Jharkhand High Court
Ramod Narayan Jha vs The State Of Jharkhand Through The Chief ... on 21 November, 2024
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 1652 of 2021
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Ramod Narayan Jha, aged about 63 years, son of Late Indranarayan Jha, resident of-C/o Rajeev Ranjan, 424/B, Road No. 6, Ashok Nagar, P.O.-Doranda, P.S. Argora, District-Ranchi (Jharkhand). ..... Petitioner.
Versus
1. The State of Jharkhand through the Chief Secretary, Government of Jharkhand, having its office at Project Building, Dhurwa, P.O. & P.S.-Dhurwa, District-Ranchi.
2. The Secretary, Department of Agriculture, Animal Husbandry & Cooperative, Government of Jharkhand, having its office at Nepal House, Doranda, P.O. & P.S.-Doranda, District-Ranchi. ..... Respondents
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1.
CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioner : Ms. Aprajita Bhardwaj, Adv For the Respondents : Mr. Rahul Saboo, G.P.-II
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CAV On. 20.09.2024 Pronounced on: 21 /11/2024 Heard learned counsel for the parties.
2. The petitioner in the instant writ petition has prayed for setting aside the memo no. 1164 dated 28.08.2020 (Annexure-1); whereby the respondents have imposed the punishment of forfeiture of complete pension of the petitioner and further to institute a certificate case against the petitioner for recovery of the amount wrongly invested by the petitioner along with interest.
3. The facts and chain of events is that the petitioner joined services as an officer of Bihar Cooperative Service in the year 1990. After bifurcation of the State of Bihar, by virtue of the Bihar Reorganization Act the petitioner was allotted the Jharkhand Cadre and he became the employee of the 1 Jharkhand Cooperative Service. Thereafter, for the period 02.07.2007 to 06.10.2009 the petitioner was posted as Managing Director, Central Cooperative Bank Limited, Dhanbad and for the period 22.02.2011 to 28.08.2013 the petitioner was posted as Managing Director of Jharkhand Adivasi Vegetable Procurement Marketing Federation (herein after referred as 'VEGFED'). The said two periods are relevant as during the said two periods of posting, two separate departmental proceedings were initiated against the petitioner; one vide departmental Resolution no. 2663 dated 09.10.2013 (Annexure-20) for the charges related to the period during which the petitioner was posted as Managing director, Central Cooperative Bank Limited, Dhanbad and the other vide Resolution no. 2700 dated 10.10.2013 (Annexure-2) which related to the period during which the petitioner was posted as Managing Director, VEGFED.
4. It has been submitted by Ms. Aprajita Bhardwaj, learned counsel representing the petitioner that so far, the charges related to the period when the petitioner was posted as Managing Director, 'VEGFED' is concerned; the memo of charge contained a total of 12 charges of irregularity alleged against the petitioner. The petitioner vide letter dated 18.05.2015 (Annexure 3) submitted his detailed reply against each and every charge as contained in the memo of charge and additionally supplied and submitted in the departmental proceeding documents marked as annexures which were 62 in number. However, the petitioner was issued a second show-cause notice along with the enquiry report on 17.12.2017 which also contained the proposed punishment to be inflicted upon the petitioner in case his reply to the second show cause notice is not found satisfactory.
It has been further submitted by the petitioner that for the same set of the charges there was a committee constituted 2 by the Department vide order no. 315 dated 06.02.2015 for conducting an enquiry by a technical officer to examine the allegations alleged against the petitioner. It is the specific stand of the petitioner that the committee so constituted did not find any of the allegations as alleged against the petitioner to be correct. The petitioner in this regard has given a statement at paragraph 49 of the writ petition. To controvert the said statement made by the petitioner in his writ petition, the respondent in their para-wise reply made in the counter affidavit have not disputed the same. The said fact goes to show that the department in the departmental enquiry should have brought forth documents and witness to prove the charges against the petitioner as alleged in the memo of charge however the enquiry report fails to reflect any such act done by the department.
5. It has been contended by the petitioner that on perusal of the enquiry report one can find that none of the documents supplied by the petitioner during the departmental proceeding has been taken into consideration and further in the entire departmental proceeding no witness have been examined by the Department either to prove the charges against the petitioner or even to prove the documents brought on record during the departmental proceeding. The said action of the respondent department makes the entire case of the department, a case of no evidence and on the said very basis no charges can either be proved or established against the petitioner.
Learned Counsel places heavy reliance on the judgment of the Hon'ble Apex Court in the case of Roop Singh Negi versus Punjab National Bank and others reported in (2009) 2 SCC 570 paragraph 14 & State of Uttar Pradesh versus Saroj Kumar Sinha reported in (2010) 2 SCC 772 paragraph
28. 3
6. So far as the departmental proceeding initiated against the petitioner vide departmental Resolution no. 2663 dated 09.10.2013 (Annexure-20) is concerned; the same relates to the charges for the period during which the petitioner was posted as Managing director, Central Cooperative Bank Limited, Dhanbad. The memo of charge issued to the petitioner contained 5 charges out of which 3 charges were not proved and only 2 charges were proved against the petitioner in the departmental enquiry, which is mentioned hereinbelow:
"1. In violation of the established Rules of the Bank, with wrong intention, despite the presence of previous dues on the Bhotghadiya Horladih Colliery Employees Credit Cooperative Society, a loan of Rs. 31,34,000/- was distributed on 26.07.2008 through the Baliapur Branch of the Bank which was outside the jurisdiction of the society and was entered into the loan ledger from the Jharia Bank.
2. Not cooperating with the investigation team during the investigation work and not providing the requested loan file."
7. In relation to the two charges that stood proved in the departmental enquiry, learned counsel submits that the same is not only arbitrary but also perverse and against the material facts that have been brought forth in the departmental proceeding. In order to substantiate the perversity in the findings of the two charges which were proved against him in the departmental proceeding, she contended that so far as the first charge is concerned; the said charge has wrongly been proved against the petitioner which shall be evident from perusal of the letter dated 06.01.2016 issued by the Branch Manager In charge, Dhanbad Central Cooperative Bank Limited (Annexure-22), which goes to show that the entire loan amount of Rs.31,34,000/- has been recovered way back and the loan account has already been closed on 29.10.2015 itself. This goes to show that there has not been any loss to the State exchequer in relation to the loan amount disbursed by the petitioner.
So far as the second charge that was proved against the petitioner is concerned; it has been submitted by the counsel 4 that the respondents have not shown any reasoning or stated any way that in what manner the petitioner has not cooperated in the departmental proceeding and have vaguely proved the said charge against the petitioner.
8. It has been strenuously contended that in respect of both the departmental proceedings, the punishment that has been imposed upon the petitioner is not only disproportionate but also has been imposed against the settled principle of law. The department while imposing the impugned punishment of forfeiture of complete pension and further institution of a certificate case against the petitioner for recovery of the amount wrongly invested by the petitioner along with interest, have nowhere quantified the loss that had actually occurred to the State exchequer because of the petitioner.
Neither from the enquiry report nor from the impugned order it transpires that any amount or quantification of any amount in respect of the monetary loss that has been alleged to have been caused by the petitioner. It was incumbent upon the respondent authority to assess the pecuniary loss caused by the petitioner before taking action of withholding pension of the petitioner. In order to support her contention, she places reliance on the judgment passed by the Division Bench of this Hon'ble Court in the case of State of Jharkhand & Ors. Versus Janki Devi and Another reported in (2022 SCC OnLine Jharkhand 1343).
9. Lastly the petitioner contended that the impugned order itself cannot be sustained in the eyes of law for the reason that the manner in which it has been passed is itself erroneous. It is the case of the petitioner that for two separate departmental proceedings which were initiated against the petitioner for two different period; one related to the period during which the petitioner was posted as Managing director, Central Cooperative 5 Bank Limited, Dhanbad and the other which related to the period during which the petitioner was posted as Managing Director, 'VEGFED', one common impugned punishment order clubbing the two proceedings has been passed.
10. Mr. Rahul Saboo, G.P.-II representing the State submitted that the impugned order has been rightly passed in consonance to the rules guiding the service conditions of the petitioner. The respondents in their counter affidavit have stated that while the petitioner was posted as Principal Cooperative Training Centre-cum-In charge Managing Director, 'VEGFED' Ranchi, financial irregularities were found to have been committed by him regarding misappropriation and defalcation of fund which came from National Agriculture Development Scheme, NVI, to 'VEGFED' for the purpose of executing the work. The procedure and rules were flouted while utilizing these funds by him.
It has further been submitted that vide another departmental resolution another departmental proceeding had been initiated by issuing a charge-sheet for disbursement of loan to fake member of the society; thus, causing financial loss of crores of rupees and of defalcation of the funds.
After receiving the inquiry report and after observing much diligence vide letter dated 22.12.2016 as contained in memo no. 2871, the petitioner was served with a second show cause notice. The petitioner vide letter dated 18.04.2017 submitted his reply to the second show cause notice; however, pending consideration of his reply to the second show cause notice, the petitioner superannuated w.e.f. 30.11.2018.
Thereafter, in light of the petitioner having superannuated, vide resolution dated 15.10.2019 as contained in memo no. 1788, both the pending departmental proceedings were converted into proceedings under Rule 43-B of the Jharkhand Pension Rules. The petitioner was once again vide 6 departmental letter dated 17.12.2018 as contained in memo no. 2169, was served with another second show cause notice on the point of the proposed punishment.
11. It has also been contended by the State counsel that after receiving the reply to the second show cause notice by the petitioner, vide letter dated 17.12.2019 as contained in memo no. 2111 under Rule 43B of the Pension Rules, the matter was sent to Jharkhand Public Service Commission for their concurrence and the Jharkhand Public Service Commission vide its letter dated 19.02.2020 as contained in memo no. 448 gave its concurrence for forfeiture of full pension permanently.
Learned counsel for the State categorically submits that it was only after receiving the concurrence of the Jharkhand Public Service Commission, vide resolution dated 28.08.2020 as contained in memo no. 1164, the petitioner has been imposed with punishment of forfeiture of his full pension with a further direction of institution of certificate case against him for the recovery of the alleged amount with interest.
12. At this stage itself it is pertinent to mention here that the respondent State has not been able to controvert to the legal stand taken up the petitioner, inasmuch as, that in the entire departmental proceeding, no witness has been examined by the Department; either to prove the charges against the petitioner or even to prove the documents brought on record during the departmental proceeding; thus making the entire case of the department as a case of no evidence.
The serious charge of defalcation and irregularities as alleged against the petitioner which on one hand were not proved by an internal technical committee of the department; and on the other hand, the departmental proceedings should have been done on the basis of examination of witnesses as well as by documents which should have been proved by the officers of the department.
713. The respondents have also not been able to controvert to the stand taken by the petitioner in respect to there being no quantification of the alleged pecuniary loss that has been caused to the State Exchequer due to the latches or misconduct of the petitioner.
Since the amount has not been quantified, the respondents' action of withholding of complete pension of the petitioner and further to institute a certificate case against the petitioner for recovery of the amount wrongly invested by the petitioner along with interest cannot be said to justified and also cannot be legally sustained in the eyes of law.
14. Considering the arguments advanced on behalf of the petitioner and that of the respondents it is apparent and evident that the departmental proceedings which were conducted upon the charges levelled against the petitioner lacked proper procedure in view of the fact that no witnesses were examined; thus it can safely be concluded that the petitioner was not afforded with proper opportunity and thus the rules of natural justice have` been violated.
The Hon'ble Apex Court in Roop Singh Negi (supra) while appreciating the worthiness of compliance of proper legal procedure to be adopted for proving charges against an employee and for the purpose of deprecating the casual approach taken in such proceedings has held as under:-
Para 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, by the enquiry officer on the FIR which could not have been treated as evidence."
15. The Hon'ble Apex Court has further held in State of Uttar Pradesh & Ors. vs. Saroj Kumar Sinha (supra) while 8 considering the requirement of compliance of the principles of natural justice in the light of Article 311 (2) of the Constitution of India has held as under:-
Para 28- "An enquiry 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."
Para 29 - "Apart from the above, by virtue of Article 311(2) of the Constitution of India, the departmental enquiry had to be concluded in accordance with the Rules of Natural Justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee"
Para 30 - "When a departmental enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceeding also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of the rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal / removal from service."
16. This court finds that the enquiry report at Annexure 4 of this writ petition, though lengthy but is bereft of compliance of proper of procedure because the enquiry officer has just narrated each charge and then reply of the petitioner and thereafter the opinion of the presenting officer and finally the conclusion has been arrived at. There appears no examination of witnesses nor the procedure of proving documents etc. has been followed.
So far as the charges relating to the period in which the petitioner was posted as Managing Director in the Central Cooperative Bank Dhanbad is concerned; it has been categorically pointed out that as per Annexure 22 the entire loan amount already stood recovered and this aspect has not been disputed by the respondents. At the cost of repetition, no quantification of loss by the State due to the alleged irregularity has been made or observed in the impugned order for forfeiture 9 of entire pension coupled with recovery of amount already made.
17. In the above facts and circumstances this Court finds that the impugned order dated 28.08.2020 is not sustainable because it is not backed and supported by a proper legal procedure adopted in the course of the departmental proceedings conducted against the petitioner and also on the ground that the same contains no quantification of the amount of loss caused to the State department which is a condition precedent for forfeiture of pension of an employee under Rule 43B of the Jharkhand Pension Rules.
18. Having regard to the above discussion, the Memo No. 1164 dated 28.08.2020 (Annexure-1), is hereby, quashed and set aside.
19. It further transpires from record that the petitioner was served with the charges in the year 2013 for the causes of action of the year 2007 - 2009 (Central Cooperative Bank) and 2011 - 2013 'VEGFED' and he has superannuated from service on 30.11.2018; thus, this Court is not inclined to remit the matter back to the respondents for proceeding afresh against him.
20. As a result, the instant writ application stands allowed. Pending applications, if any, also stands disposed of.
(Deepak Roshan, J.) Jharkhand High Court at Ranchi Dated:-21/11/2024 Amardeep/ AFR/ 10