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Jharkhand High Court · body

2022 DIGILAW 1093 (JHR)

Bifan Ram v. State of Jharkhand

2022-09-01

S.N.PATHAK

body2022
JUDGMENT : S.N. Pathak, J. Heard Mr. Jai Shanker Tripathi, learned counsel appearing for the petitioner and Mr. Ashish Kumar Shekhar, learned counsel appearing for the respondents. PRAYER 2. The writ petitioner has prayed for quashing notification dated 13.10.2010 (Annexure-1 to the writ petition) whereby and whereunder he has been dismissed from service whereas petitioner retired on 31.07.2010 itself. Petitioner has further prayed for a direction upon the respondents to give consequential benefits and payment of due salary for the period from 01.04.2005 till 31.07.2010 and also for a direction upon the respondents to give all dues as ACP, Gratuity, Pension, LIC. etc. FACTS OF THE CASE 3. As per factual matrix, petitioner was appointed as a Welfare Officer on 07.06.1974 and retired from the post of block Welfare Officer, Latehar on 31.07.2010. While posted at Chiniya Block, Barhwa in the year 2002 – 03 and 2003 – 04, petitioner had disbursed money to various NGOs through Cheque Book. It has been alleged that petitioner had misappropriated an amount of Rs.41,73,945.00/- relating to construction of Birsa Awas and as such he was dismissed from the service on 11.10.2010. A Certificate Case was lodged by the respondents on 17.09.2007 vide Letter No. 3129, Dated 26.12.2007. Simultaneously, petitioner was proceeded departmentally vide Letter No. 551, Dated 23.06.2008. It was stand of the petitioner that since he was not provided with relevant papers, he was not in a position to defend his case. Petitioner made several representations for payment of salary, increment but no heed was paid to the same. In the departmental proceeding, the enquiry officer found the petitioner guilty of the charges and as such, under Rule 55 of Civil Services (Classification, Control and Appeal) Rules, petitioner was dismissed from the service and under Rule 49(4) and 97 of the said Rule, it was directed to recover and adjust the amount from his salary and other benefits. Challenging the same, instant writ petition has been preferred by the petitioner. ARGUMENTS ADVANCED ON BEHALF OF THE PETITIONER 4. Mr. Jai Shanker Tripathi, learned Counsel appearing on behalf of the petitioner vociferously argued that petitioner has not committed any offence rather he has distributed the amount by cheque to the concerned NGOs and no amount has ever been defalcated. Challenging the same, instant writ petition has been preferred by the petitioner. ARGUMENTS ADVANCED ON BEHALF OF THE PETITIONER 4. Mr. Jai Shanker Tripathi, learned Counsel appearing on behalf of the petitioner vociferously argued that petitioner has not committed any offence rather he has distributed the amount by cheque to the concerned NGOs and no amount has ever been defalcated. Learned counsel further argued that in the departmental proceeding, no opportunity was given to the petitioner to place his case neither the concerned document was supplied for giving reply to the show-cause. The main arguments of learned counsel for the petitioner for quashing the impugned order is that order of dismissal has been issued after retirement of the petitioner, which is not sustainable in the eyes of law. ARGUMENTS ADVANCED ON BEHALF OF THE RESPONDENTS 5. Per contra counter affidavit has been filed. Justifying the impugned order, learned counsel appearing on behalf of the State submitted that in the departmental proceeding, sufficient opportunity was provided to the petitioner and proceeding was conducted in accordance with law and in compliance of principles of natural justice. Petitioner was even issued second show-cause notice but he failed to appear before the disciplinary authority and did not reply to the second show-cause and hence there was no option before the disciplinary authority other than passing the order of dismissal and for recovering the defalcated amount from the dues payable to the petitioner. It has further been argued that petitioner has been paid salary till 31.03.2009 and he is not entitled for salary for the periods 01.04.2009 till 31.07.2010 as also the benefits of ACP, Gratuity, Pension and LIC benefits. Petitioner, without preferring any appeal before the department, has rushed to this Court. Learned counsel appearing for the respondents however fairly submitted that petitioner has been paid amount towards P.F., as well as the salary for the period for which he was entitled. Learned counsel very cordially submitted that law is well settled that no order of dismissal can be issued after retirement. FINDINGS OF THE COURT 6. Learned counsel appearing for the respondents however fairly submitted that petitioner has been paid amount towards P.F., as well as the salary for the period for which he was entitled. Learned counsel very cordially submitted that law is well settled that no order of dismissal can be issued after retirement. FINDINGS OF THE COURT 6. Be that as it may, having gone through rival submission of the parties, this Court is of the considered view that no interference is warranted in the instant writ petition for the following facts and reasons: i. Admittedly departmental proceeding was initiated against the petitioner after framing of the charges on 16.05.2007, much prior to the retirement of the petitioner who superannuated on 31.07.2010. After giving ample opportunity to the petitioner following the procedures i.e. the issuance of show-cause notice and presentation of evidences by the presenting officer, petitioner was held guilty of the charges by the enquiry officer and thereafter issuance of second show-cause notice on the findings of the enquiry report and also notices as to why petitioner be not dismissed from the service on account of defalcation and misappropriation of huge amount of government money. In spite of repeated notices, petitioner did not reply and as such the disciplinary authority had no any other option other than to pass order of dismissal and to recover the amount misappropriated by the petitioner. From perusal of the record, it appears that all the charges against the petitioner were proved and petitioner was held guilty for misappropriation of Rs.42,34,465/-. ii. The issues involved in the present writ petition are a. Whether after superannuation of petitioner on 31.07.2010, the order of dismissal dated 11.10.2010, issued on 13.10.2010 vide Memo No. 2539, is at all sustainable in the eyes of law? b. Whether respondents were permitted to recover the amount from the gratuity and pensionary benefits of the petitioner? c. Whether petitioner is entitled for any pensionary benefits including the gratuity? d. Whether the High Court under Article 226 of the Constitution of India is justified in reappraisal of the evidences and interfering in the order of punishment when same has been proved. iii. The Hon’ble Apex Court in the case of SBI v. Ram Lal Bhaskar, (2011) 10 SCC 249 has clearly observed in paragraphs 12 and 13 as under: “12. iii. The Hon’ble Apex Court in the case of SBI v. Ram Lal Bhaskar, (2011) 10 SCC 249 has clearly observed in paragraphs 12 and 13 as under: “12. This Court has held in State of A.P. v. S. Sree Rama Rao [ AIR 1963 SC 1723 ] : (AIR pp. 1726-27, para 7) “7. … The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence.” 13. Thus, in a proceeding under Article 226 of the Constitution, the High Court does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not reappreciate the evidence and come to a different and independent finding on the evidence. This position of law has been reiterated in several decisions by this Court which we need not refer to, and yet by the impugned judgment the High Court has reappreciated the evidence and arrived at the conclusion that the findings recorded by the enquiry officer are not substantiated by any material on record and the allegations levelled against Respondent 1 do not constitute any misconduct and that Respondent 1 was not guilty of any misconduct.” Therefore, there is no quarrel to the proposition that the High Court should not interfere in the finding arrived in the departmental proceeding when the procedures have been followed and there is no violation of principles of natural justice. iv. iv. Now regarding the issue as to whether order of dismissal can be passed after retirement, the legal proposition is well settled that no proceeding can be initiated against the delinquent after retirement and the same is permissible only under the Pension Rules. Here, the said theory is not applicable though it was held in the case of Uco Bank Vs. Rajinder Lal Capoor reported in (2007) 6 SCC 694 that removal and dismissal from the service cannot be imposed upon an employee who already stood retired from the service. However, the same be initiated under the Pension Regulation. In the instant case, the disciplinary proceeding was started much prior to superannuation of the petitioner and as such the said legal proposition is not applicable in the present case as in the case of Uco Bank Vs. Rajinder Lal Capoor, the departmental proceeding was initiated after two years of his retirement. The issue fell for consideration before the Hon’ble Apex Court in the case of Uco Bank and others Vs. Prabhakar Sadashiv Karvade reported in (2018) 14 SCC 98 , Their Lordships were of the view that the order of dismissal or removal from the service can be passed only when the employee is in service. If a person is not in employment, the question of terminating his service ordinarily could not arise unless there exists specific rule in that behalf. It was further observed that the departmental inquiry initiated against the respondent before his retirement could be continued for a limited purpose for determining whether or not he is entitled for full pensionary benefits and gratuity. v. The Hon’ble Apex Court in its Constitutional Bench in the case of Chairman-cum-Managing Director, Mahanadi Coalfields Limited Vs. Rabindranath Choubey reported in (2020) 18 SCC 71 , considering the aforesaid aspects “Whether an order of dismissal can be passed after superannuation of an employee”, Their Lordships were of the view that “it would be against the public policy to permit an employee to go scot free after collecting various service benefits to which he is not entitled and the event of superannuation cannot come to his rescue and would amount to condonation of guilt”. It was held by the Hon’ble Court at paragraph-11, 12, 13, 14, 27, 30, 31, 32 and 44 as under: “11. It was held by the Hon’ble Court at paragraph-11, 12, 13, 14, 27, 30, 31, 32 and 44 as under: “11. Once it is held that a major penalty which includes the dismissal from service can be imposed, even after the employee has attained the age of superannuation and/or was permitted to retire on attaining the age of superannuation, provided the disciplinary proceedings were initiated while the employee was in service, sub-section (6) of Section 4 of the Payment of Gratuity Act shall be attracted and the amount of gratuity can be withheld till the disciplinary proceedings are concluded. 11.1. Even otherwise, Rule 34.3 of the CDA Rules permits withholding of the gratuity amount during the pendency of the disciplinary proceedings, for ordering the recovering from gratuity of the whole or part of any pecuniary loss caused to the company if have been guilty of offences/misconduct as mentioned in subsection (6) of Section 4 of the Payment of Gratuity Act, 1972 or to have caused pecuniary loss to the company by misconduct or negligence, during his service. It further makes clear that Rule 34.3 for withholding of such a gratuity would be subject to the provisions of Sections 7(3) and 7(3-A) of the Payment of Gratuity Act, 1972 in the event of delayed payment in the case of an employee who is fully exonerated. Rule 34.3 of the CDA Rules is in consonance with sub-section (6) of Section 4 of the Payment of Gratuity Act and there is no inconsistency between sub-section (6) of Section 4 of the Payment of Gratuity Act and Rule 34.3 of the CDA Rules. Therefore Section 14 of the Act which has been relied upon shall not be applicable as there is no inconsistency between the two provisions. 11.2. It is required to be noted that in the present case the disciplinary proceedings were initiated against the respondent employee for very serious allegations of misconduct alleging dishonestly causing coal stock shortages amounting to Rs 31.65 crores and thereby causing substantial loss to the employer. Therefore, if such a charge is proved and punishment of dismissal is given thereon, the provisions of sub-section (6) of Section 4 of the Payment of Gratuity Act would be attracted and it would be within the discretion of the appellant employer to forfeit the gratuity payable to the respondent. Therefore, if such a charge is proved and punishment of dismissal is given thereon, the provisions of sub-section (6) of Section 4 of the Payment of Gratuity Act would be attracted and it would be within the discretion of the appellant employer to forfeit the gratuity payable to the respondent. Therefore, the appellant employer has a right to withhold the payment of gratuity during the pendency of the disciplinary proceedings. 12. The second question for consideration is where departmental enquiry had been instituted against an employee while he was in service and continued after he attained the age of superannuation, whether the punishment of dismissal can be imposed on being found guilty of misconduct in view of the provisions made in Rule 34.2 of the CDA Rules. 13. Rule 34.2 of the CDA Rules provides in case disciplinary proceeding, if instituted while the employee was in service whether before his retirement or during his re-employment, such proceedings shall be continued and concluded by the authority by which it was commenced in the same manner as if an employee had continued in service. There is a deemed fiction created by the rule concerning the continuance of employee in service during the departmental proceeding. The legal fiction is required to be given a logical effect. 14. Rule 34.3 of the CDA Rules provides for withholding the payment of gratuity during the pendency of the disciplinary proceedings and provides for recovery from gratuity of the whole or part of any pecuniary loss caused to the employer in case of misconduct as provided in Section 4(6)(a) of the Payment of Gratuity Act, 1972. The gratuity can be wholly or partially forfeited as provided in Section 4(6)(b) in case he is found guilty, and services are terminated for disorderly misconduct or act of violence or offence involving moral turpitude committed during the course of employment. 27. In Ram Lal Bhaskar [SBI v. Ram Lal Bhaskar, (2011) 10 SCC 249 : (2012) 1 SCC (L&S) 402], the employee was in service when the inquiry was initiated. He was dismissed from service after attaining the age of superannuation. This Court considered the argument that the order of the appellate authority was illegal and without jurisdiction. The Rules provided that disciplinary proceedings could be continued in the same manner as if the officer continued to be in service. He was dismissed from service after attaining the age of superannuation. This Court considered the argument that the order of the appellate authority was illegal and without jurisdiction. The Rules provided that disciplinary proceedings could be continued in the same manner as if the officer continued to be in service. Thus, it was held that the employee was deemed to be in service for the continuance of proceedings. No merit was found in the submission that inquiry and order of dismissal passed after superannuation was illegal and without jurisdiction. The relevant discussion is extracted hereunder : (SCC pp. 252-53, paras 8-10) “8. The learned counsel for Respondent 1, on the other hand, supported the impugned order [Ramlal Bhaskar v. SBI, Writ-A No. 8415 of 2003, order dated 12-4-2006 (All)] of the High Court and submitted that there is no infirmity in the impugned order of the High Court. He further submitted that in any case Respondent 1 had retired from service on 31-1-2000, and though the charge-sheet was served on him on 22-12-1999 when he was still in service, the enquiry report was served on him by letter dated 28-9-2000 and he was dismissed from service on 15-5-2001 after he had retired from service. He submitted that after the retirement of Respondent 1, the appellant had no jurisdiction to continue with the enquiry against Respondent 1. In support of this contention, he cited the decision of this Court in [UCO Bank v. Rajinder Lal Capoor, (2007) 6 SCC 694 : (2007) 2 SCC (L&S) 550]. 9. We have perused the decision of this Court in [UCO Bank v. Rajinder Lal Capoor, (2007) 6 SCC 694 : (2007) 2 SCC (L&S) 550] and we find that in the facts of that case the delinquent officer had already superannuated on 1-11-1996 and the charge-sheet was issued after his superannuation on 13-11-1998 and this Court held that the delinquent officer having been allowed to superannuate, the charge-sheet, the enquiry report and the orders of the disciplinary authority and the appellate authority must be held to be illegal and without jurisdiction. In the facts of the present case, on the other hand, we find that the charge-sheet was issued on 22-12-1999 when Respondent 1 was in service and there were clear provisions in Rule 19(3) of the State Bank of India Officers Service Rules, 1992, that in case disciplinary proceedings under the relevant rules of service have been initiated against an officer before he ceased to be in the bank's service by the operation of, or by virtue of, any of the rules or the provisions of the Rules, the disciplinary proceedings may, at the discretion of the Managing Director, be continued and concluded by the authority by whom the proceedings were initiated in the manner provided for in the Rules as if the officer continues to be in service, so however, that he shall be deemed to be in service only for the purpose of the continuance and conclusion of such proceedings. 10. We may mention here that a similar provision was also relied on behalf of UCO Bank in [UCO Bank v. Rajinder Lal Capoor, (2007) 6 SCC 694 : (2007) 2 SCC (L&S) 550] in Regulation 20(3)(iii) of the UCO Bank Officer Employees' Service Regulations, 1979, but this Court held that the aforesaid regulation could be invoked only when the disciplinary proceedings had been initiated prior to the delinquent officer ceased to be in service. Thus, the aforesaid decision of this Court in [UCO Bank v. Rajinder Lal Capoor, (2007) 6 SCC 694 : (2007) 2 SCC (L&S) 550] does not support Respondent 1 and there is no merit in the contention of the counsel for Respondent 1 that the enquiry and the order of dismissal were illegal and without jurisdiction.” (emphasis supplied) In the instant case, Rule 34.2 of the CDA Rules holds the field and is binding, in the absence of any statutory interdiction made by any other provision regarding continuance of the inquiry and for taking it to a logical end in terms of the deemed continuation of the employee in service. The decision of this Court in Ram Lal Bhaskar [SBI v. Ram Lal Bhaskar, (2011) 10 SCC 249 : (2012) 1 SCC (L&S) 402] is by a three-Judge Bench, which is binding. 30. The Payment of Gratuity Act, 1972, makes no provision with respect to departmental enquiries. The decision of this Court in Ram Lal Bhaskar [SBI v. Ram Lal Bhaskar, (2011) 10 SCC 249 : (2012) 1 SCC (L&S) 402] is by a three-Judge Bench, which is binding. 30. The Payment of Gratuity Act, 1972, makes no provision with respect to departmental enquiries. Since no statutory provisions of the Payment of Gratuity Act, 1972 come in the way of the CDA Rules to continue the inquiry after superannuation of the employee in case it was instituted while he was in service and his deemed continuance in service; thus, no fetter is caused upon operation of Rule 34.2 providing for a continuation of the inquiry and deemed continuation of the employee in service after the age of superannuation. 31. The provisions of Section 4(6) of the 1972 Act prevail over Section 4(1) as provisions of Section 4(6) contain non obstante clause as to Section 4(1). It would prevail over the provisions made in Section 4(1) and gratuity would not become payable mandatorily as provided in Section 4(1). The provisions of Section 4(6) provide recovery or forfeiture where services of employee have been terminated for the reasons prescribed in Sections 4(6)(a) and 4(6)(b). Sections 4(6)(a) and (b) both provide for recovery of loss caused or forfeiture wholly or partially in the case of termination of services. In case after superannuation of employee there cannot be any dismissal i.e. termination of services as contemplated in Section 4(6), then there can be no recovery of pecuniary loss caused by employee or forfeiture of gratuity wholly or partially as that can only be done in the event of termination of services on charges found established. Such an interpretation would render continuance of inquiry otiose and would defeat the public policy and the provisions of the 1972 Act. The recovery of loss or forfeiture is one of the punishments which depends on exigency of termination by way of dismissal as mandated by Section 4(6). To give effect to the provisions of the Act, the punishment of dismissal can be imposed in view of Rule 34.2, otherwise it would defeat the intendment of provisions contained in Sections 4(6)(a) and 4(6)(b) of the 1972 Act. 32. Section 4(1) used the expression “termination of employment after five years by way of superannuation, retirement or resignation or on his death or disablement due to accident or disease” that is in a normal course. 32. Section 4(1) used the expression “termination of employment after five years by way of superannuation, retirement or resignation or on his death or disablement due to accident or disease” that is in a normal course. It does not deal with a situation where departmental enquiry is instituted and continued and completed after the age of superannuation and termination of employment had not taken place on completion of the age of superannuation as there is a deemed continuation of the employment for the purpose of holding an inquiry and passing the appropriate punishment order after the conclusion of the departmental enquiry on the basis of misconduct if any found established. Provisions of Section 4(1) do not impinge upon the continuation of inquiry. Section 4(6) prevails on it. The Payment of Gratuity Act, 1972, can govern the conditions concerning payment of gratuity. It cannot control and provide with respect to an employer's right to hold a departmental enquiry after retirement, and there is no provision prescribing what kind of punishment can be imposed in the departmental enquiry if it is continued after attaining the age of superannuation. The relevant rules would govern such matters. In case the Payment of Gratuity Act, 1972, is interpreted to interdict the departmental enquiry after the age of superannuation and to deal with the nature of punishment to be imposed, it would be taken as a case of overinclusion in the Act which deals exclusively with the payment of gratuity. “44. On the basis of the abovementioned decisions in State of Assam v. Padma Ram Borah, AIR 1965 SC 473 , State of Punjab v. Khemi Ram, (1969) 3 SCC 28 , Bhagirathi Jena v. Board of Directors, O.S.F.C., (1999) 3 SCC 666 : 1999 SCC (L&S) 804, Kirti Bhusan Singh v. State of Bihar, (1986) 3 SCC 675 : 1986 SCC (L&S) 703] and U.P. State Sugar Corpn. Ltd. v. Kamal Swaroop Tondon, (2008) 2 SCC 41 : (2008) 1 SCC (L&S) 352] this Court in Anant R. Kulkarni[Anant R. Kulkarni v. Y.P. Education Society, (2013) 6 SCC 515 : (2013) 2 SCC (L&S) 593]] opined that relevant rules governing the service conditions of an employee are the determining factor as to whether or not the domestic inquiry can be held against an employee who stood retired after reaching the age of superannuation. To this extent, there is no problem caused by the aforesaid decision. To this extent, there is no problem caused by the aforesaid decision. However, this Court made a general observation that if the inquiry had been initiated while the delinquent employee was in service, it would continue even after his retirement, but the nature of punishment would change. The punishment of dismissal, removal from service would not be imposed. The general observation made cannot come in the way of a specific rule and decision cannot be said to be of universal application and cannot be said to be binding in a case the rules provide legal fiction and continuance of employee in the service as if he had continued in service.” vi. Thus it is apparent that the punishment which is prescribed under Rule 27 of the CDA Rule, minor as well as major punishment can be imposed. Apart from that, recovery can also be made upon pecuniary loss. Their Lordships being fully aware of the fact that no order of dismissal could be passed after superannuation under Rule 55 of the CDS Rules and the same can only be passed after retirement under the Pension Rules, but since the proceeding continued much prior to retirement of the petitioner and he was held guilty of the charges by the enquiry officer and the enquiry officer found the petitioner guilty of misappropriating amount of Rs.42,00,000/-, he could not have been left scot free and whether he is entitled for pensionary benefits as well as gratuity, is answered in negative taking into consideration Payment of Gratuity Act, 1972. 7. The issue aforesaid have been answered accordingly in the aforesaid Judgment. Since the charges against the petitioner were proved and he was held guilty for misappropriation of an amount of Rs.42,34,465/-, he cannot be left scot free. 8. In view of Payment of Gratuity Act, 1972 as also in view of Rule 27 of CDA Rule and as per the settled legal proposition that since the proceeding continued much prior to retirement of the petitioner and he was held guilty of the charges, this Court is in full agreement with the order of punishment and as such this writ petition does not warrant any interference. 9. As a sequitur of the aforesaid rules, guidelines, judicial pronouncements, this Court is of the considered view that no interference is warranted in the impugned order. The writ petition being devoid of merits, is hereby dismissed.