Jyotshna Singh vs State Of Jharkhand
2022 Latest Caselaw 3612 Jhar

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI

                              W.P.(S) No. 2005 of 2020

            Jyotshna Singh, Aged about 54 years, wife of Sri Hemant Kumar
            Verma, Resident of Flat No. 1A, Sambhav Apartment, near Gandhi
            Nagar, Kanke Road, P.O. Gonda, P.S. Kanke, District- Ranchi (Pin-
            834008).                                    ...      ...    Petitioner
                                     Versus
            1. State of Jharkhand
            2. Principal Secretary, Personnel, Administrative Reforms and
               Rajbhasha Department, Govt. of Jharkhand having office at Project
               Building, P.O. & P.S. Dhurwa, District- Ranchi.
            3. Joint Secretary, Personnel, Administrative Reforms and Rajbhasha
               Department, Govt. of Jharkhand having office at Project Building,
               P.O. & P.S. Dhurwa, District- Ranchi.
                                                  ...        ...      Respondents
                                     ---

CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. Rajendra Krishna, Advocate : Mr. Jai Shankar Tiwari, Advocate Mr. Krishna Kumar, Advocate For the Respondents : Mr. Ashish Kumar Thakur, Advocate

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12/09.09.2022 Heard learned counsel for the parties.

2. This writ petition has been filed for the following reliefs:

"(i) For issuance of an appropriate writ(s)/order(s)/direction(s) or a writ in nature of certiorari for quashing the Resolution contained in Memo No. 5/Arop-1-342/2014-26125 (HRMS) Ranchi dated 15.10.2019 (Annexure-12) by which the punishment for withholding three increments with cumulative effect has been imposed upon the petitioner under the provision of Rule 14(VI) of Jharkhand Government Servants (Classification, Control and Appeal) Rules, 2016.

AND

(ii) For issuance of an appropriate writ(s)/order(s)/direction(s) or a writ in nature of certiorari for quashing the Resolution contained in Memo No. 5/Aarop-1-342-2014-5451(HRMS) Ranchi dated 19.5.2020 (Annexure- 13) by which the review application preferred by the petitioner has also been considered and punishment imposed by the disciplinary authority has not been interfered meaning thereby that the review application preferred by the petitioner was rejected.

AND

(iii) For issuance of an appropriate writ(s)/order(s)/direction(s) or a writ in nature of mandamus commanding upon the respondents to provide all the three increments with consequential benefits after setting aside the impugned order of punishment and entire arrear should be calculated and paid to the petitioner along with interest.

AND/OR

(iv) For any other consequential relief or relief(s) to which the petitioner is duly entitled in the eyes of law considering the facts and circumstances of the case."

Arguments of the Petitioner

3. Petitioner is a member of Jharkhand State Administrative Service and presently working as Director National Employment Programme at Jamshedpur. The allegations in the present case relate to the period 2005-06 when the petitioner was posted at Chandwa Block of the Latehar District. While giving the sequence of events, and referring to the writ petition, the learned counsel for the petitioner submits as under: - a. 22.02.2005 (Annexure-2) -The petitioner while posted as B.D.O. Chandwa has given in writing to Mr. Mahesh Mochi working at the relevant time as Nazir, Chandwa Block vide letter no. 28(II) dated 22.02.2005 directing the Nazir to make the entry in the cash book at the appropriate time since the said was not done by him earlier and petitioner had also indicated in the aforesaid letter that the general cash book which disclosed the entries made, is not proper and therefore the concerned Nazir was directed to make proper entry and keep the cash book better.

b. 31.03.2006 (Annexure-3) - Vide Letter No. 23(I) the petitioner had written to the then Nazir, Chandwa Block, categorically stating that there are errors in the different pages of the cash book and accordingly the then Nazir was directed to rectify the gross negligence on his part by correcting the concerned pages and making the entry properly in detail. The said letter was issued as a show cause asking the Nazir to reply immediately.

c. 31.03.2006 - Vide letter no. 24(I) dated 31.03.2006, the Petitioner also wrote to the then Deputy Commissioner, Latehar, bringing into his knowledge the clerical mistake in the cash book due to the gross negligence of Nazir and giving details of irregularity committed by the Nazir, and had requested to transfer him. A copy of the said letter was also given to the Deputy Development Commissioner, Latehar. d. 22.01.2007 (Annexure-4) - The Petitioner was transferred from B.D.O. Chandwa to B.D.O. Baghmara and accordingly she gave the charge. e. Annexure-5- At the time of handing over the charge, the Petitioner gave the cash book to her successor in which the total balance amount has

been shown as 2,92,26,252.03 and the same amount has been shown in the bank account.

f. 27.07.2007 (Annexure-6) - Audit Team of the Office of the Accountant General conducted audit for Chandwa Block and raised objection in relation to the excess payment/misappropriation of Rs. 5,60,000/- for which the Audit Compliance Report was sent vide Letter No. 294 by the B.D.O. Chandwa to the Deputy Development Commissioner, Latehar. g. 20.12.2007 (Annexure-7) - The Deputy Development Commissioner, Latehar examined the issues regarding the embezzlement and gave a very categorical finding vide Letter No. 85 that out of total estimated cost of Rs. 11,45,800.00 of the scheme, only a sum of Rs. 11,08,295.35 was paid which is within the estimated price. Thus, there is no question of any defalcation/embezzlement.

h. 17.07.2009 - State Audit Team of the Finance Department, in Letter No. 62, considered the Audit Compliance Report sent by the B.D.O. and no ground of difference has been shown by the State Audit Team. i. 15.05.2017 (Page 45 of the writ petition) - Vide Letter No. 977, issued by the Deputy Commissioner, Latehar, the Deputy Commissioner forwarded Prapatra "K" (page 46 of the writ petition) to the Principal Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Jharkhand, Ranchi and in the said letter, it is categorically stated that the charge-sheet relates to the embezzlement of Rs. 5.16 lakhs towards the execution of the scheme.

j. 25.05.2017 (Annexure-1) - Charge-sheet was issued to the Petitioner vide Resolution contained in Memo No. 6518 under the signature of Joint Secretary, Department of Personnel, Administrative Reforms and Rajbhasha by which departmental proceeding was initiated against the Petitioner for an occurrence which took place in the financial year 2005- 2006.

k. 01.07.2017 (Annexure-8) - the petitioner filed a detailed reply before the Enquiry Officer denying the allegations and all the aforesaid points were taken.

l. 01.08.2017 (Annexure -9) and 10.09.2017 (Annexure -9/1) were the two replies submitted by the Department before the enquiry officer. m. 22.11.2018 (Annexure -10) Enquiry was concluded and Enquiry Report was submitted and served upon the Petitioner.

n. 24.05.2019 (Annexure 11)- The Petitioner submitted reply to the second show cause notice o. 15.10.2019 (Annexure 12) - The Respondent Authorities passed the Impugned Order with punishment withholding three increments with cumulative effect.

p. 19.05.2020 (Annexure 13)- The Petitioner preferred a Review Petition on 16.01.2020 and said Review Petition has been disposed of without interfering with the order of punishment.

4. The learned counsel for the petitioner has submitted that the impugned proceedings and orders are being challenged by submitting as follows: - i. From perusal of Prapatra "K", it transpires that there is no allegation of misappropriation/embezzlement against the Petitioner. The allegation is with regards to manipulation in cashbook as well as supplementary cashbook.

ii. Petitioner in its reply to show cause has asserted that it was not manipulation rather a correction made because of the wrong entry which was made earlier in the cash book at the relevant pages.

iii. Correction made by the petitioner in the cash book is in accordance with law as mentioned in provision 86(vi) Jharkhand Treasury Code. There is no allegation of cutting / deletion rather endorsement has been made in the cashbook when the mistake committed earlier came to the knowledge of petitioner.

iv. Petitioner has disclosed the dates of the said correction and nothing has been suppressed by the petitioner while making those corrections in the cashbook.

v. Regarding the enquiry report, it is submitted that no Exhibit of the dispatch register was produced by the presenting officer during the course of the proceeding in order to corroborate their ground that the letter written by the petitioner to Nazir (Annex-2 & 3) has not been issued from the office. vi. Surprisingly, the petitioner has produced the letter no. 28(ii) dated 22.02.2005 vide Annexure -2 and letter no. 23(i) dated 31.03.2006 vide Annexure- 3, but during the course of proceeding, the presenting officer has failed to enclose the dispatch register which ought to have been done by them since this is sine- qua -non for adjudication of the matter. Statement in the writ petition at para 9 and 10 regarding issuance of letter has not been

controverted by the respondents, therefore, the said statement is accepted by the respondents as per the law of pleading.

vii. Enquiry report has ruled out any misappropriation / embezzlement by the petitioner rather it has held the petitioner liable for manipulation in the cash register.

viii. The petitioner has separately made entry in cashbook rectifying the mistake which is not within the parameter of manipulation but it is correction done by endorsing the changes at relevant pages by the petitioner permissible under section 86 (vi) of Jharkhand Treasury Code. Petitioner, in reply to the second show cause, has also mentioned about the aforesaid two letters along with photocopy of extract of dispatch register which was enclosed. This reason has not been dealt by Disciplinary Authority henceforth in absence of any document not so produced by the enquiry officer to corroborate their observation/findings, that these letters were not issued from concerned offices and in the absence of any proof by presenting officer, there cannot be any conclusive finding about the said issued letters as forged.

As held in the case of "Roop Singh Negi Vs. Punjab National Bank" reported in 2009 (2) SCC 570, department has to furnish the documents .

"Indisputably, the writ court will bear in mind the distinction between some evidence or no evidence but the question which was required to be posed and necessary should have been as to whether some evidence adduced would lead to the conclusion as regard the guilt of the delinquent officer or not the evidence adduced on behalf of the management must have nexus with the charges. the enquiry officer cannot base his findings on mere hypothesis. Mere ipso dxit on his part cannot be a substitute of evidence"

During the entire proceeding no witness was examined and no Exhibit with respect to any documentary evidence was ever made.

ix. In the impugned order, petitioner is held to be guilty for non- compliance of Rule 86(ii) (iii) and (iv) of Jharkhand Treasury code and therefore finding of the Disciplinary Authority imparting punishment upon the charge is perverse since the aforesaid allegation is not the charge in the charge sheet.

x. Disciplinary authority ought to have considered the charge against the petitioner for manipulating the cash book, but the aforesaid charge has neither been dealt and nor been established by the Disciplinary authority before punishing the petitioner on different ground of violating rule 86(ii)

(iii) and (iv) of the Jharkhand Treasury Code which is not the charge. As held in the case of "Roop Singh Negi Vs. Punjab National Bank" reported in 2009 (2) SCC 570, the enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not subject matter of the charges, is wholly illegal. xi. After 12 years of the occurrence, the delay in initiation of departmental proceeding without proper justification for the delay is itself a malafide action of the Respondent, as held in State of Madhya Pradesh versus Bani Singh and Another reported in 1990 (Supp) SCC 738. xii. The charge against the petitioner is manipulation in the cash book which does not find justified as per Rule 86(i) of Jharkhand Treasury Code since there is no cutting or overriding which could be taken as violation of the Rule 86(i) of Jharkhand Treasury Code, rather petitioner has made endorsements in cash book for correcting the irregularities that has crept in in the cash book and such act of petitioner is permissible under Section 86(vi) of Jharkhand Treasury Code and therefore, an order for initiation of proceeding after 12 years is not justified and is violation of natural justice and also prejudicial to the interest of the petitioner. xiii. The second show cause is illegal and an eye wash because the Disciplinary Authority had already taken a decision for imposing punishment upon the Petitioner. Therefore, the second show cause is in gross violation of the principles of natural justice and on this point also, the punishment order is fit to be set aside.

xiv. The Respondent Authorities accepted the enquiry report which does not establish the specific two charges in the charge-sheet. Therefore, the petitioner cannot be vested with the punishment.

xv. The Respondent Authorities cannot take into consideration any finding of the Enquiry Officer which is not a charge against the Petitioner. xvi. The punishment upon the Petitioner is excessive in view of the findings of the Enquiry Officer.

5. The charge-sheet indicates that two charges were levelled against the petitioner. Out of the two charges, the first one was not found proved by the enquiry officer and therefore, there is no need to deal with the same.

6. In the written submissions, the learned counsel has referred to a number of judgments but as mentioned in order dated 11.07.2022, the learned counsel has relied upon only the judgements as mentioned above. Arguments of the Respondents.

7. Following submissions have been made by the Respondents: -

a. There are no violations of principles of natural justice. b. The petitioner was provided with ample opportunity to defend her case, however, she failed to do so by bringing any reliable and worthy evidence.

c. The procedural formalities with respect to conducting departmental proceedings were adhered to and as such there are no laches on the part of the authorities.

d. It is admitted case of the petitioner that she has made entries in the page dated 31.03.2006.

e. The estimated cost of the project was Rs.11,45,800/- however the total spent amount was Rs. 16,03,199.45/-.

f. The cash register reflected an amount of Rs.11,45,800/- only towards the paid amount to the executing agent. Rest all the columns remark was given as "NOT PAID".

g. It is also apparent that the in the alternate register receipts of the bills were shown to be "PAID" and as such the total payment made on 31.03.2006 was Rs. 16,03,199.45/- however, the same was not entered in the cash register.

h. It is apparent that an amount of Rs. 5,30,939.15/- was adjusted on 21.01.2007 by making changes in the cash register at page dated 31.03.2006 bringing the total to Rs. 16,03,199.45/- which is more than the estimated cost of the project.

i. The petitioner has made interpolation in the official records. j. The entry made by the petitioner is ante-dated which cannot be permitted.

k. If the petitioner had to make bonafide corrections she could have done it on the page dated 21.01.2007 i.e. on the day entries were made,

however, she has tried to make changes in the old record by making entry in the page dated 31.03.2006 on 21.01.2007.

l. It is clear from the facts of the case that the petitioner has made all the interpolations a day before she had to hand over her charge and not prior to that.

m. The petitioner has tried to cover up for her wrongs/irregularities by making interpolations that too ante-dated in official records. n. The petitioner has also tried to falsely implicate her Nazir Mahesh Mochi for all the wrongs/irregularities committed during her tenure by bringing on record three letters i.e. letter no. 23(i) dated 31.03.2006, 28(i) dated 22.02.2005 and 24(i) dated 31.03.2006, however in the course of enquiry and after perusal of the office register maintained for letters issued in the Block Office, Chandwa, it was found out that the same are not genuine letters.

o. The petitioner has committed wrongs one after another to save her skin from the first wrong.

The learned counsel for the respondents submitted that there is neither any illegality nor any perversity nor the punishment imposed is disproportionate of the charges levelled against the petitioner calling for any interference in the writ proceedings.

Findings of this Court

8. The chargesheet indicates that two charges were levelled against the petitioner. Out of the two charges, the first one was not found proved by the enquiry officer and therefore, there is no need to deal with the same.

9. As per charge no.2, it has been stated in the memo of charge itself that the Additional Cash Register in connection with the scheme was being maintained since 20.03.2003 which showed total payment of Rs. 16,03,199.45 in cash for cement and wheat. In page No. 154, 156 and 157 of Additional Cash Register, certain entries in red ink were subsequently made by putting 'not paid', although the said amount was totally paid to the supplier upon receiving their signatures.

It is alleged that the petitioner made those entries as 'not paid' only on 31.03.2006 in Additional Cash Register, but upon perusal of the Additional Cash Register as well as the General Cash Register, it appears that an entry to the extent of Rs. 5,30,939.15/- has been made, but this did not result in net total of the figures. The entry of Rs. 5,30,939.15/- was noticed by the audit team of

Accountant General who had struck off the same by pencil and subsequently, the audit team of Finance Department had encircled the same in green ink and thus, it was clear that the audit team of the Accountant General as well as the audit team of the Finance Department had not accepted the entry subsequently made by the petitioner. It was also alleged that the cash register reflected a payment of Rs. 10,00,000/- (Rs. Ten Lakhs), however, the entries made in the alternate record shows payment of Rs. 2,70,000/-. The records reflected that the petitioner was indulged in making changes/interpolation in the Additional Cash Register/General Cash Register.

With this background, it has been alleged against the petitioner that she, in order to meet the objection of the audit teams, manipulated the records and tried to tally the figures, but remained unsuccessful in her attempt and accordingly, the interpolations which were committed by the petitioner came to light and consequently, it was decided to initiate departmental proceeding against the petitioner.

Thus, the allegation is that, from perusal of Additional Cash Register as well as General Cash Register, the petitioner unsuccessfully tried to adjust the total expenses to the original estimated cost by manipulating the records.

10. The memo of charge also contained the evidences against the petitioner being;

i. Photocopy of the record.

ii. Photocopy of the cash register.

iii. Report of the Accountant General.

iv. Report submitted by the then Director, D.R.D.A. Latehar. v. Letter contained in memo no. 1079 dated 31.07.2008 issued by the office of Deputy Commissioner, Latehar.

11. Some relevant findings of the enquiry report are as under: -

i. From the perusal of the cash register vol. 2 dated 31.03.2006 maintained upto 25.03.2006, it appears that on 21.01.2007 i.e. a day before the petitioner had to hand over charge, she made entry in the page dated 31.03.2006 to adjust an amount of Rs. Rs. 5,30,939.15/-

ii. If any entry was to be corrected then it should have been done in the page of date 21.01.2007 and not in the page of date 31.03.2006.

iii. The entry made by the petitioner on the page dated 31.03.2006 has not been accepted by the audit team of the Accountant General by cutting the same with pencil as well as by the audit team of the Finance Department by cutting the same with green pencil.

iv. In the general cash register volume no. VI at page 94, in the head of scheme NAREGA, entry has been made of Rs.

5,30,939.15/-. However, when the same was put to tally with the additional cash register, the same has been mentioned as "cash register page 5 amount adjusted Rs. 5,30,939.15/- on 31.03.2006".

v. It is clear that the petitioner by her own wish on 21.01.2007 made an entry of Rs. 5,30,939.15/- stating the same as adjusted amount without there being any corresponding evidence, in the cash register at page dated 31.03.2006.

vi. Again making this entry as a basis, she made the same entry in the NAREGA additional cash register also.

vii. Making these entries (v and vi) the very basis, the petitioner made entry in the cash register dated 21.01.2007 and as such she has tried to put curtains and cover up on the wrong/irregularity committed by her.

viii. The entry of Rs. 5,30,939.15/- stating it to be an adjusted amount, made on the page dated 31.03.2006 is without any corresponding document i.e. without any basis.

ix. The reason for adjustment of amount of Rs. 5,30,939.15/- on the page dated 31.03.2006 has also not been stated by the petitioner while making such entry.

x. The entries made by the petitioner can be held as manipulating the official records.

xi. By bringing on record the letters i.e. letter nos. 23(i) dated 31.03.2006, 28(i) dated 22.02.2005 and 24(i) dated 31.03.2006 the petitioner has tried to shift the entire liability/responsibility on the nazir namely Mahesh Mochi and has tried to convey that she had earlier directed the nazir to make error correction but he never did that and as such she was compelled to do corrections on 21.01.2007.

xii. The letters being letter no. 23(i) dated 31.03.2006 and letter no.

24(i) dated 31.03.2006 cannot be accepted to be true, as after perusal of the register of Chandwa Block maintained for the letters issued, it was found that the number of first letter issued on 31.03.2006 is 156 and the letters mentioned by the petitioner are not mentioned there.

xiii. The letter being letter no. 28(i) dated 22.02.2005 also cannot be accepted to be true, as after perusal of the register of Chandwa Block maintained for the letters issued, it was found that the number of first letter issued on 22.02.2005 is 147 and the letter mentioned by the petitioner is not mentioned there. xiv. It is clear that the letters referred to by the petitioner by which she had directed Nazir Mahesh Mochi to make error correction are not correct and genuine.

xv. The issue register was perused and considered and it has also been recorded that the charge sheeted employee could not controvert the aforesaid fact during the course of enquiry.

12. The petitioner full participated in the enquiry, her response and defence with regards to the charges were duly considered and out of the two charges she was exonerated with regards of charge no. 1 and was found guilty with regards to charge no. 2. The petitioner was issued second show cause notice by the enquiry officer along with the enquiry report for her comments, to which she duly responded and ultimately the impugned order of punishment was passed. She filed a petition for review, but the same was also rejected.

13. The points for consideration are as follows: -

I. Whether the disciplinary proceeding is vitiated on account of having been initiated after expiry of about 12 years from the date of the alleged incident?

II. Whether the enquiry proceeding is vitiated in view of the fact that during the entire proceeding no witness was examined and accordingly no documentary evidence was marked as exhibit and accordingly the enquiry report is based on no evidence, either oral or documentary? III. Whether the disciplinary proceedings is vitiated on account of alleged failure to produce the relevant registers showing issuance of the letters issued by the petitioner to the Nazir asking him to rectify the wrong entries made in the cash book and other records and also

bringing this misdeed to the notice of the Deputy Commissioner?

IV. Whether the authorities have travelled beyond the charges levelled against the petitioner while holding the petitioner guilty of violating rule 86(ii) (iii) and (iv) of the Jharkhand Treasury Code although there was no such charge referring to the said rules?

V. Whether the authorities failed to consider that the Correction made by the petitioner in the cash book was in accordance with law as mentioned in provision of Rule 86(vi) Jharkhand Treasury Code in as much as there is no allegation of cutting / deletion rather endorsement with date has been made in the cashbook when the mistake committed earlier came to the knowledge of petitioner?

VI. Whether the second show cause was just an eye wash as the Disciplinary Authority had already taken a decision for imposing punishment upon the Petitioner and such approach amounts to gross violation of the principle of natural justice?

VII. Whether the punishment imposed is disproportionate to the charges proved against the petitioner?

14. Before proceeding, it would be important to keep in mind the scope of interference in the matter of disciplinary enquiry in writ proceedings. The scope of interference in the matter of disciplinary proceedings has been summarized in the judgment passed by the Hon'ble Supreme Court reported in (2020) 9 SCC 471 (Pravin Kumar vs. Union of India) and also in the case of "Deputy General Manager Vs. Ajai Kr. Srivastava" reported in 2021 SCC Online SC 4.

15. Para-25 ,26 and 28 of the judgement in Pravin Kumar(supra) dealing with scope of judicial review in service matters, 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. .....................

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. .................

30..........................."

16. Similar view has been expressed by the Hon'ble Supreme Court in the case of "Deputy General Manager Vs. Ajai Kr. Srivastava" reported in 2021 SCC Online SC 4. Para 23 to 28 of the report is quoted as under: -

"23. It has been consistently followed in the later decision of this Court in H.P. SEB v. Mahesh Dahiya and recently by the three- Judge Bench of this Court in Pravin Kumar v. Union of India.

24. It is thus settled that the power of judicial review, of the constitutional courts, is an evaluation of the decision-making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry 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 or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.

25. When the disciplinary enquiry is conducted for the alleged misconduct against the public servant, the court is to examine and determine:

(i) whether the enquiry was held by the competent authority;

(ii) whether rules of natural justice are complied with;

(iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion.

26. It is well settled that where the enquiry officer is not the disciplinary authority, on receiving the report of enquiry, the disciplinary authority may or may not agree with the findings recorded by the former, in case of disagreement, the disciplinary authority has to record the reasons for disagreement and after affording an opportunity of hearing to the delinquent may record his own findings if the evidence available on record be sufficient for such exercise or else to remit the case to the enquiry officer for further enquiry.

27. It is true that strict rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent

must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere conjecture or surmises cannot sustain the finding of guilt even in the departmental enquiry proceedings.

28. The constitutional court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained."

17. Thus, the scope of interference in departmental enquiry in the present case has to be seen in the light of the aforesaid judicial pronouncements. Now we shall deal with each of the points raised by the petitioner as mentioned above.

Point no.I Whether the disciplinary proceeding is vitiated on account of having been initiated after expiry of about 12 years from the date of the alleged incident?

18. With regards to this point it is not in dispute that the entries relate to the period 2005-06 and the so called correction in the entries were made in the cash book and other documents as back as on 21.01.2007, the petitioner was transferred on 22.01.2007 and the chargesheet was issued to the petitioner vide resolution dated 25.05.2017 (Annexure-1). For this, the learned counsel for the petitioner has relied upon the judgement reported in 1990 (Supp) SCC 738 (State of M.P. Versus Bani Singh) to submit that in the said case there was delay of 12 years in initiation of departmental proceeding without proper justification for the delay and it was itself a malafide action of the state. The said judgement reported in 1990 (Supp) SCC 738 (supra) does not apply to the facts and circumstances of this case. In the judgement passed by the Hon'ble Supreme Court the respondent had challenged the very initiation of disciplinary proceedings which was quashed by the Tribunal and the Hon'ble Supreme Court, considering the facts of the case, did not interfere with the order by recording that there was no satisfactory explanation for the inordinate delay in issuing charge sheet and the Hon'ble Supreme Court was of the view that it was unfair to permit the departmental enquiry to proceed at

that stage. In the present case, the petitioner has faced a full-fledged departmental enquiry, duly participated in the proceedings and has been found guilty with regards to charge no.2. Considering the scope of interference in the matters of disciplinary proceedings as has been crystalized by the Hon'ble Supreme Court in the aforesaid judgements- (2020) 9 SCC 471 (Pravin Kumar vs. Union of India) and Deputy General Manager Vs. Ajai Kr. Srivastava reported in 2021 SCC Online SC 4, delay in initiation of departmental proceedings by itself is not a ground for interference. There is neither allegation of any malafide against any person nor any prejudice has been shown to have been caused to the petitioner on account of alleged delay nor there is any violation of any statutory provision or rules or guidelines involved in the present case. The sequence of events as mentioned by the petitioner reveals that the State Audit Team of the Finance Department was examining the matter and gave its report on 17.07.2009 and the matter was taken up by the then deputy commissioner on 15.05.2017. Thus, the unexplained period of so- called delay is less than 8 years which in the considered view of this court is not enough to call for any interference in writ jurisdiction on ground of delay and laches on the part of the department. Accordingly, Point no. I is decided against the petitioner and in favour of the Respondents. Point no. II

-Whether the enquiry proceeding is vitiated in view of the fact that during the entire proceeding no witness was examined and accordingly no documentary evidence was marked as exhibit and accordingly the enquiry report is based on no evidence, either oral or documentary?

19. It is not in dispute that no oral evidence has been adduced from either side and consequently there has been no formal marking of exhibits of any of the documents filed by either side. It is also an admitted fact that both the sides had relied on documents without any objection from the other side in the departmental proceedings. None of the documents relied upon by the department were disputed by the petitioner in the departmental proceedings but the petitioner had tried to explain as to under what circumstances the alleged entries/insertions were made by the petitioner in the cash book and other records. Thus, the documents produced from the side of the department were admitted, entries/insertions were also admitted but the allegations were denied and the entries/insertions were sought to be explained by the petitioner in the course of the departmental proceedings. The petitioner by filing certain letters tried to throw the responsibility upon the Nazir.

20. This Court finds from the enquiry report that during the departmental proceeding a number of documents were forwarded to the petitioner by the respondents along with the chargesheet itself. This Court finds that the allegation against the petitioner is with regards to interpolation/manipulation of records by inserting certain entries /by writing not paid against certain cash payments made earlier and such insertions were made on 21.01.2007 just before the date of her transfer on 22.01.2007. It has also been alleged that such entries were not supported by corresponding records and payments already made in cash and received by the concerned person could not be reversed by stating them as not paid.

21. It has been held in the aforesaid judgements that strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee.

22. This court is of the considered view that merely because there has been no oral evidence from the side of the department and accordingly, there has been no formal marking of documents relied upon in the enquiry proceedings, the same by itself does not render the enquiry proceedings based on 'no evidence'. In the present case the documents relied upon by the department are official records and are admitted documents and the petitioner never denied such documents nor denied the entries/insertions made on the documents, rather tried to explain and justify the same and passing the primary responsibility of making entries upon the nazir. Thus, no prejudice has been caused to the petitioner by absence of any oral evidence or by the fact that the documents were not marked formally.

23. The issuance of letters relied upon by the petitioner in the departmental proceedings were sought to be verified by the issue register and it was found that those letters were not issued and reasons have been assigned for coming to such conclusion. This point has been considered in details while considering the issue no. III in the later part of this judgement.

24. There is no legal impediment in resting the departmental proceeding merely on documents produced by the department and relied upon after due compliance of the principles of natural justice and fair play without formally exhibiting the same through oral evidence of any witness.

25. So far as the judgment relied upon by the petitioner reported in (2009) 2 SCC 570 (Roop Singh Negi Vs. Punjab National Bank and Others) is concerned, the same was in peculiar facts of the case where the solitary evidence against the delinquent was his confessional statement in the criminal proceedings. In that background, the Hon'ble Supreme Court was of the view that the Enquiry Officer performs the quasi-judicial function and the charges levelled against the delinquent officer must be found to have been proved. It was held that the evidence collected during investigation of the case against the accused by itself could not be treated to be evidence in the disciplinary proceedings. In the said case no witness was examined to prove the said documents collected during investigation of the criminal case and the management witnesses merely tendered the document and did not prove the content thereof and consequently it was held that reliance by the Enquiry Officer on the F.I.R. which could not have been treated as evidence, was bad in law. The said judgement is not an authority on the point as to whether a disciplinary enquiry can rest only on documents tendered through memo of evidence without being formally exhibited by leading oral evidence. In the instant case, the enquiry proceeding was essentially based on documents of the parties tendered and relied upon in the enquiry proceeding and therefore the aforesaid judgment reported in (2009) 2 SCC 570 does not apply to the facts and circumstances of this case.

26. In view of the aforesaid findings, it cannot be said that the enquiry proceeding was based on no evidence.

27. It is open to the authority to rest its case on documentary evidence. Strict rule of evidence is not applicable to the departmental proceedings. What is relevant that the proceeding should be conducted in tune with principles of natural justice and fair play. Therefore, argument of the petitioner that the present case is a case of no evidence, as no oral evidence has been adduced by the department to formally prove the charge or prove the documents relied in the departmental proceedings by filing memo of evidence, is devoid of any merits and hence rejected.

28. It is well settled that the constitutional Court, while exercising its jurisdiction of judicial review under Article 226 of Constitution of India, is not to interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of mala fides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting

reasonably and with objectivity could have arrived at those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.

29. Accordingly, Point no.II is decided against the petitioner and in favour of the respondents.

Point no. III Whether the disciplinary proceedings is vitiated on account of alleged failure to produce the relevant registers showing issuance of the letters issued by the petitioner to the Nazir asking him to rectify the wrong entries made in the cash book and other records and also bringing this misdeed to the notice of the Deputy Commissioner?

30. It is the specific case of the petitioner that on 31.03.2006, she had written a letter no. 23 (i) to the then Nazir, Chandwa Block stating that there are errors in different pages of cash book and Nazir was directed to rectify the gross negligence on his part by correcting the concerned pages and making the entry properly in detail. It is further case of the petitioner that the petitioner had also written a letter to the Deputy Commissioner, Latehar to bring to his knowledge about the aforesaid clerical mistake in cash book due to gross negligence of Nazir and had requested the Deputy Commissioner to transfer him. However, the petitioner was transferred on 22.01.2007 and immediately prior to the date of transfer i.e., on 21.01.2007, she rectified the error in the entries made in the cash book. It is further the specific case of the petitioner as argued by the learned counsel that no exhibit of dispatch register was produced by the presenting officer during the course of the proceeding in order to corroborate their ground that the letter written by the petitioner to Nazir was not issued from the office.

31. This Court finds that at the stage of enquiry, the aforesaid documents were relied upon by the petitioner in support of her stand that she had taken steps by directing the Nazir to do the necessary correction in the cash book with regard to various entries but when Nazir did not act, she did the necessary correction on 21.01.2007 as she was transferred on 22.01.2007. This stand of the petitioner has been considered by the enquiry officer wherein the enquiry officer recorded that if the entries were checked regularly then such error could have been easily detected and with regard to the aforesaid letter nos. 23 (i) dated 31.03.2006 and 24 (i) dated 31.03.2006, the enquiry officer has recorded that the issue register of Chandwa Block office was perused and following findings were recorded:

a. By bringing on record the letter i.e. letter no. 23 (i) dated 31.03.2006, 28 (i) dated 22.02.2005 and 24 (i) dated 31.03.2006 the petitioner has tried to shift the entire liability/responsibility on the Nazir namely Mahesh Mochi and has tried to convey that she had earlier directed the nazir to make error correction but he never did that and as such she was compelled to do corrections on 21.01.2007. b. The letters being letter no. 23 (i) dated 31.03.2006 and letter no. 24

(i) dated 31.03.2006 cannot be accepted to be true, as after perusal of the register of Chandwa Block maintained for the letters issued, it was found that the number of first letter issued on 31.03.2006 is 156 and the letters mentioned by the petitioner are not mentioned there. c. The letter being letter no. 28 (i) dated 22.02.2005 also cannot be accepted to be true, as after perusal of the register of Chandwa Block maintained for the letters issued, it was found that the number of first letter issued on 22.02.2005 is 147 and the letter mentioned by the petitioner is not mentioned there.

d. It is clear that the letters referred to by the petitioner by which she had directed Nazir Mahesh Mochi to make error correction are not correct and genuine.

e. The issue register was perused and considered and it has also been recorded that the charge sheeted employee could not controvert the aforesaid fact during the course of enquiry.

32. From perusal of the findings recorded by the enquiry officer, it is apparent that the issue register was perused and considered and it has also been recorded that the charge sheeted employee could not controvert the aforesaid fact during the course of enquiry. It has also been recorded that so far as letter written to the Deputy Commissioner is concerned, the same neither had any letter number nor any reference in the issue register and the fact that the letter to the Deputy Commissioner was also said to have been written on the same date i.e., 31.03.2006 reflects that the petitioner had somehow tried to defend herself by showing the issuance of such letters.

33. Admittedly, a copy of the enquiry report was forwarded to the petitioner for her comments at the stage of second show cause notice. The reply of the petitioner is contained at Annexure - 11. From perusal of the said reply, this Court finds that the petitioner, though relied upon the aforesaid communication once again and annexed photocopy of certain issue register, but did not deny the fact that the issue register was duly produced and considered at the time of enquiry by the enquiry officer to which during the course of enquiry, she had no answer. Even at the review stage also, no such grievance has been raised by the petitioner.

34. Accordingly, the contention of the petitioner that the findings with regard to the aforesaid letters/communication is based on no evidence is devoid of any merit. It is well settled that the departmental authorities are the sole

judge of the facts and the findings in the enquiry proceedings being based on materials on record, the adequacy of material cannot be scrutinized by this Court under Article 226 of the Constitution of India.

35. In view of the aforesaid findings, Point no. III is decided against the petitioner and in favour of the Respondents.

Point no.IV and V Whether the authorities have travelled beyond the charges levelled against the petitioner while holding the petitioner guilty of violating rule 86(ii) (iii) and (iv) of the Jharkhand Treasury Code although there was no such charge referring to the said rules?

Whether the authorities failed to consider that the Correction made by the petitioner in the cash book was in accordance with law as mentioned in provision 86(vi) Jharkhand Treasury Code in as much as there is no allegation of cutting / deletion rather endorsement with date has been made in the cashbook when the mistake committed earlier came to the knowledge of petitioner?

36. The petitioner has argued that in the impugned order, it has been held that the petitioner is guilty for non-compliance of Rules 86 (ii), (iii) and (iv) of Jharkhand Treasury Code, but the said finding is perverse as no such allegation was levelled in the charge sheet. At the same time, an argument has been made that the action of the petitioner is in accordance with Rule 86(vi) of Jharkhand Treasury Code.

37. Chapter III of Jharkhand Treasury code deals with Receipt of Government moneys and payment of such moneys into the Public Account and Section I deals with the general instruction for handling cash. Relevant Rule of Jharkhand Treasury Code reads as follows: -

86. Save as otherwise expressly provided in these rules or in any authorized departmental regulations, the following rules shall be observed by all Government servants who are required to receive and handle cash. -

(i) Each Government servants receiving money on behalf of the Government should maintain a cash book in T.C. Form 6.

(ii) All monetary transactions should be entered in the cash book as soon as they occur and attested by the head of the office in token of check.

Note-Monetary transactions passing through contingent bills endorsed to private parties for receiving direct payment from the treasury or the bank should also find place on both the receipt and payment sides of the Cash Book and the fact that a particular transaction relates to a contingent bill endorsed to a party should be noted against the relevant

entry appearing in the cash book in order to distinguish such transactions from the cash transactions.

(iii) The cash book should be closed and balanced each day regularly and completely checked. The head of the office should verify the totalling of the cash book or have this done by some responsible subordinate other than the writer of the cash book, and initial it as correct.

(iv) At the end of each month, the head of the office should verify the cash balance in the cash book and record a signed and dated certificate to that effect. The certificate should also be recorded on the monthly cash account, primary abstract or current account is required to be submitted to the Accountant General. Such certificate must be signed by the head of the office who should invariably date the signature.

(v). ......

(vi) An erasure or over-writing of an entry once made in the cash book is strictly prohibited. If a mistake is discovered, it should be corrected by drawing the pen through the incorrect entry and inserting the correct one in red ink between the lines. The head of the office should initial every such correction and invariably date his initials.

38. Rule 86 (ii) clearly provides that all monetary transaction should be entered in the cash book as soon as they occur and attested by the head of the office in token of cheque. Rule 86 (iii) provides that the cash book should be closed and balanced each day regularly and completely checked. The head of the office should verify the totaling of cash book or have this done by some responsible sub-ordinate other than writer of the cash book and initial it as correct and Rule 86 (iv) also provides that at the end of each month, the head of the office should verify the cash balance in the cash book and record a signed and dated certificate to that effect. The certificate should also be recorded on the monthly cash account, primary abstract or current account is required to be submitted to the Accountant General. Such certificate must be signed by the head of the office who should invariably date the signature. Rule 86 (vi) clearly provides that an erasure or over-writing of an entry once made in the cash book is strictly prohibited. If a mistake is discovered, it should be corrected by drawing the pen through the incorrect entry and inserting the correct one in red ink between the lines. The head of the office should initial every such correction invariably and date his initials.

39. The allegations against the petitioner relate to handling of cash and entries made in the cash book and other documents. The allegation was that the petitioner made certain editing/insertions in the cash book and other documents

on 21.01.2007 in relation to certain entries made as back as on 31.03.2006. It is also argued by the petitioner that the editing/insertions were in accordance with Rule 86 (vi) of Jharkhand Treasury Code. The provisions of Rule 86 of Jharkhand Treasury Code are the related provision which deal with the manner in which the cash is to be handled and recorded and therefore any reference to the aforesaid Rule 86 of Jharkhand Treasury Code is essentially linked with the allegation no.2 levelled and proved against the petitioner. In the light of the allegations levelled against the petitioner wherein she took a specific plea that rectification in cash entries on 21.01.2007 i.e., much after the connected cash entry of 31.03.2006 was merely a rectification and nothing else, provisions of Rule 86 of Jharkhand Treasure Code is integral to the charge levelled against the petitioner although in the charge memo, no specific reference has been made to the aforesaid Rule 86 of Jharkhand Treasure Code, but has been referred to in the enquiry report wherein the act of the petitioner in making entry on 21.01.2007 in relation to cash entry dated 31.03.2006 has been found to be violative of specific provision of Rule 86 of Jharkhand Treasure Code. Non mentioning of Rule 86 of Jharkhand Treasury Code in the chargesheet has no bearing in the matter nor the same has caused any prejudice to the petitioner. The petitioner was well aware throughout that she has to defend her action of editing/insertions in cash register by referring to the aforesaid provision of law which are the only provisions dealing with cash receipts and cash registers. Considering the findings of the enquiry officer with regards to the cash entries against which the petitioner had subsequently inserted not paid though the same were actually paid with corresponding receipts of the recipients of cash, and the finding that such editing/insertions was done only to tally the sanctioned amount with the money spent for the work although excess amount was disbursed for which the petitioner unsuccessfully tried to pass on the responsibility to nazir, this court finds no illegality in the findings recorded by the enquiry officer with regards to violations of provision of Jharkhand treasury code.

40. In view of the aforesaid findings, this Court is of the considered view that the authorities have not travelled beyond the charges levelled against the petitioner while holding the petitioner guilty of violating Rule 86(ii) (iii) and

(iv) of the Jharkhand Treasury Code in spite of the fact that there was no reference of the said rules in the charge. This Court is of the considered view that the editing/insertions made by the petitioner in the cash book was not in

the nature of any correction of mistake and such editing/insertions were contrary to the related records as fully discussed and considered in the enquiry report and accordingly the act of the petitioner cannot be justified under Rule 86(vi) of Jharkhand Treasury Code.

41. In view of the aforesaid findings, Point no. IV and V are decided against the petitioner and in favour of the Respondents. Issue no.VI Whether the second show cause was just an eye wash as the Disciplinary Authority had already taken a decision for imposing punishment upon the Petitioner and such approach amounts to gross violation of the principle of natural justice?

42. Upon perusal of the records of this case it is apparent that the petitioner was found guilty only with regards to charge no.2 and the disciplinary authority agreed with the findings of the enquiry officer and issued second show cause mentioning the proposed punishment. The petitioner filed a detailed reply with regards to the enquiry report forwarded to the petitioner along with the second show cause and thereafter upon considering the reply of the petitioner, the disciplinary authority imposed the punishment by the impugned order. Merely because the disciplinary authority had mentioned about the proposed punishment, the same does not amount to any violation of principles of natural justice particularly when the petitioner had filed a detailed reply to the show cause and after considering the same the impugned order has been passed. Even the review petition filed by the petitioner has been dismissed where the petitioner raised similar points as those mentioned in the second show cause reply. This Court does not find any illegality in the aforesaid action of the disciplinary authority at the stage of second show cause and is of the considered view that there has been no violation of principles of natural justice and fair play calling for any interference in the impugned orders considering the limited scope of interference in the matter of disciplinary proceedings as crystalized and summarized by the Hon'ble Supreme Court in the judgement reported in (2020) 9 SCC 471 (Pravin Kumar vs. Union of India) and also in the case of "Deputy General Manager Vs. Ajai Kr. Srivastava" reported in 2021 SCC Online SC 4.

43. In view of the aforesaid findings, Point no. VI is decided against the petitioner and in favour of the Respondents.

Issue no.VII

Whether the punishment imposed is disproportionate to the charges proved against the petitioner?

44. So far as this point is concerned, this Court is of the considered view that the punishment of the petitioner is neither harsh nor disproportionate much less shockingly disproportionate to the charge proved against the petitioner. This court is of the considered view that no interference is called for on the point of punishment under Article 226 of the Constitution of India. Thus, Point no. VII is also decided against the petitioner and in favour of the Respondents.

45. While considering the present case in the light of the aforesaid judgement, this Court finds no error, much less any manifest error of law and procedure leading to any injustice to the petitioner. It is well settled 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. There is no allegation of any bias and no case has been made out alleging gross unreasonableness of outcome. There is no scope for reconsidering the materials produced before the enquiry officer and coming to a different finding. All the issues framed based on the arguments of the parties having been decided in favour of the Respondents as aforesaid, there is no scope for any interference in the impugned order and proceedings under Article 226 of the Constitution of India. Accordingly, the present writ petition is dismissed.

46. Pending interlocutory application, if any, is closed.

(Anubha Rawat Choudhary, J.) Pankaj