Jharkhand High Court
Jagdish Paswan vs The State Of Jharkhand on 1 October, 2024
Author: S. N. Pathak
Bench: S.N. Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 3096 of 2021
Jagdish Paswan .... Petitioner
Versus
1. The State of Jharkhand.
2. District Superintendent of Education, Ramgarh.
.... Respondents
WITH
W.P.(S) No. 5035 of 2021
Jagdish Paswan .... Petitioner
Versus
1. The State of Jharkhand through the Secretary/ Principal Secretary, School
Education and Literacy Department, Ranchi.
2. Under Secretary to Government, School Education and Literacy
Department, Ranchi.
3. The Director, Primary Education, School Education and Literacy
Department, Ranchi.
4. Deputy Director-cum-Enquiry Officer, Primary Education, School
Education and Literacy Department, Ranchi.
.... Respondents
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CORAM : HON'BLE DR. JUSTICE S.N. PATHAK
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For the Petitioner : Mr. Manoj Tandon, Advocate
Ms. Neha Bhardwaj, Advocate
For the Respondents : Mr. Nehru Mahto, AC to GP-I
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13/ 01.10.2024 Since questions of law and facts involved in both these writ
petitions are same and similar, they are heard together and are being decided
analogously.
2. Heard the learned counsel for the petitioner and learned counsel
for the respondents.
Prayers
3. W.P.(S) No. 3096 of 2021 was filed by the petitioner for payment
of pensionery benefits. W.P.(S) No. 5035 of 2021 was filed by the petitioner
for quashing of the order contained in Memo No. 14/A.8-21/2019-1848 dated
06.12.2019, whereby the petitioner was terminated from service. In this writ
petition, the petitioner has also challenged the appellate order contained in
Memo No. 2293 dated 22.11.2021 by which the departmental appeal preferred
against the penalty order dated 06.12.2019 has been rejected. The petitioner has
also challenged the enquiry report dated 21.02.2019 whereby the enquiry
officer held the charges proved against the petitioner.
The Facts
4. Shorn of unnecessary details, the facts pleaded in these writ
petitions are that the petitioner was appointed on 06.04.1991. A memo of
charge was framed in Prapatra-'Ka' against the petitioner on 20.6.2016 alleging
inter alia that while he was posted as Block Education Extension Officer,
Bagodar, he withdrew a sum of Rs. 4,36,000/- and the amount could not be
distributed in the schools and while handing over the charge to his successor, he
did not hand over the aforesaid details of amount. It is further alleged that a
complaint was made against the petitioner with respect to 5 bags of rice, as the
petitioner has distributed only 35 bags of rice instead of 40 bags of rice. The
third allegation against the petitioner is that there was a criminal case going on
against him, being Vigilance P.S. Case No. 14 of 2016. These allegations were
enquired into and the enquiry officer submitted the report on 21.02.2019
holding the charges proved. A second show cause notice was called for from the
petitioner on 14.10.2019 which was replied by the petitioner on 21.10.2019.
The penalty of termination from service was passed on 06.12.2019. The
petitioner preferred departmental appeal there-against which came to be
dismissed on 22.11.2021. The writ petition was thereafter preferred and in the
meantime, the petitioner stood retired on 31.10.2022.
Arguments advanced by learned counsel for Petitioner
5. Mr. Manoj Tandon, learned counsel appearing for the petitioner
while assailing the termination order submits that the very initiation of
departmental proceeding was bad in the eyes of law for the simple reason that
the same was proceeded under Rules 49 and 55 of the Civil Services
(Classification, Control & Appeal) Rules, 1930 which stood repealed by
coming into existence of Jharkhand Government Servant (Classification,
Control & Appeal), 2016. Learned counsel submits that the very initiation of
departmental proceeding, therefore, was non-application of mind by the
authority. Referring to the enquiry report dated 21.02.2019, learned counsel
submits that the enquiry officer has held the charges proved against the
petitioner without examining even a single witness to support the charge. It is
submitted that mere production of document may not be sufficient to prove
charge against the petitioner unless the contents thereof is proved by a witness.
Admittedly, not a single witness was examined to prove the charge against the
petitioner. Mr. Tandon further submits that on the basis of complaint against the
petitioner, the charge against the petitioner was drawn. However, the fact
remains that the complainant was not examined to support the allegation
against the petitioner. It is further submitted that the departmental appeal was
preferred on 31.07.2021 wherein altogether eight points were raised requesting
the appellate authority to consider and set aside the termination order. However,
the appellate authority has not dealt with any of such points. In this view of the
matter, learned counsel submits that it is a case of no evidence.
6. To fortify his arguments, learned counsel places heavy reliance
upon the judgment of the Hon'ble Supreme Court in the case of Hardwari Lal
Vs. State of U.P. & Ors., reported in (1999) 8 SCC 582 to contend that without
examining the complainant, the charge could not be proved. Reliance has also
been placed on the judgment in the case of Roop Singh Negi Vs. Punjab
National Bank & Ors., reported in (2009) 2 SCC 570 to fortify his argument
that without examining the witnesses, the charge could not be proved and
unless the charge is proved in accordance with law, no punishment can be
inflicted upon the delinquent. Relying on these judgments, it is submitted by
the learned counsel for the petitioner that the impugned orders are fit to be set
aside, the petitioner is fit to be reinstated in service and a direction be given to
the respondents to pay the pensionery benefits to the petitioner.
Arguments advanced by learned counsel for Respondents.
7. Mr. Nehru Mahto, learned counsel appearing for the respondents
submits that the departmental proceeding was initiated against the petitioner
and the enquiry officer held the charges to be proved. The petitioner was given
ample opportunity to submit second show cause reply and thereafter the
disciplinary authority has punished the petitioner. The petitioner has also
preferred departmental appeal which has been dismissed and hence, no
interference is called for by this Court in the writ petition. It is further stated in
the counter affidavit that a first information report was lodged against the
petitioner which was registered as Vigilance P.S. Case No. 14 of 2016 which
followed the charge sheet dated 20.6.2016. It is pleaded in paragraph-11 of the
counter affidavit itself that the amount said to be misappropriated was
deposited by the petitioner after initiation of the departmental proceeding and
hence, there was admission on the part of the petitioner. It is further submitted
that the petitioner was earlier punished with minor penalty of stoppage of three
increments without cumulative effect by order contained in letter dated
26.06.2019, enclosed as Annexure-A to the counter affidavit. As such, learned
counsel submits that the writ petitions are bereft of any merit and hence, the
same may be dismissed.
FINDINGS OF THE COURT
8. This Court has considered the rival submissions of the learned
counsel appearing for the parties and has come to the conclusion that the
impugned orders are neither sustainable in law nor on facts for the following
facts and reasons:-
(i) It is true that in a matter of departmental proceeding under the service
law, the interference by a Writ Court under Article 226 of the
Constitution is very limited. But it is equally true that even in a matter
of departmental proceeding, some sort of evidence is required to be
proved against the delinquent and proceeding has to be conducted in
accordance with rules whereby departmental proceeding is governed.
(ii) The State of Jharkhand has framed Jharkhand Government Servant
(Classification, Control & Appeal) Rules, 2016 in exercise of powers
under the proviso to Article 309 of the Constitution of India. This
Rule governs the field of the departmental proceeding against a
Government servant and in fact, the punishment has been imposed
upon the petitioner under Rule 17 thereof, which is mentioned in the
impugned order of penalty dated 06.12.2019 itself. Rule 14 thereof
prescribes the punishment. Removal from service is under Rule 14
(x), which is under the heading of Major Penalty. The procedure for
imposing major penalty is stipulated under Rule 17 of the said Rules,
2016. Rule 17 (3) (ii) (a) prescribes that where it is proposed to hold
an enquiry against the Government servant, the disciplinary authority
shall draw up the substance of imputations and the statement of
imputation of misconduct or misbehaviour in support of each article
of charge shall contain a list of such witnesses by whom the article of
charge are proposed to be sustained. It is a mandatory provisions to
be complied with by the disciplinary authority.
(iii) In the present case, from perusal of the memo of charge, which is
Annexure-1 to the writ petition, it does not appear that this mandatory
provision has been followed, as no list of witness is given thereunder.
This Rules came into effect on 15.4.2016 and the charge was framed
against the petitioner on 20.6.2016. The mandatory provisions,
therefore, were violated in initiation of the proceeding against the
petitioner. Moreover, though the aforesaid Rule 2016 was invoked on
the date of initiation of departmental proceeding on 20.6.2016, the
respondents initiated the proceeding mentioning Rules 49 and 55 of
the Civil Services (Classification, Control & Appeal) Rules, 1930
which stood repealed by the aforesaid Rules, 2016, in view of Rule
32 thereof, which is the repealed and saving clause. This shows
complete non-application of mind by the disciplinary authority while
initiating the departmental proceeding.
(iv) From perusal of the enquiry report dated 20.5.2019, it appears that
merely by quoting charges, the enquiry officer came to the conclusion
that the charges are proved. How the charges are proved has not at all
been discussed in the enquiry report. Not a single witness is examined
to prove the charge against the petitioner. In this context, in the case
of Roop Singh Negi (supra), the Hon'ble Apex Court held in
paragraph no. 14 which is as follows:-
"14. Indisputably, a departmental proceeding is a quasi-
judicial proceeding. The enquiry officer performs a quasi-
judicial function. The charges levelled against the delinquent
officer must be found to have been proved. The enquiry officer
has a duty to arrive at a finding upon taking into
consideration the materials brought on record by the parties.
The purported evidence collected during investigation by the
investigating officer against all the accused by itself could not
be treated to be evidence in the disciplinary proceeding. No
witness was examined to prove the said documents. The
management witnesses merely tendered the documents and
did not prove the contents thereof. Reliance, inter alia, was
placed by the enquiry officer on the FIR which could not have
been treated as evidence."
(v) Admittedly, in the present case, mere documents were produced and
no witness was examined. The charges could not said to be proved as
mere production of document would not be sufficient to prove the
charge, unless the witness proves the contents thereof. It has been
held in the case of State of Uttar Pradesh & Ors. Vs. Saroj Kumar
Sinha, reported in (2010) 2 SCC 772 that even the delinquent does
not appear in the departmental proceeding, then also procedure for
imposing penalty has to be followed, before imposing such major
penalty. Mere production of document cannot be sufficient to prove
the charge, unless it is supported by a witness. The relevant
paragraph-28 of the said judgment is quoted herein below:-
"28. An inquiry officer acting in a quasi-judicial authority is in
the position of an independent adjudicator. He is not supposed to
be a representative of the department/disciplinary authority/
Government. His function is to examine the evidence presented
by the Department, even in the absence of the delinquent official
to see as to whether the unrebutted evidence is sufficient to hold
that the charges are proved. In the present case the aforesaid
procedure has not been observed. Since no oral evidence has
been examined the documents have not been proved, and could
not have been taken into consideration to conclude that the
charges have been proved against the respondents."
(vi) The contention of the learned counsel for the petitioner that unless the
complainant is examined, the charges cannot be said to be proved has
some substance. It is well settled that without examining the
complainant which is the basis of initiation of departmental
proceeding causes serious defect in the departmental proceeding.
Reference in this context may be made to the judgment in the case of
Hardwari Lal (supra), in particular paragraphs- 3 to 5 thereof:-
"3. Before us the sole ground urged is as to the non-observance
of the principles of natural justice in not examining the
complainant, Shri Virender Singh, and the witness, Jagdish Ram.
The Tribunal as well as the High Court have brushed aside the
grievance made by the appellant that the non-examination of
those two persons has prejudiced his case. Examination of these
two witnesses would have revealed as to whether the complaint
made by Virender Singh was correct or not and to establish that
he was the best person to speak to its veracity. So also, Jagdish
Ram, who had accompanied the appellant to the hospital for
medical examination, would have been an important witness to
prove the state or the condition of the appellant. We do not think
the Tribunal and the High Court were justified in thinking that
non-examination of these two persons could not be material. In
these circumstances, we are of the view that the High Court and
the Tribunal erred in not attaching importance to this contention
of the appellant.
4. However, Shri Goel, the learned Additional Advocate
General, State of Uttar Pradesh has submitted that there was
other material which was sufficient to come to the conclusion
one way or the other and he has taken us through the same. But
while appreciating the evidence on record the impact of the
testimony of the complainant cannot be visualised. Similarly, the
evidence of Jagdish Ram would also bear upon the state of
inebriation, if any, of the appellant.
5. In the circumstances, we are satisfied that there was no
proper enquiry held by the authorities and on this short ground
we quash the order of dismissal passed against the appellant by
setting aside the order made by the High Court affirming the
order of the Tribunal and direct that the appellant be reinstated
in service. Considering the fact of a long lapse of time before the
date of dismissal and reinstatement, and no blame can be put
only on the door of the respondents, we think it appropriate to
award 50 per cent of the back wages being payable to the
appellant. We thus allow the appeal filed by the appellant.
However, there shall be no order as to costs."
(vii) It has also been rightly argued that if the departmental proceeding is
initiated by framing of charge, it must contain the list of witnesses,
which is the requirement of law. This point has also been dealt with
by the Hon'ble Apex Court in the case of Union of India & Ors. Vs.
B.V. Gopinath, reported in (2014) 1 SCC 351, as per which, giving
the list of witnesses with the name of charge itself is a requirement
under the law to initiate the departmental proceeding. The relevant
paragraph-41 is quoted herein below:-
"41. Disciplinary proceedings against the respondent herein were
initiated in terms of Rule 14 of the aforesaid Rules. Rule 14(3)
clearly lays down that where it is proposed to hold an inquiry
against a government servant under Rule 14 or Rule 15, the
disciplinary authority shall draw up or cause to be drawn up the
charge-sheet. Rule 14(4) again mandates that the disciplinary
authority shall deliver or cause to be delivered to the government
servant, a copy of the articles of charge, the statement of the
imputations of misconduct or misbehaviour and the supporting
documents including a list of witnesses by which each article of
charge is proposed to be proved......."
(viii) From perusal of the appellate order dated 22.11.2021, it does not
appear that any of the points raised by the petitioner in his appeal
dated 31.07.2021 stands considered. The petitioner raised the points
that the departmental proceeding was conducted dehors the rules; that
no witness was examined to prove; that proceeding was initiated
under a repealed law; that the petitioner deposited the entire amount
when there was dispute relating to hand over the charge of the
amount alleged; that punishment imposed was without any evidence;
and that the punishment was highly excessive and disproportionate.
But it appears that the appellate authority rejected the appeal without
considering any of such points. There was no consideration at all by
the appellate authority while rejecting the departmental appeal of the
petitioner. The order of the appellate authority itself should reveal the
application of mind and it cannot be simply adopting the language
employed by the disciplinary authority and proceed to affirm its
order. In this context, the Hon'ble Apex Court in the case of
Chairman, Life Insurance Corporation of India & Ors. Vs.
A. Masilamani, reported in (2013) 6 SCC 530 held in paragraph-19
thereof as under:-
"19. The word "consider" is of great significance. The dictionary
meaning of the same is, "to think over", "to regard as", or "deem
to be". Hence, there is a clear connotation to the effect that there
must be active application of mind. In other words, the term
"consider" postulates consideration of all relevant aspects of a
matter. Thus, formation of opinion by the statutory authority
should reflect intense application of mind with reference to the
material available on record. The order of the authority itself
should reveal such application of mind. The appellate authority
cannot simply adopt the language employed by the disciplinary
authority and proceed to affirm its order."
(ix) From perusal of the documents enclosed with the writ petition, being
W.P.(S) No. 3096 of 2021, it appears that Pension Intimation Memo
was also issued on 2.7.2021 for payment of pensionery benefits. Even
Gratuity Payment Order was also issued on 2.7.2021. But it further
appears that the PPO and GPO were issued pursuant to the requests
made by the District Superintendent of Education, Ramgarh by
Memo No. 714 dated 10.6.2021 (Annexure-5 to the rejoinder) filed in
W.P.(S) No. 3096 of 2021. However, by letter no. 835 dated
15.7.2021, further request was made to the office of Accountant
General, Jharkhand, Ranchi by the same District Superintendent of
Education, Ramgarh that such approval order for payment of pension
and gratuity be cancelled. Under what circumstances this was done is
not explained in the counter affidavit filed by the respondents. From
very inception, it appears that the authorities were bent upon to
punish the petitioner in one way or the other. The respondents have
filed counter affidavit, but none of the points raised in the writ
petition has been raised. No paragraph reply has been given in the
counter affidavit. Though in the counter affidavit it has been raised
that the petitioner was inflicted a minor penalty. It also shows the
predetermined mind of the authority though no such charge was
framed against the petitioner which is evident from the memo of
charge against the petitioner.
(x) In these backdrop of the facts, this Court usually directs the
authorities to initiate fresh departmental proceeding, but faced with
the aforesaid facts and circumstances, the present matter could not be
remitted back to the authority to proceed in accordance with law, as
the petitioner has already retired on 31.10.2022 and now the
relationship of employee and employer has already ended.
Conclusion
9. As a sequitur to the aforesaid rules, regulations, guidelines and
judicial pronouncements, the enquiry report dated 21.02.2019; penalty order
dated 06.12.2019; and the appellate order dated 22.11.2021 are hereby
quashed and set aside. Upon quashment of the penalty orders, the petitioner
is entitled to get the pensionery benefits. As such, the respondents are
directed to extend the entire pensionery benefits to the petitioner with
admissible statutory interest within a period of six weeks from the date of
receipt of a copy of this order. However, it is made clear that the petitioner
is not entitled for back wages from the date of termination till the date of
retirement, but the said period shall be calculated for the purpose of
pensionery benefits.
10. Both these writ petitions are, accordingly, allowed.
(Dr. S. N. Pathak, J.)
R.Kr.
