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2016 DIGILAW 1497 (JHR)

Chitranjan Sharma v. State of Jharkhand

2016-10-27

PRAMATH PATNAIK

body2016
Order : In the accompanied writ application, the petitioner has, inter alia, prayed for quashing the letter dated 05.12.2012 (Annexure-5), written by the Deputy Commissioner-cum-District Programme Organizer, Giridih as far as the petitioner is concerned directing the Block Development Officer, Bagodar to issue charge-sheet to the petitioner and to initiate a departmental proceeding against him and the petitioner has further prayed for a direction to the respondents not to take any action including initiation of a departmental proceeding in pursuance to the letter dated 14.08.2012 (Annexure-2) written by the Special Secretary, Rural Development Department, Jharkhand, Ranchi. 2. Sans details, the facts, as disclosed and delineated in the writ petition, is that the petitioner was appointed on 31.01.1979. It has been further averred that no departmental proceeding was initiated against the petitioner while in service nor any proceeding has been initiated against the petitioner under Rule 43 (b) of the Jharkhand Pension Rules after his superannuation from service. It has been further submitted that the petitioner superannuated from the post of the Executive Engineer, 2 Waterways Division, Hazaribagh with effect from 31.07.2010 and after his superannuation, the petitioner was paid all his retiral dues and he was leading a peaceful retired life. It has been further averred that an enquiry was made with regard to the irregularity committed in Bagodar Block under Giridih in pursuance to a complaint made by one Sri Gautam Sagar Rana, Regional Chairman, Jharkhand Pradesh Rashtriya Janta Dal and the enquiry report dated 20.01.2011 was submitted. It has been further submitted that it will be evident from the Enquiry Report contained in Annexure-1 that the enquiry was committed with regard to the irregularities committed on construction of five works/projects which was for the financial year 2007-2008. It has been further stated that as far as the petitioner is concerned he was associated only with two works/projects out of five works/projects for which enquiry was conducted i.e. item no. 1 i.e. construction of road from Chirua border to Bengali bridge and the item no. 2 i.e. construction of Grade 1 road and bridge from Karma tarn bridge to Neetlal dhar. It has been further averred that it will be evident from the Enquiry Report contained in Annexure-1 that as far as the item no. 1 i.e. construction of road from Chirua border to Bengali bridge and the item no. 2 i.e. construction of Grade 1 road and bridge from Karma tarn bridge to Neetlal dhar. It has been further averred that it will be evident from the Enquiry Report contained in Annexure-1 that as far as the item no. 2 i.e. construction of Grade 1 road and bridge from Karma tarn bridge to Neetlal dhar is concerned the allegations were found to be incorrect and no work had been executed at all. It has been further submitted that it will be evident from the Enquiry Report contained in Annexure-1 that as far as the item no. 1 i.e. construction of road from Chirua border to Bengali bridge is concerned the allegations are vague and not clear and the petitioner was not given an opportunity to participate in the said enquiry nor did he have any information of this enquiry. It has been further stated that to the utter surprise and consternation of the petitioner, a letter contained in Memo No. 6998 dated 14.08.2012 was written by the Special Secretary, Rural Development Department, Jharkhand, Ranchi directing the Deputy Commissioner-cum-District Programme Organizer, Giridih to initiate a departmental proceeding a lodge a First information Report and a Certificate case against the petitioner and others in pursuance to the report of the Chief Engineer with regard to the irregularities committed in some projects. It has been further averred that in pursuance to the letter contained in Memo No. 6998 dated 14.08.2012, the Deputy Commissioner-cum-District Programme Organizer, Giridih by his letter contained in Memo No. 1778 dated 7.9.2012 informed the Special Secretary, Rural Development Department, Jharkhand, Ranchi that the First Information Reports being Bagodar (Saria) P.S. Case No. 53/10 and 234/09 has already been lodged against three persons and he sought for a clarification as to against which projects First Information Reports have to be lodged so that against one project, two First Information Reports may not be lodged. It has been further averred that the petitioner moved before this Hon’ble High Court in W.P. (S) No. 5752 of 2012, which was dismissed as withdrawn vide order dated 09.10.2012 with a liberty to file appropriate petition for quashing the First Information Report. It has been further averred that the petitioner moved before this Hon’ble High Court in W.P. (S) No. 5752 of 2012, which was dismissed as withdrawn vide order dated 09.10.2012 with a liberty to file appropriate petition for quashing the First Information Report. It has been further stated that, however, since no First Information Report has been lodged against the petitioner and as such he has not moved before any competent court of law for the redressal of his grievances. It has been further stated that in pursuance to the letter dated 14.08.2012, the Deputy Commissioner-cum-District Programme Organizer, Giridih by his letter contained in Memo No. 2238 dated 5.12.2012 has directed the Block Development Officer, Bagodar to lodge First Information Report against the petitioner and others and he has further directed that after lodging of the First Information report a charge-sheet be issued to them and a departmental proceeding be initiated against them. It has been further stated that the name of the petitioner appears at Serial No. 1. It has been further averred that the decision in the letter contained in Memo No. 6998 dated 14.08.2012 (Annexure-2) and the letter contained in Memo No. 2238 dated 5.12.2012 (Annexure-5) are totally arbitrary, malafide and without jurisdiction. Left with no other efficacious, alternative and speedy remedy, the petitioner has been constrained to approach this Court invoking the extraordinary jurisdiction of this Court under article 226 of the Constitution of India for redressal of his grievances. 3. Heard Mr. A.K. Sahani, learned counsel for the petitioner and Mr. Vishal Kumar Singh, learned J.C. to S.C. (L&C) for the Respondent-State. 4. Counter affidavit has been filed on behalf of the respondent nos. 4 and 5, repelling the contentions made in the writ application. It has been inter alia, submitted in the counter affidavit, that the present writ application is not maintainable either in law or in the facts of the case and the same is fit to be dismissed in limine. It has been further stated that the appointment of the petitioner on 31.01.1979 and superannuation from the post of the Executive Engineer, Waterways Division, Hazaribagh on 31.07.2010 and after his retirement, entire retiral benefits was paid to him. It has been further stated that the appointment of the petitioner on 31.01.1979 and superannuation from the post of the Executive Engineer, Waterways Division, Hazaribagh on 31.07.2010 and after his retirement, entire retiral benefits was paid to him. It has been averred that Sri Goutam Sagar Rana, Regional Chairman, Jharkhand Pradesh RJD made a complaint regarding the irregularities committed in Bagodar Block within Giridih District in connection with the Schemes carried out by the Rural Development Special Division Giridih and other agencies, on the basis of which an enquiry was entrusted to the Vigilance (Cabinet) (Technical expert cell) department, Ranchi by the Government of Jharkhand vide its Office memo No. 10/209 Gra. Karya Vibhagg 1239 (Anu) dated 17.09.2009 in the light of which the department constituted a team of engineers to enquire and report accordingly, the enquiry team made spot enquiry at the worksite of the schemes and also examined the available schemes records. It has been stated that the complaint of irregularity was made by the said complaint regarding altogether five schemes out of which the work of only two schemes were to be executed by the Rural Special Division, Giridih i.e. (i) Road Construction work from Chiruwa Border to Bengali Bridge of the financial year 2007-2008. (ii) Road Construction Grade-1 and bridge construction work from Karmatand Tree to the house of Mitlal of the year 2007-08 while the others schemes were executed by other agencies. Petitioner Chitranjan Sharma was posted during the said term as the Executive Engineer, Rural Development Special Division Giridih as such the petitioner is concerned only with the aforesaid two Schemes. It has been further stated that the enquiry team submitted its enquiry report of the aforesaid schemes contained in Annexure-1 of the writ application and on perusal of the enquiry report, it is obvious that so far the scheme no. 1, Road Construction Work from Chiruwa Border to Bengali Bridge the following irregularities were found : - (i) That the total estimated cost of the said scheme was wrongly mentioned in the sanctioned estimate. (ii) That in the said scheme there was provision of construction of guard wall in which there was provision in the estimate of 10” PCC casting but the same was not done and in M.B. it was illegally mentioned and shown by the concerned Junior Engineer Sri T.N. Ram. (ii) That in the said scheme there was provision of construction of guard wall in which there was provision in the estimate of 10” PCC casting but the same was not done and in M.B. it was illegally mentioned and shown by the concerned Junior Engineer Sri T.N. Ram. (iii) That as per estimate 3” compacted morum over 12” breadth road was to be done whereas on verification in the worksite only 3” loose morum was spreaded over 10’ breadth though in the measurement Book it was wrongly mentioned as 6” compacted morum over 16’ breadth. (iv) That no soil and morum was found compacted by road roller during verification that a sum of Rs.83622.00 was excessively paid by the petitioner to the executing agency than the actual work done except the same a sum of Rs. 12584/- was royalty amount which was also not deposited with the Government as such in total it is a case of financial irregularities (defalcation) of Rs.96206.00. (v) That no cash book was maintained in accordance with rules as Executive Engineer (petitioner) without passing the bill has paid the advance amount and in the cash book there was no sanction of adjustment of paid advanced amount. (vi) That on verification of records it appears that the account clerk Sri Teja Prasad committed irregularity in issuing the M.B. and making recommendation for payment of advance amount without passing bill, similarly cashier Sri Ranjeet Kumar was found responsible for non-maintenance of cash book of the Scheme. (vii) That they have violated the prescribed Rules of NREGA according to which 60 % of estimated amount was to be paid as labourer cost but the same was also not complied with. It has been further stated that accordingly, the Enquiry Officers found prima facie the following persons guilty for committing the irregularities in the said Scheme :- (a) Sri Chitranjan Sharma (petitioner) Executive Engineer. (b) Sri Tejnarain Ram (Junior Engineer) (c) Sri Teja Prasad (Account Clerk). (d) Sri Ranjit Kumar (cashier). (e) Sri Rajhendra Prasad Mehta (Chairman) (f) Sri Pankaj Prakash (Secretary). It has been further averred that so far the second scheme i.e. Grade 1 Road and bridge construction from Karmatand tree to the house of Nitlal Scheme no. 232/07-08 is concerned the estimated cost Rs. (d) Sri Ranjit Kumar (cashier). (e) Sri Rajhendra Prasad Mehta (Chairman) (f) Sri Pankaj Prakash (Secretary). It has been further averred that so far the second scheme i.e. Grade 1 Road and bridge construction from Karmatand tree to the house of Nitlal Scheme no. 232/07-08 is concerned the estimated cost Rs. 5,92,100.00 was sanctioned, during site inspection and as per the statement and certificate of the present Executive Engineer, it was found that the said Scheme work was not concerned/carried out and no any payment was made in this regard due to some dispute arisen on account of selection of executive agents. 5. A rejoinder to the counter affidavit filed on behalf of the respondent nos. 4 and 5 has been filed by the petitioner on 08.07.2013, wherein, it has been, inter alia, stated that the enquiry which took place is not sustainable in the eyes of law as the enquiry officer failed to comply with the mandatory provisions of the principles of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in a punishment being imposed on the employee, but, here, the petitioner was not given an opportunity to participate in the said enquiry further to make the situation worse he was not even informed of the said enquiry being conducted. Hence, the irregularities which are alleged to be found are not sustainable as it was declared ex-parte against the petitioner. It has been further stated that as no work was carried out, against which no payment was made, hence, no allegations regarding second scheme can be made out against the petitioner. 6. Learned counsel for the petitioner has vehemently submitted that no departmental proceeding can be initiated against the petitioner on the sole ground that he has superannuated with effect from 31.7.2010 and the alleged occurrence is of the year 2007-2008 and in the light of Rule 43 (b) (ii) of the Jharkhand Pension Rules, no departmental proceeding can be initiated against the petitioner in respect of an event which took place more than four years of the institution of such proceeding. Learned counsel for the petitioner has further submitted that it is evident from the facts of the present case that the respondents have taken a decision to initiate a departmental proceeding against the petitioner in a routine manner and as such it is not sustainable in the eyes of law and that no Certificate case can be initiated against the petitioner since there is no allegation of misappropriation of any amount by the petitioner. Learned counsel for the petitioner has further submitted that if no departmental proceeding was initiated against the petitioner while in service or after service under Rule 43 (b) of the Jharkhand Pension Rules for the alleged occurrence within four years of his superannuation, then no recovery can be made from his retrial benefits and that the petitioner, being an old retired person cannot be forced to run from pillar to post for illegal action and decision of the respondents. 7. Per contra, learned J.C. to S.C. (L&C), appearing for the respondent State has vociferously submitted that the petitioner has committed gross irregularities in scheme no. 1 and ultimately the enquiry officer submitted its report to the Government of Jharkhand (rural Development) on the basis of which the Special Secretary, Government of Jharkhand vide its memo no. 6998 dated 14.08.2012 directed respondent no. 4, Deputy Commissioner, Giridih to institute First Information Report against all the concerned Governments servants including the petitioner and the Executive agents and also initiate a departmental proceeding by framing charges in Form K and a direction was also issued for recovery of defalcated amount alongwith 12 % interest by initiating a certificate case under the P.D.R. act in pursuance to the letter dated 14.08.2012 the Deputy Commissioner, Giridih-cum-District Programme Co-ordinate, Giridih vide his office memo no. 2238 dated 05.12.2012 has directed respondent no. 5 Block Development Officer, Bagodar to lodge First Information Report against petitioner and others and he has further directed that after lodging the First Information Report, charge sheet be issued against them and a departmental proceeding be initiated against them on the basis of which the respondent no. 5 Block Development Officer, Bagodar vide his office memo no. 5 Block Development Officer, Bagodar to lodge First Information Report against petitioner and others and he has further directed that after lodging the First Information Report, charge sheet be issued against them and a departmental proceeding be initiated against them on the basis of which the respondent no. 5 Block Development Officer, Bagodar vide his office memo no. 84 dated 19.01.2013 remitted to the Officer-in-charge, Bagodar (Saria) Giridih for institution of First Information Report against the petitioner and others accordingly the police registered a case under Section 406/409 and 420 of the Indian Penal Code against the petitioner and 17 other persons vide Bagodar (Saria) P.S. Case No. 28 of 2013. Learned counsel for the Respondent-State further submitted that in the light of the direction issued by the Special Secretary, Government of Jharkhand, the Deputy Commissioner, Giridih, (Respondent No. 4) has framed charges against the petitioner for the irregularities committed by the petitioner vide office memo No. 881 dated 11.03.2013 and the same was remitted to the Special Secretary, Rural Development, Government of Jharkhand, Ranchi. Learned counsel for the Respondent-State further submitted that the petitioner had earlier filed another writ petition being W.P. (S) No. 5752 of 2012 for the same and similar relief before this Court, which was dismissed as withdrawn on 09.10.2012 with a liberty to file appropriate petition for quashing the First Information Report and now since the First Information Report has already been instituted against the petitioner and others, so the petitioner is required to move before this Court for redressal of his grievance in the light of the order passed in W.P. (S) No. 5752 of 2012 dated 09.10.2012, as such merely on this score, the writ petition is liable to be dismissed in limine. Learned counsel for the Respondent-State further submitted that the decision in the letter contained in memo no. 6998 dated 14.08.2012 and the letter contained in memo no. 2238 dated 05.12.2012 is legal and justified in view of the contents made therein and cannot be termed as arbitrary and without jurisdiction and in view of the facts of the present case, the provision contained in Rule 43 (b) (ii) of the Jharkhand Pension Rules is inapplicable and as such the same cannot be relied upon. 2238 dated 05.12.2012 is legal and justified in view of the contents made therein and cannot be termed as arbitrary and without jurisdiction and in view of the facts of the present case, the provision contained in Rule 43 (b) (ii) of the Jharkhand Pension Rules is inapplicable and as such the same cannot be relied upon. Learned counsel for the Respondent-State further submitted that respondent nos.4 and 5 have not taken any decision in this regard rather they have complied the order and direction of the respondent nos. 2 and 3 so they are the competent authority to explain the same in detail. Learned counsel for the Respondent-State further submitted that in view of the enquiry report submitted by the vigilance (cabinet) committee technical cell, it is crystal clear that there was a gross financial irregularities of the Government fund at the hand of the petitioner and other, so it is incorrect to state that there is no allegation of misappropriation of any amount by the petitioner. Learned counsel for the Respondent-State further submitted that the payment of amount scheme was made by the petitioner in total Rs. 423840.00 to the Executive agents on 12.05.2008, 31.10.2008 and 03.12.2008 which is within the period of four years of the date of retirement of the petitioner as he retired from his service on 31.07.2010 and therefore, there is no impediment in initiation of a departmental proceeding under rule 43 (b) of the Jharkhand Pension Rules against the petitioner. Learned counsel for the Respondent-State further submitted that the decision of the respondent authority is legal and justified and the same cannot be said to be illegal action of the respondents. Learned counsel for the Respondent-State further submitted that in view of the facts and circumstances stated hereinabove, the instant writ petition is devoid of any merit and is liable to be dismissed in limine. 8. Learned counsel for the Respondent-State further submitted that in view of the facts and circumstances stated hereinabove, the instant writ petition is devoid of any merit and is liable to be dismissed in limine. 8. After hearing the learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the petitioner has been able to demonstrate foundational facts and law to make out a case for interference due to the reasons stated hereinbelow : (i) The allegations of gross irregularities committed by the petitioner are baseless and unsustainable in the eyes of law, since the enquiry so conducted suffers colossally as the same had not been done in compliance with the basic principles of natural justice and the petitioner should have been given an opportunity to participate in the enquiry enabling him to put forth certain facts needed to conduct a fair and unbiased procedure of enquiry. (ii) The grounds and reliefs raised in the present writ petition differs from the earlier writ petition and the impugned order challenged herein this writ petition arose subsequently than the one challenged before. Moreover, the order passed in the earlier writ petition which was withdrawn with the permission of the Court, would not bar institution of the present writ petition. The view of this Court gets further fortified in view of the Judgment of the Hon'ble Supreme Court in the case of “Sheodan Singh Vs. Daryao Kunwar”, reported in AIR 1966 SC 1332 . (iii) Rule 43 b (ii) is a general provision enacted which prevents unnecessary proceedings in a peculiar circumstance. The fact mentioned herein could not be a valid legal ground to conduct a proceeding if vitiated on general principles of natural justice and the conclusion reached without following the procedure in the law could not be said to be sustainable and is illegal and reflects the arbitrary and male fide approach of the concerned respondents and moreover, the charges of misappropriation should not be vague but definite and specific. (iv) The Respondents have misconstrued the mandate of Rule 43 b (ii) of the Jharkhand Pension Rules. (iv) The Respondents have misconstrued the mandate of Rule 43 b (ii) of the Jharkhand Pension Rules. Rule 43(b)(ii) envisages as under: “Shall be in respect of an event which took place not more than four years before the institution of such proceedings” Hence, it is not within the period of four years of the date of retirement as stated by the petitioner. The alleged occurrences as per the respondents took place on 12.05.2008, 31.10.2008 and 3.12.2008 which is now beyond the time limit of 4 years as per Rule 43 b (ii) and still the proceedings have not been initiated. 9. On cumulative effect of the facts, reasons and judicial pronouncements and as a logical sequitor, the impugned letter, contained in Memo No. 2238 dated 05.12.2012 (Annexure-5), written by the Deputy Commissioner-cum-District Programme Organizer, Giridih as far as the petitioner is concerned directing the Block Development Officer, Bagodar to issue charge-sheet to the petitioner and others and initiate a departmental proceeding, is hereby quashed and set aside. 10. Accordingly, this writ petition stands allowed. Petition allowed.