Sushil Kumar vs The State Of Jharkhand Through The ...
2023 Latest Caselaw 2896 Jhar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(S) No. 1810 of 2023
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      Sushil Kumar                       ...     ...     Petitioner
                                 Versus

1. The State of Jharkhand through the Secretary/Principal Secretary, Department of Drinking Water and Sanitation, Government of Jharkhand, Ranchi

2. The Joint Secretary, Department of Drinking Water and Sanitation, Government of Jharkhand, Ranchi

3. The Deputy Secretary to the Government, Department of Drinking Water and Sanitation, Government of Jharkhand, Ranchi .... ... Respondents CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner : Mr. Manoj Tandon, Advocate Ms. Neha Bhardwaj, Advocate For the Respondents : Mr. Karan Shahdeo, A.C. to S.C.-II

Order No. 06 Dated: 16.08.2023

The present writ petition has been filed for quashing and setting aside the order as contained in notification no. 04/Aa.Vi-01- 1011/2017-5133 dated 23.12.2022 (Annexure-8 to the writ petition) issued under the signature of the Joint Secretary, Department of Drinking Water and Sanitation, Government of Jharkhand (the respondent no. 2) whereby penalty of deduction of 10% of the petitioner's pension amount for five years has been imposed under Section 43(b) of the Jharkhand Pension Rules, 2000 (in short, "the Rules, 2000").

2. Learned counsel for the petitioner submits that the petitioner was appointed as Assistant Engineer in the Public Health and Engineering Department (now Department of Drinking Water and Sanitation) on 15.07.1987 in the unified State of Bihar. He was promoted to the post of Executive Engineer in the year 2005 and to the post of Superintending Engineer in the year 2018. Subsequently, he retired on 30.11.2019 from the post of Superintending Engineer, Department of Drinking Water and Sanitation, Urban Circle, Ranchi.

3. It is further submitted that while the petitioner was holding the post of Executive Engineer, Drinking Water and

Sanitation, Division No. 1, Giridih in the year 2013-14, agreements were entered between him and 18 different contractors for executing the work of relocation of 695 Drilled Tube Wells in Giridih Division for which work orders to the tune of Rs.335.66686 Lakhs were issued whereas the sanctioned amount for the said entire projects was Rs.329.16590 Lakhs. When the payment was not being made to one of the contractors namely M/s. Sayeed Akhtar for executing the said work with respect of 25 tube wells, he filed a writ petition before this Court being W.P.(C) No. 4068 of 2016 which was disposed of vide order dated 08.08.2016 with a direction to the respondent authorities to consider the claim of the petitioner of the said case i.e., the contractor, and to take a final decision. Accordingly, the decision was taken by the concerned authority vide order as contained in memo no. 872 dated 06.06.2017 holding that the present petitioner was responsible for excess financial burden and ordered him to make payment of Rs.5,94,745/- from his own pocket. Aggrieved with the said decision, the petitioner filed writ petition before this Court being W.P.(S) No. 5807 of 2017 which was allowed vide order dated 03.07.2018 setting aside the order dated 06.06.2017, however liberty was granted to the respondents of the said case to proceed in accordance with law framing a fresh memo of charges by initiating a regular departmental proceeding.

4. Accordingly, a regular department proceeding was initiated against the petitioner by framing three charges against him specifically alleging that he entered into agreements with contractors for higher amount than what was sanctioned and the same was recoverable from him. The memo of charges was served to the petitioner vide memo no. 191 dated 10.01.2019. The petitioner submitted his reply before inquiry officer on 14.02.2019 denying all the charges levelled against him. The inquiry officer, vide letter no. 42/2019-92(Anu) dated 30.08.2019, submitted the enquiry report to the Secretary, Department of Drinking Water and Sanitation, Government of Jharkhand stating that all the charges

levelled against the petitioner were not found proved.

5. It is further submitted that the disciplinary authority was not satisfied with the said enquiry report and vide letter no. 1759 dated 21.08.2020, directed the inquiry officer to submit another inquiry report. Accordingly, the inquiry officer, vide letter no. 42/2019-383 (Anu) dated 24.12.2020, again submitted the inquiry report to the Deputy Secretary, Department of Drinking Water and Sanitation, Government of Jharkhand (the respondent no. 3) finding the charges not proved against the petitioner. However, on this occasion, the disciplinary authority, vide letter no. 4234 dated 18.10.2022, issued second show cause notice to the petitioner stating that during departmental review, he was found guilty and as such was directed to file reply on the proposed punishment of deduction of 10% of his pension amount for five years. The petitioner submitted reply to the second show cause notice before the respondent no. 2 on 02.11.2022, however, vide impugned notification as contained in memo no. 5133 dated 23.12.2022 issued by the respondent no. 2, penalty of deduction of 10% of his pension amount for five years has been imposed upon him under Section 43(b) of the Rules, 2000.

6. Learned counsel for the petitioner also submits that the petitioner was not served any show cause notice with respect to the tentative point of difference of the disciplinary authority with the finding of the inquiry officer, rather the disciplinary authority directly came to the conclusion that the petitioner was found guilty of the charges levelled against him and served the second show cause notice for the proposed punishment. The action of the disciplinary authority is not only contrary to the settled principle of law but the same is also in contravention of the provisions of rule 18(2) of Jharkhand Government Servants (Classification, Control and Appeal) Rules, 2016. It is further submitted that not a single witness was examined against the petitioner during enquiry to prove the charges levelled against him irrespective of which he has been held guilty by the disciplinary authority.

7. Per contra, learned counsel for the respondents submits that the petitioner has been found guilty by the disciplinary authority and hence he has rightly been imposed penalty of deduction of 10% of his pension amount for five years under rule 43(b) of the Rules, 2000. It is further submitted that the petitioner cannot be absolved from his liability on mere ground that the inquiry officer had submitted the report in his favour. The disciplinary authority is competent to differ with the finding of the inquiry officer. During departmental review, the petitioner was found guilty of the charges levelled against him and as such the impugned order of punishment has rightly been passed against him.

8. Heard learned counsel for the parties and perused the materials available on record. The petitioner is aggrieved with the order of punishment of deduction of 10% of his pension amount for five years.

9. Thrust of the argument of learned counsel for the petitioner is that though the inquiry report was in favour of the petitioner i.e., the charges were not found proved, yet the disciplinary authority did not serve him any show cause notice after differing with the finding of the inquiry officer and directly served the second show cause notice for the proposed punishment which is in the teeth of the settled proposition of law laid down by the Hon'ble Supreme Court.

10. To appreciate the contention of learned counsel for the petitioner, it would be appropriate to refer the judgment rendered by the Hon'ble Supreme Court in the case of Punjab National Bank & Others Vs. Kunj Behari Misra reported in (1998) 7 SCC 84 wherein it has been held as under:-

"17. These observations are clearly in tune with the observations in Bimal Kumar Pandit case [AIR 1963 SC 1612] quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the enquiry officer had given an adverse finding, as per Karunakar case [(1993) 4 SCC 727] the first stage required an opportunity to be given

to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings.

The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority.

18. Under Regulation 6, the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of enquiry as explained in Karunakar case [(1993) 4 SCC 727] .

19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can

impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."

11. In the case of Lav Nigam v. Chairman & MD, ITI Ltd. & Another reported in (2006) 9 SCC 440, the Hon'ble Supreme Court framed the question to be decided as to whether the appellant was entitled to a notice from the disciplinary authority to show cause against the tentative decision of the disciplinary authority to differ with the finding of the inquiry officer. After citing the judgment of Kunj Behari Misra (supra.), the Hon'ble Supreme Court held as under:-

"13. We have already quoted the extracts from the show-cause notice issued by the disciplinary authority. It is clear that no notice at all was given before the disciplinary authority recorded its final conclusions differing with the finding of fact of the inquiry officer. The notice to show cause was merely a show-cause against the proposed punishment. In view of the long line of authorities, the decision of the High Court cannot be sustained. The appeal is accordingly allowed and the decision of the High Court is set aside."

12. It is thus well settled that a delinquent employee is entitled to be served a show cause notice by the disciplinary authority against its tentative decision to differ with the finding of the inquiry officer. I am of the view that the said principle equally applies in the proceeding under rule 43(b) of the Rules, 2000.

13. In the case in hand, the petitioner was not served show cause notice against the tentative decision of the disciplinary authority differing with the finding of the inquiry officer which is in the teeth of the proposition laid down by the Hon'ble Supreme Court in the aforesaid cases. As such the impugned order of punishment cannot be sustained in law.

14. Since the petitioner has already retired from service on 30.11.2019, it would not be appropriate to permit the respondents to recommence the proceeding after providing show cause notice to the petitioner with respect to tentative disagreement with the finding of the inquiry officer. Moreover, it is evident from the conduct of the respondents that they somehow wanted to impose punishment upon the petitioner and as such issuance of fresh

show cause notice to him with respect to disagreement with the finding of enquiry officer will be an empty formality and will merely amount to knocking the petitioner's head against the impenetrable wall of prejudged opinion.

15. In view of the aforesaid discussion, the order as contained in notification no. 04/Aa.Vi-01-1011/2017-5133 dated 23.12.2022 issued by the respondent no. 2 is hereby quashed.

16. The writ petition is, accordingly, allowed.

(Rajesh Shankar, J.) Ritesh/AFR