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2014 DIGILAW 21 (JHR)

Raj Ballabh Singh v. State of Jharkhand

2014-01-06

SHREE CHANDRASHEKHAR

body2014
JUDGMENT : By Court Challenging order dated 01.11.2012, whereby the petitioner has been awarded punishment of deduction of 10% of pension, the petitioner has approached this Court by filing the present writ petition. 2. The petitioner was issued a show-cause notice on 12.04.2008 and he was directed to submit his reply within seven days. The petitioner was issued another notice on 19.01.2010 for responding to the charges levelled against him. An opinion was sought from the Deputy Commissioner, Dhanbad on the representation of the petitioner and thereafter, an enquiry was conducted pursuant to Resolution dated 07.03.2011. An enquiry report has been submitted on 17.07.2012 and thereafter, the impugned order dated 01.11.2012 has been passed. 3. A counter-affidavit has been filed stating as under: - 16. “That in reply to the statement made in para1 of the writ application, it is stated and submitted that prayer of the petitioner is not acceptable. There are grave charges of irregularity and dereliction of duty in implementation of development schemes relating to his tenure as Block Development Officer, Baliapur, Dhanbad. After obtaining explanation regarding these charges, the departmental proceeding was instituted against him vide resolution no. 1230 dated 07.03.2011. Sri Vinay Kumar Choubey, IAS, the Deputy Commissioner, Ranchicum Conducting Officer submitted his report vide letter no. 115 (ii)/ Law dated 17.07.2012. The charges leveled against him were reported as proved in the enquiry report of the conducting officer. In the light of the enquiry report the second show-cause was issued to the petitioner vide department's letter no. 10546 dated 11.09.2012. But the petitioner did not submit any new fact in his reply to second show-cause. The charges leveled against the petitioner, his explanation, enquiry report of the conducting officer, his reply to second show-cause were examined and reviewed at the level of the government. The punishment of deduction of 10% amount from his pension was awarded to the petitioner vide resolution no. 12212 dated 01.11.2012 for the charges found proved against the petitioner. In the light of said punishment after getting requisite papers and documents, the 90% pension and full gratuity have been sanctioned by the department vide letter no. 2318 dated 12.03.2013. The encashment of 257 days earned leave and 43 days half pay leave admissible to the petitioner has been sanctioned by the department vide letter no. 2319 dated 12.03.2013. 22. In the light of said punishment after getting requisite papers and documents, the 90% pension and full gratuity have been sanctioned by the department vide letter no. 2318 dated 12.03.2013. The encashment of 257 days earned leave and 43 days half pay leave admissible to the petitioner has been sanctioned by the department vide letter no. 2319 dated 12.03.2013. 22. That in reply to the statement made in para9 to 13 of the writ application, it is stated and submitted that the charges leveled against the petitioner were categorical, specific and serious and pertained to his tenure as the Block Development Officer, Baliapur, Dhanbad. It is evident from perusal of Form'K' that the memo of charges was framed against the petitioner in the light of enquiry report of the Sub-Divisional Officer, Dhanbad. The Sub-Divisional Officer, Dhanbad conducted enquiry of NAREGA Schemes on 05.04.2008 being implemented by the petitioner in Baliapur Block and found serious irregularities in its implementation.” 4. Heard counsel for both the parties and perused the documents on record. 5. The learned counsel appearing for the petitioner has submitted that, the impugned order dated 01.11.2012 discloses complete non-application of mind on the part of the disciplinary authority. In support of the contention, the learned counsel for the petitioner has drawn attention of the Court to the enquiry report dated 17.07.2012 and submitted that neither the enquiry officer nor the disciplinary authority has discussed the defence taken by the petitioner and in the impugned order dated 01.11.2012, the basis on which the disciplinary authority decided to agree with the finding recorded by the enquiry officer, has not been indicated. The learned counsel for the petitioner has further submitted that some of the charges have been found not proved against the petitioner and since there is no charge of any pecuniary loss caused to the government, the provision under Rule 43(b) of the Jharkhand Pension Rules would not be attracted in the present case. 6. As against the above, Mr. Ajit Kumar, the learned counsel appearing for the respondents has controverted the plea taken by the counsel for the petitioner and has reiterated the stand taken by the respondents in the counter-affidavit. 7. 6. As against the above, Mr. Ajit Kumar, the learned counsel appearing for the respondents has controverted the plea taken by the counsel for the petitioner and has reiterated the stand taken by the respondents in the counter-affidavit. 7. Adverting to the contention raised by the learned counsel for the petitioner that, since there is no charge of pecuniary loss caused to the government, the provision of Rule 43(b) of the Jharkhand Pension Rules would not be attracted in the case, I find that Rule 43(b) of the Jharkhand Pension Rules provides that if an employee has been convicted by a competent criminal court or has been found guilty in a departmental proceeding, the government may resort to Rule 43(b) of the Jharkhand Pension Rules and withdraw or withheld pension. In the present case, an enquiry was initiated against the petitioner, in which, the misconduct alleged against the petitioner has been found proved and therefore, I am of the view that the provision of Rule 43(b) of the Jharkhand Pension Rules is squarely attracted in the case of the petitioner. 8. Coming to the facts of the case, I find that a specific charge was framed against the petitioner that contrary to the rules the petitioner continued to make cash payment in different schemes under MNREGA. The enquiry officer has recorded the defence taken by the petitioner and a perusal of the enquiry report indicates that the petitioner has not denied the charge of making payment in cash which is contrary to the rules. I find that even if only few charges and not all the charges framed against the delinquent employee are proved in course of departmental enquiry, the Writ Court exercising jurisdiction under Article 226 of the Constitution of India would not interfere with the decision taken by the departmental authority. In “State of Orissa and others Vs. Bidyabhushan Mohapatra”, reported in AIR 1963 SC 779 , the Hon'ble Supreme Court has held as under:- “9. ............... In “State of Orissa and others Vs. Bidyabhushan Mohapatra”, reported in AIR 1963 SC 779 , the Hon'ble Supreme Court has held as under:- “9. ............... If the High court is satisfied that if some but not all of the findings of the Tribunal were “unassailable”, the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed was final, and the High court had no jurisdiction to direct the Governor to review the penalty for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable. Therefore if the order may be supported on any findings as to substantial misdemeanor for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the enquiry officer or the Tribunal prima facie make out a case of misdemeanor, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice. The High court was, in our judgment, in error in directing the Governor of Orissa to reconsider the question.” 9. Coming to the question of duty on the part of the disciplinary authority to record specific reasons for agreeing with the findings recorded by the enquiry officer, I am of the view that it is settled law that when a copy of the enquiry report has been furnished to the delinquent officer and it appears from the penalty order that the disciplinary authority has simply agreed with the findings recorded by the enquiry officer, it is not open to the delinquent officer to challenge the order on the ground that the disciplinary authority must give elaborate reasons for agreeing with the findings in the enquiry report. The reason is that the delinquent officer then knows the reasons recorded by the enquiry officer. 10. With respect to prayer for finalization of pension and leave encashment, the respondents have stated in the counter-affidavit as under: - 15. The reason is that the delinquent officer then knows the reasons recorded by the enquiry officer. 10. With respect to prayer for finalization of pension and leave encashment, the respondents have stated in the counter-affidavit as under: - 15. “That it is stated and submitted that the Under Secretary, Finance (Personnel Claim and Fixation Cell) Department, Jharkhand communicated vide his letter no. 2683 dated 03.10.2012 that 257 days earned leave and 186 half pay leave is admissible to the petitioner but his service period from 26.05.2008 to 31.08.2008 and 20.06.2011 not regularized. So encashment of 257 days earned leave and 43 days half pay leave was sanctioned by the department vide letter no. 2319 dated 12.03.2013. The 90% pension and cent percent gratuity of the petitioner has been sanctioned by the department vide letter no. 2318 dated 12.03.2013.” 11. In view of the aforesaid facts, this writ petition is dismissed.