Lakshman Singh vs The State Of Jharkhand And Ors
2022 Latest Caselaw 4490 Jhar

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         IN THE HIGH COURT OF JHARKHAND AT RANCHI

                            W. P. (S) No. 380 of 2010
            Lakshman Singh                    ...       ...  Petitioner
                                   Versus
            The State of Jharkhand and Ors. ...         ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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19/10.11.2022

1. Heard Mr. Sumeet Gadodia, learned counsel appearing on behalf of the petitioner along with Ms. Aanya, Advocate.

2. Heard Ms. Priyanka Boby, learned counsel appearing on behalf of the respondents.

Arguments of the petitioner

3. Learned counsel for the petitioner has submitted that the petitioner had joined the Bihar Finance Services on 19.01.1977 and ultimately, he was allocated Jharkhand cadre on 15.11.2000. On 03.10.2007, a notice was issued to the petitioner seeking an explanation on the allegations made as to why a departmental proceeding be not initiated against the petitioner for causing revenue loss to the respondents by his acts and omissions amounting to Rs. 11,95,69,692.85. The learned counsel submits that thereafter the charge-sheet was issued to the petitioner in Praptra 'Ka' vide memo dated 13.12.2008 (Annexure-1) by referring to Rule 55 of Civil Services (Classification, Control & Appeal) Rules, 1930 read with Rule 43(b) of Jharkhand Pension Rule.

4. The learned counsel submits that upon receipt of the charge- sheet, the petitioner appeared before the enquiry officer and submitted his defence with a request to call Shri Vidya Bhusan Verma J.C.C.T. (retired) to testify the contents of the report on the basis of which charges were framed, but the respondents had not taken any action to call Shri Vidya Bhusan Verma for testifying and verifying the details of the report. The learned counsel submits that although the defence reply submitted by the petitioner has not been filed along with the writ records, but notice dated 04.01.2010 was issued to the petitioner mentioning that the earlier enquiry officer would continue and the

next date in the enquiry was fixed as 09.01.2010 and thereafter, the petitioner filed the writ petition before this Court on 30.01.2010 challenging the initiation of the entire proceedings and by virtue of order dated 19.03.2010, the proceedings under Rule 43(b) of Jharkhand Pension Rules against the petitioner was stayed.

5. The learned counsel has submitted that a counter-affidavit has been filed in the present case, wherein at paragraph 16 and 17 thereof, it has been mentioned that on the date of hearing, the petitioner had requested for physical presence of Shri Vidya Bhusan Verma, Enquiry Officer and Joint Commissioner of Commercial Taxes (Administration), Dhanbad Division, Dhanbad, but the request of the petitioner was rejected by the departmental enquiry officer.

6. However, no order of rejection of the prayer of the petitioner with regard to the examination of Shri Vidya Bhusan Verma has been placed on record either by the petitioner or by the respondents.

7. The learned counsel submits that the petitioner has a right to examine/cross-examine the witnesses and therefore in case of departmental proceedings, natural justice is required to be complied with. The learned counsel at this juncture has referred to prayer No.

(ii) made in the writ petition.

8. The second point argued by the learned counsel for the petitioner is alleging bias against respondent No. 3 and he submits that the petitioner had objected to continuation of respondent No. 3 as enquiry officer and as per paragraph 20 of the writ petition, the respondent No. 3 was transferred to the adjoining Division and further as per order dated 04.01.2010 (Annexure-4), the petitioner was asked to participate in the proceedings fixing the date as 09.01.2010 communicating that the same enquiry officer would continue. On the point of bias, the learned counsel has referred to paragraph 22 and 23 of the writ petition to submit that the respondent No. 3 was biased in the matter as a successor officer in the office of respondent No. 2 who had passed the actual refund orders for which the charges were framed against the petitioner and biasness of respondent No. 3 is manifestly clear from the fact that he refused to drop the charges for enquiry

which are prima facie incorrect and frivolous and that he did not call the necessary witness of the case for examination/cross-examination .

9. On the point of bias, learned counsel for the petitioner has relied upon the judgments passed by the Hon'ble Supreme Court in the case reported in AIR 1960 SC 468 (Mineral Development Ltd. vs. State of Bihar & Ors.) para 10; (2010) 2 SCC 772 (State of Uttar Pradesh & Ors. vs. Saroj Kumar Sinha) para 26 and (2010) 10 SCC 539 (Mohd. Yunus Khan vs. State of Uttar Pradesh & others) para 25 to 27 and also para 16.

10. The further argument of the learned counsel for the petitioner is that the petitioner had acted in exercise of quasi-judicial power for which departmental proceeding could not be initiated against him. He submits that if an erroneous order was passed by him, then the correct remedy is by way of appeal or revision to have such orders set-aside. Even assuming that the orders of refund were erroneous, no disciplinary action could have been taken against the petitioner for orders passed while discharging quasi-judicial function.

11. The learned counsel has placed the charge-sheet issued to the petitioner and submitted that there is no allegation of mala fide, recklessness or any misconduct or connivance of the petitioner with the assesses in whose favour refund orders were passed.

12. The learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court in the case reported in (1993) 2 SCC 56 Union of India vs. K. K. Dhawan) para 28 and 29. He submits that this judgment has been subsequently followed by the Hon'ble Supreme Court in the case of Union of India & Others vs. Duli Chand reported in (2006) 5 SCC 680 , para 5 to 8.

13. The learned counsel submits that in view of the aforesaid judgments, the very initiation of the departmental proceedings is apparently illegal and is fit to be quashed.

14. Although, in the written submission, it has also been stated that the departmental proceeding under Rule 43(b) of Jharkhand Pension Rules was barred by limitation prescribed in the rule itself, but, during the course of argument, learned counsel for the petitioner has given up the said point and has submitted that the other points argued

by the learned counsel for the petitioner is sufficient to quash the entire departmental proceedings.

Arguments of the Respondents

15. Learned counsel for the respondents has submitted that since the learned counsel for the petitioner has not advanced his argument on the point of limitation with regard to Rule 43(b) of Jharkhand Pension Rules, she is also not advancing any argument on the said point.

16. So far as the argument of the petitioner with regard to denial of cross-examination of Shri Vidya Bhusan Verma is concerned, the learned counsel submits that although it has been mentioned in the counter-affidavit that he was denied to be produced, but no order, as such, has been annexed either by the petitioner or by the respondents. Even, from the records which are available for consideration by this Court, the learned counsel for the respondents has not been able to point out any order whereby the prayer of the petitioner to call Shri Vidya Bhusan Verma as witness has been rejected. However, the learned counsel submits that the entire disciplinary proceedings is primarily based on documents and therefore, it may not be required to call Shri Vidya Bhusan Verma for examination/cross-examination. She also submits that it is not in dispute that the documents are the orders passed in the capacity of quasi-judicial authority. She also submits that had the petitioner continued to appear before the enquiry officer, appropriate order with regard to the prayer of the petitioner to call Shri Vidya Bhusan Verma for examination/cross-examination could have been passed.

17. So far as the argument of the learned counsel for the petitioner with regard to initiation of departmental proceedings though the alleged orders were in exercise of quasi-judicial powers is concerned, the respondents also rely upon the judgments reported in (1993) 2 SCC 56 (supra) and (2006) 5 SCC 680 (supra). She submits that there is no legal bar in initiating disciplinary proceedings against an officer even if the orders are passed under quasi-judicial capacity. She

submits that the necessary ingredients for initiation of departmental proceedings is reflected from the charge-sheet itself.

18. Arguments concluded.

19. Post this case on 16th January, 2023 for judgment.

(Anubha Rawat Choudhary, J.) Mukul