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2023 DIGILAW 462 (ALL)

Rang Bahadur Singh v. State Of U. P.

2023-02-15

DEVENDRA KUMAR UPADHYAYA, SUBHASH VIDYARTHI

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JUDGMENT : 1. Heard Sri Upendra Nath Mishra, learned Senior Advocate assisted by Sri Vijay Vikram Singh, learned counsel for appellant and learned counsel representing the State-respondents. 2. Proceedings of this special appeal under Chapter VIII Rule 5 of the Rules of the Court have been instituted by the appellant-petitioner impeaching the judgment and order dated 08.12.2020 passed by learned Single Judge whereby the writ petition filed by him, namely, Writ Petition No.5447 (S/S) of 2020 has been dismissed. 3. At this juncture itself, we may indicate that by instituting the proceedings of Writ Petition No.5447 (S/S) of 2020, the appellant-petitioner had challenged the validity of two orders passed by the District Magistrate, namely, the order dated 30.11.2011 and the order dated 27.11.2019 whereby claim of the appellant-petitioner in respect of recovery of certain amounts ordered against him was not acceded to. 4. For appropriately considering the issue involved in this special appeal, we may note certain facts. 5. The appellant-petitioner having served with the State Government in his capacity as Assistant Development Officer (Panchayat) has retired on 31.07.2013. While he was in service, certain irregularities were noticed in respect of certain works executed under the MANREGA scheme and accordingly on the basis of some Technical Audit Report, the District Programme Officer/District Magistrate, Gonda passed an order on 30.11.2011 fixing the responsibility of recovery of certain amounts from five individual officers including the appellant-petitioner who was saddled with the responsibility of recovery of amount of Rs. 30,45,709.20/-. The appellant-petitioner along with another individual officer challenged the said order by instituting the writ petition no.714 (S/B) of 2012, however, the said writ petition in respect of the appellant-petitioner was dismissed as withdrawn by a Division Bench of this Court by means of the order dated 28.11.2016 with liberty to him to file fresh petition before the Bench having appropriate jurisdiction dealing with service single matters. 6. Before the said order dated 28.11.2016 was passed by the Division Bench of this Court in Writ Petition No.714 (S/B) of 2012, a departmental inquiry was instituted against the appellant-petitioner and after conclusion of the inquiry at the end of the Inquiry Officer, a report was submitted on 20.08.2013. In the departmental proceeding, there were six charges against the appellant-petitioner. So far as charge nos.2,4 and 6 are concerned, they were not found proved. In the departmental proceeding, there were six charges against the appellant-petitioner. So far as charge nos.2,4 and 6 are concerned, they were not found proved. In respect of charge nos.1 and 3, the appellant-petitioner was saddled with the responsibility of recovery of certain amounts which he deposited. It is only in respect of the subject matter of charge no.5 that the dispute still lingers before this Court. In the inquiry report dated 20.08.2013, in respect of charge no.5, it has been observed by the Inquiry Officer that the District Magistrate vide his order dated 30.11.2011 had proposed the recovery of an amount of Rs. 30,45,709.20/-from the appellant-petitioner in his capacity as Assistant Development Officer (Panchayat). However, to the Inquiry Officer it appeared that saddling the appellant-petitioner with the responsibility of recovery of the aforesaid amount appears to be in contravention of the Office Memorandum dated 02.05.2008. The Inquiry Officer, thus, observed that since the recovery of the amount of Rs.30,45,709.20/-as proposed against the appellant-petitioner by the District Magistrate by means of the order dated 30.11.2011 is against the Office Memorandum dated 02.05.2008, as such the charge itself was not made out. 7. When the said inquiry report dated 20.08.2013 was considered by the disciplinary/appointing authority, it appears that he also was of the same view as that of the Inquiry Officer and accordingly he wrote a letter to the District Magistrate on 05.06.2015 stating therein that the recovery proposed against the appellant-petitioner by means of the order dated 30.11.2011 is against the Office Memorandum dated 02.05.2008 and hence in the aforesaid view of the matter, the Director, Panchayati Raj, who is the appointing authority of the appellant-petitioner requested the District Magistrate/District Programme Officer, Gonda to submit a clear report in light of the observations made in the letter dated 05.06.2015. 8. When in the matter of disciplinary proceeding, nothing was being done and in the meantime, the appellant-petitioner had already retired on attaining the age of superannuation on 31.07.2013, he instituted Writ Petition No.1883 (S/S) of 2017 with a prayer inter alia for issuing a direction to finalize the disciplinary proceedings. The said writ petition was disposed of by this Court by means of the order dated 13.10.2017 whereby it was directed that inquiry proceedings against the appellant-petitioner shall be completed within a period of three months. 9. The said writ petition was disposed of by this Court by means of the order dated 13.10.2017 whereby it was directed that inquiry proceedings against the appellant-petitioner shall be completed within a period of three months. 9. In pursuance of the order dated 13.10.2017 passed by this Court in the aforesaid writ petition, the matter was again considered by the Director Panchayati Raj who passed an order on 10.04.2018 and returned a finding that charge nos.2,4 and 6 against the appellant-petitioner were not found proved. He further observed in the order dated 10.04.2018 that in respect of charge nos.1 and 3 the appellant-petitioner had made deposit of Rs.5,827/-and Rs.14,020/-respectively. In respect of charge no.5, the Director Panchayati Raj, U.P. in his order dated 10.04.2018 referred to the order dated 30.11.2011 passed by the District Magistrate whereby certain amounts were ordered to be recovered from the appellant-petitioner, however, in respect of the same, it was provided that the appellant-petitioner may make a representation to the District Magistrate. While passing the order dated 10.04.2018, the Director Panchayati Raj noticed the submission made by the appellant-petitioner that as per extant Officer Memorandum, recovery of the amount as ordered by the District Magistrate by means of his order dated 30.11.2011 could not be made for the reason that the Office Memorandum concerned, namely, Officer Memorandum dated 02.05.2008 does not make a mention of the Officer holding the post of Assistant Development Officer (Panchayat) from whom recovery for loss caused to the Government can be made. It is in the light of the aforesaid observations made by the Director Panchayati Raj in his order dated 10.04.2018 that the appellant-petitioner represented the District Magistrate by making two representations on 21.05.2018 and 25.03.2019. Since representations made by the appellant-petitioner pursuant to the order of the Director Panchayati Raj, dated 10.04.2018 remained unattended, he instituted Writ Petition No.21499 (S/S) of 2019 before this Court with a prayer for issuing appropriate direction for payment of his post-retirement dues. The said writ petition was finally disposed of by this Court by means of an order dated 06.08.2019 whereby the Court permitted the appellant-petitioner to a move fresh representation to the District Magistrate, Gonda, who in turn was directed to decide the same in accordance with law within a period of three months. 10. The said writ petition was finally disposed of by this Court by means of an order dated 06.08.2019 whereby the Court permitted the appellant-petitioner to a move fresh representation to the District Magistrate, Gonda, who in turn was directed to decide the same in accordance with law within a period of three months. 10. It is in pursuance of the direction issued by this Court on 06.08.2019 that the matter was considered by the District Magistrate, who passed the order on 27.11.2019 and rejected the claim of the appellant-petitioner that he is not to be saddled with any responsibility of recovery of any amount. 11. Challenging this order dated 27.11.2019 and also laying a challenge to earlier order passed by the District Magistrate, dated 30.11.2011, as observed above, the appellant-petitioner instituted Writ Petition No.5447 (S/S) of 2020 before this Court which has been decided by learned Single Judge by means of the order dated 08.12.2020 whereby claim put forth by the appellant-petitioner has not found favour with the learned Single Judge, hence this special appeal. 12. The sole question for consideration in this case by the Court is as to whether the District Magistrate while passing the order dated 30.11.2011 and also 27.11.2018 had taken into account the extant Office Memorandum/Government Order for the purposes of determining the apportionment of the liability to be fixed against the erring officials in case of any loss to State exchequer in execution of any work executed in the MANREGA scheme. 13. Learned counsel for the appellant-petitioner has drawn our attention to the Government Order dated 07.09.2007 issued by the State Government which is addressed to all the District Magistrates/Chief Development Officers in the State which provides certain guidelines for opening up of bank account in respect of works relating to National Rural Employment Guarantee Scheme (MANREGA). According to the said Government Order, in respect of the works at the Development Block level, the District Programme Officer shall maintain a separate account of the Development Block concerned in the name of Employment Guarantee Fund. The Government Order further provides that the District Programme Officer shall deposit the amount which may be received for the purposes of implementation of the scheme in such bank account which shall be operated by the joint signatures of the Programme Officer (Block Development Officer) and the Assistant Development Officer (Panchayat). 14. The Government Order further provides that the District Programme Officer shall deposit the amount which may be received for the purposes of implementation of the scheme in such bank account which shall be operated by the joint signatures of the Programme Officer (Block Development Officer) and the Assistant Development Officer (Panchayat). 14. Thus, so far as the operation of bank account at the Development Block level is concerned, in terms of the Government Order dated 07.09.2007, it was to be operated under the joint signatures of the Block Development Officer and the Assistant Development Officer (Panchayat) which post at the relevant point of time was held by the petitioner. However, so far as fixation of liability in respect of loss caused in execution of work relating to MANREGA is concerned, our attention has been drawn to certain provisions of the Manual issued by the Apex Technical Audit Cell of the Rural Development Department. According to clause 2.5.9 (1) b in case any work was executed by adopting the method of payment of wages directly, the recovery to the extent of loss if the same occurs will be made from three officers. The said provision states that 50% amount shall be recovered from the officer who is responsible for making measurements, 35% amount shall be recovered from the officer who is responsible for making sanction for payment and 15% amount shall be recovered from the officer who actually makes the payment. However, the said Manual was amended by means of an Office Memorandum dated 02.05.2008. According to the amended/substituted clause 2.5.9 (1) b, in case any government loss comes to light in respect of work being executed in kshetra panchayat under the National Rural Employment Guarantee Scheme, the recovery of such loss shall be made from three officers, namely, (i) work incharge, (ii) the officer responsible for making measurements (Junior Engineer/Technical Assistant) and (iii) Block Development Officer in the ratio of 33.33% each. The relevant portion of clause 2.5.9 (1) b of the Technical Audit Cell Manual is being quoted herein under:- ^^jk"Vªh; xzkeh.k jkstxkj xkjaVh ;kstuk es {ks= iapk;rksa ds ek/;e ls djk;s tk jgs@dk;ksZ dh tkap@fujh{k.k esa izdk'k esa vkbZ 'kkldh; {kfr dh olwyh dk;Z izHkkjh] dk;Z dh ekih djus okys voj vfHka;rk@rduhdh lgk;d ,oa [k.M fodkl vf/kdkjh izR;sd ls 33-33&33-33 ¼leHkkx½ izfr'kr ds vuqekr esa dh tk;sxh^^ 15. The order of recovery by the District Magistrate was passed on 30.11.2011 and at the relevant point of time the provision contained in clause 2.5.9 (1) b of the Technical Audit Cell Manual was available and in vogue. However, it appears that the District Magistrate while passing the said order dated 30.11.2011 has completely ignored the said provision though the said provision has been mentioned by the District Magistrate in the said order. The newly amended/inserted clause 2.5.9 (1) b of the Technical Audit Cell of the Rural Development Department clearly fixes the liability on three officers, as observed above, which does not include the officer holding the post of the Assistant Development Officer (Panchayat). It is not in dispute that the appellant-petitioner at the relevant point of time was posted on the post of Assistant Development Officer (Panchayat). Thus, in our considered opinion, in view of the provision contained in clause 2.5.9 (1) b of the newly inserted/amended Circular by means of the Office Memorandum dated 02.05.2008, no responsibility could be saddled upon him. The responsibility of recovery of government loss, if any, could have been saddled only against three officers, namely, (i) work incharge, (ii) officer responsible for making measurement such as Junior Engineer/Technical Assistant and (iii) Block Development Officer. 16. We have, thus, no hesitation to observe that the District Magistrate while passing the order dated 30.11.2011 has found the appellant-petitioner responsible for recovery of certain amounts in complete derogation of the provision contained in clause 2.5.9 (1) b of the Technical Audit Cell Manual. 17. We may also notice that on conclusion of the departmental inquiry against the appellant-petitioner at the end of the Inquiry Officer, the Inquiry Officer had also noticed the aforesaid anomaly and in his report dated 20.08.2013 had clearly opined that in view of the provision contained in Officer Memorandum/Circular dated 02.05.2008, the charge no.5 which was levelled against the appellant-petitioner was not made out. The disciplinary authority of the appellant-petitioner, namely, the Director Panchayati Raj had also concurred with his opinion while passing the final orders in the matter of disciplinary proceeding, however instead of clearly directing that no recovery from the appellant-petitioner shall be made, he permitted the appellant-petitioner to approach the District Magistrate. 18. The disciplinary authority of the appellant-petitioner, namely, the Director Panchayati Raj had also concurred with his opinion while passing the final orders in the matter of disciplinary proceeding, however instead of clearly directing that no recovery from the appellant-petitioner shall be made, he permitted the appellant-petitioner to approach the District Magistrate. 18. We may also notice that when the appellant-petitioner approached the District Magistrate again pursuant to the order passed by the Director Panchayati Raj on 10.04.2018, the District Magistrate again appears to have completely missed the purport and application of the provision contained in the Office Memorandum dated 02.05.2008. The appointing/disciplinary authority while noticing the said anomaly in the order dated 30.11.2011 passed by the District Magistrate even before passing the final order in the matter of disciplinary proceeding against the appellant-petitioner on 10.04.2018 had required the District Magistrate to furnish the report by means of a letter dated 05.06.2015. However, the observations made and conclusions drawn by the Director, Panchayati Raj in his order dated 10.04.2018 and the letter dated 05.06.2015, which were in tune with the Inquiry Officer’s report dated 20.08.2013 has not been paid any heed to by the District Magistrate, even while passing the order second time i.e. on 27.11.2019. 19. There is nothing on record which can persuade us to form an opinion that in this matter the Office Memorandum dated 02.05.2008, whereby clause 2.5.9 (1) b was amended/substituted in the Technical Audit Cell Manual of the Rural Development Department, is not applicable. 20. As already observed above, the said Office Memorandum dated 02.05.2008 does not include the officer holding the post of the Assistant Development Officer (Panchayat) upon whom any responsibility of recovery for government loss can be fixed; rather there are three other officers. 21. Learned Single Judge, however, while passing the judgment and order under appeal herein, appears to have lost sight of the aforesaid relevant aspects of the matter, especially the correct purport and application of the provisions contained in the Office Memorandum dated 02.05.2008. 21. Learned Single Judge, however, while passing the judgment and order under appeal herein, appears to have lost sight of the aforesaid relevant aspects of the matter, especially the correct purport and application of the provisions contained in the Office Memorandum dated 02.05.2008. The only reason given by learned Single Judge while passing the order under appeal before us is that since the Assistant Development Officer (Panchayat) is one of the joint signatories of the bank account in terms of Government Order dated 07.09.2007, as such he cannot escape from his liability of the loss which may occur to the government, however, while making such an observation, learned Single Judge appears to have ignored the provisions contained in the Office Memorandum dated 02.05.2008. The findings recorded by learned Single Judge that charge no.5 stood proved against the appellant-petitioner also does not appear to be correct in view of the findings recorded by the disciplinary authority while passing the final order dated 10.04.2018 in the matter of disciplinary proceedings against the appellant-petitioner. 22. Thus, for the reasons aforesaid, we do not find ourselves in agreement with the order dated 08.12.2020, passed by learned Single Judge, dismissing the Writ Petition No.5447 (S/S) of 2020. 23. The special appeal is thus allowed and the orders dated 27.11.2019, passed by District Magistrate and the order dated 30.11.2011, passed by the District Magistrate/District Program Officer so far as the same relate to the appellant/petitioner are hereby quashed. 24. We further direct that the Director Panchayat Raj, Uttar Pradesh and the District Panchayat Raj Officer shall ensure payment of all post retirement dues to the appellant/petitioner within a period of two months from the date of production of a certified copy of this order unless there is any other legal impediment. 25. We notice that the Director, Panchayati Raj, while passing the final order in the matter of disciplinary proceedings which were drawn against the appellant-petitioner dated 10.04.2018, has observed that the post retirement benefits and other dues shall be paid to the appellant-petitioner as per the order which may be passed by the District Magistrate, Gonda. 26. 25. We notice that the Director, Panchayati Raj, while passing the final order in the matter of disciplinary proceedings which were drawn against the appellant-petitioner dated 10.04.2018, has observed that the post retirement benefits and other dues shall be paid to the appellant-petitioner as per the order which may be passed by the District Magistrate, Gonda. 26. Since pursuant to the order dated 10.04.2018, the District Magistrate had passed the order dated 27.11.2019, which has been quashed by us by means of this judgment and order, we direct that any portion of the dated 10.04.2018, passed by the Director shall not come in the way of the appellant-petitioner being paid all his post retirement benefits and other legally admissible dues. 27. Before parting with this matter, we observe that it will be open to the respondents-State authorities to effect the recovery of the loss occurred to the government exchequer, by apportioning the liability upon the officers concerned in terms of the provisions contained in the Office Memorandum dated 02.05.2008 or any other relevant provisions. 28. In the facts of the case, there will be no order as to costs.