Jharkhand High Court

Gopal Ram Rajak vs The State Of Jharkhand on 4 October, 2024

Author: Deepak Roshan

Bench: Deepak Roshan

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     W.P.(S) No.1170 of 2021
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Gopal Ram Rajak, aged about 63 years, S/o- Late Bechan Ram Rajak, Resident of Behind D.A.V Kapildev School, Upkar Nagar, Kadru, Ashok Nagar, P.O & P.S.- Argora, District- Ranchi. Jharkhand. ... Petitioner Versus

1. The State of Jharkhand.

2. The Secretary, Water Resources Department, Government of Jharkhand, Nepal House, Post Office & Police Station- Doranda, District- Ranchi, Jharkhand.

3. Under Secretary, Water Resources Department, Government of Jharkhand, having its office at Nepal House, P.O. & P.S. Doranda, District- Ranchi, Jharkhand.

4. Accountant General, Ranchi, Jharkhand, P.O & P.S.-

Doranda, District- Ranchi, Jharkhand.

.......Respondents

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CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. Saurabh Shekhar, Adv. For the Respondents: Mr. Shashnak Shekhar, AC to AAG-V

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CAV ON:05.09.2024 Pronounced On:-04/10/2024

Heard learned counsel for the parties.

2. The instant writ application has been preferred

by the petitioner praying therein for quashing of the

order as contained in Memo No.5663 dated 31.12.2018

(Annexure-6), passed by the respondent no.3; whereby

order has been issued against this petitioner that 5% of

deduction will be done from the pensionable amount for

the period of 5 years.

3. Brief facts of the case as it appears from the

pleadings is that the petitioner has been working as

Executive Engineer in the Western Kosi Bank Division,

Kunauli, Birpur, of the River Kosi. During this time for

the period between 15.06.2002 to 15.10.2002, the flood

on the river Kosi was at its peak, and therefore, the flood

relief operations were being undertaken by the

Government. The Department was the responsible wing

of the Government. For this purposes, one M/s.

Sambhavi construction was engaged to perform flood

relief work. The work was completed however, the

payment could not be made for which the contractor

went before High Court, and on the directions of the

Hon'ble Court, one committee was constituted. The

committee came to a conclusion that payment to the

contractor is due, and therefore payment was released

in favor of the contractor.

4. In relation to this operation, the allegations

were framed against the petitioner, who at that point of

time was posted as Executive Engineer in the place of

incidents. The decision was taken to initiate

departmental proceedings against the petitioner. The

petitioner in the mean time had come to Jharkhand

after bifurcation of the Cadre in the year 2004. The

decision to initiate departmental proceeding was taken

by the Government of Jharkhand vide resolution dated

01.07.2009, and along with this resolution one

Prapatra- "KA" was also served upon the petitioner. The

allegations leveled against the petitioner in the Prapatra-

KA were two folds, which are as follows:-

(i) In the year 2002-03 for the purposes of flood relief work payment was made to M/s. Shambhavi construction and amount of Rs. 13.114 Lakhs was made to the contractor. For this unauthorized payment the petitioner is liable.

(ii) The petitioner delayed in forwarding form 24 proposals beyond 3 days, which is against the said norms and regulations of the Department. The form 24 proposal is a description of the work along with registration proposals, and due to the delay in forwarding the same the allegations were framed against the petitioner.

The petitioner submitted his reply dated

08/08/2009 denying the charges. The petitioner in his

reply stating that the allegation no. 1 is unfounded, as

because the payment was made on the basis of

judgment of Hon'ble Court and thereafter on the basis of

Departmental Committee Report.

Further, the enquiry was concluded and

enquiry report was submitted and in the Enquiry

Report, the petitioner was exonerated of charge no.1 but

however, in relation to charge no. 2 it was said that the

petitioner himself has admitted that he has delayed in

forwarding the form 24 proposals part 36, as is a norm

in the departmental procedure. Thereafter, the

respondent asked for reply to second show cause notice,

dated 19/11/2017 and with the second show cause

notice the copy of enquiry report was provided to the

petitioner.

It is the case of the petitioner that the Enquiry

Officer had already disclosed his mind that he is ready

to pass order of punishment against the petitioner in a

very mechanical manner. The conduct of respondents

has prejudicial to the petitioner, as it violates the basic

principle of natural justice.

The petitioner immediately preferred reply

dated 21/4/2017 to the second show cause, in which he

had stated that delay in submission of form 24 proposal

is not attributable to him; rather it was because of the

delay on part of Junior Engineer and Assistant

Engineer. The petitioner received form 24 proposal from

these authorities on 22.09.2002, and immediately he

forwarded the same to higher authority.

During the pendency of the Departmental

Proceedings, the petitioner retired on 31st August, 2017,

and therefore, on 10.11.2017 decision was taken by the

department to complete the regular departmental

proceedings initiated under Rule 55 of the Civil Services

(Classification Control and Appeal) Rules 1930 into a

proceeding under Rule 43B of the Pension Rule.

Thereafter the respondents passed the order of

punishment against the petitioner vide order dated

31.12.2018, under the provisions of 43B of Pension

Rule; whereby punishment of withholding of 5% of

pensionable amount for the period of 5 years was

imposed against the petitioner. Hence, this writ

application.

5. Mr. Saurabh Shekhar, learned counsel for the

petitioner assailing the impugned order made following

submissions:-

(i) The punishment has been imposed under

provision of Rule 43(b) of the pension Rule, however the

same is not in consonance with the said provision,

inasmuch as, 43(b) of the Pension Rules can be passed

only in relation to the allegation of pecuniary loss or in

case of grave misconduct and surprisingly; neither in the

order of punishment, there is any reference of pecuniary

loss to the State Government; nor there is any reference

to grave misconduct.

(ii) His next limb of the argument is that an error

has been committed in providing the second show cause

to the petitioner with an opinion and view that

punishment order is to be passed against him; which is

against the settled proposition of law.

(iii) His next limb of argument is that the

punishment is beyond the charge, inasmuch as, so far as

charge no.2 is concerned for which he has been

punished, there is a reference of fact that he has delayed

in forwarding Form 24 proposal part 36 as is the norm in

the departmental proceeding. However, as per the

charge-sheet it has been held that by delaying 3 days;

bad intent of the petitioner had surfaced i.e. "

गलत त ".

However, the punishment has been given for

negligence or indifference from work and for non-

following the official procedure. As aforesaid the charge

was only for bad intention in making delay in forwarding

the Form 24 as such the punishment has been given

beyond the charge.

(iv) The 4th limb of argument of the petitioner is

that as per 43(b) of Pension Rules, there has to be a

finding that the act of the petitioner has led to the

pecuniary loss to the Government. However, there is no

finding at all that what loss the Government has

incurred due to the act of the petitioner. Accordingly, the

impugned order deserves to be quashed and set aside

and the consequential benefit may be extended to the

petitioner.

6. Learned counsel for the respondents submits

that the payment to M/s. Sambhavi construction- the

contractor was only delayed due to this petitioner and for

the act of this petitioner, the respondent-authority has

incurred loss and the State was made to pay heavy

amount to the contractor. Had there been no delay on

the part of this petitioner, there would not have been any

loss of the State exchequer.

7. He further submits that there is no any

procedural irregularity and the order passed by the

disciplinary authority is in accordance with law and the

petitioner should be happy that it is only 5% of the

pension has been deducted only till 5 years though the

amount for which the State has incurred loss was much

and much higher.

8. Having heard learned counsel for the parties

and after going through the documents annexed with the

respective affidavits and the averments made therein, it

appears that the petitioner was exonerated from the

charge no.1, however in relation to charge no.2 it has

been said that the petitioner himself admitted that he

has delayed in forwarding the Form 24 proposal in part

36 as is a norm in the departmental proceeding.

9. One limb of argument of the learned counsel

for the petitioner is that as per Rule 43(b) of the Pension

Rules there has to be pecuniary loss to the Government

or any misconduct but there is no finding with regard to

loss incurred by the Government due to act of this

petitioner as it is an admitted fact that the petitioner was

responsible for delaying in forwarding Form 24 proposal

beyond 3 days.

From bare perusal of the impugned order there

is no any reference that the State has actually incurred

loss due to this delay of three days because admittedly

the other officers were also responsible for payment to

the contractor. As such on this score alone the impugned

order is fit to be quashed and set aside.

10. So far as the argument with regard to

punishment is beyond the charge is concerned; if

perused the charge no.2 which is at annexure-1 series, it

appears that the allegation against the petitioner with

respect to charge no.2 is that by not sending the Form

24 proposal within time was his bad intent. For brevity

charge no.2 is quoted herein below:-

"2. ल ग गत त गत ल ग त त त ग त -:

                    ग                                       ग        -
                        गलत                    त   "

However, after going through the order of

punishment, it appears that in paragraph-7 there is a

finding of negligence or indifference in work in doing

official work and non-compliance of the official procedure.

So, there is no finding with regard to bad intent of this

petitioner and the punishment has been given for other

reasons i.e. with respect to indifference in doing official

work, negligence and non-compliance of the official

procedure; as such, the same is not sustainable in the

eye of law. The law is now well settled that the

punishment must be in accordance with charge, which is

absent in the instant case. Accordingly, on this ground

also, the impugned order dated 31.12.2018 is fit to be

quashed and set aside.

11. As a result, the instant writ application stands

allowed. The respondents are hereby directed to

calculate the arrear of pension, if the same has been

deducted, and pay the same within a period of 12 weeks

from the date of receipt/production of a copy of this

order.