner is unfounded, unjustified and illegal. 9. Therefore, any finding recorded against the petitioner is unfounded, unjustified and illegal. 9. Coming to charge no.4, it be recorded that it was none of the business of the petitioner to convene the meeting for taking the matter for transfer of Non-Medical Staff and then to defer it and since no decision was taken, it was presumed by the enquiry officer that the petitioner must have collected money from the other staff which finding recorded against the petitioner again is based on presumption without there being any evidence to that respect and hence, it can easily be said to be illegal and erroneous. 10. So far charge no.5 is concerned, it be recorded that the petitioner has never been found to be guilty and hence, it does not require any comment whereas charge no.6 relates to drawing of the salary in spite of the order passed by the Commissioner, North Chhotanagapur Division, Hazaribagh, restraining the petitioner from drawing the salary but that charge is wholly misconceived as the petitioner had drawn salary by virtue of the order of this Court and therefore, the finding recorded by the enquiry officer relating to guilt of the petitioner is not only wholly erroneous, perverse but also unjustified and illegal. 11. Hence, the order dated 26.8.2004 as contained in Annexure 17 (corresponding to Annexure A) holding the petitioner guilty for the charges and the order dated 7.12.2005 as contained in Annexure 19 (corresponding to Annexure C) withholding 15% of the amount of pension are hereby quashed. 12. Consequently, the respondent is directed to make payment towards rest of the pension (i.e.15%) to the petitioner within a period of two months. 13. In the result, this application is allowed.