Siya Ram Jha vs Bihar State Food And Civil Supply ...
2021 Latest Caselaw 298 Jhar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                               W.P.(S) No. 2299 of 2009
                 (An application under Article 226 of the Constitution of India)
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            Siya Ram Jha                                              ..... Petitioner
                                     Versus

1. Bihar State Food and Civil Supply Corporation Limited having its office at Sone Bhawan, 5th Floor, Birchand Patel Path, Patna through its Managing Director.

2. District Manager, Bihar State Food and Civil Supply Corporation Limited having its office at Municipal Corporation Building, Ranchi.

3. Regional Provident Fund Commissioner, Ranchi near Jail More Chowk, Ranchi.

4. Jharkhand State Food and Civil Supply Corporation, Ranchi. ..... Respondents

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For the Petitioner : Mr. Saurabh Shekhar, Advocate For the Resp. No.4 : Dr. A.K.Singh, Advocate

PRESENT

HON'BLE MR. JUSTICE DEEPAK ROSHAN

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By Court: Heard through V.C.

2. The instant writ application has been preferred by

the petitioner for following reliefs:

(i) For the issuance of an appropriate writ order direction

for quashing the order as contained in Memo No. 2922

dated 1.4.2009 issued under the signature of Managing

Director of Bihar State Food and Civil Supply Corporation

Limited whereby and whereunder it has been ordered to

deduct 50% of the amount from the Gratuity and Leave

encashment of the petitioner.

(ii) For the issuance of an appropriate writ order direction

to direct the respondent to forthwith release all retiral

dues like the amount of Provident Fund along with

statutory interest, amount of gratuity, amount of leave

encashment, group insurance alongwith penal interest.

(iii) For the issuance of an appropriate order writ order

direction commanding upon the respondents to complete

all formalities for fixing and finalizing the pension of the

petitioner with a further direction to release full pension

alongwith its arrear and continue to pay the current

pension regularly on month to month basis.

(iv) For the issuance of an appropriate writ order

direction commanding upon the respondents to grant the

benefit of 5th Pay Revision Committee recommendation

which has arbitrarily been not granted in favour of the

petitioner and thereafter finalize the pension on the basis

of enhanced pay scale by virtue of benefit granted by

way of 5th Pay Revision Committee recommendation

alongwith legally permissible dues which the petitioner is

entitled to get.

And/or

For the issuance of any other appropriate writ

order direction for doing conscionable justice to the

petitioner.

3. The brief facts as disclosed in the instant writ

application are that while the petitioner was posted at

Madhubani, a vigilance enquiry was conducted with respect

to the lifting of food grains to be distributed among the

person below the poverty line and the vigilance department

of the State of Bihar has submitted a detailed report finding

the District Manager, the Transport Contractor and

Godown Manager responsible for irregularities. Pursuant to

that; a regular departmental proceeding was initiated

against the District Manager and he has been dismissed

from service. In contemplation with the said vigilance

enquiry, a proceeding was also initiated against this

petitioner to which he duly replied and finally after

converting the proceeding under Rule 43 B of the Bihar

Pensions Rules; the punishment was imposed upon him

whereby 50% of his post retiral benefits i.e. the pension and

gratuity was to be deducted from the pensionary benefit of

the petitioner (Annexure-9).

4. Mr. Saurabh Shekhar, learned counsel for the

petitioner draws attention of this Court towards the show

cause notice and submits that there was a common charge

against one Md. Nazim who was holding the post of District

Manager and other subordinate officers. He further referred

the finding given by the Inquiry Officer and submits that

the Inquiry Officer after discussing everything came to a

conclusion that the main person who was responsible for

lifting of food grains and its distribution was the District

Manager and not the accountant who is a subordinate

officer and whose work is also different.

The Inquiry Officer, however, in the concluding

paragraph has given finding that the petitioner being an

accountant and subordinate to the District Manager should

have taken instruction and should have verified the

distribution.

Learned counsel contended that there was no specific

duty of this petitioner for verification and distribution of the

food grains and the Hon'ble Apex Court in the case of

Union of India and others Vs. J. Ahmed, reported in

(1979) 2 SCC 286 has held that "Deficiencies in personal

character or personal ability do not constitute misconduct for

taking disciplinary proceedings". He further submits that

negligence in performance of duty or inefficiency in

discharge of duty are not acts of "commission or omission"

under Rule 4 of Discipline and Appeal Rules nor a failure to

maintain "devotion to duty" under Rule 3 of the Conduct

Rules. This aspect of the matter has been clearly dealt at

para 13 of the aforesaid judgment which is quoted

hereinbelow:-

"13. Having cleared the ground of what would constitute misconduct for the purpose of disciplinary proceeding, a look at the charges framed against the respondent would affirmatively show that the charge inter alia alleged failure to take any effective preventive measures meaning thereby error in judgment in evaluating developing situation. Similarly, failure to visit the scenes of disturbance is another failure to perform the duty in a certain manner. Charges 2 and 5 clearly indicate the shortcomings in the personal capacity or degree of efficiency of the respondent. It is alleged that respondent showed complete lack of leadership when disturbances broke out and he disclosed complete ineptitude, lack of foresight, lack of firmness and capacity to take firm

decision. These are personal qualities which a man holding a post of Deputy Commissioner would be expected to possess. They may be relevant considerations on the question of retaining him in the post or for promotion, but such lack of personal quality cannot constitute misconduct for the purpose of disciplinary proceedings. In fact, Charges 2, 3 and 6 are clear surmises on account of the failure of the respondent to take effective preventive measures to arrest or to nip in the bud the ensuing disturbances. We do not take any notice of Charge 4 because even the Enquiry Officer has noted that there are number of extenuating circumstances which may exonerate the respondent in respect of that charge. What was styled as Charge 6 is the conclusion viz. because of what transpired in the inquiry, the Enquiry Officer was of the view that the respondent was unfit to hold any responsible position. Somehow or other, the Enquiry Officer completely failed to take note of what was alleged in Charges 2, 5 and 6 which was neither misconduct nor even negligence but conclusions about the absence or lack of personal qualities in the respondent. It would thus transpire that the allegations made against the respondent may indicate that he is not fit to hold the post of Deputy Commissioner and that if it was possible he may be reverted or he may be compulsorily retired, not by way of punishment. But when the respondent is sought to be removed as a disciplinary measure and by way of penalty, there should have been clear case of misconduct viz. such acts and omissions which would render him liable for any of the punishments set out in Rule 3 of the Discipline and Appeal Rules, 1955. No such case has been made out."

5. Relying upon the aforesaid judgment learned counsel

submits that the charge alleged against this petitioner and

the finding given by the Inquiry Officer does not constitute

misconduct in the light of ratio laid down in the case of J.

Ahmed (Supra).

6. His next limb of argument is that the said District

Manager, Md. Nazim who was at serial no.1 in the charge-

sheet; after the punishment of removal was imposed upon

him, he preferred a writ application before the Patna High

Court and the Hon'ble Court after discussing the entire

facts and circumstance of the case remitted the matter

back to the authority to take a fresh decision and pass a

fresh order. Thereafter, the respondent-authorities have

exonerated said Md. Nazim. This has been admitted by the

respondents in para 6 of their counter affidavit dated

15.05.2014.

Relying upon the aforesaid facts, Mr. Shekhar

contends that since the department has exonerated the

District Manager; as such, the petitioner is also entitled for

the same and similar relief and the impugned order deserve

to be quashed and set aside. He further submits that after

quashing the impugned order, it is necessary to direct the

newly added respondent-Jharkhand State Food & Civil

Supplies Corporation Limited to refund the deducted

amount. He further referred a notification dated 04.02.2016

issued by the respondent- Jharkhand State Food & Civil

Supplies Corporation Limited, and submits that since the

petitioner has retired on 31.07.2008 from the territorial

jurisdiction of the Jharkhand; as such, the entire

consequential benefits shall be extended to the petitioner by

the newly added respondents-Jharkhand State Food & Civil

Supplies Corporation Limited.

7. Mr. A.K.Singh, learned counsel for the respondent

No.4 submits that initially the answering respondent was

not even a party and after the direction of this Court it was

added as the respondent. He further submits that the entire

order has been passed by Bihar State Food & Civil Supplies

Corporation Ltd., as such, if any consequential benefit is to

be given; Bihar State Food & Civil Supplies Corporation

Ltd. should be responsible for that and not the answering

respondents.

8. Having heard learned counsel for the parties and

after going through the documents and averments made in

the respective affidavits, it transpires that by the common

charge the said Md. Nazim was removed from service. It

further transpires from the enquiry report, that the Inquiry

Officer has categorically held that it was the responsibility

of District Manager to look after the distribution of food

grains to the persons who are below poverty line and as per

the Inquiry Officer it was the District Manager who was the

main persons responsible for irregularities in lifting and

distributing of food grains between the period from July,

1998 to 2002. However, in concluding portion of the

enquiry report; the Inquiry Officer has gone one step ahead

for proving the charge against this petitioner by holding

that the petitioner should have taken instructions from the

District Manager and should also be vigilant and see the

distribution of food grains that it must be distributed to the

persons below the poverty line and if the petitioner would

have been vigilant and should have inspected after seeking

instructions; there should not be any irregularities in lifting

and distributing the food grains.

In this regard the Hon'ble Apex Court in J. Ahmed

(supra) has held that deficiencies in personal character or

personal ability do not constitute misconduct for taking

disciplinary proceedings.

9. The other aspect of the matter is that the District

Manager who was removed from service filed a writ

application before the Patna High Court and the Court

remitted the matter back to the respondent-authorities to

take a final decision after verifying the records and

pursuant to that the respondent authorities took a decision

for exonerating the said Md. Nazim.

Admittedly, the charges against Md. Nazim (Supra)

was on a higher latitude and looking to the judgment

passed by the Patna High Court in C.W.J.C No. 2508 of

2009 it appears that there was lacuna in enquiry and for

that reason the case was remitted back and finally the said

District Manager was exonerated by the respondent-

authorities. As such, this Court sees no reason not to

interfere with the impugned order whereby 50% of pension

and gratuity was deducted from the pensionary benefit of

the petitioner.

10. In view of the aforesaid findings, the instant writ

application is allowed and the impugned order as contained

in Memo No. 2922 dated 01.04.2009, is hereby, quashed

and set aside. It goes without saying that since the

petitioner has retired from service from the territorial

jurisdiction of Jharkhand and in view of the notification as

contained in Memo No. 389 dated 04.02.2016; it is the

Jharkhand State Food and Civil Supply Corporation

Limited, who is responsible for payment of retiral benefits;

as such, respondent No.4 is directed to refund the entire

amount which was deducted pursuant to the impugned

order within a period of three months from the date of

receipt/production of the copy of this order.

11. With the aforesaid terms, the instant writ application

stands allowed.

(Deepak Roshan, J.) Jharkhand High Court, Ranchi Dated 20th January, 2021 Amardeep/A.F.R