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2018 DIGILAW 1119 (JHR)

Niranjan Roy v. Jharkhand State Electricity Board

2018-05-15

PRAMATH PATNAIK

body2018
JUDGMENT Pramath Patnaik, J. – In the instant writ application, the petitioner has inter alia prayed for issuance of writ of certiorari for quashing the Resolution no.2616 dated 23.05.2005 (Annexure-7) issued by the respondent no.4 whereby a decision has been taken to recover Rs.1.90 lakh in twenty installments from the monthly salary of the petitioner and further to make entry of Misconduct in the confidential record of the petitioner. 2. Shorn of unnecessary details, the brief facts, as has been described in the writ application, is that petitioner joined his services on the post of Director (Accounts), Bihar State Electricity Board, Patna in the year 1992. Thereafter, he was transferred to the Jharkhand State Electricity Board vide notification dated 25.04.2002 and was appointed as Member Finance in the year 2003. While continuing as such, a Preliminary Investigation Committee was constituted for fixing responsibility of delay of payment of Rs.1,70,180/- to procure the Modernized Inhaul Beet Marshalling. The petitioner was asked to file show cause. It has been averred in the writ application that the petitioner was not given opportunity before the liability was fixed and finally the impugned order has been passed by the respondent authority basing on the preliminary investigation. 3. Learned counsel for the petitioner has vehemently submitted that the impugned order is not legally sustainable because no departmental proceeding was initiated nor in the preliminary investigation the petitioner was given opportunity of hearing. In the meantime, the petitioner has retired on attaining the age of superannuation i.e. 31.12.2009. Learned counsel for the petitioner submits that the impugned order vide Annexure-7 to the writ application is not legally sustainable, in breach of principles of natural justice and in the absence of full-fledged departmental enquiry, the said order is liable to be interfered with. 4. Counter affidavit has been filed by the respondents controverting the averments made in the writ application. Though contention made in the writ application has been controverted in the counter affidavit but the learned counsel for the respondents does not dispute the contention that no departmental proceeding was initiated to come to a conclusive finding as to the involvement of the petitioner in the alleged recovered amount. 5. Though contention made in the writ application has been controverted in the counter affidavit but the learned counsel for the respondents does not dispute the contention that no departmental proceeding was initiated to come to a conclusive finding as to the involvement of the petitioner in the alleged recovered amount. 5. While defending the impugned order the learned counsel for the respondents has referred to the supplementary counter affidavit of the respondent-JSEB now JUVNL, wherein it has been submitted that the notesheets of the enquiry officer, which has been submitted against the petitioner, shows that the evidence has been taken into consideration by the authority, as evident from Annexure-A series. 6. Learned counsel for the petitioner has referred to para 5 of the rejoinder to the supplementary counter affidavit, wherein it has been submitted that no such departmental proceeding has been initiated against the petitioner nor he was supplied any documents to file show cause. 7. Having heard learned counsel for the respective parties and on perusal of the record, this Court is of the considered view that the impugned order passed vide Resolution no.2616 dated 23.05.2005 (Annexure-7) is liable to be interfered with, due to the following facts and reasons: (I) Undisputedly, the impugned order has been passed by the respondents without holding any departmental proceeding nor show cause of any charge sheet and only on the basis of a preliminary enquiry, impugned order of punishment of recovery of the aforesaid amount has been passed. Law is well settled that culpability of an employee cannot be fastened basing on the preliminary enquiry without any full-fledged departmental enquiry. In view of the fact since no departmental proceeding was initiated against the petitioner while coming to the conclusive finding, as to the culpability of the petitioner, the impugned order being not legally sustainable, is liable to be interfered with. Therefore, without delving into the other aspect of the matter, it would be in the interest of justice to remit the matter to the competent authority for deciding the matter afresh. 8. As a logical sequitur to the aforesaid reasons, the impugned order dated 23.05.2005, Annexure-7 to the writ application, is quashed and set aside and the matter is remitted to the respondents to pass an order in accordance with law, as expeditiously as possible, preferably within a period of four months from the date of receipt/communication of the order. 9. 8. As a logical sequitur to the aforesaid reasons, the impugned order dated 23.05.2005, Annexure-7 to the writ application, is quashed and set aside and the matter is remitted to the respondents to pass an order in accordance with law, as expeditiously as possible, preferably within a period of four months from the date of receipt/communication of the order. 9. With the aforesaid direction, the writ petition stands allowed.