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2024 DIGILAW 137 (JHR)

Pawan Kumar Mandal v. State of Jharkhand

2024-02-09

S.N.PATHAK

body2024
JUDGMENT : S.N. Pathak, J. Heard the parties. 2. The petitioner has approached this Court challenging the order contained in Memo No. 5644 dated 25.06.2015 (Annexure-10), whereby punishments of censor and stoppage of two increments with non-cumulative effect have been imposed upon him. By filing I.A. No. 5667 of 2022, the petitioner has also challenged the entire departmental proceeding initiated vide Government Resolution dated 30.12.2010 (Annexure -2), specifically Prapatra-Ka which is said to be not approved by the competent authority. The Facts 3. The petitioner was initially appointed on the post of Deputy Collector on 29.05.1995 after being selected in the examination conducted by Bihar Public Service Commission. Promotion in the junior selection grade was also given to the petitioner on 29.7.2007. Thereafter, he was posted as Block Development Officer, Gidhour, Chatra by notification dated 19.7.2007. While the petitioner was posted as Block Development Officer, Bano, Simdega in between the period from 03.11.2007 to 8.11.2008, an advance amount was approved at the level of the petitioner to the Village Level Committee for construction of RCC Bridge in Sahubera Village Panchayat, Barkaduil Panchayat, Ukaili Panchayat under different Schemes. It is further case of the petitioner that since the work could not be performed; the amount was refunded by the beneficiaries after the petitioner was transferred from Bano. An F.I.R. was also lodged against the petitioner being Bano P.S. Case No. 33 of 2009 on 09.10.2009, on the same set of facts with the allegation of defalcation of money. However, the petitioner was discharged of the allegations in Criminal Revision No. 10/2012. 4. However, departmental proceeding was initiated by framing Prapatra-Ka on 15.12.2010 and the petitioner was directed to submit his reply. The petitioner being duty bound submitted his reply on 02.12.2013, but having found not satisfactory, the inquiry officer found the charge to be proved and ultimately, the disciplinary authority inflicted the punishment impugned, which is under challenge in the writ petition. Argument advanced by learned counsel for Petitioner. 5. Assailing the impugned punishments, Mr. Saurabh Shekhar, learned counsel appearing for the petitioner assiduously urges that the charge contained in Prapatra-Ka is itself not tenable in the eyes of law, inasmuch as, the same is not approved by the competent authority. Argument advanced by learned counsel for Petitioner. 5. Assailing the impugned punishments, Mr. Saurabh Shekhar, learned counsel appearing for the petitioner assiduously urges that the charge contained in Prapatra-Ka is itself not tenable in the eyes of law, inasmuch as, the same is not approved by the competent authority. Learned counsel submits that the entire record relating to the present departmental proceeding was called for by this Court and from perusal of the entire documents, it is evident that though the initiation of departmental proceeding was approved by the Departmental Minister, but there was no approval of the memo of charge contained in Prapatra-Ka. The memo of charge is at page no. 64 and 65 of the departmental records. In view of the above backdrop, learned counsel empathically argues that in absence of the approval of the charges by the competent authority, further proceedings in the disciplinary case is not sustainable. To strengthen his argument, learned counsel refers the judgment rendered by the Hon’ble Apex Court in the case of Union of India & Ors. Vs. B.V. Gopinath reported in (2014) 1 SCC 351 . 6. Further submission has been advanced by the learned counsel for the petitioner that the enquiry report proving the charge against the petitioner is also not sustainable in view of the fact that the inquiry officer has not dealt with any of the evidences in his report. He further submits that in the entire enquiry report, there is no examination or cross-examination of any witness and even the presenting officer has opined that no allegation is substantiated. Some documentary evidences have been dealt with, which are the recordings of the material persons that too in some other proceedings and not the present proceedings. Learned counsel further submits that the recording of the finding by the inquiry officer regarding corruption charges should meet the standard of proof as required in criminal cases and to fortify this argument, he places reliance on the judgments in the cases of Union of India & & Ors. Vs. Gyan Chand Chattar, reported in (2009) 12 SCC 78 and Roop Singh Negi Vs. Punjab National Bank, reported in (2009) 2 SCC 570 . 7. Vs. Gyan Chand Chattar, reported in (2009) 12 SCC 78 and Roop Singh Negi Vs. Punjab National Bank, reported in (2009) 2 SCC 570 . 7. In furtherance of his submission, learned counsel points out that for the same set of charges, a criminal case was also instituted against the petitioner, in which he was discharged from the criminal case being Bano P.S. Case No. 33 of 2009, considering the fact that the estimated cost was refunded by the beneficiaries. Learned counsel placing reliance on the judgment in the case of Ram Lal Vs. State of Rajasthan & Ors., reported in (2024) 1 SCC 175 submits that in view of the fact that the petitioner was discharged from the criminal cases for the same set of allegation, he should also be absolved from the charges as levelled in the departmental proceeding. Arguments advanced by learned counsel for Respondents. 8. Mr. Nehru Mahto, learned counsel representing the respondents submits that no interference is warranted in the writ petition and no consideration can be shown to the submissions advanced by learned counsel for the petitioner, inasmuch as, the departmental proceeding was initiated after taking due approval from the Departmental Minister and once the Departmental Minister has approved the initiation of departmental proceedings, the ancillary action can be initiated by the authority. He submits that due approval of the departmental Minister was taken in relation to the allegations, as formulated in the Prapatra -Ka. Therefore, the judgment relied by learned counsel for the petitioner in the case of Union of India Versus B.V. Gopinath is of no help to the petitioner. Placing the records of departmental proceeding, learned counsel submits that no folly has been pointed out by the petitioner. The entire departmental proceeding was conducted in accordance with the settled procedure of rules and there is no violation of the principles of natural justice. The inquiry officer has found the allegations proved against the petitioner, therefore the disciplinary authority has passed order of punishment, after giving due opportunity to the petitioner. 9. Further learned counsel submits that discharge of petitioner in the criminal case does not preclude the department to initiate a departmental proceeding and come to an independent finding regarding the guilt of the petitioner. 9. Further learned counsel submits that discharge of petitioner in the criminal case does not preclude the department to initiate a departmental proceeding and come to an independent finding regarding the guilt of the petitioner. Law is well settled that if the delinquent is found guilty by the disciplinary authority in a separate Departmental Proceeding, the order of punishment can be passed, independent of the findings in the criminal case. He further submits that the order of punishment has been passed after taking into consideration of all facts and circumstances, and therefore no interference is warranted by this Court. Findings of the Court 10. Having heard the learned counsel for the parties and having gone through the materials including the entire documents brought on record relating to departmental proceeding, this Court is of the considered view that the impugned order needs to be interfered with by this Court for the following facts and reasons:- (i) Admittedly, a criminal case was lodged against the petitioner with the allegation of defalcation of Government money, which led to initiation of departmental proceeding against the petitioner by framing Prapatra-Ka. It is also not in dispute that the very initiation of departmental proceeding has got the approval of the competent authority i.e. the Departmental Minister. At this stage, the authoritative contention of learned counsel for the petitioner is that though the very initiation of departmental proceeding has got the approval of competent authority, but the very charge memo contained in Prapatra-Ka was not duly sanctioned by the competent authority, which is the requirement of law as has been laid down by the Hon’ble Apex Court in the case of Union of India Versus B.V. Gopenath (supra). Therefore, the entire records relating to the present departmental proceeding was called for. From perusal of the documents i.e. right from page 64 to 65, it appears that there is no sanction with respect to Prapatra-Ka of the departmental minister i.e. the competent authority. (ii) To authenticate the argument advanced by learned counsel for the petitioner, the judgment delivered by the Hon’ble Apex Court in the case of B.V. Gopinath (supra) has to deal with. (ii) To authenticate the argument advanced by learned counsel for the petitioner, the judgment delivered by the Hon’ble Apex Court in the case of B.V. Gopinath (supra) has to deal with. The Hon’ble Apex Court in the said case held that in the case where a departmental proceeding is initiated, it is necessary that an independent approval on the initiation of the departmental proceeding, as also on memo of charge should be taken by the competent authority. The Hon’ble Apex Court has dealt with the issue that the charge sheet, which has not been issued by the competent authority, is without authority of law and, therefore, non est in the eyes of the law. In para-41, it has been specifically held that if the disciplinary authority/ competent authority approves the initiation of disciplinary proceedings, the charge sheet can be drawn up by an authority other than disciplinary authority, this notion would destroy the underlying protection guaranteed under article 311 (1) of the Constitution of India. Such procedure would also do violence to the protective provisions contained under article 311 (2) of the constitution, which ensures that no public servant is dismissed, removed or suspended without following a fair procedure in which he/ she has been given reasonable opportunity to meet the allegations, contained in the charge sheet. Such a charge-sheet can only be issued on the approval of the appointing authority. Paragraph-41 is quoted herein below:- “41. Disciplinary proceedings against the respondent herein were initiated in terms of Rule 14 of the aforesaid Rules. Rule 14(3) clearly lays down that where it is proposed to hold an inquiry against a government servant under Rule 14 or Rule 15, the disciplinary authority shall draw up or cause to be drawn up the charge-sheet. Rule 14(4) again mandates that the disciplinary authority shall deliver or cause to be delivered to the government servant, a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and the supporting documents including a list of witnesses by which each article of charge is proposed to be proved. We are unable to interpret this provision as suggested by the Additional Solicitor General, that once the disciplinary authority approves the initiation of the disciplinary proceedings, the charge-sheet can be drawn up by an authority other than the disciplinary authority. We are unable to interpret this provision as suggested by the Additional Solicitor General, that once the disciplinary authority approves the initiation of the disciplinary proceedings, the charge-sheet can be drawn up by an authority other than the disciplinary authority. This would destroy the underlying protection guaranteed under Article 311(1) of the Constitution of India. Such procedure would also do violence to the protective provisions contained under Article 311(2) which ensures that no public servant is dismissed, removed or suspended without following a fair procedure in which he/she has been given a reasonable opportunity to meet the allegations contained in the charge-sheet. Such a charge-sheet can only be issued upon approval by the appointing authority i.e. Finance Minister.” (iii) The similar view has been subscribed by this Court earlier in the case of Rajendra Prasad Sharma Versus State of Jharkhand and others, reported in (2021) 4 JBCJ 662 (HC) and in the case of Manoj Rukhariar Vrs. State of Jharkhand and Ors., reported in (2022) 1 JBCJ 734 (HC). (iv) Therefore, the contention of the learned counsel for the respondents that once the disciplinary authority approves the initiation of the disciplinary proceedings, the charge sheet can be drawn up by an authority other than the disciplinary authority is not tenable. From perusal of the records relating to departmental proceeding, it appears that the approval has been taken from the Departmental Minister, in relation to initiation of Departmental Proceeding, and to that extent initiation of proceeding is in accordance with law, however the approval in relation to memo of allegation has not been taken by the respondents from the Departmental Minister. To that extent the initiation of proceeding is defective and is not in accordance with law. Therefore, placing the reliance upon the judgment of B.V. Gopinath (supra), it can safely be said that issuance of charge-sheet is against the provisions of law and as such the same is not sustainable, as it does not pass the test of Article 311 (1) (2) of the Constitution of India, and hence the same needs to be interfered with by this Court. (v) Further, since the petitioner was discharged from the criminal case which was lodged with the same allegation of corruption, the charge drawn up in the departmental proceeding should also be absolved, as for the same set of charges, the departmental proceeding was initiated. (v) Further, since the petitioner was discharged from the criminal case which was lodged with the same allegation of corruption, the charge drawn up in the departmental proceeding should also be absolved, as for the same set of charges, the departmental proceeding was initiated. In this context, the learned counsel for the petitioner places heavy reliance upon the latest judgment of the Hon’ble Apex Court rendered in the case of Ram Lal (supra). The relevant paragraphs read as under:- “30. We are additionally satisfied that in the teeth of the finding of the appellate Judge, the disciplinary proceedings and the orders passed thereon cannot be allowed to stand. The charges were not just similar but identical and the evidence, witnesses and circumstances were all the same. This is a case where in exercise of our discretion, we quash the orders of the disciplinary authority and the appellate authority as allowing them to stand will be unjust, unfair and oppressive. This case is very similar to the situation that arose in G.M. Tank (supra).” (vi) From perusal of the very judgment, it is noticed that a departmental proceeding was initiated on the same allegations, in which the person had been exonerated in the criminal case. The plea was taken that on the same set of allegations and evidence, it is essential that the Writ Court should go through the findings of the criminal case, while scrutinizing/ deciding the punishment arising out of the departmental proceeding. It was held that on case to case basis this principle should be applied and considered by the Writ Court, in scrutinizing the departmental proceeding and punishment passed therein, if the allegations in two proceedings are based on identical facts and evidence. (vii) In the instant case, the allegations which were drawn up in the departmental proceeding vis-à-vis in the criminal case are identical and similar. As far as the evidences connected with the allegations is concerned, it has to be seen that no direct evidences have been bought on record in the departmental proceeding, rather only statements that form part of earlier proceedings have been put forth. None of the witnesses have been examined in front of the inquiry officer and the delinquent petitioner. The references of some of the beneficiaries and their statements have been relied upon by the inquiry officer. None of the witnesses have been examined in front of the inquiry officer and the delinquent petitioner. The references of some of the beneficiaries and their statements have been relied upon by the inquiry officer. These statements have been given by the persons related with the allegations in some other proceedings, prior to the initiation of the departmental proceeding, may be preliminary inspections, of which the petitioner was not part of. The recording of their statement has not been part of the inquiry arising out of the present departmental proceeding. (viii) Further the Hon’ble Apex Court in the case of Roop Singh Negi (supra) has held that though strict principles of evidence is not to be followed in the Departmental Proceeding and the minimum requirement of any departmental proceeding is that the charges should be proved on the basis of evidences. Merely producing the document is not sufficient to prove the charge against the delinquent. In the instant case, though the evidences of the witnesses were relied upon, but the same are not related to the present case, rather, they belonged to some other report that is anterior to the departmental proceeding. As such, statements of the persons made in such proceedings cannot be relied upon, and they cannot be appreciated as proper evidence. (ix) Law is further well settled in the case of Nirmala J. Jhala Vrs. State of Gujarat and Ors., reported in (2013) 4 SCC 301 , that the help of preliminary inquiry report cannot be taken while deciding the delinquency of an employee in a regular departmental proceeding. (x) The contention of the learned counsel for the respondents that even if a person/ delinquent has been exonerated in criminal case, the person could be punished in the departmental proceeding, is of no help to the respondents in the present facts and circumstances of the case, as stated above. (xi) On overall discussions, it can comfortably be said that the inquiry report has been based on no evidence. Law is well settled that in the absence of evidence, the charges proved against the petitioner are not sustainable, as the same are violative of the basic principles of departmental proceeding. (xi) On overall discussions, it can comfortably be said that the inquiry report has been based on no evidence. Law is well settled that in the absence of evidence, the charges proved against the petitioner are not sustainable, as the same are violative of the basic principles of departmental proceeding. When the criminal case has been dropped against the petitioner, holding that there is no allegation of corruption substantiated against him on the same charges, the entire departmental proceeding suffers from illegality, while on same set of charges and on appreciation of evidence, the competent Criminal Court has exonerated the petitioner. (xii) Further, there is an admitted fact as it appears from the proceedings of the criminal case as well as departmental proceedings that the advance amount, which was given by the petitioner under MGNREGA scheme to the beneficiaries, was returned to the State exchequer, even before initiation of criminal proceeding. Therefore, this Court is of the view that the entire proceeding suffers from irregularities and illegalities, and hence the initiation of departmental proceedings, as also the order of punishment and the entire departmental proceeding are not tenable in the eyes of law and hence, they are fit to be quashed and set aside. 11. As a sequitur to the aforesaid facts, rules, regulations, guidelines and judicial pronouncements, the impugned order contained in Memo No. 5644 dated 25.06.2015 (Annexure-10) including the entire departmental proceeding initiated vide Government Resolution dated 30.12.2010 (Annexure-2) is hereby quashed and set aside. After quashment of the said orders, the consequential benefits be extended to the petitioner within a period of six weeks from the date of receipt of a copy of this order. 12. The writ petition is, accordingly, allowed. Consequently, the aforesaid interlocutory application stands disposed of.