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2023 DIGILAW 875 (JHR)

Ram Priti Singh v. State of Jharkhand

2023-07-13

RAJESH SHANKAR

body2023
JUDGMENT : The present writ petition has been filed for quashing the entire departmental proceeding initiated against the petitioner vide resolution as contained in memo No. 4020(S)WE dated 17.07.2017 (Annexure-1 to the writ petition) issued under the signature of the respondent No.3. Further prayer has been made for quashing the resolution as contained in memo No. 1155(S) dated 12.05.2020 (Annexure-10 to the writ petition) issued under the signature of the respondent No.4 by the order of the Hon’ble Governor, Jharkhand whereby punishment of deduction of 10% pension for a period of 10 years has been imposed upon the petitioner. The petitioner has also prayed for quashing the notification as contained in memo No. 2569(S) dated 26.08.2021 (Annexure-12 to the writ petition) issued under the signature of the respondent No.4 by the order of the Hon’ble Governor, Jharkhand whereby the appeal preferred by the petitioner has been dismissed. 2. Learned counsel for the petitioner submits that the petitioner was initially appointed on the post of Junior Engineer and he was subsequently promoted to the post of Assistant Engineer on 22.06.2013 from which he retired on 31.07.2017. A departmental proceeding was initiated against the petitioner vide the impugned resolution dated 17.07.2017 issued under the signature of the respondent No.3, a copy of which was served to him along with chargesheet in PRAPATRA 'K' containing four charges with respect to four separate projects alleging that while he was working as the Junior Engineer, Rural Development Department, Work Division, Daltonganj, had made wrong entry in the measurement book concerning the said four projects with a view to make more payment than the actual work done by the concerned contractors. Though the list of evidence along with the chargesheet was supplied to the petitioner, he was not supplied the report of the Superintending Engineer on the basis of which the ‘Fact Sheets’ with respect to the aforesaid four projects were prepared. The petitioner filed reply to the said chargesheet and thereafter the Enquiry Officer and Presenting Officer were appointed vide resolution dated 17.07.2017. 3. After retirement of the petitioner, the departmental proceeding initiated against him was converted into a proceeding under Rule 43(b) of the Jharkhand Pension Rules, 2000 [hereinafter referred to as ‘the Rules, 2000’] vide order dated 02.07.2018 issued under the signature of the respondent No.4. 3. After retirement of the petitioner, the departmental proceeding initiated against him was converted into a proceeding under Rule 43(b) of the Jharkhand Pension Rules, 2000 [hereinafter referred to as ‘the Rules, 2000’] vide order dated 02.07.2018 issued under the signature of the respondent No.4. The Enquiry Officer submitted the report holding that the petitioner was not found guilty of the charges levelled against him. So far as charge No.1 was concerned, the Enquiry Officer stated in the report that the allegation levelled against the petitioner could not be found true in view of the inspection report submitted by State Quality Monitor (S.Q.M) wherein no question had been raised on the entire work done and the same had been found to be satisfactory. 4. It is further submitted that with regard to the allegation Nos. 2, 3 & 4, the Enquiry Officer stated that it was the responsibility of the relieving officer to detect and correct the payment, if made, to the concerned contractor in excess, at the time of final settlement. On perusal of Rules 567 & 247(b) of the Bihar Public Works Account Code, it would be evident that in case of current bill, the correction can be carried out by the subsequent Officer-in-charge within a period of 6 months, failing which, he will be responsible for the loss caused to the State. The alleged excess payment recorded in the measurement book was only in the nature of current bill and was not the final settlement of account of the contractor on completion of work. 5. It is also submitted that the report of the Enquiry Officer was not accepted by the respondent No.3 on the basis of technical opinion obtained from the Engineer-in-Chief and a second show cause notice was issued to the petitioner on 27.06.2019 mentioning the proposed punishment, however, copy of the said technical opinion was not served to him. The petitioner was also not served with a show cause notice before disagreeing with the enquiry report, rather he was directly issued the notice on the point of the proposed punishment. The petitioner submitted his reply to the second show cause notice, however, without considering the points taken in the same, he was imposed punishment of deduction of 10% of his pension for a period of 10 years vide the impugned resolution dated 12.05.2020. 6. The petitioner submitted his reply to the second show cause notice, however, without considering the points taken in the same, he was imposed punishment of deduction of 10% of his pension for a period of 10 years vide the impugned resolution dated 12.05.2020. 6. Thereafter, the petitioner preferred an appeal against the said order of punishment, however, the same was also dismissed in a cryptic and mechanical manner by the appellate authority. The impugned order of punishment has been passed under the provisions of Rule 43(b) of the Rules, 2000, however, neither in the chargesheet nor in the impugned order of punishment, any allegation of committing grave misconduct or of negligence causing pecuniary loss to the government has been made which is the condition precedent for attracting punishment under Rule 43(b) of the Rules, 2000. There is no finding in the entire departmental proceeding that the conduct of the petitioner in making wrong entry in the measurement book amounts to grave misconduct. The second show cause notice as well as the final order of punishment have been issued treating the petitioner to be responsible for wrong entry in the measurement book, however, the same has not been co-related with charge of negligence causing pecuniary loss to the government or committing grave misconduct by the petitioner. 7. It is a settled law that when a disciplinary authority intends to differ from the finding of the Enquiry Officer, the difference of opinion as against the finding of Enquiry Officer has to be communicated to the concerned delinquent before taking decision on the issue of punishment, which has apparently not been done in the present matter. The second show cause notice was issued to the petitioner vide letter dated 27.06.2019 referring to a technical report on the basis of which the disciplinary authority disagreed with the finding of the Enquiry Officer, however, the said report was not supplied to him despite his request, which amounts to the violation of the principles of natural justice. 8. Per-contra, learned counsel for the respondents submits that after receiving the enquiry report, the technical opinion on the same was obtained from the Engineer-in-Chief, Road Construction Department, Jharkhand, Ranchi and thereafter disagreeing with the enquiry report of the conducting officer, the second show cause notice was issued to the petitioner. 8. Per-contra, learned counsel for the respondents submits that after receiving the enquiry report, the technical opinion on the same was obtained from the Engineer-in-Chief, Road Construction Department, Jharkhand, Ranchi and thereafter disagreeing with the enquiry report of the conducting officer, the second show cause notice was issued to the petitioner. The impugned order of punishment has been passed after considering the reply of the petitioner and hence there is due compliance of the principles of natural justice. The petitioner did not bring on record any new fact in the appeal, rather mentioned some procedural error and as such the same was dismissed vide the impugned notification dated 26.08.2021. 9. It is further submitted that the petitioner was not punished for causing pecuniary loss to the government, rather he was punished for committing grave misconduct i.e. recording of excessive measurement in the measurement book. It is apparent from the charges framed against the petitioner that he had made wrong entry in the measurement book which itself amounts to grave misconduct. The technical opinion of the Engineer-in-Chief along with the enquiry report was already recorded in the second show cause notice. The technical opinion of the Engineer-in-Chief was in fact not a report, rather the same only contained the interpretation of the Rules i.e. Rule 567 & Rule 247 of the Bihar Public Works Account Code. It was recorded in the said technical report that “Rule 567 mentions the responsibility of relieving government servant to bring to notice within a reasonable period and deficiency or defect in work executed during the tenure of his predecessor. However, a predecessor cannot be presumed to be discharged for deficiency or defect of works executed during his tenure on the basis of relinquishing his charge to the other officer. Similarly, Rule 247 of the Public Works Account Code describes about ‘running bill’ and ‘final bill’. Though there is provision of adjustment of ‘on account bill’ in the final bill, however it does not mean that ‘on account bill’ should be beyond the reality.” As per Rule 18(2) of the Jharkhand Government Servant (Classification, Control and Appeal) Rules, 2016, the disciplinary authority has got all the powers to differ with the finding of the conducting officer. 10. Learned counsel for the respondents puts reliance on a judgment rendered by learned Division Bench of this Court in the case of State of Jharkhand & Ors. Vs. 10. Learned counsel for the respondents puts reliance on a judgment rendered by learned Division Bench of this Court in the case of State of Jharkhand & Ors. Vs. Jitendra Prasad Sharma (L.P.A No. 79 of 2013) wherein it has been held that applicability of Rule 43(b) of the Jharkhand Pension Rules cannot be restricted only to the cases in which pecuniary loss has been suffered by the Government. 11. Heard learned counsel for the parties and perused the relevant materials available on record. The petitioner is aggrieved with the order of punishment dated 12.05.2020 issued under the signature of the respondent No.4 whereby punishment of withholding 10% pension for a period of 10 years has been imposed upon the petitioner as well as the order dated 26.08.2021 passed in the appeal whereby the order of punishment has been affirmed. 12. Thrust of the argument of learned counsel for the petitioner is that neither the charge of grave misconduct nor the charge of pecuniary loss to the government by negligence or misconduct of the petitioner has been proved against him and hence the impugned order of punishment passed in exercise of the power conferred under Rule 43(b) of the Rules, 2000 is liable to be set aside. 13. 13. Before coming to the merit of rival contentions of the parties, it would be appropriate to refer Rule 43(b) of the Jharkhand Pension Rules which reads as under: “43.(b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement: Provided that— (a) such departmental proceedings, if not instituted while the government servant was on duty either before retirement or during re-employment: (i) shall not be instituted save with the sanction of the State Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; (iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made; (b) judicial proceedings, if not instituted while the government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and (c) the Bihar Public Service Commission shall be consulted before final orders are passed.” 14. On bare perusal of the aforesaid provision, it is quite clear that the State Government has power to withhold or withdraw a pension or any part of it, whether permanently or for a specified period. However, before passing such order, either of the two conditions given in the said rule is required to be satisfied; (i) if the petitioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or (ii) to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement: 15. So far as the pecuniary loss to the Government is concerned, it has been specifically averred in Para 11 of the supplementary counter affidavit filed on behalf of the respondents that the petitioner was not punished for causing pecuniary loss to the government, rather was punished for committing grave misconduct i.e. excessive measurement recorded by him in the measurement book. However, it would be evident from the impugned resolution dated 17.07.2017 that the charge of grave misconduct was not alleged, rather the charge of grave irregularity was alleged against the petitioner. It was further alleged in the chargesheet that by making wrong entry in the measurement book, the petitioner had shown recklessness in work, corrupt practice and involvement in misappropriation of government fund which also manifested his wrong intention. Thus, the chargesheet did not disclose grave misconduct committed by the petitioner. Apart from that, neither the second show cause notice nor the impugned order of punishment reflects that the petitioner was charged and punished for committing grave misconduct. 16. By way of filing a supplementary counter affidavit, the respondents have tried to supplement what was neither mentioned in the show cause notice nor in the impugned order of punishment and the same cannot be taken note of in view of the judgement rendered by the Hon’ble Supreme Court in the case of Mohinder Singh Gill & Anr. Vs. Chief Election Commissioner & Ors. reported in (1978) 1 SCC 405 wherein it has been held that if a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. If that is permitted, an order bad in the beginning may, by the time it comes to Court on account of a challenge, gets validated by additional grounds later brought out. 17. It is well settled that the charge alleged against the delinquent must be incorporated in the chargesheet itself so as to enable him to reply the same, failing which the order of punishment vitiates on the ground of violation of the principles of natural justice. 17. It is well settled that the charge alleged against the delinquent must be incorporated in the chargesheet itself so as to enable him to reply the same, failing which the order of punishment vitiates on the ground of violation of the principles of natural justice. Even if it is assumed that the petitioner was guilty of making wrong entry in the measurement book, the disciplinary authority, before passing on order under Rule 43(b) of the Rules, 1950, was duty bound to mention grounds on which he intended to punish the petitioner. 18. Moreover, the enquiry report was in favour of the petitioner and the second show cause notice was served to the petitioner on the basis of the opinion made in the technical report of the Engineer-in-Chief, Road Construction Department, Jharkhand. However, at the time of serving the second show cause notice, the petitioner was not provided a copy of the said technical opinion on the basis of which the disciplinary authority had differed from finding of the enquiry report of conducting officer so as to provide an opportunity to the petitioner to respond the said point of difference. After serving the second show cause notice, the petitioner had requested the disciplinary authority to supply the copies of the order issued for constituting a technical committee as well as the report of the technical committee to him, however, the disciplinary authority failed to supply the same to the petitioner, rather it was observed in the impugned order of punishment that Rule Nos. 567 & 247 of Public Works Account Code were merely explained in the technical opinion. 19. This Court is of the view that since the disciplinary authority had differed from the enquiry report on the basis of the technical opinion, he was duty bound to supply the copy of the said technical opinion to the petitioner so as to provide him ample opportunity to respond the said opinion. 20. Otherwise also, in view of the judgment rendered by the Hon’ble Supreme Court in the case of Lav Nigam Vs. Chairman & MD, ITI Ltd. & Anr. 20. Otherwise also, in view of the judgment rendered by the Hon’ble Supreme Court in the case of Lav Nigam Vs. Chairman & MD, ITI Ltd. & Anr. reported in (2006) 9 SCC 440 , if the Enquiry Officer finds the charge not proved against the delinquent employee, the disciplinary authority, while differing with the enquiry report, is required to serve a show cause notice to the delinquent employee; containing the tentative point of difference with the finding of the Enquiry Officer. The said principle is also applicable in a proceeding under Section 43(b) of the Rules, 2000, if the disciplinary authority intends to differ with the finding recorded by the Enquiry Officer. 21. In the present case, no notice was served to the petitioner by the disciplinary authority containing the tentative points of difference with the finding of the Enquiry Officer, rather by way of issuing second show cause notice, straightaway a reply was sought from the petitioner against the proposed punishment. Thus, the disciplinary authority did not follow the settled law while differing with the enquiry report of the Enquiry/Conducting Officer. The petitioner’s appeal was also dismissed in a mechanical manner without appreciating the legal requirement of imposing punishment upon a retired government servant as provided under Rule 43(b) of the Rules, 1950 and hence the same also cannot be sustained in law. 22. In view of the aforesaid discussions, the impugned resolution as contained in memo No. 1155(S) dated 12.05.2020 issued under the signature of the respondent No.4 and the notification as contained in memo No. 2569(S) dated 26.08.2021 issued under the order of the appellate authority are hereby quashed and set aside. 23. The present writ petition is, accordingly, allowed.