Syed Hafizul Hassan vs The State Of Jharkhand Through ...
2021 Latest Caselaw 872 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  W.P.(S) No.507 of 2014
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   Syed Hafizul Hassan                   ..... Petitioner
                               Versus

1. The State of Jharkhand through Chief Secretary

2. Principal Secretary, Department of Co-operation, Govt. of Jharkhand

3. Deputy Commissioner, Dumka

4. Joint Registrar, Co-operative Society, Santhal Pargana Division Dumka ..... Respondents

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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. Mrinal Kanti Roy, Advocate For the Respondents : Mr. Rahul Dev, Advocate

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10/23.02.2021 Heard learned counsel for the parties through V.C.

2. The instant writ application has been preferred by the petitioner praying therein for quashing the enquiry report submitted by the conducting officer in the departmental proceeding initiated against the petitioner and also for quashing and setting aside the second show cause notice issued to the petitioner vide letter No. 174 dated 15.01.2014 on the ground that the entire departmental proceeding has been initiated against this petitioner after his retirement in violation of the provisions of Rule 43 (b) of the Jharkhand Pension Rules.

3. Mr. Mrinal Kanti Roy, learned counsel for the petitioner submits that the petitioner retired from service on 31.07.2012 and at the time of his retirement, no departmental proceeding was pending against him. He further draws attention of this court towards the notification of the Government dated 19.03.2013 for taking action against this petitioner under Rule 43 (b) of the Jharkhand Pension Rules (Annexure 9).

Mr. Roy further referred to Annexure -14 and contended that from bare perusal of this document it clearly transpires that the period of the alleged charge was up till 31.12.2008. However, the memo of charge was issued on 18.3.2013, which is admittedly beyond the period of four years from the date of cause of action. He further submits that as per Proviso (ii) to Rule 43 (b) of the Jharkhand

Pension Rules, it is clear that no departmental proceeding under this Rule shall be in respect of an event more than four years before the institution of such proceeding.

He further submits that the Explanation given in Rule 43 (b) of the said Rule clearly stipulates that departmental proceeding shall be deemed to have been instituted when the charges framed against the petitioner are issued to him or, if the government servant has been placed under suspension from an earlier date, on such date. Relying upon the aforesaid facts he contended that the entire departmental proceeding is against Rule 43 (b) of Jharkhand Pension Rules.

4. Mr. Rahul Dev, learned counsel for the respondents vehemently opposed the prayer of the petitioner and submits that the chargesheet was already issued to this petitioner way back on 06.07.2010 when he was in service as such Annexure 9 should not be considered as initiation of proceeding under Rule 43 (b) rather it should be construed as continuation of the departmental proceeding already initiated during the service period of the petitioner.

He further draws attention of this Court to the letter written by the Deputy Secretary, Government of Jharkhand to the petitioner whereby he has been asked to submit his explanation regarding financial irregularities based on the audit report. He submits that notice to show cause has already been issued to the petitioner and in spite of that the petitioner did not submit his show cause reply and several reminders were also given to him. In view of the aforesaid facts, the instant writ application deserves to be dismissed.

5. Having heard learned counsel for the parties and after going through the documents annexed and averments made in respective affidavits, it appears that though the Deputy Commissioner, Dumka vide his letter dated 16.11.2009 communicated to the Secretary, Cooperative Department, regarding financial irregularities committed by

the petitioner in the year 2007-08 and 2008-09 and asked the Secretary to take appropriate action against the petitioner by preparing Form-'K' and Pursuant thereto, the Joint Registrar, Cooperative Societies, Santhal Pargana Division vide his letter dated 20.11.2009 issued letter to the Principal Secretary (Respondent No.2) communicating him that petitioner has fraudulently misappropriated several crores out of public fund and requested to issue direction to the Managing Director, Dumka to lodge FIR for the aforesaid act. Thereafter, a letter was issued to the petitioner asking him to submit his reply. However, whatever may be the reason, a proper charge sheet was never issued and in the meantime petitioner superannuated on 31.7.2012.

Admittedly; the proceedings as referred by the learned counsel for the respondents cannot be said to be initiation of departmental proceeding, inasmuch as, departmental proceeding is said to have been initiated from the date of issuance of charge sheet and in the instant case; Annexure 9, which is the government notification clearly transpires that the same is the decision to issue charge sheet against the petitioner under Rule 43 (b) of the Jharkhand Pension Rules. After perusing Annexure 9 which is dated 18.3.2013 issued on 19.3.2013, it clearly transpires that nowhere it is stated that the Government has converted any pending proceeding into a proceeding under Rule 43(b) pursuant to the retirement of the petitioner. This document is a simpliciter decision to initiate action against the petitioner under Rule 43(b) of Jharkhand Pension Rules and pursuant to that the petitioner was served with the memo of charge.

6. In the case of DELHI DEVELOPMENT AUTHORITY Versus H.C. KHURANA reported in (1993) 3 SCC 196 the Hon'ble Apex Court has decided the question as to what is the stage when it can be said that a decision has been taken to initiate departmental proceeding. Paragraph 9 of the aforesaid judgment is quoted hereinbelow:

"9. The question now, is: What is the stage, when it can be said, that 'a decision has been taken to initiate disciplinary proceedings"? We have no doubt that the decision to initiate disciplinary proceedings cannot be subsequent to the issuance of the charge-sheet, since issue of the charge-sheet is a consequence of the decision to initiate disciplinary proceedings. Framing the charge-sheet, is the first step taken for holding the enquiry into the allegations, on the decision taken to initiate disciplinary proceedings. The charge-sheet is framed on the basis of the allegations made against the government servant; the charge-sheet is then served on him to enable him to give his explanation; if the explanation is satisfactory, the proceedings are closed, otherwise, an enquiry is held into the charges; if the charges are not proved, the proceedings are closed and the government servant exonerated; but if the charges are proved, the penalty follows. Thus, the service of the charge-sheet on the government servant follows the decision to initiate disciplinary proceedings, and it does not precede or coincide with that decision. The delay, if any, in service of the charge-sheet to the government servant, after it has been framed and despatched, does not have the effect of delaying initiation of the disciplinary proceedings, inasmuch as information to the government servant of the charges framed against him. By service of the charge-sheet, is not a part of the decision-making process of the authorities for initiating the disciplinary proceedings."

Even otherwise the explanation given in Rule 43

(b) of the Jharkhand Pension Rules clearly stipulates that departmental proceeding shall be deemed to have been instituted when the charges framed against the petitioner are issued to him or, if the government servant has been placed under suspension from an earlier date, on such date. At the

cost of repetition, admittedly; the petitioner was neither suspended nor was any proceeding pending inasmuch as, Annexure 9, which is the decision of the government to initiate proceeding under 43(b), does not speak so.

7. Now coming to the argument of the petitioner that the cause of action for which chargesheet has been issued, is hit by provisio (ii) to Rule 43 (b) as no action can be taken under this Rule if the event took place beyond four years from the date of issuance of charge sheet, it appears that in the instant case admittedly; the period of allegation/charge was up till 31.12.2008 and the charge sheet has been issued which was attached with the Government decision to initiate action under Rule 43(b) of the Jharkhand Pension Rules is signed on 18.3.2013 and issued under memo no. 688 on 19.3.2013.

As such, I am not in agreement with the argument of learned counsel for the respondent State that initially also a show cause was issued to the petitioner because certainly that show cause did not culminate into initiation of any departmental proceeding and it is only after retirement of this petitioner, Annexure 9 dated 18.3.2013 was issued for the period which was admittedly beyond the period of four years.

8. In view of the aforesaid findings and the settled proposition of law, the instant writ application deserves to be allowed. Consequently, the enquiry report dated 06.07.2013 and second showcause as contained in Letter No. 174 dated 15.01.2014 are quashed and set aside. The petitioner is entitled to consequential benefits. It is made clear that the government shall take a decision with regard to consequential benefit within a period of four months from the date of receipt/production of a copy of this order and pay the monetary benefits, if any, within a further period of eight weeks.

9. With the aforesaid terms, the instant writ application stands allowed.

(Deepak Roshan, J.)

Jharkhand High Court, Ranchi Dated 23.02.2021 sm/A.F.R.