Jharkhand High Court
Jagdish Chandra Ghosh Aged About 62 ... vs The State Of Jharkhand on 29 January, 2020
Equivalent citations: AIRONLINE 2020 JHA 56, 2020 (2) AJR 5
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 553 of 2018
with
I.A. No. 3466 of 2019
-------
Jagdish Chandra Ghosh aged about 62 years S/o Late Dwarika Prasad Ghosh, r/o- 73-U, Ward No.8, near Vivekanand Math, PO & PS-Deoghar, District-Deoghar ... ... Petitioner/Appellant Versus
1.The State of Jharkhand
2.The Chairman cum Managing Director, Jharkhand Urja Sancharan Nigam Ltd., Govt. of Jharkhand, having its office at Engineering Building, HEC Dhurwa, P.O.-Dhurwa, P.S.- Jagannathpur, District-Ranchi
3.The Managing Director, Jharkhand Bijli Vitran Nigam Ltd., Govt of Jharkhand, having its office at Engineering Building, HEC, Dhurwa, P.O.-Dhurwa, P.S.-Jagannathpur, District- Ranchi
4.The Director Finance, Jharkhand Urja Vikash Nigam Ltd., Govt of Jharkhand, having its office at Engineering Building, HEC Dhurwa, P.O. Dhurwa, P.S Jagannathpur, District- Ranchi
5.The Director (Project & PR), Jharkhand Urja Vikash Nigam Ltd., Govt. of Jharkhand, having its office at Engineering Building, HEC Dhurwa, P.O. Dhurwa, P.S.- Jagannathpur, District-Ranchi
6.The Director Personnel, Jharkhand Urja Vikash Nigam Ltd., Govt of Jharkhand, having its office at Engineering Building, HEC Dhurwa, P.O. Dhurwa, P.S.-Jagannathpur, District-Ranchi
7.The General Manager (Personnel-cum-General Administration), Jharkhand Urja Vikash Nigam Ltd., Govt of Jharkhand, having its office at Engineering Building, HEC Dhurwa, P.O.-Dhurwa, P.S. Jagannathpur, District-Ranchi
8.The Deputy General Manager, (Personnel-cum-General Administration), Jharkhand Urja Vikash Nigam Ltd., Govt. of Jharkhand, having its office at Engineering Building, HEC Dhurwa, P.O.- Dhurwa, P.S.- Jagannathpur, District-Ranchi
9.The General Manager-cum-Chief Engineer, Electric Supply Area, Dumka, P.O. and P.S. Dumka, District-Dumka
10.The Electric Superintending Engineer, Electric Supply Cirle, Deoghar, P.O. and P.S.- Deoghar, District- Deoghar
11.The Electric Executive Engineer, Electric Supply Division, Deoghar, PO and PS- Deoghar, District-Deoghar
12.The Assistant Electrical Engineer, Electric Supply Sub-Division, Sarath, Deoghar, P.O. and P.S.- Deoghar, District-Deoghar 2
13. The Senior Branch Manager, United Indian Insurance Co. Ltd., having its office at Dr. B.N. Prasad Compound, besides SBI, Doranda, P.O. and P.S.- Doranda, District-Ranchi
14.The Financial Controller-cum-Chief Claim Officer, Jharkhand State Electricity Board, Engineering Building, HEC, Dhurwa, P.O.- Dhurwa, P.S.- Jagannathpur, District-Ranchi .... Respondents/Respondents
-----
CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
-----
For the Appellant : Mr. Nityanand Prasad Choudhary, Adv. For the Res-JUVNL : Mr. Mukesh Kr. Sinha, Sr. S.C. Mr. Vikash Kumar, S.C.
-------
Oral Judgment:
Order No. 07 : Dated 29th January, 2020 I.A. No. 3466 of 2019 The instant Interlocutory Application has been filed under Section 5 of the Limitation Act for condoning the delay of 37 days in preferring the instant appeal.
2. It has been stated in the Interlocutory Application, referring to the ground for condoning the delay, that delay in preferring the appeal is caused due to illness of the writ petitioner-appellant, who was suffering from jaundice.
3. It has been submitted by learned counsel for the appellant that if the limitation is not condoned, the appellant will suffer irreparable loss and injury and further the appellant would be rendered to be remediless.
4. Learned counsel for the respondents has fair enough to submit about condonation of delay so that the appeal be heard on merit.
5. This Court, having heard learned counsel for the parties and considering the reasons assigned in the Interlocutory Application 3 for condonation of delay, deem it fit and proper to condone the delay, so that the matter may be decided on merit.
6. In view thereof, the delay in filing the appeal is condoned.
7. Accordingly, I.A. No. 3466 of 2019 stands disposed of. L.P.A. No. 553 of 2018
The instant intra-court appeal has been filed under clause 10 of the Letters Patent against the order/judgment dated 28.06.2018 passed in W.P. (S) No. 3053 of 2017 by the learned Single Judge whereby and whereunder, order dated 20.04.2017 for deduction of 10 % from the pension of the writ petitioner-appellant or imposition of penalty by way of recovery from pension to the tune of Rs. 4,76,743.50, in exercise of power conferred under Rule 43 (b) of the Jharkhand Pension Rules, 2000, has been declined to be interfered with.
2. The brief facts of the case, as per the pleadings made in the writ petition, which is required to be enumerated herein reads hereunder as:
The petitioner, who was working on the post of Accountant in the office of Assistant Electrical Engineer, Electric Supply Sub- Division, Deoghar, was informed by the co-employee of the Board, namely, Sanjay Singh on 28.11.2012 that lock of the door of the office and his office room have been broken. On such information, the writ petitioner-appellant and one Sri B.N. Sharma, Junior Engineer-cum-In-Charge Assistant Electrical Engineer reached office and found that the lock of the office room was broken as also the chest of the Almirah was opened.4
Further, fact of the case is that on 27.11.2012, the writ petitioner-appellant himself had deposited a sum of Rs. 17,24,452/- in the account of Jharkhand Electricity Board, Deoghar bearing A/C No. 0404002100062467 at Punjab National Bank and due to delay in collection of money, an amount of Rs.9,53,487/- could not be deposited in the said account and was kept in the office of Assistant Electrical Engineer, Deoghar, which was stolen from the said office.
The said incident was informed to the higher authority as well as an F.I.R. was lodged by Sri Braj Mohan Sharma, In-Charge Assistant Electrical Engineer, Electric Supply Sub-Division, Deoghar on 28.11.2012, which was registered as Deoghar (Town) P.S. Case No. 438/2012 for the offence under Sections 461 and 379 of the Indian Penal Code.
Against the theft of the aforesaid amount, an enquiry committee was constituted, which had submitted a report basing upon which, written statement/beyan was recorded of the petitioner and other concerned and a departmental proceeding was initiated against the petitioner vide order dated 15.04.2014. However, in the meantime, the petitioner retired on attaining the age of superannuation on 31.12.2015.
After his retirement, the respondent-authority issued a second show notice on 03.02.2016 vide office order no. 204, as contained in memo No. 152, to which, the petitioner replied on
03.03.2016. Considering the reply submitted by the petitioner and the factual aspects of the matter, decision was taken for deduction of 10 % from the pension of the writ petitioner-appellant or 5 imposition of penalty by way of recovery from pension to the tune of Rs. 4,76,743.50, in exercise of power conferred under Rule 43 (b) of the Jharkhand Pension Rules, 2000.
3. The writ petitioner-appellant, being aggrieved with the aforesaid action of the respondents-authorities, has approached this Court by filing W.P. (S) No. 3053 of 2017, which has been dismissed vide order dated 28.06.2018, which is the subject matter of the present intra-court appeal.
4. Learned counsel for the writ petitioner-appellant has assailed the impugned order on the ground that there is no laches on the part of the petitioner rather the money was kept in the shelf but the same was stolen by breaking the chest of the Almirah, therefore, it cannot be said that the petitioner is involved in any way in stealing of the aforesaid money warranting the competent authority to initiate proceeding for recovery of the aforesaid amount from the pensionary benefit.
Further ground has been raised that the aforesaid amount since was insured but instead of making recovery of the said amount from the insurance company, the same has been ordered to be recovered from the pensionary benefit of the writ petitioner- appellant, which has not been taken into consideration by the enquiry officer, therefore, the order passed by the respondents- authorities is not sustainable in the eye of law.
5. This Court, having heard learned counsel for the appellant and after going across the pleadings made in the memo of appeal as also the finding recorded by the learned Single Judge, deem it fit 6 and proper to refer the provisions of Rule 43(b) of the Jharkhand Pension Rules, 2000, which reads hereunder as:
"43(b).The State Government further reserve to themselves the right of withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the petitioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or have caused pecuniary loss to Government by misconduct or negligence, during his service rendered on re-employment after retirement."
Provided that-
(a).such departmental proceedings, if not instituted while the Government Servant was on duty either before retirement or during re- employment.
(i).shall not be instituted save with the sanction of the State Government.
(ii).shall be in respect of an event which took place not more than four years before the institution of such proceedings.
(iii).shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made.
(b).xxxx xxxx xxxx
(c).xxxx xxxx xxxx
It is evident from the aforesaid provision that the proceeding is required to be initiated against the employee, who has retired from services, against the irregularities committed, for making recovery from the pension, subject to some exceptions.
The aforesaid provision, thus, stipulates that the employer has got authority to initiate a proceeding under the power conferred under the provisions of Rule 43(b) of the Jharkhand Pension Rules if any irregularity has been committed by the concerned employee even after his superannuation, subject to rider that the proceeding if not initiated in course of service, it cannot be allowed to be 7 initiated beyond the period of four years from the date of occurrence.
6. Admitted fact herein is that the petitioner while working as accountant has kept a sum of Rs. 9,53,487/- in the Almirah lying in the office, but the same was stolen, for which an F.I.R was lodged. At the relevant point of time, the writ petitioner-appellant was working as an accountant and it is not disputed that the person holding the post of accountant is responsible to keep vigil upon the public money, but herein the amount has been kept by the writ petitioner-appellant to the tune of Rs. 9,53,487/- in the Almirah lying in the office which was stolen.
7. The respondents-authorities have termed the said incidence as a negligence of duty on the part of writ petitioner-appellant and, therefore, decided to initiate a proceeding under the provisions of Rule 43 (b) of the Jharkhand Pension Rules.
It is evident from the record that the petitioner has participated in the enquiry before the enquire officer, in which, he has availed all opportunity to defend himself and the enquiry officer, after considering all the materials has found the charges proved against the petitioner, which has been accepted by the appointing authority. Thereafter, in exercise of power conferred under Rule 43 (b) of the Jharkhand Pension Rules, 2000, a decision was taken on 20.04.2017 for deduction of 10 % from the pension of the writ petitioner-appellant or imposition of penalty by way of recovery from pension to the tune of Rs. 4,76,743.50. 8
8. The writ petitioner-appellant has assailed the aforesaid order by filing writ petition, being W.P. (S) No. 3053 of 2017, which has been declined to be interfered with.
9. This Court, after perusing the reasoning of the learned Single Judge declining to interfere with the decision of imposing of penalty or recovery from the pension of the writ petitioner-appellant, has found that the learned Single Judge has taken into consideration the fact about providing opportunity of hearing before the enquiry officer and the writ petitioner-appellant has not agitated any procedural lapses in the aforesaid enquiry.
10. The question herein is that as to whether the High Court under Article 226 of the Constitution of India can interfere with the impugned order of imposition of penalty by the disciplinary authority, and if yes under what circumstances?
11. The aforesaid issue has elaborately been dealt with by the Hon'ble Apex Court in the case of Union of India & Ors vs. P. Gunasekaran reported in AIR 2015 SC 545, wherein the Hon'ble Apex Court at paragraph 13, has laid down the broad guidelines in the matter of exercise of power of judicial review under Article 226 of the Constitution of India in the findings of the Disciplinary Inquiry, and the parameters on which the findings and punishment in a Departmental Inquiry are required to be gone into by the High Court under the power conferred under Article 226/227 of the Constitution of India. Paragraph 13 of the said judgment reads hereunder as:
"13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before 9 the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have ar rived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
Likewise, the Hon'ble Apex Court in the case of Management of State Bank of India Vs. Smita Sharad Deshmukh and 10 Another reported in (2017) 4 SCC 75, at paragraphs 5 and 6 held hereunder as:
5.It is well-settled principle that the High Court will not reappreciate the evidence but will only see whether there is evidence in support of the impugned conclusion. The court has to take the evidence as it stands and its only limited jurisdiction is to examine, whether on the evidence, the conclusion could have been arrived at.
6.In Bank of India vs. Degala Suryanarayana, after referring to H.C. Goel case, this Court held at para 11:
"11.Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectively may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e. where there is no evidence to support a finding of where a finding is such that no man acting reasonably and with objectively could have arrived at that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained."
It is evident from the propositions laid down by Hon'ble Apex Court, referred herein above, that the scope of judicial review and limit of High Court in the matter of departmental proceeding is limited.
12. We have examined the factual aspect of the instant case, on the basis of propositions laid down in the above decisions of Hon'ble Apex Court about power of judicial review for making interference with the decision of the authority, and have found that the writ petitioner-appellant has not raised any procedural lapses in courses 11 of conducting enquiry, thereby it is evident from the record that the writ petitioner-appellant has participated in the enquiry proceeding by availing all opportunity to defend himself and thereafter fact finding has been arrived at by the enquiry officer and ultimately the charge against the petitioner has been proved.
13. The question herein is that when the disciplinary authority has taken decision based upon the fact, if that would be interfered with by the High Court in exercise of power conferred under Article 226 of the Constitution of India, it will lead to becoming of the High Court as an appellate forum, sitting upon the order passed by the respondents-authorities and further this Court has not found any ground to interfere with the impugned order passed by the authority as because none of the grounds as laid down in the Judgment referred is available herein for interfering with the order.
14. In view of such proposition of law and taking into consideration the finding recorded by the learned Single Judge, based upon the factual aspect, we are of the considered view that the order passed by the learned Single Judge cannot be faulted with.
15. In the result, the appeal, being devoid of any merit, fails and is accordingly dismissed.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Alankar/ -
A.F.R.