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2019 DIGILAW 1411 (JHR)

Akhileshwar Lal v. State of Jharkhand

2019-08-09

S.N.PATHAK

body2019
ORDER : 1. Heard the parties. 2. Petitioner has approached this Court with following prayers:- (I) To quash and set aside the penalty order contained in Notification dated 25.07.2018 (Annexure-10), issued by respondent No. 3, whereby 5% pension of the petitioner has been withheld for five years. (II) To quash and set aside the part of the second enquiry report dated 23.02.2017 (Annexure-7), whereby charge Nos. 1, 3 and 6 have been held to be proved. (III) To quash and set aside the notification dated 09.09.2016 (Annexure-5), issued by respondent No. 2, where a de novo enquiry was ordered to be conducted without following the procedure established by law. (IV) To direct the respondents to pay all consequential benefits to the petitioner. 3. The facts of the case lies in a narrow compass. The petitioner was appointed on 01.08.1983 to the post of Forester in the Forest Department of the unified State of Bihar. In the year 1999, he was promoted to the post of Range Forest Officer. On 15.11.2000, in view of provisions enshrined in the Bihar Re2 organization Act, 2000, the services of the petitioner was allocated to the newly created State of Jharkhand. On 04.05.2013, while the petitioner was posted as Range Forest Officer, Mahuadanr Range, Palamu, charge was framed against the petitioner vide memo No. 1958 dated 04.05.2013 and the same was communicated to the petitioner by letter dated 24.05.2013. The petitioner submitted reply to the said memo vide letter dated 17.06.2013, denying the charges levelled against him. Thereafter, the Enquiry Officer conducted departmental proceeding and on 29.11.2013, submitted his enquiry report, in which out of seven charges, only charge No. 6 was held to be proved against the petitioner. However, till the date of petitioner’s retirement i.e. 31.03.2016 no decision was taken by the respondent-authorities, in response to the enquiry report, and after his retirement, vide notification dated 31.05.2016, the respondents informed the petitioner that the proceeding pending against the petitioner was converted into a proceeding under Rule 43(b) of the Jharkhand Pension Rules, 2000 and vide notification dated 09.09.2016, a de novo enquiry was ordered against the petitioner by appointing a different Enquiry Officer. The petitioner submitted reply on 21.12.2016 to the said notification dated 09.09.2016 and thereafter, a second enquiry report was submitted on 23.02.2017, by the Second Enquiry Officer, in which, out of seven charges, three charges i.e. charge Nos. The petitioner submitted reply on 21.12.2016 to the said notification dated 09.09.2016 and thereafter, a second enquiry report was submitted on 23.02.2017, by the Second Enquiry Officer, in which, out of seven charges, three charges i.e. charge Nos. 1, 3 and 6 are held to be proved against the petitioner. Thereafter, second show-cause notice was issued to this petitioner vide letter dated 07.12.2017 to which the petitioner submitted his reply on 14.05.2018. Thereafter, impugned penalty order was passed vide notification dated 25.07.2018, whereby, 5% pension of the petitioner has been ordered to be withheld for five years. Aggrieved by the said penalty order, petitioner has knocked the door of this Court by filing the instant writ petition. 4. Mr. Anshuman Kumar, learned counsel appearing for the petitioner submits that the impugned penalty order is absolutely illegal, arbitrary and unconstitutional and in colourable exercise of power and hence, the same deserves to be quashed and set aside by this Court. Learned counsel further submits that the second enquiry order dated 09.09.2016, is also absolutely illegal and arbitrary inasmuch as such decision was taken without following the procedure of law. Learned counsel further submits that no reasons of difference were ever supplied to this petitioner before passing the decision contained in notification dated 09.09.2016, whereby a de novo enquiry was ordered to be constituted against the petitioner by appointing another Enquiry Officer. This, therefore, has violated the principles of audi alteram partem and on this count alone, the impugned orders are fit to be quashed and set aside by this Court. Learned counsel further argues that not a single witness was ever examined by the respondents to prove the charges levelled against the petitioner and merely by producing the documents, the charges have been held to be proved in the second enquiry report. It is well settled law that mere production of documents is not sufficient to prove the charges and the prosecution has to prove a charge in the departmental proceeding after tendering concerned witnesses and not otherwise. Learned counsel further argues that no finding has been recorded by any of the authorities that the petitioner has caused pecuniary loss of even a single penny and further, no serious misconduct has been proved against the petitioner during the course of departmental proceeding. Learned counsel further argues that no finding has been recorded by any of the authorities that the petitioner has caused pecuniary loss of even a single penny and further, no serious misconduct has been proved against the petitioner during the course of departmental proceeding. Summing-up his arguments, learned counsel submits that the respondents were pre-determined to prove the charges and thereby to punish the petitioner ignored the materials available on record. The impugned order of penalty is absolutely cryptic and without application of mind inasmuch as none of the points raised by the petitioner in his reply have been considered in right perspective. 5. Mrs. Chandra Prabha, learned SC-I appearing for the respondent-State justifies the impugned orders. It has been submitted by learned counsel for the respondents that the petitioner was provided reasonable opportunity to defend his case during the enquiry process and the quantum of punishment was imposed after due consideration of facts and circumstances of the case. Learned counsel further argues that after retirement, deduction from pension is the only penalty possible for any serious wrong doing by a delinquent employee and as such, since the charges were proved, the said penalty was rightly imposed upon the petitioner. Learned counsel further submits that absence of witnesses in the departmental proceeding does not necessarily vitiate the enquiry process. The punishment awarded to the petitioner is just, equitable and proportionate to the gravity of charges proved against him in the enquiry report. Learned counsel lastly submits that in view of the facts and circumstances stated above, the instant writ petition is devoid of any merit and therefore, liable to be dismissed at the outset. 6. Be that as it may having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration. Admittedly, before taking a decision for appointing another Enquiry Officer, no opportunity was given to the petitioner. The law is well settled that in case of difference of opinion with the Enquiry Officer, Disciplinary Authority, after assigning reason, can order for a further enquiry and not for a fresh enquiry. 7. Admittedly, before taking a decision for appointing another Enquiry Officer, no opportunity was given to the petitioner. The law is well settled that in case of difference of opinion with the Enquiry Officer, Disciplinary Authority, after assigning reason, can order for a further enquiry and not for a fresh enquiry. 7. The Hon’ble Apex Court in case of K. R. Deb vs. Collector Of Central Excise, AIR 1971 SC 1447 , has held that “if there is some difficulty in the inquiry conducted by the Investigating Officer, the disciplinary authority can direct the Enquiry Officer to conduct further inquiries in respect of that matter but it cannot direct for fresh inquiry to be conducted by some other Enquiry Officer.” The Hon’ble Apex Court in case of Nand Kumar Verma vs. State of Jharkhand, (2012) 3 SCC 580 has held that: “On General Principles, there can be only one enquiry in respect of a charge for a particular misconduct and that is also what the rules usually provide. If, for some technical or other good ground, procedural or otherwise, the first enquiry or punishment or exoneration is found bad in law, there is no principle that a second enquiry cannot be initiated. Therefore, when a completed enquiry proceedings is set aside by a competent forum on a technical or on the ground of procedural infirmity, fresh proceedings on the same charges is permissible.” Further, the Hon’ble Apex Court in case of Union of India vs. K.D. Pandey, (2002) 10 SCC 471 has held as under: “5. Learned counsel for the appellant contended that in this case the Board had examined the material on record and come to the conclusion that four of the six charges could be proved on the available material, which has not been properly examined in the earlier inquiry. In fact from the order made by the Railway Board as well as from that part of the file where the inquiry made earlier is discussed, it is clear that specific findings have been given in respect of each of the charges after discussing the matter and, if that is so, we fail to understand as to how there could have been a remit to the inquiry authority for further inquiry. Indeed this resulted in second inquiry and not a further inquiry on the same set of charges and the material on record. Indeed this resulted in second inquiry and not a further inquiry on the same set of charges and the material on record. If this process is allowed the inquiries can go on perpetually until the view of the inquiry authority is in accord with that of the disciplinary authority and it would be abuse of the process of law. In that view of the matter, we think that the order made by the High Court affirming the order of the Tribunal is just and proper and, therefore, we decline to interfere with the same. The appeal is dismissed accordingly.” 8. Even from perusal of the charges levelled against the petitioner, it appears that none of the charges were regarding pecuniary loss caused to the State Exchequer. After retirement of the petitioner, without following the procedure of law, there was no justification in withholding 5% pension of the petitioner and that also for 5 years, as there was no loss to the State Exchequer. Neither principle of nature of justice was followed nor was there any allegation of grave misconduct inasmuch as, petitioner was exonerated in all the charges, save and except charge No. 6, which was for dereliction of duty. 9. As a sequel to the aforesaid observations, rules, guidelines, judicial pronouncements, the penalty order dated 25.07.2018 (Annexure-10) and notification dated 09.09.2016 (Annexure-5) regarding de novo enquiry, are hereby quashed and set aside, on the following grounds:- (I) There was no occasion for conducting a de novo and second enquiry as without assigning any reason for deferring with the first enquiry report, the disciplinary authority had ordered for second enquiry, which is impermissible in law, as after deferring with enquiry report and following the principle of natural justice, a further enquiry could have been initiated and not a fresh enquiry. (II) There was no loss to the State Exchequer neither the charges have been proved in the enquiry report regarding loss to the State Exchequer. (III) The deduction from pension is permissible only when there is loss to the State Exchequer and in the present case, there is no finding of grave misconduct. (IV) There has been complete violation of principle of audi alteram partem. 10. In view of quashment of the impugned orders, the petitioner is entitled for all consequential benefits. 11. Resultantly, the writ petition stands allowed.