Jharkhand High Court
Sushila Sharma vs The State Of Jharkhand on 17 February, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.2589 of 2014
------
1. Sushila Sharma
2. Rakesh Kumar Gautam
3. Sunita Sharma
4. Rupesh Kumar Gautam
5. Annu Sharma
6. Kumari Archana
7. Kumari Rashim .... .... Petitioners
Versus
1. The State of Jharkhand.
2. The Secretary, Water Resources Department, Government of
Jharkhand, Nepal House Secretariat, Doranda, Ranchi.
3. The Chief Engineer, Minor Irrigation Circle, Water Resources
Department, Dumka.
4. The Superintending Engineer, Minor Irrigation Circle, Dumka.
5. The Executive Engineer, Minor Irrigation Division, Dumka.
6. The S.D.O., Minor Irrigation Sub-Division Kathikund, P.O. &
P.S. Kathikund, District-Dumka.
7. The Accountant General, Jharkhand, P.O. and P.S. Doranda,
District Ranchi .... .... Respondents
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
------
For the Petitioner : Mr. Umesh Pathak, Advocate
Mr. Kishore Kr. Mishra, Advocate
For the State : Mr. Ashutosh Anand, AAG-III
For the Resp. No.7 : Mr. Sunil Kr. Agarwal, Advocate
------
09/Dated: 17.02.2024
1. The writ petition is under Article 226 of the Constitution of India,
whereby and whereunder, the order dated 04.03.2014 by which, a
sum of Rs.2,00,000/- along with interest @ 12 per cent per annum
w.e.f. 31.11.2008 has been directed to be recovered, has been
questioned.
2. The further direction has been sought for that the aforesaid
decision of making recovery has already been acted upon by
recovering the amount from the gratuity of the petitioner after his
retirement and hence, the direction to refund the said recovery
amount of the petitioner, has also been sought for.
3. The brief facts of the case, as per the pleading made in the writ
petition, required to be enumerated, which reads as under:-
4. It is the case of the petitioner that he was initially appointed as
Junior Engineer vide letter dated 26.01.1979 and pursuant thereto;,
he joined his said post of Junior Engineer in Master Planning
Investigation Division, Jamui on 03.02.1979 and he remained there
till 31.08.1984 and therefrom consequent upon his transfer from
Jamui to Irrigation Division, Dumka, the petitioner joined the post on
01.09.1984 and therefrom, he was again transferred to Design
Division to Deoghar whereby he joined his said post of Junior
Engineer on 08.06.1990 and remained there till 25.06.1992.
5. Thereafter, the petitioner was again transferred from Design
Division, Deoghar to Minor Irrigation Division, Dumka and therefrom
he was transferred to Minor Irrigation Design Division, Deoghar,
whereby the petitioner joined his post of Junior Engineer on
01.01.1999 and remained there till 31.03.2000. After working to the
different places, he was ultimately transferred to Minor Irrigation Sub
Division, Kathikund under Minor Irrigation Sub Division, Dumka to
the post of Junior Engineer.
6. Thereafter, the petitioner has made an application for grant of
leave from 20.01.2012 to 30.05.2012 before the authorities
concerned which was subsequently forwarded for doing the needful.
7. Vide memo no.4518 dated 31.08.2012 issued under the
signature of the under Secretary to the Govt. of Jharkhand, water
Resources Department Ranchi, an order was passed regarding
transfer of the Junior Engineers working at different places of the
water resources department in the State of Jharkhand, wherein, the
name of the petitioner has been assigned at serial no.189. No salary
w.e.f. 20-1-2012 to 31-8-2012 has been paid to the petitioner despite
his repeated representations and best efforts. The petitioner was put
under suspension vide letter No. 06 dated 17-1-2013 of the Assistant
Engineer in pursuance of order contained in Memo No. 7473 dated
27-12-2012 of the Deputy Secretary, Govt. of Jharkhand, Water
Resources Department, Dumka.
8. It is the further case of the petitioner that he made
representation on 8-2-2013 before the Deputy Secretary, Water
Resources Department, Jharkhand, Ranchi with a copy to Chief
Engineer, Water Resources Department, Medininagar, Palamau
requesting him to change his Head Quarter during suspension from
Medininagar to Dumka in any offices taking into the consideration of
the fact that he has been advised to go for cardiac surgery which has
not yet been done in absence of money. The petitioner was served
with a copy of memorandum of charge dated 27.12.2012. The
petitioner vide letter dated 19.03.2013 requested the Inquiry Officer,
i.e. Superintending Engineer, Barrage and Gate Design Circle,
Ranchi to supply him relevant documents to enable him to submit a
proper show cause.
9. On 13.03.2013 and 21.05.2013, the petitioner was asked to
submit clarification regarding charge no.I, i.e., Rs.2 lakhs and 3 lakhs
in cash which the petitioner submitted on 17.06.2013.
10. Vide letter dated 16-1-09 addressed to Chief Engineer, Minor
Irrigation Zone, Dumka the petitioner requested him to make
available the details of entries made in the Cash Book by the then
Assistant Engineer, Sri P.C. Jha duly approved by the Executive
Engineer, Minor Irrigation Division, Dumka with respect to work done
as well expenditure for the period from 1-1-08 to 31-7-08 relating to
Narega Scheme of Kathikund Sub-Division which was made
available to him vide letter No. 537 dated 17-7-10 & 571 dated 31-7-
10.
11. On completion of his age, the petitioner superannuated on
31.07.2013 but he has not yet been paid his legitimate dues till date,
hence, this petition.
12. It is evident from the factual aspect that the writ petitioner while
working as Junior Engineer, an allegation of embezzlement of Rs.2
lakhs has been alleged and in consequence thereof, a regular
departmental proceeding under the provision of CCS (C.C.A.) Rules,
1930 was initiated. The inquiry proceeded and the charge having
been proved by the inquiry officer. The charge no.(i) causing loss to
the government to the tune of Rs.2 lakhs has been found to be
proved. The other charges, have not been found to be proved.
13. The inquiry report was forwarded to the disciplinary authority,
who on its acceptance, has imposed the punishment of recovery of
Rs.2 lakhs along with 12 per cent interest, which is under
challenged.
14. It has been contended that the said order has been acted upon
by making recovery of Rs.2 lakhs along with 12 per cent interest,
which comes to Rs.3 lakhs 42 thousand and hence, the
consequential direction has been sought for to refund the said
amount in favour of the petitioner.
15. The ground has been agitated that the inquiry proceeding has
been conducted without providing any relevant documents which is
contrary to the mandate of the provision as contained under Rule 55
of CCS (C.C.A.) Rules, 1930, wherein, the stipulation has been
made while conducting an inquiry, the delinquent employee is to be
given adequate and sufficient opportunity.
16. It has been submitted that due to non-supply of the relevant
documents, a serious prejudice has been caused and hence, the
order of punishment of making recovery of Rs.2 lakhs along with the
interest of 12 per cent, cannot be said to be just and proper.
17. The second ground has been taken that the copy of the second
show cause notice was not supplied to him and hence, the petitioner
is not in a position to know that what exactly has come in the inquiry
report since the purpose of service of second show cause notice is to
provide an opportunity to rebut the finding as recorded by the inquiry
officer and therefore, the necessary requirement at the time of
service of second show cause notice is that the copy of the inquiry
report is also to be supplied. But due to non-supply of the second
show cause notice together with the inquiry report, a serious
prejudice has been caused.
18. The third ground has been taken that by virtue of the impugned
order one identically placed junior engineer namely, Ramadhar
Singh, against whom also the order was passed for making recovery
of Rs.4 lakhs along with the interest at the rate of 12 per cent w.e.f.
31.11.2008, has approached this Court by filing the writ petition
being W.P.(S) No.2471 of 2014 and the coordinate Bench of this
Court vide order dated 15.03.2021, has quashed and set aside the
order dated 04.03.2014 (impugned), so far as it relates to Ramadhar
Singh, the petitioner of W.P.(S) No.2471 of 2014.
19. The matter was remitted to the department to pass a fresh
order after issuing second show cause notice to the petitioner and
after getting his reply, if any, after following the principles of natural
justice. Such exercise is to be completed within the period of four
months from the date of receipt/production of copy of the order.
20. Learned counsel for the petitioner, based upon the aforesaid
ground, has submitted that the instant writ petition also needs to be
interfered with.
21. Mr. Ashutosh Anand, learned AAG-III appearing for the State
has submitted that since the coordinate Bench of this Court has
already taken the view in W.P.(S) No.2471 of 2014, therefore, the
same order may be passed.
22. This Court has heard the learned counsel for the parties and
gone across the merit of the issue so far as the rival contention of the
parties which is to be looked into by the inquiry officer after providing
adequate and sufficient opportunity, is of the view that when the
coordinate Bench has already quashed the part of the order dated
04.03.2014 so far as it relates to identically placed person, namely,
Ramadhar Singh with a direction to initiate proceeding afresh,
therefore, there is no reason to take distinct view.
23. But, it has been pointed out by the learned counsel for the
petitioner that the order so far as it relates to remitting the matter
before the authority to initiate proceeding afresh, cannot be said to
be justified order, reason being that the employee is no more.
24. The reliance which has been placed upon the order passed by
the coordinate bench in W.P.(S) No.2471 of 2014, has also been
relied upon by the State on the ground that the matter was remitted
before the competent authority to initiate a proceeding afresh.
25. But, the question herein is whether in a fact that the delinquent
employee himself has died then who will contest the inquiry
proceeding.
26. The departmental inquiry as per the statutory provision is
meant for fixing accountability upon the public servant, since, the
conduct rule is applicable for the public servant and not his legal
heirs.
27. If the matter would be remitted before the authority then the
widow of the deceased employee cannot be in a position to contest
the case by disapproving that her husband, has embezzlement the
said amount as per the allegation as contained in the memorandum
of charge.
28. The remand cannot be for the purpose of remand only, rather,
the principle of remand is to come a fresh finding after considering
the entire facts into consideration. Since the part of the order dated
04.03.2014, whereby and whereunder, the order of punishment has
been quashed by the coordinate bench, then, following the principle
of judicial discipline, this Court is to follow the said judgment since
the State has also not come with the fact that the said judgement has
been questioned before the higher forum.
29. Therefore, this Court is of the view that once the order of
punishment so far as it relates to order dated 04.03.2014, has been
quashed on the ground that the second show cause notice has not
been supplied to the delinquent employee, i.e., the writ petitioner of
W.P.(S) No.2471 of 2014, hence, it would not be just and proper to
take distinct view so far as showing interference with the impugned
order, herein which was passed against the deceased husband of
the petitioner.
30. This Court, therefore, is of the view that once the State has
accepted the propriety of the order of punishment with respect to one
person who is also subjected to punishment by virtue of the common
order, by which, the petitioner is punished, i.e., the order dated
04.03.2014 and once the order of punishment has been quashed,
the same principle is to be applied and accordingly, this Court has
applied as above.
31. The only question is the second part of the order by which the
matter was remitted before the authority to proceed afresh for the
purpose of passing order afresh, is the issue now after the death of
the husband of the petitioner, namely Sushila Sharma (substituted),
as has been referred hereinabove that there cannot be any
proceeding against the dead person or any proceeding against the
dead person, the same is applicable herein also.
32. If the matter will be remitted, then the wife, the widow herein,
will not be in a position to defend the allegation of mis-conduct
alleged to be committed on the part of her husband.
33. Therefore, remitting the matter will not serve the purpose,
rather, it will be a futile exercise.
34. As such, this Court is of the view that the part of the order
passed by the coordinate bench of this Court in W.P.(S) No.2471 of
2014 is partly applicable in the facts and circumstances of the
present case due to demise of husband of the writ petitioner.
35. In the result, the order dated 04.03.2014 as contained in memo
no.1940, is hereby quashed and set aside.
36. Accordingly, the instant writ petition stands allowed.
37. In consequence thereof, the amount already recovered, is
directed to be refunded in favour of the petitioner within the period of
three months' from the date of receipt of copy of the order.
(Sujit Narayan Prasad, J.)
Rohit/-N.A.F.R.
