The State Of Jharkhand Through The ... vs Amarnath Jha
2021 Latest Caselaw 4139 Jhar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
             L.P.A. No.345 of 2020
                    With
     I.A. Nos.5673/2020, 5674/2020 & 3540/2021

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1. The State of Jharkhand through the Secretary Industries Department, Government of Jharkhand, Nepal House, Doranda, P.O. & P.S.-Doranda, Ranchi, Jharkhand

2. Director of Handlooms, Sericulture and Handicraft, Industries Department, Government of Jharkhand, Nepal House, Doranda, P.O. + P.S.-Doranda, Ranchi, Jharkhand

3. General Manager, District Industries Centre, Ranchi at RIADA Building, Lowadih, Namkum, P.O. + P.S.-Namkum, Ranchi, Jharkhand

4. Deputy Secretary, Industries Department, Government of Jharkhand, Nepal House, Doranda, P.O. + P.S.-Doranda, Ranchi, Jharkhand .... Appellants Versus

Amarnath Jha, Son of Late Surya Narayan Jha, resident of L.I.G.-R 73, Harmu Housing Colony, Post Office & Police Station

-Argora, Town, District-Ranchi, Jharkhand ..... Respondent

CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellants-State : Mr. Sachin Kumar, AAG-II : Mr. Deepak Kr. Dubey, AC to AAG-II : Mr. Gaurav Raj, AC to AAG-II For the Respondent : Mr. Sumeet Gadodia, Advocate : Mr. Ritesh Gupta, Advocate : Mr. Siddharth Ranjan, Advocate

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ORAL JUDGMENT 04/Dated: 02.11.2021

I.A.No.5673/2020

The Office has reported that though limitation petition I.A.No.5673 of

2020 has been filed, in view of the order passed in Miscellaneous

Application No.665/2021 in SMW(C) No.03/2020 dated 27.04.2021 by the

Hon'ble Supreme Court, the appeal has to be taken as having been filed

within time.

As such, learned counsel appearing for the other side does not

have any objection.

Considering this, I.A.No.5673 of 2020 stands disposed of.

L.P.A. No.345 of 2020

1. The instant intra-court appeal is under Clause-10 of Letters Patent

of Patna High Court directed against the order/judgment dated 30.06.2020

passed by the learned Single Judge of this Court in W.P.(S) No.5168 of

2013, whereby and whereunder, the order of punishment for recovery of

an amount of Rs.3,51,307/- has been quashed and set aside by allowing

the writ petition.

2. The brief facts of the case as per the pleading made in the writ

petition are required to be enumerated which reads hereunder as:-

The writ petitioner was working as Class-II Gazetted Officer under

the respondent State and while posted as Project Manager, District

Industries Centre, Ranchi, he was superannuated from service on

31.03.2003. The writ petitioner while posted as Principal, Jharkhand Silk

Technical Development Institute, Chaibasa as also in-charge of Pilot

Project Centre, Chaibasa and Pilot Project Centre, Bharbharia, an

allegation has been leveled against him about the irregular payments

made by the writ petitioner resulting into pecuniary loss to the State

Government.

The aforesaid allegation has come to the knowledge of the

competent authority on the basis of complaint made by the one Anil

Kumar Sinha who claims to be a social worker to the Advisor of His

Excellency, the Governor of Jharkhand, Ranchi. The Director, Handlooms,

Sericulture & Handicrafts, Ranchi, vide its letter no.1111 dated 30.07.2010

has framed charge in Prapatra 'Ka' against the writ petitioner and has

taken a decision to frame charge, in pursuant thereto, draft charge-sheet

in Prapatra 'Ka', was framed by the Director, Handlooms, Sericulture &

Handicrafts, Ranchi, finding the allegations prima-facie to be true.

The authority has issued a show cause vide letter no.241 dated

25.02.2012 asking the writ petitioner to file reply to the show cause notice

as to why he would not be suspended and a departmental proceeding

would not be initiated. The writ petitioner has submitted its reply in

pursuant to the show cause denying the allegation. However, the authority

without providing an opportunity of hearing and without making any

communication, has served order of punishment issued by the Secretary,

Industries Department, Government of Jharkhand vide order dated

30.03.2013 contained in memo no.600 dated 30.03.2013. The said order

has been assailed before this Court by filing the writ petition being W.P.(S)

No.5168 of 2013 under Article 226 of the Constitution of India.

The said order has been challenged on the grounds that without

initiating departmental proceeding, such order of punishment for recovery

of the amount has been made which is in violation to the procedure for

punishment as provided under the applicable conduct Rules and

secondly, the order of recovery has been passed on the basis of the

opinion furnished by the District Accounts Officer, therefore, the authority

who has imposed punishment has not acted with its independent mind.

While on the other hand, the respondent State has taken the plea

that the recovery of an amount due is a minor punishment as provided

under the Discipline and Conduct Rules, it only requires for issuance of

show cause and the said requirement has been fulfilled.

The writ petitioner has responded to such show cause and the reply

having found to be not satisfactory, the order of punishment has been

passed and therefore, there is no illegality in the order passed by the

Administrative Authority but without considering the aforesaid aspects of

the matter, the writ petition has been allowed which is not sustainable in

the eyes of Law.

Learned Single Judge after appreciating the aforesaid arguments

has come to conclusive finding that the order of recovery since was based

upon the allegation of misappropriation of public money and the impugned

order of punishment of recovery of amount has been passed on the basis

of the opinion of the District Accounts Officer and therefore, the order

impugned has been found to be not in accordance with Law, accordingly,

quashed and set aside by allowing the writ petition, which is the subject

matter of the instant intra-court appeal.

3. Mr. Sachin Kumar, learned counsel appearing for the appellant-

State has submitted that the order passed by the learned Single Judge is

not sustainable in the eye of Law on the ground that the order impugned

only pertains to recovery of an amount, where the punishment which is

minor in nature and the requirement as per the provision of Rule 55 of the

Civil Services (Classification, Control and Appeal) Rules, 1930 has

already been followed and therefore, interference shown by the learned

Single Judge on this ground is absolutely incorrect.

4. While on the other hand, the respondent-writ petitioner has

appeared through caveat and has submitted by referring to Annexure-1

dated 25.02.2012 that while issuing the aforesaid communication, the

authority has already made up its mind for asking the writ petitioner to file

reply, failing which, he will be suspended and the departmental

proceeding will be initiated.

5. We have heard the learned counsel for the parties, perused the

documents available on record as also the finding recorded by the learned

Single Judge in the impugned order.

6. This Court, before entering into the legality and propriety of the

impugned order, deems it fit and proper to refer certain undisputed facts

as per the material available on record, i.e.,

The writ petitioner while working as Class-II Gazette Officer, a

complaint has been received in the office of the competent authority for

levelling allegation of defalcation of the public money, basis upon which,

show cause notice was issued upon the writ petitioner. The aforesaid

allegation of misappropriation of public money has seriously been

disputed by the writ petitioner but the reply having found to be not

satisfactory by the competent authority, the order of punishment has been

passed for recovery of an amount of Rs.3,51,307/- vide order dated

30.03.2013. The aforesaid order has been challenged on the ground of

violation of principle laid down for imposing punishment under the

applicable conduct rules and the order of punishment was not based upon

the independent application of mind by the concerned competent authority

who has passed the order. The aforesaid order has been quashed on that

ground with a direction upon the concerned authority to refund the

aforesaid amount which was directed to be recovered from the writ

petitioner.

The respondent State of Jharkhand has challenged the aforesaid

order on the ground that the order of recovery being minor punishment in

nature as per the Civil Services (Classification, Control and Appeal) Rules,

1930, it only requires to provide an opportunity to file representation if

show cause notice is being issued. Herein, show cause notice has been

issued and in pursuant thereto, reply has been furnished but the reply

having found to be not satisfactory, the order of recovery has been

passed.

On the other hand, the respondent-writ petitioner has appeared

through caveat and has submitted by referring to Annexure-1 dated

25.02.2012 that while issuing the aforesaid communication, the authority

has already made up its mind for asking the writ petitioner to file reply,

failing which, he will be suspended and the departmental proceeding will

be initiated.

The reply has been submitted and the same has found to be not

satisfactory, thereafter, the authority ought to have initiated the

departmental proceeding since the nature of allegation is of

misappropriation of public money which requires initiation of departmental

proceeding by issuing the memorandum of charge and to appoint an

inquiry officer to reach to the conclusion about proving or disproving of the

charge but having not done so rather the order of punishment of recovery

of amount of Rs.3,51,307/- has been passed on the basis of the prima-

facie allegation made against the writ petitioner about misappropriation of

public money as would appear from first paragraph of Annexure-3 dated

30.03.2013 appended to the writ petition. Further, the order of punishment

of recovery is not based upon the independent application of mind by the

competent authority rather the same is based upon the opinion furnished

by the District Accounts Officer.

Learned counsel for the appellant State has assailed the order

passed by the learned Single Judge on the ground that the order

impugned only pertains to recovery of an amount, the punishment which is

minor in nature and the requirement as per the provision of Rule 55 of the

Civil Services (Classification, Control and Appeal) Rules, 1930 has

already been followed and therefore, interference shown by the learned

Single Judge on this ground is absolutely incorrect.

7. This Court, therefore, deems it fit and proper to refer the provision of

Rule 49 of the Civil Services (Classification, Control and Appeal) Rules,

1930 which reads hereunder as:-

"49. The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon members of the services comprised in any of the classes (1) to (5) specified in rule 14, namely:-

(i) Censure.

(ii) Withholding of increments or promotion including stopage at any efficiency bar.

(iii) Reduction to a lower post or time-scale, or to a lower stage in a time-scale.

(iv) Recovery from pay of the whole or part of any pecuniary loss caused to Government by negligence or breach of orders.

[(iv-a) Compulsory retirement.]

(v) Suspension.

(vi) Removal from the civil service of the Crown, which does not disqualify from future employment.

(vii) Dismissal from the civil service of the Crown, which ordinarily disqualifies from future employment"

It is, thus, evident that the recovery of an amount from the public

servant is minor punishment if the provision of Rule 55 and Rule 55-A will

be read together and for that, the provision of Rule 55 and 55-A are being

referred hereinbelow:-

"55. With prejudice to the provisions of the Public Servants Inquiries Act, 1850, no order of dismissal, removal, compulsory retirement [or reduction] shall be passed on a member of a Service (other than an order based on facts

which have led to his conviction in a criminal court or by a Court-Martial) unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and on any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charges shall be entitled to cross-

examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer, conducting the inquiry may, for special and sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof.

This rule shall not apply where the person concerned has absconded or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may, in exceptional cases, for special and sufficient reasons to be recorded in writing be waived, where there is a difficulty in observing exactly the requirement of the rule and those requirements can be waived without injustice to the person charged.

The full procedure prescribed in this rule not be followed in the case of a probationer discharged in the circumstances described in Explanation II to rule 49. In such cases, it will be sufficient if the probationer is given an opportunity to show cause in writing against the discharge after being apprised of the grounds on which it is proposed to discharge him and his reply duly considered before orders are passed.

55-A. Without prejudice to the provisions of rule 55, no order imposing the penalty specified in clauses (i), (ii) or (iv) of rule 49 (other than an order based on facts which led to his conviction in a Criminal Court or by a Court-Martial, or an order superseding him for promotion to a higher post on the ground of his unfitness for that post) on any Government servant to whom these rules are applicable shall be passed unless he has been given an adequate opportunity of making any representation that he may desire to make and such representation, if any, has been taken into consideration before the order is passed:

Provided that the requirements of this rule may for sufficient reasons to be recorded in writing, be waived where there is difficulty in observing them and where they can be waived without injustice to the officer concerned"

It is further evident by going through the provision of Rule 55 which

is for imposition of punishment which is major in nature i.e., dismissal,

removal and compulsory retirement in pursuance to the Public Servants

Inquiries Act, 1850 which requires framing of charge as also the

imputation of charges to be served, the appointment of inquiry officer etc.

while Rule 55-A stipulates that while imposing the minor punishment, an

opportunity to file representation is required to be furnished with the

delinquent employee.

This Court, after having considered the aforesaid provisions and on

perusal of the documents appended to the writ petition more particularly

the Annexure-1 dated 25.02.2012, finds that it is evident that at the time of

issuance of show cause notice stipulation has been made therein asking

the writ petitioner to file reply, failing which, he will put under suspension

and the departmental proceeding will be initiated.

The authority has issued the draft memorandum of charge and the

writ petitioner has submitted its reply which has not found to be

satisfactory and thereafter, the order of punishment of recovery has been

passed.

It is further evident from Annexure-3 dated 30.03.2013 which is the

order impugned and from its very first paragraph, it appears that the

allegation of misappropriation of public money upon the writ petitioner has

been made, which suggests that the allegation of misappropriation is to be

proved against the writ petitioner and then only, the question of recovery

of an amount is to be passed by the Administrative Authority.

It is not in dispute that the recovery from public servant is a minor

punishment as would appear from the list of punishment as contained

under Rule 49 of the Civil Service (Classification, Control and Appeal)

Rules, 1930, but the recovery in the context of the present case, in our

considered view, will be considered to be pecuniary loss to the

Government since the same has caused due to negligence or breach of

orders, by the petitioner. If the recovery in such circumstances is due to

negligence or breach of the orders, certainly it will come under the fold of

the provision of Rule 43-B of the applicable Pension Rule. Here, in the

given case, the allegation levelled against the writ petitioner is causing

loss to the Government in violation of the Treasury Rule by making

payment to the concerned. However, decision has been taken to initiate

departmental proceeding, as would appear from Annexure-1 dated

25.02.2012 but no departmental proceeding has been initiated, rather,

only on the basis of reply furnished by the writ petitioner in terms of the

show cause notice, the order of recovery has been passed. Therefore,

according to our considered view, the recovery in the present fact of this

case, will be considered to be consequence of the misappropriation and

therefore, a regular departmental proceeding ought to have been initiated

against the writ petitioner for proving the charge of misappropriation but

having not done so, a serious irregularity has been committed.

8. Mr. Sachin Kumar, at this juncture, has submitted that the recovery

by negligence or breach of orders being a minor punishment and no

finding has been arrived at about misappropriation, therefore, it will be

construed to be pecuniary loss to the Government by negligence or

breach of orders but even accepting the same, even then, no interference

can be shown by this Court in the impugned order. It is for the reason that

the order impugned has been passed by not independent application of

mind by the competent authority rather it is based upon the opinion of the

District Accounts Officer and the said fact is not in dispute since the same

finds mentioned in the last paragraph of the impugned order, wherein, it

has been stated that on the basis of the opinion furnished by the District

Accounts Officer, the amount is required to be recovered and thereafter,

the order of punishment of recovery of the said amount has been passed,

therefore, according to our considered view when the competent authority

is accepting the report of the District Accounts Officer about commission

of misappropriation of public money, the writ petitioner ought to have been

issued notice at that juncture to rebut the said allegation but having not

done so, at that stage, the principle of natural justice has been violated.

The disciplinary authority has passed the order not applying its own

mind rather on the basis of the opinion furnished by the District Accounts

Officer. The matter would have been different if the order would have

been passed by the disciplinary authority on the basis of the show cause

notice furnished by the writ petitioner as has been argued by the learned

counsel appearing for the State but that is not the fact herein rather the

disciplinary authority has based its decision on the basis of the opinion

furnished by the Departmental Accounts Officer, meaning thereby, the

authority who has issued the show cause i.e., disciplinary authority has

considered the reply but the consideration of the said reply is

predominately based upon the opinion of the District Accounts Officer,

while copy of the report of the District Accounts Officer has never been

furnished.

It is the settled position of Law that while passing the order, the

concerned competent authority, which had issued show cause notice, was

required to apply its own independent mind. In a case, if one person

issues notice and other person passes an order, it will be empty formality

as has been held by the Hon'ble Apex Court in Escorts Farms Ltd. Vrs.

Commissioner, Kumaon Division, Nainital, U.P. & Ors., (2004) 4 SCC

281, wherein at paragraph-64 it has been held which reads hereunder as:-

"64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we, therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India."

Therefore, the interference which has been shown by the learned

Single Judge in the impugned order on the basis of the said reason,

according to our considered view requires no interference.

9. At this juncture, learned State counsel has submitted to remit the

matter for fresh consideration which is to be considered in view of the

provision of Rule 43(b) of the Jharkhand Pension Rules but we are not

impressed with such argument as the period of limitation, as provided

under Rule 43(b) of the Jharkhand Pension Rules, imposes restriction in

initiating departmental proceeding after four years from the date of the

cause of action. In the present case, the cause of action is lastly in the

year, 2007 while the writ petitioner has already retired on 31.03.2013

Therefore, the period of four years has already lapsed sometimes in the

year, 2011. Hence even if the matter is remitted to the concerned

authority, no purpose would be served.

It has further been argued that if the order would be remitted it will

be treated to be a pending proceeding and the consequence will be the

deemed conversion of the departmental proceeding from the Rule 55 of

the Civil Services (Classification, Control and Appeal) Rules, 1930 to that

of Rule 43(b) of Pension Rule as per the explanation but this argument is

not acceptable to us because the explanation, as furnished under Rule

43(b) of the Jharkhand Pension Rules stipulates about restriction in

initiating a departmental proceeding after lapse of the period of 5 years

from the date of occurrence and under Article 226 of the Constitution of

India, if such order would be passed keeping the proceeding to be a

pending proceeding, same will amount to exceeding the jurisdiction by the

High Court. The provision of Article 226 of the Constitution of India is only

to follow the rule of Law and not to overreach the statutory provision.

10. The Coordinate Division Bench of this Court has passed the order

in this respect in LPA No.232 of 2021, wherein, at paragraph-7, it has

been held which reads hereunder as:-

"7. We have considered the provision of Rule 43

(b) of the Bihar Pension Rules, from which, it is evident that during pendency of departmental proceeding, if the delinquent employee retires, the proceeding will be deemed to have been converted under the provision of Rule 43 (b) of the Bihar Pension Rule as per the judicial pronouncement as rendered by the Hon'ble Patna High Court in Shambhu Saran Vs. State of Bihar, reported in 2000 (1) PLJR 665, but the question is that whether under Article 226 of the Constitution of India, the writ court can remit the matter contrary to the statutory provision for treating the proceeding to be pending when there is statutory bar on initiation of proceeding after lapse of the period of four years as provided under the proviso of the Rule 43 (b) of the Pension Rules.

It is not in dispute that the High Court sitting under Article 226 of the Constitution of India while issuing the writ of any nature, as stipulated under the said provision, is only required to follow the

Rule of Law. There cannot be any transgression in the rule of law. If the High Court sitting under Article 226 of the Constitution of India transgresses the Rule of Law, the High Court will be said to have acted beyond its jurisdiction. The provision of rule 43 (b) of the Bihar Pension Rules contains the specific bar for initiation of proceeding after lapse of the period of four years from the date of the alleged occurrence for which the delinquent employee has been charged. Admittedly, the writ petitioner was charged with the allegation of commission of irregularity while discharging his official duty sometime in the year 2009. The departmental proceeding has been terminated by imposing punishment of censure as also withholding two annual increments with cumulative effect. The Central Bureau of Investigation while submitting the final form has found that no criminality has been found against him, but the departmental proceeding has been initiated, which can be initiated even if no criminality has been found by the Investigating Agency and in view of the fact that both the proceedings either criminal or departmental is to run on two separate grounds i.e., it can also run parallel to each other.

Since we have observed hereinabove that the Court while sitting under Article 226 of the Constitution of India cannot transgress the period of limitation as provided under Rule 43(b) of the Jharkhand Pension Rules and, therefore, what has been submitted by taking the ground in assailing the impugned order, by the learned counsel appearing for the appellants, has no force, since the writ petitioner, in the meantime, retired from service sometime in the year 2016 and from the date of the alleged occurrence, the period of four years has already lapsed, the learned Single Judge has rightly not remitted the matter before the disciplinary authority by holding that no fruitful purpose would be served due to the fact that the period of limitation of four years has already lapsed as provided under the Provisions of Rule 43 (b) of the Bihar Pension Rules."

11. This Court, after taking into consideration the discussions made

hereinabove as also the order dated 18.10.2021 passed in LPA No.232 of

2021, is not inclined to remit the matter to the authority concerned.

12. In the result, the instant appeal fails and is dismissed.

13. Consequent to dismissal of this appeal, I.A. Nos.5674 of 2020 and

3540 of 2021 also stand disposed of.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Rohit/-A.F.R.

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