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2017 DIGILAW 64 (JHR)

Sheo Prasad Das v. State of Jharkhand

2017-01-10

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. 1. In the accompanied writ application, the petitioner has inter alia prayed for quashing punishment order as contained in memo dated 22.07.2014, whereby full pension of the petitioner has been withheld and further for direction upon the respondents to pay the entire retirement benefits including the pension to the petitioner. 2. The brief facts, as disclosed in the writ application, is that petitioner was an officer of Jharkhand Education Service and retired on 30.09.2013 holding the post of District Superintendent of Education, Dhanbad. While the petitioner was in service, three different departmental proceedings were initiated against the petitioner for different charges, which resulted in passing of common impugned order dated 22.07.2014, whereby full pension of the petitioner has been withheld, purportedly under Rule 43(b) of the Pension Rule. In the first departmental proceeding, it is alleged that the petitioner was arrested on the charge of receiving bribe of Rs. 9500/-, for which, a criminal case being Vigilance P.S. Case No. 15 of 2006 has been lodged but till date no charge-sheet has been submitted in that case. Charges in the second departmental proceeding speaks that the petitioner committed irregularities in transfer and posting of teachers and demanded illegal amount for revoking the suspension order of headmaster. The charges in the third departmental proceeding that the petitioner by putting pressuring upon the students collected Rs. 10/- from each students for identity cards and further while organizing a book fair directed the headmasters of the school to purchase books from only book seller known as “Vidhi Books”. 3. Learned counsel for the petitioner assailed the impugned order of punishment on the ground that enquiry report in none of the three departmental proceedings was supplied to the petitioner prior to infliction of impugned order dated 22.07.2014, which caused great prejudice to the petitioner. It has further been submitted that not a single witness has been examined in the departmental proceeding to prove the charges. Learned counsel submitted with vehemence that impugned punishment is not in commensurate with Rule 55 (A) of the Civil Services (Classification, Control and Appeal) Rules, 1930 as from perusal of impugned order, it is manifest that there has no consideration of petitioner’s show cause at all nor reason has been assigned for rejecting the same. Learned counsel submitted with vehemence that impugned punishment is not in commensurate with Rule 55 (A) of the Civil Services (Classification, Control and Appeal) Rules, 1930 as from perusal of impugned order, it is manifest that there has no consideration of petitioner’s show cause at all nor reason has been assigned for rejecting the same. Learned counsel for the petitioner further submits that neither there is pecuniary loss to the Government nor there is grave misconduct or negligence on the part of the petitioner, hence, the impugned punishment of withholding of full pension in the teeth of provisions as enshrined in Rule 43 (b) of the Jharkhand Pension Rules. Learned counsel for the petitioner further submitted that in view of the above submissions, withholding of pension is violative of Article 300A of the Constitution of India. Referring to Rule 4 in particular Rule 4 (6) of the Payment of Gratuity Act, 1972, learned counsel for the petitioner submitted that there is penalty on non-payment/delay of payment of gratuity. 4. In support of his case, learned counsel for the petitioner referred to the decision rendered in the case of Roop Singh Negi Vs. Punjab National Bank & Ors. as reported in (2009) 2 SCC 570 and further in the case of Ran Vijay Prasad Yadav Vs. State of Jharkhand & Ors. as reported in (2006) 3 JCR 330 . 5. Controverting the averments made in the writ application, learned counsel for the respondents-State submitted that the impugned order has been passed in adherence to the principles of natural justice and it is not the case where enquiry report was not supplied to the petitioner. Since in continuance of the departmental proceedings, the petitioner retired, the proceeding under Rule 43(b) was initiated and in view of the proved charges just punishment has been awarded. 6. Having heard learned counsel for the parties at length and on perusal of the record, I am of the considered view that the petitioner has been able to make out a case for interference in impugned order dated 22.07.2014 for the following facts, reasons and judicial pronouncements: (i).Based on different charges, three departmental proceeding were initiated against the petitioner, which culminated in passing of common impugned order dated 22.07.2014 whereby full pension of the petitioner has been withheld under Rule 43 (b) of the Jharkhand Pension Rules. But, before passing such major punishment, no enquiry report was submitted so as to enable the delinquent to put forth his defence against the evidence staring against him, which rendered the impugned order of punishment vulnerable on the cardinal principal of natural justice. However, it is alleged that when the petitioner made a request, the enquiry report was supplied to the petitioner on 21.09.2014 but that is much after passing of impugned order, and without supplying the foundational documents i.e. enquiry report, the respondents by seeking reply/second show reply has added insult to injury and hence, it is nothing but miscarriage of justice. The Hon’ble Apex Court has time and again has held in unequivocal terms that non-furnishing of enquiry report would amount to violation of natural justice. Few of such decisions are reported in the case of Union of India & Ors Vs. Md. Ramzan Khan as reported in (1991) 1 SCC 588 and Managing Director, ECIL, Hyderabad & Ors Vs. B. Karunakar & Ors as reported in (1993) 4 SCC 727 . (ii).Generally, when the charges levelled against the delinquent in a departmental proceeding vis-à-vis a criminal case are similar, it is desirable that the disciplinary authority should await till the outcome of a criminal case but in the case that principle has not been followed, however, it is alleged that in the criminal case even after one decade no charge-sheet has been served. (iii).Be that as it may be, the petitioner has now retired and impugned punishment has been passed under Rule 43(b) of the Pension Rules though not in its true spirit. (iv).Though, the scope of judicial review is very limited, but, in the case at hand, in view of the discussions made in the preceding paragraphs, the case of the petitioner falls under the scope and ambit of doctrine of proportionality. Although, it is the exclusive domain of the disciplinary authority to award punishment as per the charges and the delinquency but looking at the factual position in the case at hand, it appears gross prejudice has been caused in awarding such punishment. The Hon’ble Apex Court in the case of Chairman-cum-Managing Director, Coal India Ltd & Anr. Vs. Mukul Kumar Choudhuri & Ors as reported in (2009) 15 SCC 620 has held that the doctrine of proportionality is thus well-recognized concept of judicial review in our jurisprudence. 7. The Hon’ble Apex Court in the case of Chairman-cum-Managing Director, Coal India Ltd & Anr. Vs. Mukul Kumar Choudhuri & Ors as reported in (2009) 15 SCC 620 has held that the doctrine of proportionality is thus well-recognized concept of judicial review in our jurisprudence. 7. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, the impugned order dated 22.07.2014, whereby full pension of the petitioner has been withheld, is hereby quashed and set aside and matter is remitted back to the disciplinary authority to pass fresh order on the quantum of punishment taking into consideration the observations made by this Court in the preceding paragraphs within a period of eight weeks from the date of receipt/production of copy of this order. 8. With the aforesaid observations and directions, the writ petition stands disposed of. Petition disposed of.