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2015 DIGILAW 1361 (JHR)

Shambhu Nath Pal v. State of Jharkhand

2015-10-30

PRAMATH PATNAIK

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JUDGMENT : PRAMATH PATNAIK, J. 1. In the accompanied writ application, the petitioner has inter-alia prayed for quashing the order dated 24.12.2009 passed by the Deputy Commissioner, Dumka (respondent no. 2) whereby the petitioner has been dismissed from services vide Annexure-4 to the writ application. 2. The factual matrix, bereft of unnecessary details, in a nutshell is that the petitioner initially was appointed as Peon (Class IV employee) in the year 1980 and after passing the departmental examination was promoted to Class III grade in the year 1992. Thereafter, the petitioner was serving as bench Clerk in the court of Executive Magistrate, Dumka. On being transferred from Dumka to Shikaripara Block joined there as an Assistant and the petitioner while working as such was asked to take charge of Nazir by the then Circle Officer and accordingly he started working as In-charge Nazir, Shikaripara Block. While working as such two cheques amounting to Rs. 5 lacs and 2 lacs were issued in the name of Nazir, Shikaripara for the purpose of distributing the same among the pensionaries of National Old Age Pension Scheme and the petitioner withdrew the same as he was functioning as In-charge Nazir, shikaripara. The petitioner along with two others were instructed by the then Circle Officer to distribute the aforesaid amount among the beneficiaries. Although, the petitioner and Mr. Dhruv Prasad Pathak objected verbally but they were forced to obey the orders of the then Circle Officer and the petitioner vide his representation dated 24.03.2007 made a complaint before the Deputy Commissioner, Dumka about the conduct of the then Circle Officer and requested to take appropriate action. The charges were framed against the petitioner on the allegation of defalcation/misappropriation of entire amount except Rs. 48,100/- which was totally unwarranted and baseless vide charge sheet dated 31.05.2007 (Annexure-2) and the petitioner was put under suspension and a departmental enquiry was set up vide order dated 07.06.2007 by the Deputy Commissioner, Dumka. On the basis of inquiry report, the petitioner was asked to second show cause to which he submitted his explanation to the charge dated 29.04.2009 vide his representation dated 24.10.2008 under Annexure 3 and 3/A to the writ application. Thereafter, the Deputy Commissioner, Dumka has dismissed the petitioner from services vide Annexure-4 to the writ application. 3. On the basis of inquiry report, the petitioner was asked to second show cause to which he submitted his explanation to the charge dated 29.04.2009 vide his representation dated 24.10.2008 under Annexure 3 and 3/A to the writ application. Thereafter, the Deputy Commissioner, Dumka has dismissed the petitioner from services vide Annexure-4 to the writ application. 3. Being aggrieved by the impugned order of dismissal from services vide Annexure-4, the petitioner left with no other alternative, efficacious and speedy remedy has approached this Court invoking extra-ordinary jurisdiction under Article 226 of the Constitution of India for redressal of his grievances. 4. Per-contra the respondent nos. 2 to 6 have filed a counter-affidavit repelling the averments made in the writ application. In the counter-affidavit, it has been inter alia submitted that departmental proceeding was initiated against the petitioner on the allegation that the cheque amount of Rs. 5 lacs and Rs. 2 lacs, which was sanctioned for payment of pension to 334 beneficiaries by the Sub-Divisional Officer, Dumka were withdrawn by the petitioner. In this connection, a complaint was filed on behalf of the beneficiaries before the Deputy Commissioner, Dumka regarding irregularities in making payment of pension to the beneficiaries. On receipt of the complaint, the matter was enquired by the Block Legal Supervisor on the verbal order of the Deputy Commissioner, Dumka and it was found that during the course of enquiry Rs. 48,100/- was paid in cash and the rest amount was defalcated by the petitioner. At the time of payment of pension to the beneficiaries, it was the duty of the petitioner to get the signature/thumb impression of the beneficiaries identified by the Revenue Karamchari, but it was not done. Moreover, the names of five beneficiaries have been added in payment register, whose names were not included in the sanctioned list, which is a grave financial irregularity. In this connection, an F.I.R. was also lodged against the petitioner in Shikaripara Police Station, which is pending in a court of law. After inquiry all the charges levelled against the petitioner was found true and proved and, thereafter, a second show cause notice along with memo of charge and enquiry report submitted by the enquiry officer was issued to the petitioner. After inquiry all the charges levelled against the petitioner was found true and proved and, thereafter, a second show cause notice along with memo of charge and enquiry report submitted by the enquiry officer was issued to the petitioner. On receipt of the second show cause notice, the petitioner filed his reply which was found repetition of his first show cause reply and not satisfactory and the disciplinary authority agreeing with the report submitted by the conducting officer dismissed the petitioner from services vide order dated 24.12.2009. Before passing the impugned order of dismissal from services, the petitioner was given sufficient opportunity to defend his case. Therefore, the principle of natural justice has been followed, as such, the impugned order is legal, just and proper. 5. Heard Mr. Binit Chandra, learned counsel appearing for the petitioner and Mr. Shadab Bin Haque, J.C. to G.P. I, learned counsel appearing for the respondents at length and perused the records. 6. In the course of argument, learned counsel for the petitioner has strenuously urged that the Deputy Commissioner, Dumka has passed a non-speaking order and no reason has been assigned by the Deputy Commissioner, Dumka by disagreeing with the defence explanation of the petitioner. The impugned order of punishment appears to be unjustified as it is stereotyped and has been passed without application of mind. The copy of the inquiry report was not supplied to the petitioner which has vitiated the entire disciplinary proceeding. Learned counsel for the petitioner further submits that the impugned order of punishment was highly disproportionate to the proved charges. 7. On the other hand, learned counsel for the respondents has assiduously countered the submissions of the counsel for the petitioner by advancing the argument that in the disciplinary proceedings, the petitioner was given sufficient opportunity to defend his case. There has been no procedural irregularity so as to warrant any interference by this Court. 8. 7. On the other hand, learned counsel for the respondents has assiduously countered the submissions of the counsel for the petitioner by advancing the argument that in the disciplinary proceedings, the petitioner was given sufficient opportunity to defend his case. There has been no procedural irregularity so as to warrant any interference by this Court. 8. Having gone through the counter-affidavit and the rivalized submissions and on perusal of the relevant records, it appears that the petitioner has not been able to make out a case for interference by this Court due to following facts, reasons and judicial pronouncements:- (i) Admittedly, the departmental proceeding was initiated against the petitioner on the basis of a complaint filed by the beneficiaries before the Deputy Commissioner, Dumka regarding irregularities in making payment of pension to the beneficiaries out of withdrawn amount of Rs. 7 lacs. On receipt of the complaint, the matter was enquired into by the Block Legal Supervisor on the verbal order of the Deputy Commissioner, Dumka. It was found in course of inquiry that in all Rs. 48,100/- was paid in cash and the rest amount was defalcated by the petitioner. Moreover, the names of five beneficiaries have been added in payment register, whose names were not included in the sanctioned list, which is a grave financial irregularity and the conducting officer after inquiry found all the charges levelled against the petitioner to be true and proved and the petitioner was directed to file second show cause and the petitioner filed reply which was not found satisfactory. On the basis of inquiry report of the conducting officer, disciplinary authority has dismissed the petitioner from services. Therefore, from the date of initiation of the proceeding till its culmination, no procedural irregularity has been committed by the respondents so as to call for any interference. (ii) In the case in hand, in view of the seriousness of allegation and misconduct committed by the petitioner, the power of judicial review cannot be applied. Moreover, the fact finding given by the enquiry officer based upon the materials on record cannot be interfered with, as has been held by Hon'ble Apex Court in the case of Uttar Pradesh and Another vs. Man Mohan Nath Sinha & Another, (2009) 8 SCC 310 , in paragraph 15 held as under:- “15. Moreover, the fact finding given by the enquiry officer based upon the materials on record cannot be interfered with, as has been held by Hon'ble Apex Court in the case of Uttar Pradesh and Another vs. Man Mohan Nath Sinha & Another, (2009) 8 SCC 310 , in paragraph 15 held as under:- “15. The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. The court does not sit in judgment on merits of the decision. It is not open to the High Court to re-appreciate and reappraise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions. 9. As a cumulative effect of the facts, reasons and judicial pronouncements and in view of the discussions made in the foregoing paragraphs, I am of the considered view that it is not a case in which order of dismissal has been passed ignoring the relevant materials on record nor the case is based on no evidence. Therefore, the impugned order of punishment of dismissal from services vide Annexure-4 to the writ application does not warrant any interference by this Court. 10. Accordingly, the writ petition is dismissed being devoid of merit.