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2020 DIGILAW 1159 (JHR)

Feku Ram v. State of Jharkhand

2020-12-10

SANJAY KUMAR DWIVEDI

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JUDGMENT : 1. Heard Mr. Kumar Shivam, learned counsel for the petitioner and Mr. Anshuman Kumar, learned counsel for the respondents-State. 2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard. 3. A preliminary objection has been taken in this case at the first instance wherein it has been stated that appeal will lie in view of Rule 25(ii) of Jharkhand Government Servant (Classification, Control and Appeal) Rules, 2016. Pursuant to that objection, the Court directed to produce the file of punishment relating to the petitioner to know how the file of the petitioner moved. The file was produced whereby it transpired that the punishment order has been passed by the Departmental Minister who was happened to the Chief Minister on that time and in view of this admitted facts, both the parties agreed that appeal will not lie and this fact has been recorded in the order dated 26.11.2020 and thereafter matter has been posted for hearing. 4. The petitioner has preferred this writ petition for quashing the order dated 28.06.2019 contained in Annexure-6 whereby punishment order has been passed against the petitioner. The petitioner was appointed on the post of Mines Inspector on 10.09.1979 and after completion of service for about more than nine years, promoted on the post of Assistant Mining Officer. The petitioner’s services has been affirmed on the promotional post on 28.04.1988. The petitioner was allotted State of Jharkhand after bifurcation of State of Bihar and was posted as District Mining Officer at the time of his retirement. The petitioner was made accused in connection with Pakur (Town) P.S. Case No.117 of 1999. The prosecution was sanctioned against the petitioner. The petitioner was served with charge sheet on 09.03.2011. The petitioner replied to the said charge sheet and departmental proceeding was started but the same was not concluded till the date of superannuation of the petitioner. The petitioner retired on 31.01.2017. Enquiry report along with second show cause was served to the petitioner. The petitioner replied to the second show cause. The petitioner replied to the said charge sheet and departmental proceeding was started but the same was not concluded till the date of superannuation of the petitioner. The petitioner retired on 31.01.2017. Enquiry report along with second show cause was served to the petitioner. The petitioner replied to the second show cause. The charges levelled against the petitioner and enquiry report have been proved and after superannuation of the petitioner, the punishment order dated 28.06.2019 has been passed under Rule 43(b) of Jharkhand Pension Rules whereby 25% of the pension was directed to be deducted till ten years from his pension. Aggrieved with this, the petitioner has filed this writ petition. 5. Mr. Kumar Shivam, learned counsel for the petitioner addressed the Court to the enquiry report and submits that not a single witness has been examined and only on the basis of F.I.R., the enquiry report has been submitted which is not permissible in the eye of law. To buttress his argument, he relied on the judgment in the case of Roop Singh Negi Versus Punjab National Bank & Others reported in (2009) 2 SCC 570 particularly para 23 which is quoted hereinbelow:- “23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.” 6. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.” 6. He further submits that Rule 43(b) of the pension rule has been wrongly invoked and parameters of that rule has not been applied. He submits that without coming to any conclusion, the said order has been passed. He further submits that opportunity of hearing should be provided to the petitioner before passing of such order under Rule 43(b) but this has not been happened. To buttress his argument, he relied on the judgment in the case of Rai Dular Singh Versus State of Jharkhand & Others reported in 2010 SCC OnLine Jhar 591 particularly para 30 which is quoted hereinbelow:- “It may be observed that the provisions of Rule 43(b) of the Pension Rules are aimed at punishing a Government servant, who has done wrong, in a different way because after retirement, the penalties, major or minor, cannot be imposed upon him which could have been imposed under the provisions of the Classification, Control and Appeal Rules, had he been in service. Therefore, even as per the proviso to Rule 43(b) of the Pension Rules, before imposing the punishment of withholding the pension amount, mandatory procedure as envisaged in Rule 55 of the Civil Services (Classification, Control and Appeal) Rules has to be followed. It would therefore be incumbent upon the disciplinary authority of the Government servant not only to give him an opportunity to explain as to why the proposed punishment of withholding the pension should not be made but also serving him a copy of the Enquiry Report in which the findings of proof of his alleged misconduct as well as findings that his act of misconduct has caused pecuniary loss to the State Exchequer and the assessment of the amount of such loss sought to be recovered, has also to be served upon the Government servant/pensioner. It may also be observed that where the powers under Rule 43(b) of the Pension Rules is claimed to have been exercised by the concerned authority, it implies that there is no question of applicability of Rule 139 of the Pension Rules which would otherwise have given the concerned authorities a wide area of discretion.” 7. It may also be observed that where the powers under Rule 43(b) of the Pension Rules is claimed to have been exercised by the concerned authority, it implies that there is no question of applicability of Rule 139 of the Pension Rules which would otherwise have given the concerned authorities a wide area of discretion.” 7. He further submits that the High Court can interfere under Article 226 of Constitution of India if there is violation of principle of natural justice in conducting the proceeding and if the authorities influenced by any irrelevant considerations extraneous to the evidence. To buttress his argument, he relied on the judgment reported in the case of Union of India & Others Versus P. Gunasekaran reported in (2015) 2 SCC 610 particularly 12 and 20 which is quoted hereinbelow:- 12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: (a) the enquiry is held by a competent authority; (b) the enquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i) the finding of fact is based on no evidence. 20. 20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Articles 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford Dictionary is “moral uprightness; honesty”. It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence, etc. In short, it depicts sterling character with firm adherence to a code of moral values. 8. He submits that so far grievance of criminal case is concerned that has not been concluded as the petitioner has filed Criminal Revision No.1267 of 2018 and the High Court has granted interim relief to the petitioner and accordingly the criminal case is still pending. 9. Mr. Anshuman Kumar, learned counsel for the respondents-State submits that ground has taken in the counter affidavit with regard to appeal that has already been settled in view of earlier order dated 21.10.2020. He submits that the petitioner has been punished and thereafter departmental proceeding has been initiated. In the departmental proceeding, there is no illegality and the petitioner has been given full opportunity of hearing and thereafter enquiry report has been submitted. He further submits that Rule 43(b) has been rightly invoked considering that there are charges against the petitioner and in view of the fact that departmental proceeding has not been concluded before the retirement of the petitioner. 10. Having heard learned counsel for the parties at length, the Court has perused the materials available on record. On perusal of the enquiry report, it transpires that not even a single witness was examined in the enquiry proceeding to bring the charges at home. For coming to conclusion in the enquiry report, F.I.R. is the main basis to come to the finding by the enquiry officer against the petitioner. In that view of the matter, the case of the petitioner is fully covered in view of the judgment Roop Singh Negi (supra). For coming to conclusion in the enquiry report, F.I.R. is the main basis to come to the finding by the enquiry officer against the petitioner. In that view of the matter, the case of the petitioner is fully covered in view of the judgment Roop Singh Negi (supra). So far the Rule 43(b) is concerned it is condition precedents before invoking Rule 43(b), Government is required to give a specific finding to the loss that has been done. This is absent in the case in hand. In that view of the matter, Rule 43(b) has not been complied with. In Rule 43(b), hearing is required that has not been in the case at hand. So far as the judgment relied by the learned counsel for the petitioner in the case of Union of India & Others Versus P. Gunasekaran (supra) is concerned, it is well settled proposition of law for interference under Article 226 of Constitution of India. 11. As a cumulative effect of the above discussion, the impugned order cannot sustain in the eye of law. Accordingly, order dated 28.06.2019 contained in Annexure-6, is quashed. A criminal case is still pending. The Government is at liberty to assess afresh after conclusion of criminal case as to whether recovery is required from the petitioner or not. If the Government comes to conclusion that recovery is required from the petitioner, after completion of criminal proceeding, the Government may recover it in accordance with law. 12. Learned counsel for the petitioner submits that for two years recovery has already been done. In view of that the impugned order has been quashed, the respondent-State shall refund the recovered amount to the petitioner within a period of twelve weeks from the date of receipt/production of copy of this order.