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2016 DIGILAW 204 (JHR)

Anju Banker v. State of Jharkhand

2016-01-27

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. 1. In the accompanied writ application, the petitioner has inter alia prayed for issuance of writ/direction, commanding upon the respondents to forthwith adjust the entire amount, which is shown against the petitioner as pending amount by way of temporary advance given to the petitioner, in terms of letter dated 23.12.2010 issued by respondent no.4, and for issuance of direction in the nature of certiorari for quashing the order dated 19.03.2012, whereby direction has been issued to recover a sum of Rs.15,000/- per month from the salary of the petitioner, on the ground that the temporary advance amount to the tune of Rs.5,50,000/- has not been adjusted by the petitioner, and for issuance of writ/direction, commanding upon the respondents to forthwith release the entire arrears along with penal interest. 2. Sans details, the brief facts, as disclosed in the writ application, is that while the petitioner was posted as Assistant Engineer in Deoghar, in the year 2008-09, a sum of Rs.5,50,000/-was sanctioned by way of temporary advance for execution of some departmental work relating to repairing and other miscellaneous works. After disbursement of the said amount, the amount has been disbursed by way of cheques and hand receipts in favour of Sri Madhukar Kumar Sinha, a sum of Rs.1,99,000/- and in favour of Sri Mithilesh Kumar Singh, a sum of Rs.3,26,000/- and rest of the amount Rs.25,000/- was paid by the petitioner directly in connection with the said work and rest of Rs.4,627/- was lying pending prior to taking charge of the said post by the petitioner. After disbursement of the said amount, the concerned Junior Engineers have performed the entire works and thereafter, all the invoices, measurement entered in the measurement books etc. have been entered in the cash books of the month of July, 2008, September, 2008 and December, 2008, but, surprisingly said amount was not adjusted for the reasons best known to respondent no.4. The petitioner time and again requested the authority concerned to adjust the entire amount forthwith. The petitioner submitted representations on 18.11.2010 before the Deputy Secretary, Road Construction Department, Government of Jharkhand giving therein the details of the fact with a request to forthwith adjust the entire amount. The Executive Engineer also made a communication to the Deputy Secretary, whereby the entire aspect was discussed on the basis of a joint inquiry report submitted by the inquiry committee. The Executive Engineer also made a communication to the Deputy Secretary, whereby the entire aspect was discussed on the basis of a joint inquiry report submitted by the inquiry committee. The entire work for money was discussed which has already been performed and completed. The said statement also confirms the progress report submitted by the Road Division, Dumka. From perusal of the communication dated 23.12.2010, it is quite apparent that no Government money has been lying pending against the petitioner and the amount has already been disbursed. The respondent no.4 issued a letter dated 16.03.2011, whereby a sum of Rs.5,50,000/- has been shown pending by way of temporary advance arrangement against the petitioner and petitioner has been directed to deposit the said amount. On receipt of the communication dated 16.03.2011, the petitioner submitted a protest specifically stating that no temporary advance amount is pending against her and again vide communication dated 15.06.2011 the petitioner was asked explanations to state reasons as to why the amount has not been adjusted. The petitioner submitted reply to the show cause denying all the allegations clarifying her position. Thereafter, respondent no.3 vide communication dated 22.07.2011 directed the petitioner to deposit a sum of Rs.5,50,000/- within a week otherwise legal action would be taken against her. On receipt of the said communication, the petitioner submitted representations requesting therein to adjust the entire amount, but, to the utter dismay, order was passed on 19.03.2012 directing the petitioner to deposit a sum of Rs.5,50,000/- for recovery of Rs.15,000/- per month from the salary. Being aggrieved by the impugned order dated 19.03.2012, left with no alternative, efficacious and speedy remedy, the petitioner has approached this Court under Article 226 of the Constitution of India, invoking extraordinary jurisdiction of this Court for redressal of her grievance. 3. Mr. Saurabh Shekhar, learned counsel appearing for the petitioner has submitted with vehemence that the petitioner has suffered due to arbitrary and illegal action of the respondent no.4, since the amount has not been adjusted, which is quite apparent from the communication dated 23.12.2010 as contained in Memo no.1884 addressed to the Deputy Secretary, Road Construction Department, Government of Jharkhand. Mr. Saurabh Shekhar, learned counsel appearing for the petitioner has submitted with vehemence that the petitioner has suffered due to arbitrary and illegal action of the respondent no.4, since the amount has not been adjusted, which is quite apparent from the communication dated 23.12.2010 as contained in Memo no.1884 addressed to the Deputy Secretary, Road Construction Department, Government of Jharkhand. Learned counsel appearing for the petitioner further submits that the petitioner has become a victim and scapegoat, since no action has been taken against the predecessor in the office of respondent no.4 by respondent no.2 and thus the action of the respondent authority is highly arbitrary and illegal. 4. Per contra, a counter affidavit has been filed on behalf of respondents controverting the assertions made in the writ application. In the counter affidavit, it has been submitted that while the petitioner was working as Assistant Engineer, Deoghar for execution of the work, the petitioner was given temporary advance of Rs.5,50,000/-. As per the rules, the accounts of expenditure for work done must have been submitted by 31.03.2009, but the Assistant Engineer submitted accounts for a total expenditure of Rs.5,50,000/- on 13.07.2011, out of which amount of Rs.4.25 lakhs had been passed by the then Executive Engineer, Sri Santosh Kumar Singh that too by back dating, passing the accounts and not adjusting the advance by the Executive Engineer is suspicious. Account for expenditure of balance One lakh has not been passed by the then Executive Engineer. The account has not been surrendered by the petitioner as per Annexure-A series to the counter affidavit and the vouchers submitted by the petitioner have been found suspicious and irregular by the Superintending Engineer, Road Circle, Dumka as per Annexure-B to the counter affidavit. It has further been submitted that in Bihar Financial Rule, Part-1, Rule 131(f) that it is against the rule to divide a work/supply into many smaller parts of the works without taking approval of higher authorities. It is further submitted that as per Bihar Public Account Code, Rule 85 and 86, every voucher must bear a pay order signed and dated by the responsible disbursing officer and the amount payable must be written both in figures and words. It has further been submitted that since it is a matter of accounts involving money, the matter was finally examined by Account Officer, deputed in R.C.D, Jharkhand, Ranchi. It has further been submitted that since it is a matter of accounts involving money, the matter was finally examined by Account Officer, deputed in R.C.D, Jharkhand, Ranchi. He found all the vouchers submitted by the petitioner in account irregular and inadmissible as per Annexure-F to the counter affidavit, hence the recovery of Rs.5,50,000/- is justified. 5. Heard Mr. Saurabh Shekhar, learned counsel appearing for the petitioner as well as Mr. Deepak Dubey, J.C to S.C.-II, appearing for the respondents. 6. During course of argument, learned counsel for the petitioner has referred to the decision of the Hon’ble Apex Court reported in (2013) 6 SCC 530 (Chairman, Life Insurance Corporation of India and Ors. vs. A. Masilamani) wherein, at paragraph 19, it has been held as under :- “19. The word “consider” is of great significance. The dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order. (Vide Indian Oil Corp. Ltd. v. Santosh Kumar and Bhikhubhai Vithlabhai Patel v. State of Gujarat).” 7. Learned counsel for the petitioner further submits that the subsequent affidavit have no relevance, when the same points have not been taken in the impugned order. In this respect, learned counsel for the petitioner has referred to the decision rendered in the case of Mohinder Singh Gill and Anr. vs. The Chief Election Commissioner, New Delhi and Ors., reported in (1978) 1 SCC 405 wherein, at paragraph 8, it has been held as under :- “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of challenge, get validated by additional grounds later brought out. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji :- Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older.” 8. As against the submission of learned counsel for the petitioner, learned counsel for the respondents has submitted that there is no infirmity/illegality in the impugned order dated 19.03.2012. 9. Orders are not like old wine becoming better as they grow older.” 8. As against the submission of learned counsel for the petitioner, learned counsel for the respondents has submitted that there is no infirmity/illegality in the impugned order dated 19.03.2012. 9. After hearing learned counsel for the respective parties and on perusal of the records, I am of the considered view that the detailed show cause reply, which has been filed by the petitioner on 01.07.2011, vide Annexure-8 to the writ application, has not been taken into consideration by the respondents while passing the impugned orders dated 23.12.2010 and 19.03.2012 without complying the Rule 55 A of the Jharkhand Civil Services (C.C. & A.) Rules, which reads as under :- “55-A. without prejudice to the provisions of rule 55, no order imposing the penalty specified in clauses (i), (ii) or (iv) of rule 49 (other than an order based on facts which led to his conviction in a Criminal Court or by a Court-Martial, or an order superseding him for promotion to a higher post on the ground of his unfitness for that post) on any Government servant to whom these rules are applicable shall be passed unless he has been given an adequate opportunity of making any representation that he may desire to make and such representation, if any, has been taken into consideration before the order is passed.” Since, the impugned orders have been passed de hors of the aforesaid provisions, the same are hereby quashed and set aside and the respondents are directed to consider the case de novo after taking into consideration the show cause reply submitted by the petitioner vide Annexure-8 to the writ application, in compliance of Rule 55-A of the Jharkhand Civil Services (C.C. & A.) Rules and pass a reasoned and speaking order within a period of twelve weeks from the date of receipt/communication of the copy of the order. 10. With the aforesaid observations and directions, the writ petition stands, disposed of.