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2014 DIGILAW 683 (JHR)

Suresh Mishra v. State of Jharkhand

2014-07-02

APARESH KUMAR SINGH

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Judgment Heard learned counsel for the parties. 2. The petitioner retired from the post of Additional Collector on 31.10.2008 and thereafter the impugned order of punishment has been passed on 07.11.2008, Annexure-4 wherein he has been imposed with a punishment that he would not be entitled to any promotion. The said order is under challenge in the present writ petition by the petitioner inter alia on a number of grounds, which are as follows:- (i) the departmental proceeding initiated vide resolution dated 13.09.1996, remained unconcluded on the date of his retirement i.e. on 31.10.2008, therefore it lapsed. (ii) in the said departmental proceeding itself, the enquiry officer exonerated him from the charges vide a report submitted on 25.05.1997, Annexure-1. (iii) the disciplinary authority did not issue any second show cause notice giving reasons for differing with the opinion of the enquiry officer exonerating the petitioner before the order of punishment was passed. (iv) the order of punishment that no promotion can be granted to him, cannot be passed after his retirement purportedly under Civil Services (Classification, Control & Appeal) Rules 1930 and Rule 49 thereof. (v) after the retirement of the petitioner, no fresh departmental proceeding as conceived under the Jharkhand Pension Rules can be initiated under Rule 43(b). (vi) In any case, even condition for initiation of such proceeding under Rule 43(b) ought to be satisfied. 3. It is submitted that the impugned order straightway imposed the punishment without any reasons as such. The charge against the petitioner in the said departmental proceeding was that he had signed illegal award no. 478 and 479 to the tune of Rs.17,64,047.18/-under which payments were made to two individuals causing huge loss to the Government in spite of the fact that the tank for which the award was given was located in a plot, which was recorded as garmazarua sarvasadharan. The petitioner incidentally was placed under suspension in contemplation of the aforesaid departmental proceeding. Enquiry officer, namely Commissioner of South Chhotanagpur Division, Ranchi, however, in his enquiry report dated 27.05.1997 opined that when the petitioner had joined as Special Land Acquisition Officer, the proposal for the award was already submitted to the Government and he did not have any opportunity to tamper or make any change in the proposal submitted to the Government at that time. Secondly when the award was sanctioned by the Government and returned to the Special Land Acquisition Officer for declaring the award, there was no malafide intention on the part of the petitioner, since the Government had already sanctioned the award and it was a formality to declare it and publish it. Therefore, the petitioner was held not guilty for a misconduct which was committed before his tenure. The enquiry officer recommended that the charges against the petitioner be dropped. 4. It is clear that the respondents did not conclude the enquiry proceeding all along till the date of his retirement. The petitioner had to approach this Court in W. P. (S) No. 5638 of 2007 with a grievance that his promotion was withheld allegedly on the ground of pendency of the departmental proceeding. The said writ petition was disposed of by giving direction upon the concerned authority to consider his representation and take steps for obtaining file from the DOPT, Government of Bihar and thereafter, pass an appropriate order in accordance with law vide judgment dated 25.06.2008. 5. Perusal of the impugned order shows that steps were taken to obtain the record from the State of Bihar and thereafter, information was sought from the Revenue and Land Reforms Department, Government of Jharkhand, which was furnished on 14.08.2008. The disciplinary authority has, however, passed the aforesaid order of punishment after coming to a conclusion that the petitioner, who was the Land Acquisition Officer, had violated the Government Circulars and Rules while issuing the award of a land recorded as garmazarua sarvasadharan. Apparently during the pendency of the proceeding till his retirement, the disciplinary authority never issued any second show cause notice giving reasons for differing with the said report. 6. The respondents while contesting the claim of the petitioner stated that the petitioner was also an accused in a criminal case i.e. Ichagarh P.S. Case No. 16 of 1995 in which prosecution has already been sanctioned. Because of the pendency of the departmental proceeding and criminal proceeding, his case for promotion was though put before the departmental promotion committee in the meeting held in 2004, 2005 and 2007, but sealed cover procedure was adopted. The act of the petitioner resulted in financial loss to the Government to the tune of Rs. 17,64,047.18/- on account of declaration of award of public land to an individual. The act of the petitioner resulted in financial loss to the Government to the tune of Rs. 17,64,047.18/- on account of declaration of award of public land to an individual. Therefore, he has been punished with the order of not giving promotion to the higher post. Minor punishment can be inflicted without a detailed proceeding, as such the impugned order has been justified stating that even after retirement, proceeding under Rule 43b could have been initiated. The disciplinary authority has not accepted the report of the conducting officer and the impugned order of punishment has been passed. 7. Upon hearing the learned counsel for the parties and having gone through the relevant materials on record, it is evident that the enquiry officer had exonerated the petitioner in enquiry report submitted on 27.05.1997 itself, Annexure-1 and the proceeding remained pending thereafter till his retirement whereafter the impugned order has been passed. The provision of Rule 43(b) have been incorporated in the pension Rules to take care of situation where the State Government may withhold or withdraw pension of a retired employee, whether permanently or for a specified period and also recover pension whole or part on account of grave misconduct which is found to be established in the departmental or judicial proceeding of the employee even during his service career. However, certain conditions laid down under Rule 43(b) are to be satisfied. However, punishment inflicted under Civil Services (C.C. & A.) Rules 1930 could not have been in contemplation for imposing a punishment provided under it if the departmental proceeding did not conclude till the retirement as the contract of service had come to an end. In such a situation, provision of Rule 43b of Pension Rules provides for certain punishment as may be considered proper on the establishment of guilt of such a person. It is also well settled that even if a departmental proceeding has not concluded till the retirement of a person, it would be deemed to have continued thereafter and no fresh order for its initiation is required. The only material difference in such a situation could be in the nature of punishment that may be imposed i.e. those provided under Rule 43(b) of the Pension Rules. 8. In the instant case, the respondents have initiated a proceeding for major misconduct in which the enquiry officer exonerated the petitioner. The only material difference in such a situation could be in the nature of punishment that may be imposed i.e. those provided under Rule 43(b) of the Pension Rules. 8. In the instant case, the respondents have initiated a proceeding for major misconduct in which the enquiry officer exonerated the petitioner. In such circumstances before issuing any order of punishment, the requirement of law is that 2nd show cause notice containing the reasons for differing with the opinion of the enquiry officer is to be communicated to the delinquent by the disciplinary authority. The disciplinary authority after giving second show cause to the employee concerned and after having conducted the full fledged enquiry, may impose major penalty, minor penalty or even exonerate the delinquent. It is incumbent upon the respondents to have followed the procedure laid down after conclusion of such departmental proceeding, even if it might have ended in a minor punishment. However, the petitioner had retired on 31.10.2008 and after his retirement, such an order of punishment could not have been envisaged under Civil Services (Classification, Control & Appeal) Rules 1930. The pension Rules contain the provision for imposing any penalty in respect of the retired employee. 9. However, at the same time, it appears that the petitioner was facing criminal proceeding in which sanction for prosecution has already been granted by the State. If a sanction for prosecution has been granted for a criminal proceeding or charge sheet has been filed then also the departmental promotion committee ought to keep the matter of promotion of an employee in sealed cover, as per the rules governing the service condition. The petitioner has retired in the meantime and it is informed that criminal proceeding has not concluded, though it is stated that stay was granted on 15.02.2000 in the said case by the Patna High Court. Therefore, though the impugned order on test of legal scrutiny, may not survive, but the petitioner may not be entitled to promotion if a criminal proceeding is still pending against him and sanction of prosecution in the said criminal proceeding has been granted by the State Government. Therefore, in the facts and circumstances and for the reasons discussed herein-above, the impugned order dated 07.11.2008 cannot be sustained in the eyes of law. Accordingly, it is quashed. 10. The writ petition is allowed in the manner indicated herein-above.