Jharkhand High Court
Satya Prakash Son Of Late Abhay Kumar vs State Of Jharkhand on 16 February, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 5671 of 2022
Satya Prakash son of Late Abhay Kumar, resident of Hindpiri near Marwari
College, P.O. & P.S. Hindpiri, District Ranchi, presently posted as Executive
Magistrate, Hazariba ... ... Petitioner
Versus
1. State of Jharkhand
2. Secretary, Personnel, Administrative Reforms and Rajbhasha Department,
Government of Jharkhand, Project Bhawan, Dhurwa, P.O. & P.S. Dhurwa,
District Ranchi
3. Commissioner, North Chotanagpur Commissionary, Hazaribag, P.O., P.S.
and District Hazaribag
4. Special Secretary, Rural Development Department, Government of
Jharkhand, Project Bhawan, Dhurwa, P.O. and P.S. Dhurwa, District Ranchi
5. Deputy Secretary, Personnel, Administrative Reforms and Rajbhasha
Department, Government of Jharkhand, Project Bhawan, Dhurwa, P.O. &
P.S. Dhurwa, District Ranchi
6. Under Secretary, Rural Development Department, Government of
Jharkhand, Project Bhawan, Dhurwa, P.O. & P.S. Dhurwa, District Ranchi
7. Block Development Officer, Bagodar, P.O. and P.S. Bagodar, District
Giridih ... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Diwakar Upadhyay, Advocate
For the Resp.-State : Mr. Apoorva Singh, Advocate
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th
04/16 February 2024
1. Heard the 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) in
the nature of certiorari for quashing the entire departmental
proceedings along with the order of punishment dated 8.9.2014
whereby and whereunder the petitioner has been inflicted with
punishment of censor and forfeiture of three increments sans non-
cumulative effect, (as contained in Annexure-12 to this writ
application);
(II) For issuance of an appropriate writ(s), order(s), direction(s) upon
the respondents after quashing the aforesaid order a direction may be
given for payment of arrears of salary along with all consequential
benefits;
And/Or
(III) For any other appropriate relief(s), for which the petitioner may
be found entitled in law and equity."
Arguments of the petitioner
3. The learned counsel for the petitioner has submitted that the petitioner
was appointed to the post of Deputy Collector by BPSC, Bihar, and was
allocated Jharkhand cadre after bifurcation in the year 2000. The petitioner was
put under suspension on 27.12.2006 on the charge that he was found to be
involved in the irregularities in the execution of "Dindayal Aawas Yojna" and
FIR was lodged on 11.07.2007 for an alleged offence under Section 419 420,
467, 468 and 471 of the Indian Penal Code.
4. The learned counsel submits that during the pendency of this case, the
petitioner has been acquitted in the criminal case.
5. The learned counsel has submitted that the charge sheet was issued to the
petitioner on 14.10.2007 in प्रपत्र 'क' relating to five-fold charges which were all
co-related with each other and the order of suspension was quashed by this
Court in writ petition being W.P. (S) No. 4229 of 2007 vide order dated
12.12.2007. However, a decision was taken to initiate the departmental
proceeding against the petitioner and the inquiry officer submitted his report
and the disciplinary authority vide order dated 01.10.2012 inflicted punishment
of censure and forfeiture of three increments sans non-cumulative effect.
6. The learned counsel submits that the order of punishment is a minor
punishment.
7. However, the petitioner filed a writ petition before this Court being W.P.
(S) No. 478 of 2013 and the writ petition was allowed and the impugned order
of punishment was quashed on the ground of procedural irregularity and the
matter was remitted back to the respondents to pass a fresh order after allowing
the petitioner for making his representation. Consequently, the petitioner was
served with a second show cause to which he replied on 26.05.2014, and
thereafter the impugned order of punishment dated 08.09.2014 has been passed
with the same punishment, and consequently, the present writ petition has been
filed.
8. The learned counsel has submitted that so far as the procedural
irregularity is concerned, he is not pressing his case on such a point.
9. During the course of the argument, the learned counsel has raised three
points-
a. it is a case of no evidence against the petitioner, since, the
petitioner has been acquitted in the criminal case;
b. the co-delinquent who was Nazir has not been given any
punishment and has been exonerated and the petitioner stands on the
same footing; and
c. the departmental proceeding was sought to be initiated way
back in the year 2006 and the order of punishment has ultimately
been passed in the year 2014 therefore, there has been an inordinate
delay, and consequently the entire departmental proceeding including
the order of punishment is not sustainable in the eyes of law.
10. However, during the course of the argument, and upon a question raised
by the court, the learned counsel has submitted that the inquiry report in the
present case is not on record and has also submitted that the same was never
served on the petitioner. The learned counsel has also submitted that the charge
sheet issued to Nazir as well as the order exonerating Nazir is also not on
record.
11. The learned counsel has relied upon the judgment passed by the Hon'ble
Supreme Court in the Case of Rajendra Yadav vs. State of M.P. reported in
(2013) 3 SCC 73 and has referred to paragraph 12 thereof to submit that the
doctrine of equality applies when two equally placed persons are subjected to
the departmental proceeding and one is exonerated and punishment is imposed
on the other. Paragraph 12 of the aforesaid judgment is quoted as under: -
"12. We are of the view that the principle laid down in the
abovementioned judgments would also apply to the facts of the present
case. We have already indicated that the action of the disciplinary
authority imposing a comparatively lighter punishment on the co-
delinquent Arjun Pathak and at the same time, harsher punishment on
the appellant cannot be permitted in law, since they were all involved
in the same incident. Consequently, we are inclined to allow the
appeal by setting aside the punishment of dismissal from service
imposed on the appellant and order that he be reinstated in service
forthwith. The appellant is, therefore, to be reinstated from the date on
which Arjun Pathak was reinstated and be given all consequential
benefits as were given to Arjun Pathak. Ordered accordingly.
However, there will be no order as to costs."
12. The learned counsel has further relied upon the judgment passed by the
Hon'ble Supreme Court in the case of B.C. Chaturvedi vs. Union of India &
Others reported in (1995) 6 SCC 749 and has referred to paragraph 12 thereof
to submit that in a case where the findings are based on no evidence, an
appropriate order is required to be passed by the writ Court and he has again
referred to the acquittal order passed in the criminal case. Paragraph 12 of the
aforesaid judgment is quoted as under: -
"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 is
concerned 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
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 learned counsel has further referred to the order dated 28.11.2019
passed in W.P. (S) No. 1095 of 2019 and has submitted that in the said case,
the judgment passed by the Hon'ble Supreme Court in the case of State of
Madhya Pradesh vs. Bani Singh & Anr. reported in 1990 (supp.) SCC 738
has been taken into consideration in paragraph 10 by the learned writ Court.
The learned counsel has submitted that in case of inordinate delay in
departmental proceedings, the same is required to be quashed.
Arguments of the respondent -State.
14. The learned counsel appearing on behalf of the respondents, on the other
hand, while opposing the prayer has submitted that there has been no violation
of the principles of natural justice. In paragraph 40 of the counter-affidavit, it
has been stated that the inquiry report was served upon the petitioner along
with the second show cause. The learned counsel has also referred to the show
cause reply filed by the petitioner to submit that the report of the inquiry report
has been referred to in the show cause reply. The learned counsel has further
submitted that the criminal case and the departmental proceeding in the present
matter are on a different footing altogether. The petitioner has been punished
on account of negligence in doing his work and he had put his signature in the
register without verifying the records. The learned counsel has submitted that
the petitioner has also made payment by issuing a cheque which was a bearer
cheque although as per the circulars, the amount to the beneficiaries was to be
created in the bank account.
Rejoinder arguments of the petitioner.
15. In response, the learned counsel for the petitioner has referred to
Annexure-7 to the writ petition and has submitted that the beneficiary, namely,
Suresh Bhuiyan has stated on affidavit before the Notary as annexed with
annexure-7 of the writ petition stating that the amount was taken by him.
However, the learned counsel has fairly submitted upon a query of this Court
that Annexure-7 was never a part of the documents or defence produced by the
petitioner before the departmental proceeding and the said document has been
produced before this Court for the first time.
Findings of this court.
16. After hearing the learned counsel for the parties and considering the facts
and circumstances of this case, this Court finds that the following charges were
leveled against the petitioner which was प्रपत्र 'क' dated 14.10.2007 (Annexure-
1): -
"i. That in course of enquiry of implementation of Dindayal Awas
Scheme in Purnidih village in Bagodar Block it was found that in
Scheme allotment register of year 2005-06 the name of Suresh
Bhuiyan was not mentioned but scheme record was opened in his
name illegally and fake withdrawal of money in his name was done.
ii. That in the Dindayal Awas Scheme record opened in the name of
Suresh Bhuiyan, the scheme number was made illegible so the record
was fake.
iii. That the petitioner issued cheque no. 445992 dated 30.10.2006 for
payment of Rs. 12,500/- against which the cashed payment was done
by the bank and it was not account payee. It was shown that the
amount of cheque was received by Suresh Bhuiyan but Suresh
Bhuiyan was not present in Bagodar during that period. As per
government direction, the payment under the scheme was also not to
be done in cash or through cheque.
iv. That at page no. 7 of the cheque register the name of Suresh
Bhuiyan was entered on 31.01.2006 and cheque no. 445992 and Rs.
12,500/- was mentioned against it but record number was not
mentioned. The signature of Suresh Bhuiyan had been made on the
counterfoil of cheque and the cheque register had been verified by the
petitioner. The petitioner issued cheque without record number
register and verified cheque which shows his involvement in fake
withdrawal of scheme money.
V. That in the cash register of the block the payment of money in the
name of Suresh Bhuiyan was shown and it was verified by the
petitioner but the voucher was not available with the accountant of the
block. The petitioner did not follow the government in directions of
implementation the of the Dindayal Awas Scheme in the block and
made fake payment with vested interest."
17. It appears that the petitioner was initially put under suspension on
27.12.2006, however, the order of suspension was set aside by this Court in
W.P. (S) No. 4229 of 2007. The respondents proceeded with the departmental
proceedings and a decision to that effect was taken on 11.04.2008. The inquiry
officer submitted his report and the disciplinary authority passed an order of
punishment dated 01.10.2012 of censure and forfeiture of three increments sans
non-cumulative effect. The same was challenged by the petitioner before this
Court in W.P. (S) No. 478 of 2013 and the order of punishment dated
01.10.2012 was quashed by this Court vide order dated 09.12.2013 and the
matter was remitted back to the disciplinary authority for passing a fresh order
after affording an opportunity to the petitioner for making his representation.
The findings of the learned writ Court in W.P. (S) No. 478 of 2013 are quoted
as under: -
"8. On a perusal of the documents on record, I find that a full fledged
inquiry was conducted into the matter and it has been contended by
the respondent that the petitioner was offered full opportunity to
defend himself however, on conclusion of the departmental inquiry, a
copy of the inquiry report has not been furnished to the petitioner.
Before passing the impugned order dated 01.10.2012, a second show-
cause notice was also not been issued to the petitioner. From the
provision as contained in Rule 55-A of the Civil Services
(Classification, Control and Appeal) Rules, 1930, 1 find that before
inflicting even a minor penalty, the respondents-authority is required
to consider the defence/plea taken by the delinquent authority. In the
present case, it is admitted fact that neither a copy of the inquiry
report was furnished to the petitioner nor the petitioner has been
provided an adequate opportunity of representation after the inquiry
report was submitted. Even the opinion of the inquiry officer on
conclusion of the departmental inquiry has not been disclosed by the
respondents-authority. In view of the aforesaid, I am of the opinion
that since the impugned order dated 01.10.2012 has been passed in
breach of provision contained in Rule 55-A of the Civil
Services(Classification, Control and Appeal) Rules, 1930, the
objection taken by the learned counsel appearing for the respondent
that there is a provision of statutory appeal under Rule 56 of the Civil
Services (Classification, Control and Appeal) Rules, 1930, and
therefore, the writ petition is not maintainable, is not tenable.
9. In view of the aforesaid discussion, the impugned order dated
01.10.2012 is quashed. The matter is remitted to the disciplinary
authority for passing a fresh order, after affording opportunity to the
petitioner for making his representation."
18. Thereafter, a second show cause notice was issued to the petitioner to
which he responded as contained in Annexure-11 of the writ petition.
19. From the perusal of Annexure-11, this Court finds that the petitioner has
also referred to the contents of the inquiry report and ultimately the impugned
order dated 08.09.2014 has been passed maintaining the same minor
punishment which was imposed earlier i.e. censure and forfeiture of three
increments sans non-cumulative effect. Accordingly, the argument of the
petitioner that the inquiry report was not given to the petitioner is rejected.
20. So far as the argument of the petitioner that there has been an inordinate
delay in concluding the departmental proceeding is concerned, this Court finds
that there have been several rounds of litigations and ultimately the order was
passed by this Court in W.P. (S) No. 478/2013 on 09.12.2013 wherein the
earlier order of punishment dated 01.10.2012 was quashed and the matter was
remitted to the disciplinary authority for passing a fresh order after affording an
opportunity to the petitioner to make his representation and immediately
thereafter the impugned order was passed on 08.09.2014. Since the impugned
order has been passed in compliance with the order passed by this Court, it
cannot be said that there has been a delay in the matter.
21. Moreover, in the judgment passed by the Hon'ble Supreme Court in the
case of State of Madhya Pradesh vs. Bani Singh & Anr. (supra) and referred
to in W.P. (S) No. 1095 of 2019 in paragraph 10 indicates that in the said case
the matter remained pending and no final order was passed in the departmental
proceedings and, in such circumstances, the Hon'ble Supreme Court held that
the departmental proceedings cannot go on for an indefinite period and there
was no satisfactory explanation for the inordinate delay in issuing the charge
memo and the Hon'ble Supreme Court was of the view that it will be unfair to
permit the departmental inquiry to proceed at that stage.
The present case is on different facts and the impugned order has been passed
under the earlier order passed by this court in W.P. (S) No. 478/2013 on
09.12.2013. Accordingly, the aforesaid judgment does not apply to the facts of
this case.
22. So far as the claim of parity is concerned, the petitioner has neither
annexed the copy of the charge-sheet memo issued to Nazir nor the order by
which Nazir has been exonerated has been brought on record by the petitioner.
Moreover, the impugned order reflects a clear case of negligence and
irregularity committed by the petitioner and accordingly, the plea of parity is
also not sustainable in the eyes of law. In the impugned order, there are specific
findings of acts and omissions committed by the petitioner that were contrary
to the departmental circulars/instructions.
23. Upon perusal of the impugned order, this Court finds that a finding has
been recorded that the petitioner has violated the instructions contained in letter
No. 9168 dated 12.10.2006 and letter No. 9522 dated 20.10.2006 issued by the
Rural Development Department wherein there was a clear stipulation that the
amount is to be remitted to the bank account of the beneficiaries and no cheque
or cash could have been paid. It has also been mentioned in the impugned order
that there were irregularities in making payments, interalia, in the name of
Suresh Bhuiyan. This Court also finds that the petitioner had filed a show cause
reply earlier as contained in Annexure-5 wherein the petitioner had stated that
the amount was taken by Suresh Bhuiyan but had also submitted that a large
number of payments were being made without account payee cheque which
was being done earlier also. However, from the perusal of the order of
punishment, a finding has been recorded that the petitioner had violated the
instructions issued by the Rural Development Department. No such argument
has been advanced by the petitioner that his acts were not contrary to the
circulars issued by the Rural Development Department.
24. This Court finds that in the criminal case wherein the petitioner has been
acquitted, no prosecution evidence was produced for the alleged offence under
Sections 419, 420, 467, 468, 471, and 409 of the Indian Penal Code. The
criminal case was on account of the ingredients in connection with the
aforesaid sections and had nothing to do with the negligence committed by the
petitioner in the matter of disbursement of the amount to the beneficiaries and
violation of the circulars issued by the Department relating to the mode and
manner of payment. This Court is of the considered view that the document
filed by the petitioner for the first time before this Court as contained in
Annexure-7 cannot be taken into consideration and otherwise also, the
violation of the circulars of the Rural Development Department has nothing to
do with Annexure-7 of the writ petition.
25. In view of the aforesaid facts, this Court is of the considered view that
the argument of the petitioner that the present case is a case of no evidence by
referring to his acquittal in the criminal case has no merit at all.
26. The criminal case and the departmental proceedings were on different
sets of allegations, since, the petitioner has been held guilty in the departmental
proceeding on account of negligence in duty and non-compliance with the
directions/circulars/instructions issued by the Government, and the petitioner
was acquitted in the criminal case because no witnesses had appeared in the
criminal case in support of the allegations made under sections 419, 420, 467,
468, 471, and 409 of the Indian Penal Code. The allegations of non-compliance
with circulars /instructions issued by the government in the matter of payment
is different from the allegation of the offence under the aforesaid sections of
IPC in the criminal case.
27. As a cumulative effect of the aforesaid finding, there is no merit in the
present writ petition, which is according dismissed.
28. Pending I.A., if any, is closed.
(Anubha Rawat Choudhary, J.)
Mukul/AFR
