Jharkhand High Court

Yogendra Kumar Pandit vs The State Of Jharkhand on 3 May, 2023

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(S) No. 5587 of 2015
      Yogendra Kumar Pandit                            ...    Petitioner
                            Versus
      1 The State of Jharkhand
      2 The Principal Secretary, Water Resources Department, Govt. of
         Jharkhand, Nepal House, Doranda, Ranchi
      3 The Under Secretary, Water Resources Department, Govt. of
         Jharkhand, Nepal House, Doranda, Ranchi
      4 The Deputy Secretary, Water Resources Department, Govt. of
         Jharkhand, Nepal House, Doranda, Ranchi
      5 The Accountant General, Jharkhand, Ranchi
                                                       ... Respondents
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CORAM: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY

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For the Petitioner : Mr. Samavesh Bhanj Deo, Advocate For the State : Mr. Karan Shahdeo, AC to SC-II For the Resp. 5 : Mr. A. K. Mehta, Advocate

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Order No. 10 Dated 03rd May, 2023

1. Heard the learned counsel for the respective parties.

2. The petitioner is aggrieved by the order as contained in memo No. 5039 dated 22.09.2015 issued by the respondent No. 4 by which the petitioner has been imposed with a punishment of deduction of 2% from his pension forever. The petitioner seems also to be aggrieved by the letter as contained in memo No. 3488 dated 12.10.2015 issued by the respondent No. 3 addressed to the respondent No. 5 requesting him to issue authorization slip after deduction of 2% from the pension of the petitioner consequent to the order of punishment as contained in memo No. 5039 dated 22.09.2015.

3. The factual aspects of the case reveal that the petitioner was appointed on the post of Assistant Engineer on 29.01.1979 in the Irrigation Department, Govt. of Bihar, Patna. During his service tenure a departmental proceeding was initiated against the petitioner vide resolution as in memo No. 3046 dated 09.04.2014 and three charges were framed against him. The petitioner had filed a reply and had participated in the enquiry proceedings. The enquiry officer vide its letter dated 08.07.2014 came to a conclusion that none of the charges against the petitioner were found to be proved. The enquiry report was submitted on 08.07.2014 and no final order was passed by the disciplinary authority, rather the petitioner was directed

to submit his second show cause vide letter as contained in memo No. 4071 dated 22.10.2014. Consequent to the second show cause notice, the petitioner had duly submitted his reply on 07.11.2014 and ultimately vide memo No. 5039 dated 22.09.2015 issued by the respondent No. 4, the petitioner has been imposed with a punishment of deduction of 2% from his pension forever. Prior to passing of the impugned order dated 22.09.2015, the petitioner had superannuated from the post of Executive Engineer, Water Ways Division, Medininagar, Palamau with effect from 30.11.2014 and pursuant to his superannuation, the petitioner was informed that the proceeding has been converted into a proceeding u/s 43B of the Jharkhand Pension Rules on account of his superannuation.

4. Mr. Samavesh Bhanj Deo, learned counsel for the petitioner has submitted that none of the charges levelled against the petitioner was found proved by the enquiry officer and though the disciplinary authority had differed with such findings a show cause notice should have been issued to the petitioner for replying to the same, but instead the petitioner was issued a second show cause notice proposing the punishment which is to be imposed upon the petitioner. It has been submitted that it is a settled principle of law that in case of disagreement, the disciplinary authority has to issue a show cause to the delinquent employee and only if the reply submitted by the delinquent employee is found to be unsatisfactory, a show cause proposing the punishment would follow, but in the present case no such show cause notice was issued to the petitioner. Learned counsel in support of his contention has referred to the case of S. P. Malhotra v. Punjab National Bank and others reported in (2013) 7 SCC 251 and Lav Nigam v. Chairman & MD, ITI Ltd. and another reported in (2006) 9 SCC 440.

5. Mr. Karan Shahdeo, learned AC to SC-II has submitted that the disciplinary authority on consideration of the report of the enquiry officer had differed with the same and the second show cause notice which was issued to the petitioner also contains the reasons for differing with the findings of the enquiry officer and therefore the petitioner has been given every opportunity by the disciplinary authority and only on taking into consideration the reply submitted by the petitioner, the impugned memo No. 5039 dated 22.09.2015 has been issued. It has therefore been submitted

that the memo No. 5039 dated 22.09.2015 does not suffer from any illegality and this writ petition is liable to be dismissed.

6. On consideration of the submissions advanced by the learned counsel for the respective parties and going the records of the case, the only point which has been raised by the petitioner is that once the disciplinary authority had differed with the findings of the enquiry officer, it was necessary for him to seek a reply from the petitioner and thereafter proceed in accordance with law. It appears that once the enquiry officer had submitted his report in which none of three charges levelled against the petitioner was found to be proved, the disciplinary authority had directed the petitioner to file a second show cause notice vide memo No. 4701 dated 22.10.2014. A perusal of the second show cause dated 22.10.2014 reveals that though the reasons for disagreement with the findings of the enquiry officer has been mentioned in the same but at the same time the proposed punishment has also been referred which would virtually mean that the disciplinary authority had made up his mind to impose an order of punishment against the petitioner irrespective of the reply which he may submit.

7. In the case of Lav Nigam v. Chairman & MD, ITI Ltd. and another reported in (2006) 9 SCC 440 (Supra) it has been held as follows:

"10. The conclusion of the High Court was contrary to the consistent view taken by this Court that in case the disciplinary authority differs with the view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a notice relating to the punishment proposed.

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.

14. The proceedings may be recommenced from the stage of issuance of a fresh show-cause notice by the disciplinary authority to the appellant indicating his tentative disagreement with the findings of the inquiry officer."

8. What would fall from the above is that once a disciplinary authority disagrees with the findings in the enquiry report, a show cause notice has to be issued to the delinquent employee and if the same is not accepted notice imposing punishment will follow, but as has been noted above in the present case a conjoint show case notice has been issued by the disciplinary authority as while giving the grounds for disagreeing with the findings of the enquiry report, the proposed punishment had also been mentioned in the same which would clearly reveal that the disciplinary authority had made up its mind to impose an order of punishment against the petitioner which cannot be sustained in the eyes of law. In such view of the matter therefore the impugned memo 5039 dated 22.09.2015 and the consequent memo No. 3488 dated 12.10.2015 by which the respondent No. 5 was requested to issue authorization slip after deduction of 2% from the pension of the petitioner are hereby quashed and set aside.

9. Taking a cue from the judgment in the case of S. P. Malhotra v. Punjab National Bank and others reported in (2013) 7 SCC 251 wherein consideration has been made that after 14 years from the superannuation of the delinquent officer it is not in the interest of justice that the cases should be remanded back to the disciplinary authority for the start of another innings. I am also not inclined to remand back the matter to the disciplinary authority to start afresh from the stage of his disagreeing with the enquiry report of the enquiry officer, since the petitioner has already superannuated on 30.11.2014.

10. Since it has been submitted that 2% of the pension has been deducted pursuant to the issuance of the memo No. 3488 dated 12.10.2015 to the respondent No. 5, it is directed that the amount which was deducted should be refunded back to the petitioner immediately.