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2013 DIGILAW 204 (JHR)

Jaiprakash Mistry v. State of Jharkhand

2013-02-08

SHREE CHANDRASHEKHAR

body2013
JUDGMENT 1. The petitioner has moved this Court seeking quashing of order dated 23.12.2006 issued by the Respondent No. 4 whereby and where under the petitioner has been punished with the punishment of compulsory retirement. 2. The petitioner was appointed as Junior Engineer in the year 1979. A departmental proceeding was initiated against the petitioner on 28.4.2003 on the allegation that the petitioner while posted at different places did not submit site accounts. The petitioner appeared before the Inquiry Officer and submitted his reply denying the charges levelled against him. 3. It appears that earlier also a departmental proceeding was initiated against the petitioner vide Memo No.3347 dated 23/11/2001. 4. In the present proceeding Charge Memo dated 24.08.2003 was served upon the petitioner in which two charges were framed. The first charge relates to incorrect site account submitted by the petitioner during the period 1993-1995. 5. The petitioner was directed to complete the adjustment of site account, however, he did not comply with those directions. The conduct of the petitioner amounted to gross indiscipline which was contrary to the Government Servant Conduct Rules. 6. The second charge relates to site account adjustment with respect to Rs. 22,14,166.55/- subsequently it was found that the amount involved was to the tune of Rs. 41.27,168.20/-. This reflects misappropriation of Government money and financial irregularity on the part of the petitioner as stated above. The petitioner submitted his reply and on a careful consideration of the matter, order dated 23.12.2006 was passed imposing penalty on the petitioner. With respect to first charge the petitioner was awarded punishment of compulsory retirement and with respect to second charge it was ordered to lodge criminal case and for recovery of Rs 41,27,168.20/- a Certificate Case was also ordered to be filed 7. A second show-cause notice was issued to the petitioner, however, the petitioner did not submit his reply. Thereafter, a notice was published in the newspaper also, still the petitioner chose not to submit his explanation. Finally order dated 23.12.2006 was passed. 8. After the order dated 23.12.2006 was passed, the petitioner preferred departmental appeal which was rejected on 14.02.2007. The petitioner thereafter preferred review which was disposed of by order dated 18.2.2009 whereby the punishment on the second count, that is, registration of F.I.R. and initiation of Certificate Case for recovery of Rs. 41,27,168.20 was withdrawn. 8. After the order dated 23.12.2006 was passed, the petitioner preferred departmental appeal which was rejected on 14.02.2007. The petitioner thereafter preferred review which was disposed of by order dated 18.2.2009 whereby the punishment on the second count, that is, registration of F.I.R. and initiation of Certificate Case for recovery of Rs. 41,27,168.20 was withdrawn. The petitioner has challenged order dated 23.12.2006 in the present writ petition. 9. The respondent appeared and filed counter-affidavit supporting the impugned order dated 23.12.2006. It has been stated that in spite of second show-cause notice, the petitioner did not submit his explanation nor did he take any step for adjustment of account. Four years thereafter the petitioner submitted the site account. The petitioner has been found guilty of gross indiscipline and accordingly he has been awarded punishment of compulsory retirement which is just and fair in the facts and circumstances of the case. The petitioner was given full opportunity to defend his case during the departmental enquiry. 10. A rejoinder to the counter-affidavit, filed on behalf of the respondent, has been filed by the petitioner bringing on record certain communications to indicate that earlier he had written letters to the concerned authorities for adjustment of site account. 11. Heard learned counsel for both the parties and perused the documents on record. 12. The only point argued by the learned counsel for the petitioner is that in view of the review order dated 18.2.2009 whereunder the punishment on account of second charge has been withdrawn, the punishment of compulsory retirement awarded to the petitioner is grossly disproportionate to the charge levelled against him and, therefore, the impugned order dated 23.12.2006 is liable to be quashed. The learned counsel for the respondent has submitted that this is not a case in which finding arrived at by the authority is based on no evidence or such finding is perverse. The scope of judicial review by the court in such cases is very limited and generally the Courts would not interfere with the decision of the Disciplinary Authority. 13. I find that the petitioner has not disputed the fact that site account adjustment remained pending at the time when Charge Memo dated 28.4.2003 was served upon him. It is also not the case of the petitioner that no opportunity to defend himself was afforded to him. 13. I find that the petitioner has not disputed the fact that site account adjustment remained pending at the time when Charge Memo dated 28.4.2003 was served upon him. It is also not the case of the petitioner that no opportunity to defend himself was afforded to him. In fact, by Memo No. 4204 dated 28.9.2005 the petitioner was made available a copy of the enquiry report along with record of the evidence. Again, on 10.12.2005 another opportunity was provided to the petitioner to submit his explanation however, he did not respond to the show-cause notices and therefore, a notice in the newspaper was published. However, the petitioner did not submit his explanation. Therefore, order dated 23.12.2006 has been passed which is a reasoned order. 14. A Constitution Bench of the Hon'ble Supreme Court in the case of “State of Orissa Vs Bidyabhushan Mohapatra” reported in AIR 1963 SC 779 has held that the penalty imposed by the authority is not open to review by the High Court under Article 226 , if the misconduct is established. 15. The Hon'ble Supreme Court in the case of “M.P. Electricity State Board Vs Jagdish Chandra Sharma.” reported in (2004) 3 SCC 401 has found that the punishment of dismissal from the service for breach of discipline at workplace of the employee was not disproportionate to the charge levelled and established and therefore no interference was called for on the ground that such punishment was shockingly disproportionate to the charge pleaded and proved. 16. The Hon'ble Supreme Court in the case of “ Praveen Bhatia Vs Union of India and Others” reported in (2009) 4 SCC 225 has upheld the punishment of compulsory retirement for not filing the property return within the prescribed period of six months. The Hon'ble Supreme Court has observed as under, “ 13. The power of the court to interfere with the quantum of punishment is extremely restricted and only when the relevant factors have not been considered the court can direct reconsideration or in an appropriate case to certain litigation, indicate the punishment to be awarded; and that can only be in very rare cases.” 17. In view of the aforesaid, I do not find any perversity in the impugned order dated 23.12.2006. The said order has been passed on consideration of the enquiry report and materials on record. In view of the aforesaid, I do not find any perversity in the impugned order dated 23.12.2006. The said order has been passed on consideration of the enquiry report and materials on record. The petitioner for four years did not take any step for adjustment of the site account. It is settled law that misappropriation can be temporary, that is, for a brief period also and it need not be permanent. Although the second punishment has been withdrawn on account of subsequent adjustment of site account, gross negligence and indiscipline on the part of the petitioner has been proved. I find no merit in the case and accordingly the writ petition is dismissed. There shall however, be no order as to costs.