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2024 DIGILAW 402 (JHR)

Sukhram Baitha v. State of Jharkhand

2024-04-15

RAJESH SHANKAR

body2024
JUDGMENT : Rajesh Shankar, J. The present writ petition has been filed for quashing the order as contained in memo no. 1605 dated 03.06.2022 (Annexure-15 to the writ petition) issued under the signature of the respondent no. 2 – the Secretary, Department of Schedule Tribe, Schedule Caste, Minority and Backward Class Welfare, Government of Jharkhand, whereby the punishment of recovery of Rs.5,06,500/- from the amount of gratuity of petitioner, as imposed vide departmental order no. 1764 dated 12.06.2015, has been upheld with further observation that nothing would be payable to the petitioner except the subsistence allowance for the period of suspension i.e., from 27.02.2013 to 20.03.2013. Further prayer has been made for quashing the order as contained in memo no. 1005 dated 01.04.2021 (Annexure-14 to the writ petition) issued by the respondent no. 2 in pursuance of the order dated 10.11.2020 passed in W.P.(S) No. 4762 of 2015, whereby the previous punishment imposed vide departmental order no. 1764 dated 12.06.2015 and order no. 2208 dated 20.07.2015 was upheld. The petitioner has also prayed for issuance of direction upon the concerned respondents to refund Rs.5,06,500/- along with statutory interest to the petitioner which has been recovered from his amount of gratuity. 2. Learned counsel for the petitioner submits that the petitioner was posted as Block Welfare Officer in Madhupur, Deoghar and was transferred on 12.02.2013 (relieved on 12.02.2013 afternoon) to the District Welfare Office, Ranchi. After transfer of the petitioner, a teacher of Upgraded Middle School, Kogdo namely, Tulsi Yadav was caught along with another person namely, Binod Sharma selling the cycles on 16.02.2013 provided by the Scheduled Tribe, Scheduled Caste, Minority and Backward Class Welfare Department, Government of Jharkhand for free of cost distribution among the students of Scheduled Caste and Scheduled Tribe, which were kept in the store room situated within the premises of Madhupur Block. Thereafter, on the written report of the Block Development Officer, Madhupur, an FIR being Madhupur P.S. Case No. 34 of 2013 was registered for the said incident under Sections 409/420/34 of IPC against Tulsi Yadav and Binod Sharma. After the investigation, the chargesheet was filed in the said case against the petitioner and Tulsi Yadav under Sections 409/420/467/468/471/120B/34 of the IPC. Subsequently, a departmental proceeding was initiated against the petitioner vide order as contained in memo no. 1995 dated 26.08.2014 issued by the respondent no. After the investigation, the chargesheet was filed in the said case against the petitioner and Tulsi Yadav under Sections 409/420/467/468/471/120B/34 of the IPC. Subsequently, a departmental proceeding was initiated against the petitioner vide order as contained in memo no. 1995 dated 26.08.2014 issued by the respondent no. 3 – the Deputy Secretary, Scheduled Tribe, Scheduled Caste, Minority and Backward Class Welfare Department, Government of Jharkhand, Ranchi and the respondent no. 4 – the Deputy Development Commissioner, Deoghar was appointed as conducting officer whereas the respondent no. 5 – the District Welfare Officer, Deoghar was appointed as presenting officer. 3. The petitioner was issued memo of charge in “Prapatra-Ka” alleging that he was the custodian of 407 cycles kept in the store room of the Welfare Department and at the time of getting relieved from the post of Block Welfare Officer, Madhupur, he did not handover the charge of the cycle store room to any competent officer, rather he handed over the key of the said store room to his associate Tulsi Yadav, who was caught selling those cycles in the local market on 16.02.2013. It was also alleged that the petitioner had given the key to Tulsi Yadav without obtaining written permission of any competent authority, which clearly showed negligence and dereliction of duty on his part due to which the said Tulsi Yadav taking advantage of the situation, illegally sold all 407 cycles. 4. It is further submitted that the petitioner has been acquitted in the criminal case being Madhupur P.S Case No. 34 of 2013, corresponding to G.R No. 95 of 2013 (T.R. No. 285 of 2018), vide judgment dated 09.04.2018 passed by the Sub-Divisional Judicial Magistrate, Madhupur. The petitioner submitted a written statement on 31.10.2014 in the departmental enquiry followed by supplementary written statements on 01.12.2014 and 16.12.2014. During pendency of the departmental proceeding, the petitioner retired from service on 31.01.2015 from the post of Block Welfare Officer, Ranchi. The petitioner submitted a written statement on 31.10.2014 in the departmental enquiry followed by supplementary written statements on 01.12.2014 and 16.12.2014. During pendency of the departmental proceeding, the petitioner retired from service on 31.01.2015 from the post of Block Welfare Officer, Ranchi. The enquiry officer submitted the enquiry report on 30.03.2015 observing that the petitioner was the custodian of the cycles kept in the store room of Block Office, Madhupur and it was his responsibility to hand over the charge of cycles to a competent officer at the time of getting relieved from the office to join in the District Welfare Office, Ranchi, however, he failed to do so and handed over the key of the cycle store room to one Tulsi Yadav who was subsequently caught selling the cycles illegally in the local market causing loss to the government exchequer. 5. Thereafter, the order imposing punishment of recovery of Rs.5,06,500/- from the gratuity amount of the petitioner and withholding of his promotion was passed vide memo no. 1764 dated 12.06.2015 issued under the signature of the respondent no. 3. Another order vide memo no. 2208 dated 20.07.2015 was passed by the respondent no. 3 to the effect that the suspension period of the petitioner (i.e., 27.02.2013 to 20.03.2013) would be considered as period spent on duty for pension purpose and he would not get anything except subsistence allowance for the period of suspension. 6. The petitioner filed a writ petition being W.P.(S) No. 4762 of 2015 challenging the penalty order dated 12.06.2015 as well as part of the order dated 20.07.2015. The said writ petition was allowed vide order dated 10.11.2020 quashing the order dated 12.06.2015 and part of the order dated 20.07.2015 as well as remitting the matter back to the disciplinary authority with a liberty to proceed in the matter in accordance with law. Thereafter, vide departmental letter no. 609 dated 03.03.2021, the petitioner was asked to appear before the respondent no. 2 on 17.03.2021 at 01.00 p.m. for hearing of his matter and to submit his written/oral stand. The petitioner appeared before the respondent no. 2 on 17.03.2021 and filed the written reply, however, vide impugned order as contained in memo no. 1005 dated 01.04.2021, the departmental penalty order nos. 1764 2208 previously issued on 12.06.2015 and 20.07.2015 respectively were upheld. 7. The petitioner appeared before the respondent no. 2 on 17.03.2021 and filed the written reply, however, vide impugned order as contained in memo no. 1005 dated 01.04.2021, the departmental penalty order nos. 1764 2208 previously issued on 12.06.2015 and 20.07.2015 respectively were upheld. 7. It is further submitted that during pendency of the present writ petition, the respondent no. 2 reviewed his earlier order dated 01.04.2021 and passed a fresh order as contained in memo no. 1605 dated 03.06.2022, whereby recovery of Rs.5,06,500/- made from the gratuity amount of petitioner was kept unchanged and it was further held that the petitioner would be paid nothing else except the subsistence allowance for the period of suspension. 8. It is also submitted that the departmental proceeding was not concluded during the service tenure of the petitioner and there was no order of the State Government regarding conversion of the departmental proceeding to a proceeding under 43(b) of the Jharkhand Pension Rules, 2000 after retirement of the petitioner. Moreover, the order of recovery of Rs.5,06,500/- from gratuity amount of the petitioner is without jurisdiction as there is no such provision of said penalty under Bihar (now Jharkhand) & Orissa Sub-ordinate Services (Discipline and Appeal) Rules, 1935. Further, no separate notice was issued to the petitioner under rule 97(1) of the Jharkhand Service Code, 2001 even after remand of the matter by a Bench of this Court in W.P.(S) No. 4762 of 2015. Apart from the aforesaid infirmities, there was no independent finding in the impugned order dated 01.04.2021 about consideration of the fact that the petitioner had been acquitted in the criminal trial and there was no consideration on the proportionality of the penalty. 9. According to learned counsel for the petitioner, a second show cause notice was already issued on 03.03.2021 and after submission of its reply, the impugned order dated 01.04.2021 was already passed. Thus, there was no justified reason to issue another show cause notice dated 27.05.2022 and to pass a fresh impugned order as contained in memo no. 1605 dated 03.06.2022, which was nothing but an eye wash in the garb of passing a fresh order. 10. On the contrary, learned counsel for the respondents submits that the order of penalty was revisited by the respondent no. 2 vide order as contained in memo no. 1605 dated 03.06.2022, which was nothing but an eye wash in the garb of passing a fresh order. 10. On the contrary, learned counsel for the respondents submits that the order of penalty was revisited by the respondent no. 2 vide order as contained in memo no. 1005 dated 01.04.2021 in compliance of the order dated 10.11.2020 passed in W.P.(S) No. 4762 of 2015. It is further submitted that in terms with the opinion received from Department of Law, Government of Jharkhand, the respondent no. 2 reviewed the order of punishment dated 01.04.2021 and in the said process, the earlier order passed against the petitioner was withdrawn and a fresh notice was issued to him vide letter no. 1539 dated 27.05.2022 directing to appear before the respondent no. 2 for personal hearing on 03.06.2022 and to again submit his oral/written reply to the second show cause notice. The petitioner appeared on the given date and filed his response which was duly considered by the said respondent and on appreciating the facts and circumstances in entirety, a fresh order as contained in memo no 1605 dated 03.06.2022 was passed. 11. Heard learned counsel for the parties and perused the materials available on record. 12. The primary argument of learned counsel for the petitioner is that once a fresh order as contained in memo no. 1005 dated 01.04.2021 had already been passed in compliance of the order passed in W.P.(S) No. 4762 of 2015, there was no occasion for reviewing the said order vide memo no. 1605 dated 03.06.2022, which is merely an eye wash and the respondent no. 2 vide the said order has tried to rectify the infirmity in the order as contained in memo no. 1005 dated 01.04.2021. 13. It appears from the record that during pendency of the present writ petition, the respondents had filed I.A No. 2713 of 2022 stating that there was certain mistake in the order as contained in memo no. 1005 dated 01.04.2021 due to which the same was placed before the higher authority for necessary modification. In course of hearing on the said interlocutory application, the petitioner did not raise any objection to the said argument of learned counsel for the respondents and as such, the said interlocutory application was allowed by a Bench of this Court vide order dated 19.04.2022. 14. In course of hearing on the said interlocutory application, the petitioner did not raise any objection to the said argument of learned counsel for the respondents and as such, the said interlocutory application was allowed by a Bench of this Court vide order dated 19.04.2022. 14. The operating part of the order dated 19.04.2022 is quoted herein below for the ready reference in the present case, which reads as under: “I.A. No. 2713 of 2022 has been filed by the respondents for granting extension of time for complying order dated 15.03.2022. Mr. Ashutosh Anand, learned AAG submits that there is some mistake in the impugned order as contained in Memo No. 1005, dated 01.04.2021 and as such, the concerned filed has been placed before the higher authority for necessary modification. In the circumstances, respondents may be allowed three weeks’ further time to file counter affidavit. Learned counsel appearing for the petitioner does not object to the prayer.” Having heard counsel for the parties and considering facts and circumstances of the case, I.A. No. 2713 of 2022 stands allowed. Respondents may file counter affidavit within a further period of three weeks from today. 15. I am of the view that since the respondents themselves have accepted before this Court that the order as contained in memo no. 1005 dated 01.04.20121 was defective, which was placed before the higher authority for necessary modification and the respondent no. 2 passed a fresh order vide memo no. 1605 dated 03.06.2022 after providing due opportunity of hearing to the petitioner, he cannot be allowed to challenge the validity of the said order on that ground. Moreover, the said modification has been done with due intimation to this Court. A writ court while exercising the power under Article 226 of the Constitution of India can certainly permit rectification of mistake or irregularity in any proceeding, if so found in course of hearing. 16. The next limb of argument of learned counsel for the petitioner is that the charge in the criminal case and the disciplinary proceeding are identical and as such after the acquittal of the petitioner in the criminal case, he ought to have been exonerated from the charges levelled in the departmental proceeding. 17. To appreciate the said contention of learned counsel for the petitioner, I have perused the judgment rendered by the Hon’ble Supreme Court in the case of “M. Poul Anthony Vs. 17. To appreciate the said contention of learned counsel for the petitioner, I have perused the judgment rendered by the Hon’ble Supreme Court in the case of “M. Poul Anthony Vs. Bharat Gold Mines Limited & Anr.” reported in (1999) 3 SCC 679 , wherein it has been held as under: 22. The conclusions which are deducible from various decisions of this Court referred to above are: (i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately. (ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. (iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet. (iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. (v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest. 18. Thus, it is well settled that the proceedings in criminal case and departmental enquiry can continue simultaneously as both operate in distinct and different jurisdictional areas. In the departmental proceeding, a charge relating to misconduct is enquired and the required standard of proof is different from that needed in a criminal case. 18. Thus, it is well settled that the proceedings in criminal case and departmental enquiry can continue simultaneously as both operate in distinct and different jurisdictional areas. In the departmental proceeding, a charge relating to misconduct is enquired and the required standard of proof is different from that needed in a criminal case. In the case of departmental proceeding, the standard of proof is one of preponderance of the probabilities, whereas in the criminal case, the charge has to be proved by the prosecution beyond the shadow of reasonable doubt. However, where the departmental proceeding and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance, it is desirable to stay the departmental proceeding till the conclusion of the criminal case. 19. The petitioner was acquitted in the criminal case, on the ground of benefit of doubt as the important witnesses were not examined and thus the said acquittal cannot be said to be honourable acquittal. 20. On the other hand, in the departmental proceeding, the charge against the petitioner was that he was the custodian of 407 cycles kept in the store room of Welfare Department and at the time of getting relieved from the office, he had not given the charge of the store room to the competent authority, rather the key of the store room was handed over to one Tulsi Yadav, who was subsequently caught illegally selling the said cycles. The said act of the petitioner shows his negligence and dereliction of duty. The petitioner has neither denied the fact that he was the custodian of the cycles nor claimed that he had handed over the charge of those cycles to the competent authority at the time of getting relieved from the said office. 21. Thus, on mere ground that the petitioner has been acquitted in the criminal case getting benefit of doubt, he cannot claim exoneration from the charge levelled in the departmental proceeding. 22. So far as the claim of the petitioner regarding procedural infirmity committed during the departmental proceeding is concerned, earlier the petitioner had filed a writ petition being W.P.(S) No. 4762 of 2015 for quashing the order as contained in memo no. 1764 dated 12.06.2015 and part of the order as contained in memo no. 2208 dated 20.07.2015. 22. So far as the claim of the petitioner regarding procedural infirmity committed during the departmental proceeding is concerned, earlier the petitioner had filed a writ petition being W.P.(S) No. 4762 of 2015 for quashing the order as contained in memo no. 1764 dated 12.06.2015 and part of the order as contained in memo no. 2208 dated 20.07.2015. The said orders were quashed by the Court observing that no second show cause notice was issued to the petitioner and the matter was remitted back to the disciplinary authority with a liberty to proceed in the matter in accordance with law. Thereafter, the respondent no. 2 issued second show cause notice to the petitioner vide letter no. 609 dated 03.03.2021 and after considering his written/oral reply, passed the impugned order dated 01.04.2021. Subsequently, the order dated 01.04.2021 was reviewed by the respondent no. 2 and second show cause notice was again issued to the petitioner vide letter no. 1539 dated 27.05.2022. Further, on considering his reply, the impugned order as contained in memo no. 1605 dated 03.06.2022 was passed. On bare perusal of the said order, it would appear that each and every point raised by the petitioner has been duly considered by the respondent no. 2. Thus, I do not find any procedural infirmity while passing the said impugned order. 23. One of the arguments of learned counsel for the petitioner is that neither any order has been passed by the State Government regarding continuation of the departmental proceeding even after retirement of the petitioner nor any order with respect to conversion of the department proceeding in a proceeding under section 43(b) of the Jharkhand Pension Rules, 2000 has been passed against the petitioner and thus, the impugned order is liable to be vitiated in law. 24. I have perused the judgment rendered by a Full Bench of Patna High Court in the case of “Shambhu Saran Vs. State of Bihar” reported in 1991 SCC OnLine Pat 341: (2000) 1 PLJR 665 (FB), wherein it has been held as under: 13. 24. I have perused the judgment rendered by a Full Bench of Patna High Court in the case of “Shambhu Saran Vs. State of Bihar” reported in 1991 SCC OnLine Pat 341: (2000) 1 PLJR 665 (FB), wherein it has been held as under: 13. In that view of the matter, we answer the reference by holding as follows:— (i) In a case where a disciplinary proceeding has already been started, even if the person concerned attains the age of superannuation, the enquiry may be continued under Rule 43 of the Bihar Pension Rules, 1950 for the limited purpose of taking such action as provided under the said Rule even after such superannuation and for that purpose no specific or express order of the Government is necessary. (ii) The decision of the Division Bench in case of Singeshwari Sahay v. The State of Bihar reported in 1979 BBCJ 735 and the law laid down therein were not correctly decided. 25. In the aforesaid case, it has been held that where a disciplinary proceeding has been started during the service tenure of any government employee, then even after the superannuation of the said employee, the enquiry may be continued under rule 43 of the Bihar Pension Rules, 1950 for the limited purpose of taking such action as provided under the said Rule and for that purpose, no specific or express order of the Government is necessary. 26. Thus, I find no substance in the claim of the petitioner that the departmental proceeding is liable to be vitiated in absence of any order issued by the State Government for conversion of the proceeding under rule 43(b) of the Jharkhand Pension Rules, 2000. 27. Learned counsel for the petitioner has also argued that the recovery of Rs.5,06,500/- from the gratuity amount of the petitioner is violative of Article 21 of the Constitution of India. 28. Rule 35 of Jharkhand Service Code, 2001 as well as rule 27 of the Jharkhand Pension Rules, 2000 provide that the pension includes gratuity. Rule 43(b) of the Rules, 2000 empowers the State Government to recover whole or part of any pecuniary loss caused to the 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 the Government by committing misconduct or negligence during his service including service rendered on re-employment after retirement. 29. I have also perused the judgment rendered by the Hon’ble Supreme Court in the case of “Secretary, ONGC Ltd. & Anr. Vs. V.U. Warrier” reported in (2005) 5 SCC 245 . In the said case, Their Lordships have held as under: 20. It is well settled that gratuity is earned by an employee for long and meritorious service rendered by him. Gratuity is not paid to the employee gratuitously or merely as a matter of boon. It is paid to him for the service rendered by him to the employer (vide Garment Cleaning Works v. Workmen [ (1962) 1 SCR 711 ]). In Calcutta Insurance Co. Ltd. v. Workmen [ (1967) 2 SCR 596 ], after considering earlier decisions, this Court observed that “long and meritorious service” must mean long and unbroken period of service meritorious to the end. As the period of service must be unbroken, so must the continuity of meritorious service be a condition for entitling the workman to gratuity. If a workman commits such misconduct as causes financial loss to his employer, the employer would under the general law have a right of action against the employee for the loss caused and making a provision for withholding payment of gratuity where such loss caused to the employer does not seem to aid the harmonious employment of labourers or workmen. The Court proceeded to state that the misconduct may be such as to undermine the discipline in the workers — a case in which it would be extremely difficult to assess the financial loss to the employer. 30. Thus, continuity of meritorious and unbroken service is a condition precedent to entitle the workman/employee to gratuity and if a workman/employee commits misconduct which causes financial loss to the employer, the employer has a right to take action against the employee for the loss caused. As such, no infirmity is found in the order as contained in memo no. 1605 dated 03.06.2022. 31. Under the aforesaid facts and circumstance, the writ petition being devoid of merit is accordingly dismissed.