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2024 DIGILAW 792 (JHR)

Gopal Ram Rajak v. State of Jharkhand

2024-09-05

DEEPAK ROSHAN

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JUDGMENT : DEEPAK ROSHAN, J . 1. Heard learned counsel for the parties. 2. The instant writ application has been preferred by the petitioner praying therein for quashing of the order as contained in Memo No . 5663 dated 31.12.2018 (Annexure-6), passed by the respondent no.3; whereby order has been issued against this petitioner that 5% of deduction will be done from the pensionable amount for the period of 5 years. 3. Brief facts of the case as it appears from the pleadings is that the petitioner has been working as Executive Engineer in the Western Kosi Bank Division, Kunauli, Birpur, of the River Kosi. During this time for the period between 15.06.2002 to 15.10.2002, the flood on the river Kosi was at its peak, and therefore, the flood relief operations were being undertaken by the Government. The Department was the responsible wing of the Government. For this purposes, one M/s. Sambhavi construction was engaged to perform flood relief work. The work was completed however, the payment could not be made for which the contractor went before High Court, and on the directions of the Hon’ble Court, one committee was constituted. The committee came to a conclusion that payment to the contractor is due, and therefore payment was released in favor of the contractor. 4. In relation to this operation, the allegations were framed against the petitioner, who at that point of time was posted as Executive Engineer in the place of incidents. The decision was taken to initiate departmental proceedings against the petitioner. The petitioner in the mean time had come to Jharkhand after bifurcation of the Cadre in the year 2004. The decision to initiate departmental proceeding was taken by the Government of Jharkhand vide resolution dated 01.07.2009, and along with this resolution one Prapatra- “KA” was also served upon the petitioner. The allegations leveled against the petitioner in the Prapatra-KA were two folds, which are as follows:- (i) In the year 2002-03 for the purposes of flood relief work payment was made to M/s. Shambhavi construction and amount of Rs. 13.114 Lakhs was made to the contractor. For this unauthorized payment the petitioner is liable. (ii) The petitioner delayed in forwarding form 24 proposals beyond 3 days, which is against the said norms and regulations of the Department. 13.114 Lakhs was made to the contractor. For this unauthorized payment the petitioner is liable. (ii) The petitioner delayed in forwarding form 24 proposals beyond 3 days, which is against the said norms and regulations of the Department. The form 24 proposal is a description of the work along with registration proposals, and due to the delay in forwarding the same the allegations were framed against the petitioner. The petitioner submitted his reply dated 08/08/2009 denying the charges. The petitioner in his reply stating that the allegation no. 1 is unfounded, as because the payment was made on the basis of judgment of Hon’ble Court and thereafter on the basis of Departmental Committee Report. Further, the enquiry was concluded and enquiry report was submitted and in the Enquiry Report, the petitioner was exonerated of charge no.1 but however, in relation to charge no. 2 it was said that the petitioner himself has admitted that he has delayed in forwarding the form 24 proposals part 36, as is a norm in the departmental procedure. Thereafter, the respondent asked for reply to second show cause notice, dated 19/11/2017 and with the second show cause notice the copy of enquiry report was provided to the petitioner. It is the case of the petitioner that the Enquiry Officer had already disclosed his mind that he is ready to pass order of punishment against the petitioner in a very mechanical manner. The conduct of respondents has prejudicial to the petitioner, as it violates the basic principle of natural justice. The petitioner immediately preferred reply dated 21/4/2017 to the second show cause, in which he had stated that delay in submission of form 24 proposal is not attributable to him; rather it was because of the delay on part of Junior Engineer and Assistant Engineer. The petitioner received form 24 proposal from these authorities on 22.09.2002, and immediately he forwarded the same to higher authority. During the pendency of the Departmental Proceedings, the petitioner retired on 31 st August, 2017, and therefore, on 10.11.2017 decision was taken by the department to complete the regular departmental proceedings initiated under Rule 55 of the Civil Services (Classification Control and Appeal) Rules 1930 into a proceeding under Rule 43B of the Pension Rule. During the pendency of the Departmental Proceedings, the petitioner retired on 31 st August, 2017, and therefore, on 10.11.2017 decision was taken by the department to complete the regular departmental proceedings initiated under Rule 55 of the Civil Services (Classification Control and Appeal) Rules 1930 into a proceeding under Rule 43B of the Pension Rule. Thereafter the respondents passed the order of punishment against the petitioner vide order dated 31.12.2018, under the provisions of 43B of Pension Rule; whereby punishment of withholding of 5% of pensionable amount for the period of 5 years was imposed against the petitioner. Hence, this writ application. 5. Mr. Saurabh Shekhar, learned counsel for the petitioner assailing the impugned order made following submissions:- (i) The punishment has been imposed under provision of Rule 43(b) of the pension Rule, however the same is not in consonance with the said provision, inasmuch as, 43(b) of the Pension Rules can be passed only in relation to the allegation of pecuniary loss or in case of grave misconduct and surprisingly; neither in the order of punishment, there is any reference of pecuniary loss to the State Government; nor there is any reference to grave misconduct. (ii) His next limb of the argument is that an error has been committed in providing the second show cause to the petitioner with an opinion and view that punishment order is to be passed against him; which is against the settled proposition of law. (iii) His next limb of argument is that the punishment is beyond the charge, inasmuch as, so far as charge no.2 is concerned for which he has been punished, there is a reference of fact that he has delayed in forwarding Form 24 proposal part 36 as is the norm in the departmental proceeding. However, as per the charge-sheet it has been held that by delaying 3 days; bad intent of the petitioner had surfaced i.e. ^^blls vkidh ea'kk tkfgj gksrh gSA** However, the punishment has been given for negligence or indifference from work and for non- following the official procedure. As aforesaid the charge was only for bad intention in making delay in forwarding the Form 24 as such the punishment has been given beyond the charge. As aforesaid the charge was only for bad intention in making delay in forwarding the Form 24 as such the punishment has been given beyond the charge. (iv) The 4th limb of argument of the petitioner is that as per 43(b) of Pension Rules, there has to be a finding that the act of the petitioner has led to the pecuniary loss to the Government. However, there is no finding at all that what loss the Government has incurred due to the act of the petitioner. Accordingly, the impugned order deserves to be quashed and set aside and the consequential benefit may be extended to the petitioner. 6. Learned counsel for the respondents submits that the payment to M/s. Sambhavi construction- the contractor was only delayed due to this petitioner and for the act of this petitioner, the respondent-authority has incurred loss and the State was made to pay heavy amount to the contractor. Had there been no delay on the part of this petitioner, there would not have been any loss of the State exchequer. 7. He further submits that there is no any procedural irregularity and the order passed by the disciplinary authority is in accordance with law and the petitioner should be happy that it is only 5% of the pension has been deducted only till 5 years though the amount for which the State has incurred loss was much and much higher. 8. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits and the averments made therein, it appears that the petitioner was exonerated from the charge no.1, however in relation to charge no.2 it has been said that the petitioner himself admitted that he has delayed in forwarding the Form 24 proposal in part 36 as is a norm in the departmental proceeding. 9. One limb of argument of the learned counsel for the petitioner is that as per Rule 43(b) of the Pension Rules there has to be pecuniary loss to the Government or any misconduct but there is no finding with regard to loss incurred by the Government due to act of this petitioner as it is an admitted fact that the petitioner was responsible for delaying in forwarding Form 24 proposal beyond 3 days. From bare perusal of the impugned order there is no any reference that the State has actually incurred loss due to this delay of three days because admittedly the other officers were also responsible for payment to the contractor. As such on this score alone the impugned order is fit to be quashed and set aside. 10. So far as the argument with regard to punishment is beyond the charge is concerned; if perused the charge no.2 which is at annexure-1 series, it appears that the allegation against the petitioner with respect to charge no.2 is that by not sending the Form 24 proposal within time was his bad intent. For brevity charge no.2 is quoted herein below:- However, after going through the order of punishment, it appears that in paragraph-7 there is a finding of negligence or indifference in work in doing official work and non-compliance of the official procedure. So, there is no finding with regard to bad intent of this petitioner and the punishment has been given for other reasons i.e. with respect to indifference in doing official work, negligence and non-compliance of the official procedure; as such, the same is not sustainable in the eye of law. The law is now well settled that the punishment must be in accordance with charge, which is absent in the instant case. Accordingly, on this ground also, the impugned order dated 31.12.2018 is fit to be quashed and set aside. 11. As a result, the instant writ application stands allowed. The respondents are hereby directed to calculate the arrear of pension, if the same has been deducted, and pay the same within a period of 12 weeks from the date of receipt/production of a copy of this order. 12. Consequently, the instant writ application is hereby allowed. Pending I.As., if any, is also closed.