Jharkhand High Court
Mahendra Ram vs The State Of Jharkhand Through The ... on 18 July, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (S) No. 2183 of 2020
Mahendra Ram, aged about 58 years, son of Late Bandhu Ram,
resident of Near Block Road, Vishnugarh, P.O. & P.S. -
Vishnugarh, District - Hazaribagh, PIN- 825312
... ... Petitioner
Versus
1. The State of Jharkhand through the Additional Chief Secretary,
Department of Home, Prison & Disaster Manager, Govt. of
Jharkhand, having its office at Project Bhawan, P.O. & P.S. -
Dhurwa, District - Ranchi.
2. Inspector General of Prison, Govt. of Jharkhand, having its office
at Project Bhawan, P.O. & P.S. - Dhurwa, District-Ranchi.
3. The Superintendent, Central Jail, Dumka, P.O. & P.S. - Dumka,
District - Dumka.
4. Superintendent, Divisional Jail, Godda, P.O. & P.S. - Godda,
District-Godda. ... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
08/18.07.2022
1. Heard Mr. Ashok Kumar Pandey, learned counsel appearing n
behalf of the petitioner.
2. Heard Mr. Aashish Kumar Thakur, learned counsel appearing
on behalf of the respondents.
3. This writ petition has been filed for the following reliefs: -
"(a) For issuance of appropriate
writ(s)/order(s)/direction(s) in the nature of certiorari for
quashing the punishment order dated 28.11.2016
(Annexure-8) passed by the Respondent No. 2 i.e., I.G.
Prison, Jharkhand, Ranchi; whereby and whereunder the
petitioner has been dismissed from service.
(b) For issuance of a further appropriate
writ(s)/order(s)/direction(s) in the nature of certiorari for
quashing the appellate order contained in memo no. 5706
dated 23.10.2019 (Annexure-10) passed by the Additional
Chief Secretary, Deptt. Of Home, Govt. of Jharkhand,
Ranchi; whereby and whereunder the appeal preferred by
the petitioner (Annexure-9) has been rejected;
(C) For issuance of direction upon the respondents to
reinstate the petitioner in service with all consequential
benefits.
AND/OR
(d) For issuance of any other appropriate
writ(s)/order(s)/direction(s) as Your Lordship may deem
fit and proper in the fact and circumstances of the case."
Arguments of the petitioner
4. Learned counsel for the petitioner has submitted that the
charge-sheet against the petitioner is contained at Annexure-3 of the
writ petition. The learned counsel submits that the petitioner had
responded to the charges vide Annexure-5 and had denied the
allegations levelled against him. The petitioner had also stated that he
had joined the post on 08.06.2013 and was directed by the higher
authority to make payment to the two contractors and the previous
person, who was holding the post, did not inform him about the fact
that one of the contractors was blacklisted. The learned counsel has
also submitted that a stand was also taken in the reply that the amount
can be realized through filing certificate case, but the enquiry officer
after conducting the enquiry submitted the enquiry report vide
covering letter dated 25th October, 2016 and found all the charges
levelled against the petitioner as proved. The learned counsel submits
that thereafter, the petitioner filed his second show cause reply and the
points raised in the second show cause reply has not been considered
by the authority while rejecting the second show cause and therefore,
the impugned order of punishment is perverse.
5. The learned counsel has also submitted that further two points
are required to be considered in the present case; (a) the punishment
imposed against the petitioner is highly disproportionate, in as much
as, the petitioner was having unblemished record of 33 years of
service and therefore, the punishment of dismissal imposed against the
petitioner is disproportionate. (b) The other person who was also
charge-sheeted, namely, A.B.E. Khalkho, who was the higher
authority under whom the petitioner was working, has been
exonerated in the departmental proceedings. The learned counsel
submits that the case of the petitioner is similarly situated as that of
Mr. Khalkho and therefore, the dismissal of the petitioner is not
justified and the petitioner has been made scapegoat.
6. Learned counsel for the petitioner has relied upon the judgment
passed by the Hon'ble Supreme Court reported in (2006) 2 SCC 747
(State of Karnataka & Ors. vs. C. Lalitha) para 26 and 27 to submit
that it has been held by the Hon'ble Supreme Court that similarly
situated persons are to be treated similarly. The learned counsel has
also referred to the judgment reported in (2018) 13 SCC 161 (Manoj
Kumar vs. State of U.P. & Others) para 9, to submit that in the said
case, the employee had served 15 years and therefore, the punishment
of dismissal was substituted by an order of compulsorily retirement.
He has also referred to the judgment reported in (2011) 8 SCC 536
(Surendra Prasad Shukla vs. The State of Jharkhand & Ors.),
wherein the case was instituted under Section 392 of the Indian Penal
Code against the employee and in the departmental proceeding, the
Hon'ble Supreme Court was of the view that the punishment of
dismissal from service was shockingly disproportionate.
7. The learned counsel has further referred to para-21 of the writ
petition to submit that the other delinquent, namely, A.B.E. Khalko
who was Assistant Superintendent of Jail was exonerated in the
departmental proceedings and the petitioner, the clerk in the
concerned jail, and has been made scapegoat by imposing major
punishment of dismissal from service. He submits that the delinquent
Mr. Khalkho has been exonerated in the departmental proceedings, is
not in dispute.
8. During the course of argument, it is not in dispute that the
aforesaid delinquent Mr. Khalkho was separately proceeded
departmentally and the petitioner has not placed on record the charge-
sheet issued against Mr. Khalkho and it is further not in dispute that
Mr. Khalkho was higher authority of the petitioner.
9. It is further not in dispute that the criminal case was instituted
against the petitioner in connection with defalcation of government
money and the learned counsel for the petitioner, during the course of
argument, has submitted that his client has no information about the
final outcome of the criminal case, but has just informed the counsel
that the defalcated money has already been deposited in the treasury
and thereafter, he has no information about the criminal case.
Arguments of the respondents
10. Learned counsel appearing on behalf of the respondents, on the
other hand, has opposed the prayer and submitted that the scope of
interference in the matter of departmental proceedings is very limited
under Article 226 of the Constitution of India. The learned counsel has
also submitted the fact that the payment was made to the two
contractors and one of them was blacklisted, is not in dispute. The
learned counsel has submitted that as per the charge which stood
proved in the departmental proceedings, the order of blacklisting was
issued on 13.06.2013 relating to M/s. Saheb Traders, Godda, but in
spite of that the petitioner had made three payments i.e., on
13.06.2013, 13.06.2013 and 26.07.2013 and as per the case of the
petitioner, he had joined the post on 08.06.2013. The learned counsel
has submitted that there was no occasion for the previous incumbent
to inform the petitioner about the blacklisting of the contractor
because the said contractor was blacklisted during the tenure of the
petitioner and after the petitioner had joined the post. The learned
counsel submits that in the matter of defalcation of government
money, no lenient view may be taken. He has also submitted that
merely because, the contractors had deposited the defalcated money to
the government, the same by itself is not an excuse for exonerating the
petitioner.
11. The learned counsel further submits that the judgments which
has been cited by the learned counsel for the petitioner do not deal
with the defalcation of public money and considering the limited
scope of writ jurisdiction, no interference is called for in the
departmental proceeding as well as the order of punishment. He
submits that the order of punishment cannot be said to be shockingly
disproportionate calling for any interference in the writ jurisdiction.
12. The learned counsel submits that primarily the allegations
levelled against the petitioner stood admitted by the petitioner, which
is apparent from the show cause filed by the petitioner. The learned
counsel has also submitted that so far as Mr. Khalkho is concerned, he
cannot be said to be in equal footing as that of the petitioner as the
petitioner was the clerk dealing with the bills and Mr. Khalkho was
the higher authority.
Findings of this court
13. The petitioner has challenged the order of punishment of
dismissal dated 28.11.2016 (Annexure-8) as well as appellate order
dated 23.10.2019 (Annexure-10) whereby the appeal has been
dismissed.
14. The law with regard to interference in the matter of disciplinary
enquiry is now well settled and has been summarized by the Hon'ble
Supreme Court in the case reported in (2020) 9 SCC 471 (Pravin
Kumar vs. Union of India) para-25 to 30, which is quoted as under: -
"I. Scope of judicial review in service matters
25. The learned counsel for the appellant spent considerable
time taking us through the various evidence on record with the
intention of highlighting lacunae and contradictions. We feel
that such an exercise was in vain, as the threshold of
interference in the present proceedings is quite high. The power
of judicial review discharged by constitutional courts under
Article 226 or 32, or when sitting in appeal under Article 136, is
distinct from the appellate power exercised by a departmental
appellate authority. It would be gainsaid that judicial review is
an evaluation of the decision-making process, and not the merits
of the decision itself. Judicial review seeks to ensure fairness in
treatment and not fairness of conclusion. It ought to be used to
correct manifest errors of law or procedure, which might result
in significant injustice; or in case of bias or gross
unreasonableness of outcome.
26. These principles are succinctly elucidated by a three-Judge
Bench of this Court in B.C. Chaturvedi v. Union of Indiain the
following extract: (SCC pp. 759-60, paras 12-13)
"12. Judicial review is not an appeal from a decision but a
review of the manner in which the decision is made. Power of
judicial review is meant to ensure that the individual receives
fair treatment and not to ensure that the conclusion which the
authority reaches is necessarily correct in the eye of the court.
When an inquiry is conducted on charges of misconduct by a
public servant, the Court/Tribunal concerned is to determine
whether the inquiry was held by a competent officer or whether
rules of natural justice are complied with. Whether the findings
or conclusions are based on some evidence, the authority
entrusted with the power to hold inquiry has jurisdiction, power
and authority to reach a finding of fact or conclusion. But that
finding must be based on some evidence. Neither the technical
rules of the Evidence Act nor of proof of fact or evidence as
defined therein, apply to disciplinary proceeding. When the
authority accepts that evidence and conclusion receives support
therefrom, the disciplinary authority is entitled to hold that the
delinquent officer is guilty of the charge. The Court/Tribunal in
its power of judicial review does not act as appellate authority to
reappreciate the evidence and to arrive at its own independent
findings on the evidence. The Court/Tribunal may interfere
where the authority held the proceedings against the delinquent
officer in a manner inconsistent with the rules of natural justice
or in violation of statutory rules prescribing the mode of inquiry
or where the conclusion or finding reached by the disciplinary
authority is based on no evidence. If the conclusion or finding be
such as no reasonable person would have ever reached, the
Court/Tribunal may interfere with the conclusion or the finding,
and mould the relief so as to make it appropriate to the facts of
each case.
13. The disciplinary authority is the sole judge of facts. Where
appeal is presented, the appellate authority has coextensive
power to reappreciate the evidence or the nature of punishment.
In a disciplinary inquiry, the strict proof of legal evidence and
findings on that evidence are not relevant. Adequacy of evidence
or reliability of evidence cannot be permitted to be canvassed
before the Court/Tribunal. In Union of India v. H.C. Goel this
Court held at SCR pp. 728-29 that if the conclusion, upon
consideration of the evidence reached by the disciplinary
authority, is perverse or suffers from patent error on the face of
the record or based on no evidence at all, a writ of certiorari
could be issued."
27. These parameters have been consistently reiterated by this
Court in a catena of decisions, including:
(i) State of T.N. v. S. Subramaniam.
(ii) Lalit Popli v. Canara Bank.
(iii) H.P. SEB v. Mahesh Dahiya.
28. It is thus well settled that the constitutional courts while
exercising their powers of judicial review would not assume the
role of an appellate authority. Their jurisdiction is
circumscribed by limits of correcting errors of law, procedural
errors leading to manifest injustice or violation of principles of
natural justice. Put differently, judicial review is not analogous
to venturing into the merits of a case like an appellate authority.
29. The High Court was thus rightly concerned more about the
competence of the enquiry officer and adherence to natural
justice, rather than verifying the appellant's guilt through
documents and statements. It clearly noted that evidence was
led, cross-examination was conducted and opportunities of
addressing arguments, raising objections, and filing appeal were
granted. The conclusion obtained was based upon this very
evidence and was detailed and well-reasoned. Furthermore, the
High Court did not restrict the scope of judicial review, rather
adopted a liberal approach, and delved further to come to its
own independent conclusion of guilt. Similarly, we have no
doubt in our minds that the appellate authority had carefully
dealt with each plea raised by the appellant in his appeal and
had given detailed responses to all the contentions to satisfy the
appellant's mind. The disciplinary authority too was impeccable
and no infirmity can be found in the report of the enquiry officer
either.
30. Even in general parlance, where an appellate or reviewing
court/authority comes to a different conclusion, ordinarily the
decision under appeal ought not to be disturbed insofar as it
remains plausible or is not found ailing with perversity. The
present case is neither one where there is no evidence, nor is it
one where we can arrive at a different conclusion than the
disciplinary authority, especially for the reasons stated
hereunder."
15. During the course of arguments, learned counsel for the petitioner has
not alleged any procedural irregularity in the matter of departmental
proceeding against the petitioner. This court also does not find any
procedural irregularity in the departmental proceedings against the
petitioner which would be clear from the following facts and
circumstances.
16. It is not in dispute that the petitioner was initially appointed as a
constable as back as on 5.5.1983 and was promoted as clerk in the year
1999. At the relevant point of time the petitioner was transferred to
Divisional Jail, Godda with additional charge of Assistant
Superintendent of Divisional Jail, Godda vide memo No. 740 dated
18.04.2013.
17. Pursuant to some internal enquiry by the Superintendent Central Jail,
Dumka, certain financial irregularities came to light, interalia,
regarding excess payment made to suppliers. An enquiry report was
submitted, interalia, stating that in the month of April, 2013 and May,
2013, an excess amount of Rs. 3, 38, 878/- and Rs. 2,42,565/- was
made to one Saheb traders of Godda and further in the month of June,
2013 an excess amount of Rs. 62,336/- was made to M/s. Ishrat
Enterprises Godda.
18. The petitioner was suspended on 5.3.2016 and on the same day charge
memo was served upon the petitioner wherein charge No. 1 and 2
related to excess payment made to the aforesaid suppliers; in charge
No. 3, it was alleged that from the perusal of records it came to notice
that in the month of April to June, 2013, the payment was to be made
on the basis of receipted quantity in the stock book, but the same was
not followed and the petitioner along with in-charge Superintendent of
Godda Jail was held responsible for financial irregularities; in charge
no. 4, it was alleged that M/s. Saheb Traders was black listed on
13.06.2013 by the office of I.G. Prison, Jharkhand and in spite of that
payments were made to the concerned parties and as per charge Nos. 5
and 6, it was alleged that the petitioner had violated Rule 242 and 1242
of Jail Manual and further violated Rule 3(1) (i) and (ii) of Government
Servant Conduct Rules.
19. Vide letter dated 09.03.2016, the petitioner was asked to give defence
statement and the petitioner filed his explanation on 22.03.2016
wherein he denied the allegations leveled against him and while
explaining his conduct, he had stated that the bills were prepared by
him as per instructions of his superior and the same were verified by
the Assistant jailor and his superiors did not guide him properly. So far
as blacklisting of Ms. Saheb Traders, Godda is concerned, the
petitioner had stated that the same was not within his knowledge.
20. Thus, the fact that the excess payment was made to two contractors and
one of them was blacklisted was never disputed by the petitioner and
even before this court, these facts are not in dispute.
21. An F.I.R. was also lodged against (1) A.B.E. Khalkho, the then in-
charge Superintendent, Divisional Jail, Godda (2) petitioner and (3)
M/s Saheb Traders and (4) M/s Ishrat Enterprises, Godda, being Godda
Town P.S. Case No. 172 of 2016 dated 22.07.2016 for alleged office
under Section 406/409/420 and 120B of Indian Penal Code.
22. The departmental enquiry with regard to the aforesaid charges was
conducted and the petitioner participated in the departmental enquiry
and ultimately the enquiry officer forwarded the enquiry report dated
25.10.2016 to the disciplinary authority. It is important to note that the
documents produced before the enquiry officer by the department to
support the allegation against the petitioner were never in dispute and
the fact that excess payment were made to two suppliers was also not in
dispute.
23. Pursuant to the enquiry report, the disciplinary authority proposed to
pass an order of major punishment against the petitioner. The
disciplinary authority issued second show cause notice to the petitioner
vide memo dated 28.10.2016 and pursuant thereto the petitioner filed
his second show cause reply on 14.11.2016. However, the petitioner
was ultimately dismissed vide order dated 28.11.2016.
24. Upon perusal of order of dismissal dated 28.11.2016 (Annexure-8) it
appears that the petitioner had taken a specific stand that the suppliers
who were blacklisted ought not to have been included in the tender
process itself and accordingly the supplies through them could have
been avoided. This argument of the petitioner was rejected by the
disciplinary authority by recording that the tender was floated prior to
the blacklisting of 'Saheb Traders' as the tender related to the period
01.04.2013 to 30.06.2013 and Ms. Saheb Traders was blacklisted vide
memo No. 1063 dated 13.06.2013 and at that point of time, the
petitioner was duly posted at Godda jail. The disciplinary authority also
recorded that the then Superintendent, namely, A.B.E. Khalkho was
also involved and that the departmental proceeding was also going on
against A.B.E. Khalkho. It was also observed by the disciplinary
authority that there was cutting, over writing and use of whitener in the
stock register and on the basis of the findings of the enquiry officer
direction was also issued to realize the excess payment made to the
suppliers from the suppliers. The disciplinary authority also considered
the other materials on record and also the arguments raised by the
petitioner and held that the petitioner was directly responsible for the
loss caused to the government. The disciplinary authority also
recorded that the petitioner did not mention anything about charge Nos.
5 and 6 in his second show cause reply. The disciplinary authority
ultimately recorded that full opportunity of defending the case was
granted to the petitioner and the enquiry proceeding was conducted in
accordance with law and the petitioner did not produce any material to
prove his innocence. The disciplinary authority after going through the
records, ultimately agreed with the finding of the enquiry officer and
imposed the punishment of dismissal with a further observation that
whatever has been paid to the petitioner for the period of suspension,
nothing more would be payable.
25. The petitioner filed an appeal before the appellate authority and the
appellate authority also considered the points raised by the petitioner
and passed a well-reasoned order upholding the order of punishment.
26. This court further finds that it is not in dispute that the petitioner had
joined the post on 08.06.2013 and M/s. Saheb Traders was admittedly
blacklisted after the date of his joining and in spite of blacklisting M/s.
of Saheb Traders, the petitioner made payments and ultimately it was
found that excess payment was made to two suppliers, one is M/s.
Saheb Traders and the other is M/s Ishrat Enterprises. The factum of
excess payment is not in dispute.
Payment made to M/s Saheb Traders
Serial Period Payment Payment Excess Remarks
according to according to payment
receipted issued quantity
quantity
1 April, 2,43,021.75 5,81,900.09 3,38,878.00 Excess
2013 payment
2. May, 3,72,419.81 6,14,984.71 2,42,565.00 Excess
2013 payment
3. June, 3,47,092.60 2,60,657.00 (-)86,435.00 Less
2013 payment
Already Excess payment 4,95,008.00
Payment made to M/s Ishrat Enterprises
Serial Period Payment Payment Excess Remarks
according to according to payment
receipted issued quantity
quantity
1. June, 2,48,164.25 3,10,500.51 62,336.00 Excess
2013 payment
Already Excess payment 62,336.00
27. It is not in dispute that aforesaid payments were made to M/s. Saheb
Traders and M/s. Ishrat Enterprises and as per the aforesaid chart , there
is mismatch between the amount payable against receipted quantity and
the payment actually made. It is not a simple case where the payment
was made in spite of blacklisting rather it is a case where excess
payment was made over and above what was payable against the
receipted quantity. This court finds that the petitioner had tried to take a
stand before the respondent authority that the petitioner has acted under
the instructions of his superior. The argument of the petitioner that the
excess payment can be realized through filing certificate or the
argument that the excess payment had already been deposited, has no
bearing in the matter.
28. After going through the materials on record this court is of the
considered view that there is neither any procedural irregularity, nor
any perversity in the matter of departmental proceeding against the
petitioner and the punishment imposed upon the petitioner. The
disciplinary authority considered the proved charges against the
petitioner and after giving second show cause notice to the petitioner
considered the reply of the petitioner and ultimately agreed with the
findings of the enquiry officer and passed a detailed and well-reasoned
order while passing the order of punishment of dismissal. The appellate
authority has also considered the materials on record and dismissed the
appeal.
29. There is no scope for reappreciation of evidence led before the enquiry
officer and come to a different finding. The findings of the enquiry
officer, the disciplinary authority as well as the appellate authority are
based on cogent materials. It has been proved that the excess payment
was made directly through the petitioner and there were numerous
cuttings, overwriting and use of whitener in the stock register. It is not
in dispute that excess payment was made over and above the receipted
quantity, that too, in spite of specific order of blacklisting of Ms. Saheb
Traders after the petitioner joined the post at Godda and prior to release
of payment. Further it is not in dispute that excess payment was made
over and above the receipted quantity, to another supplier also namely,
M/s Ishrat Enterprises. Thus no case for interference under Article 226
of the Constitution of India is made out by the petitioner.
30. So far as other person, who was also proceeded departmentally, namely
A.B.E. Khalkho is concerned, a statement has been made by the
petitioner in paragraph 21 of the writ petition that said A.B.E. Khalkho,
who was assistant superintendent of Jail, was exonerated in the
departmental proceeding, but neither the charge sheet issued to Mr.
Khalkho has been placed on record nor the order by which Mr.
Khalkho was exonerated has been brought on record. It is not in dispute
that the petitioner was the dealing clerk during the period in question
and Mr. Khalkho was holding the post of Assistant Superintendent of
Jail and was therefore having different responsibilities. Merely because
Mr. Khalkho was also charge sheeted, the same is not sufficient to
come to a conclusion that the case of the petitioner was identically
placed as that of Mr. Khalkho. On the basis of materials on record, it
cannot be said that the petitioner was similarly and equally placed as
that of Mr. Khalkho. Thus, the judgment relied upon by the petitioner
reported in (2006) 2 SCC 747 (State of Karnataka & Ors. vs. C.
Lalitha) does not apply to the facts and circumstances of this case.
31. So far as the argument of the petitioner with regards to quantum of
punishment, this court is of the considered view that the punishment
imposed upon the petitioner is neither disproportionate to the proved
charges nor shocking to the judicial conscience of this court as there are
serious proved allegation of financial irregularities against the
petitioner. Accordingly, no interference in the quantum of punishment
is call for in the present case.
32. In view of the aforesaid findings, there is no scope for interference
under Article 226 of the Constitution of India. Accordingly, this writ
petition is dismissed.
33. Pending Interlocutory applications are closed.
34. Interim order, if any, is vacated.
(Anubha Rawat Choudhary, J.)
Binit
