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2023 DIGILAW 221 (JHR)

Tara Sinha v. State of Jharkhand

2023-02-22

S.N.PATHAK

body2023
JUDGMENT : S.N. Pathak, J. During the pendency of the writ petition, the original petitioner, namely Vidya Sagar Choudhary died and his wife namely, Tara Singh has been substituted vide order dated 04.05.2022. 2. The original petitioner had approached this Court with a prayer for quashing the order dated 12.11.2011 as contained in Memo No. 7435(S) issued by the then Deputy Secretary, Road Construction Department, Govt. of Jharkhand, whereby 10 % deduction from pension of the petitioner has been ordered. Further, prayer has been made for a direction upon the respondents to release and pay the arrears of 10 % pension with interest from the date of his retirement to till date and also to pay full pension for which the petitioner is entitled for. 3. As per the factual matrix, the case of the original petitioner is that the petitioner joined the Public Works Department (Road Construction Department), Bihar on 15.04.1973 as an Assistant Engineer and later on promoted to the post of Executive Engineer on 03.01.1997 and posted in the Department of Rural Engineering Organization, Govt. of Bihar at Ranchi. After bifurcation of the State of Bihar, the services of the petitioner was allocated to the State of Jharkhand and petitioner joined as Executive Engineer in the Department of National Rural Employment Project in the year, 2001. During his tenure of Office, he was entrusted with the work of construction of a Boys Hostel in the premises of Sona Hatu High School appertaining to Plot No. 1812, Khata No. 3, for which a sum of Rs. 9.00/- lacs were released on 16.9.2004 as a first installment for construction work. Accordingly, the construction work was started on the land so earmarked and provided by the School Management Committee in consultation of MESO Department, who inspected the site premises also and after being satisfied, released the further installment of the fund. When the work was in progress, one Chaitan Singh Munda, filed an application before the Sub-Divisional Magistrate, Bundu for initiation of proceeding under Section 144 of the Cr. P.C. on 17.05.2005 vide Miscellaneous Case No. 6/2005, claiming that the land on which the hostel was being constructed belonged to him and the same is Raiyati Land. The said Chaitan Singh Munda also filed a writ petition bearing W.P.(C) No. 2950/2005 before this Court to stop construction over the land in which the petitioner was not a party. P.C. on 17.05.2005 vide Miscellaneous Case No. 6/2005, claiming that the land on which the hostel was being constructed belonged to him and the same is Raiyati Land. The said Chaitan Singh Munda also filed a writ petition bearing W.P.(C) No. 2950/2005 before this Court to stop construction over the land in which the petitioner was not a party. This Court after hearing the parties, vide order dated 22.06.2005, adjourned the matter and observed that “during the pendency of the writ petition, the respondents will act as per the order dated 17.05.2005 passed by the SDO, Bundu in case No. M.P.6/2005, if the said order has not been superseded by any Court of law/Authority’. But the said order as well as order passed by the SDO, Bundu was not communicated by the Department to the petitioner and finally, aforesaid writ petition was dismissed for default on 07.05.2012. After completion of the work, the hostel was handed over to the School Management on 01.12.2006 itself. It is specific case of the petitioner that during the construction of building, nobody pointed out that the land on which the hostel building is being constructed, was disputed on the point of title or possession and after proper verification by the higher officials as well as school management, full payment was made. But surprisingly, on the date of retirement i.e., on 31.01.2007, a letter bearing No. 211 dated 31.01.2007 issued by the Secretary, Welfare Department addressed to the Secretary, Road Construction Department alleged that the construction of the hostel was not on the piece of land where the foundation was laid. Contrary to that as alleged in the said letter, the petitioner on several occasions was requested to discontinue construction work, but still the petitioner proceeded ahead with the same. On the basis of said letter, a departmental proceeding was initiated against the petitioner and also after issuing second show cause notice and reply filed by the petitioner, he was found guilty of the charges and as such, vide impugned order dated 12.11.2011, 10 % pension of the original petitioner was stopped permanently. Aggrieved by the same, he had knocked the door of this Court. 4. Mr. Aggrieved by the same, he had knocked the door of this Court. 4. Mr. Sanjay Kumar Sinha, learned counsel for the petitioner assails the impugned order on the ground that the original petitioner working in the capacity of Executive Engineer, NREP-1, Ranchi was only the constructing agency, without any knowledge or concerned with the nature of land provided by the sanctioning authority, MESo, the then Khunti Sub-Division Ranchi and it was their duty to verify the nature, title and ownership of the land. The Management of the School was also aware of the details about the nature, title and ownership of the land and as such, the allegation against the petitioner that the building was constructed not at the place, where the foundation was laid is totally incorrect. The petitioner only carried out the construction work of the hostel in question on the land provided by the School Management Committee as well as Higher Officials. The respondents have also released the entire payment after inspecting the constructed work and after completion of work and at that time no dispute was raised. The Enquiry Officer has exonerated him from the charges in the Departmental Proceedings, which is at Annexure-11 to this writ petition. Regarding allegation that petitioner proceeded with the construction work, despite of the stay order passed by the Hon'ble High Court in W.P.(C) No. 2950/2005, it is stated that petitioner was having no knowledge of the said order neither the same has was communicated by the Higher Officials or by the petitioner in that case as he was not a party in that case. The Department or the Higher Official have never asked him to stop the work and the certificate of the School Authority also proves that building was constructed where the foundation was laid and as such, impugned order is not tenable in the eyes of law. There is no document on record to show that where the foundation was laid and petitioner has not constructed the said Hostel on that foundation. 5. Per contra, counter-affidavit has been filed by the respondents. Mr. Rahul Saboo, learned counsel appearing on behalf of the respondents vehemently opposes the contention advanced by the learned counsel for the petitioner and submits that ample opportunity was given to the petitioner in the departmental proceeding to prove his case, but the petitioner failed to prove his case. 5. Per contra, counter-affidavit has been filed by the respondents. Mr. Rahul Saboo, learned counsel appearing on behalf of the respondents vehemently opposes the contention advanced by the learned counsel for the petitioner and submits that ample opportunity was given to the petitioner in the departmental proceeding to prove his case, but the petitioner failed to prove his case. He further submits that as it was held by the Enquiry Officer that the petitioner was guilty of the charges, rightly the Disciplinary Authority after following the procedures, by issuance of second show cause notice, has inflicted the order of punishment. He further submits that the petitioner being Executive Engineer, had been assigned to construct a Boy's Hostel, but instead of constructing the building on the place where foundation was laid, the petitioner started the construction on a Raiyati Plot and this Hon'ble Court had passed an order to maintain status quo, but the petitioner did not bothered to stop the construction even after knowing about the order of this Court. Since the order of this Hon'ble Court was violated by the petitioner, the petitioner being found guilty of the charges, rightly order for 10 % deduction from the pension of the petitioner has been issued. There is no procedural laches and there is no illegality or infirmity in the impugned order. 6. Be that as it may, having gone through the rival submissions of the parties and on perusal of the records, it appears that a full-fledged departmental enquiry/proceeding was initiated by the respondents and in the departmental enquiry, the petitioner was exonerated by the Enquiry Officer. Surprisingly, the Disciplinary Authority without differing with the findings of the Enquiry Officer has held the petitioner guilty of the charges. From the impugned order dated 12.11.2011, it appears that an error of record has been committed by the respondents by holding the petitioner guilty of the charges by the Enquiry Officer in view of enquiry report dated 16.05.2008, wherein it is clearly held that petitioner has been exonerated from the charges by the Enquiry Officer. Though a second show cause has been issued by the Disciplinary Authority, but no reasons have been assigned for holding the petitioner guilty of the charges for inflicting the major punishment of withholding of 10 % pensionary benefits. Though a second show cause has been issued by the Disciplinary Authority, but no reasons have been assigned for holding the petitioner guilty of the charges for inflicting the major punishment of withholding of 10 % pensionary benefits. Admittedly, in the charge, the allegation against the petitioner is for construction of hostel building at other places where the foundation was laid, but there is no document on record, where the foundation was laid and petitioner has not constructed the said Hostel on that foundation. Further, the construction work was not done in a day, the Higher Authorities were very much aware that hostel is being constructed and amount was also released by the Higher Official after inspection of the same and there is no allegation of defalcation of any amount. There is no pecuniary loss to the State exchequer rather the work was completed and payment was also made to the satisfaction of the respondents. Further, regarding allegation of disobedience of the Court's order is concerned, when there is a stay order, same could have been brought to the knowledge of the petitioner, by issuing instruction by Higher Officials as petitioner was not a party in that case, it can be termed to be a communication gap and as such, petitioner cannot be held guilty. The ingredients of Rule 43 (b) is not attracted in the case of the petitioner since petitioner has already been exonerated by the Enquiry Officer and there was no pecuniary loss to the State Exchequer. Rule 43 (b) of the Bihar/Jharkhand Pension Rules reads as under: – 43(b) The State Govt further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Govt if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct, or to have caused pecuniary loss to Govt by misconduct or negligence, during his service including service rendered on re-employment after retirement. 7. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, the impugned order 12.11.2011 is not sustainable in the eyes of law and as such, same is hereby quashed and set aside. 7. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, the impugned order 12.11.2011 is not sustainable in the eyes of law and as such, same is hereby quashed and set aside. In view of the quashment of the impugned order, petitioner is entitled for all the consequential benefits. 8. Resultantly, writ petition stands allowed.