Md. Noorul Hoda vs The State Of Jharkhand Through The ... on 7 January, 2020

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Jharkhand High Court

Md. Noorul Hoda vs The State Of Jharkhand Through The ... on 7 January, 2020

2. The petitioner has approached this Court with a prayer to quash and set aside the order dated 01.02.2019 issued by the respondent no. 2 whereby and whereunder the petitioner has been held guilty for temporary embezzlement of Rs. 39,440/- and thereby as a measure of punishment ordered to deduct 5% from his pension amount for 10 years under Rule 43(b) of Jharkhand Pension Rules and further prays for direction upon the respondent to return the amount of Rs. 39,440/- to the petitioner.

3. Learned counsel for the petitioner submits that the petitioner was a government servant and retired from the post of Junior Engineer, Minor Irrigation division, Godda under the Water Resources Department, Jharkhand, Ranchi. It is submitted that the then Deputy Commissioner-cum-District Programme Co-ordinator, Page 2 of 6 W.P.(S) No. 2201 of 2019 Godda sanctioned Rs. 35,00,000/- from the contingency head to the Executive Engineer, Minor Irrigation Division, Godda for free distribution of agricultural tools and implements for agricultural purpose under the National Rural Employments Guarantee Act, in short NREGA Scheme. The Executive Engineer advanced the same to the Assistant Engineer, and from that fund the Assistant Engineer advanced an amount of Rs. 39,440/- to the petitioner for purchasing of agricultural tools and implements under the NREGA Scheme. The tools and implements were purchased and duly entered into measurement Book bearing No. 083638 and thereafter, the same were verified, passed and signed by the then Executive Engineer, Minor Irrigation Division, Godda. The fund was properly utilized under NRREGA Scheme. However, the petitioner, at the instance of the Deputy Development Commissioner, Godda, had deposited the amount of Rs. 39,440/- before the respondent no. 4 through the respondent no. 5, i.e. Executive Engineer, Minor Irrigation Division, Godda which is evident from the letter dated 30.06.2011 annexed as Annexure-1 to this writ petition.

4. It has further been submitted by the learned counsel for the petitioner that almost after two years a departmental enquiry was initiated against the petitioner along with others, for violation of the instructions issued by the Ministry of Rural Development, Government of India, New Delhi in its letter dated 30.03.2007 wherein there was no provision for purchase of gaita, kudaal, belcha, dhama etc. under the Administrative Head. It is further alleged that the petitioner in violation of Rules 235 and 241 of Bihar Finance Rules without calling tenders, on the basis of forged receipts had purchased the tools and implements and embezzled Rs. 9,93,740/-. The charges leveled vide letter dated 17.08.2012 is annexed as Annexure-2 to the writ petition. The petitioner has filed Page 3 of 6 W.P.(S) No. 2201 of 2019 his show cause, thereafter the Executive Engineer, Minor Irrigation Division Gooda-cum-Presenting Officer filed his comments vide letter dated 17.11.2014, to the show cause filed by the petitioner, which is annexed as Annexure-3 to the writ petition, by which the said Officer categorically supported the stand of the petitioner and stated that there is no case of embezzlement of money. Enquiry Officer submitted his enquiry report vide letter dated 28.01.2015, which is annexed as Annexure-4 to the writ petition, wherein he has stated that there is no case of embezzlement of money. Learned counsel further submits that vide letter dated 06.08.2015, Under Secretary, Water Resources Department, Government of Jharkhand proposed the punishment for deducting 5% from the pension of the petitioner for 10 years and asked the petitioner to file his second show cause reply. The letter dated 06.08.2015 is annexed as Annexure-5 to the writ petition. The petitioner filed his second show cause vide letter dated 19.08.2015, which is annexed as Annexurre-6 to the writ petition, wherein he categorically stated that the Assistant Engineer, Minor Irrigation, Sub-Divisional, Godda had provided him fund for purchase of tools and implements from the market under original bill and submit the same for adjustment of advance. Accordingly, the tools were purchased and original bills were submitted which were finally passed and adjusted by the Executive Engineer. Learned counsel for the petitioner submits that the petitioner acted in accordance with the direction given by the higher authorities and so far as the question of amount to be disbursed is concerned, it is the matter of concern of the higher officials. So far as the matter of purchasing of non-schedule items from contingency fund are concerned, it is again the matter of concern of the higher officials and the petitioner only acted according to the direction given by the higher officials. There was no Page 4 of 6 W.P.(S) No. 2201 of 2019 pecuniary loss and misappropriation of fund committed by the petitioner. Learned counsel for the petitioner further submits that the Under Secretary, Government of Jharkhand vide order dated 01.02.2019, which is annexed as Annexure-7 to the writ petition, has categorically stated that as per the letter of Ministry of Rural Development, Government of India, the amount for expenditure of purchase of agriculture tools and implements shall be entered under the "material" head. The amount was provided by the Executive Engineer to the petitioner, but, there was no provision for purchasing tools from the contingency fund. Though the petitioner deposited the amount, but, as he kept the money for two years since 2009 to 2011 and allegation of temporary embezzlement was levelled against him and the reply of the petitioner to the second show-cause has been rejected and ordered for deduction of 5% from his pension for 10 years has been passed. However, the petitioner has not caused any pecuniary loss to the State exchequer which makes him liable for punishment under Section 43(b) of Bihar Pension rules, 1950.

5. Learned counsel further argues that the departmental rules have no relevance in implementing NREGA Scheme and there is no violation of any provisions of Bihar Financial Rules. He further submits that though Rs. 39,440/- only was advanced to the petitioner, but, in the letter of Under Secretary dated 01.02.2019 Rs. 9,93,740/- was mentioned. The Enquiry Officer has also found no case of embezzlement of money.

6. Learned counsel for the respondents vehemently opposed the contention raised by the learned counsel for the petitioner and submits that vide order dated 01.02.2019 issued by the Under Secretary , Water Resources Department, Government of Jharkhand, the petitioner has been held guilty for temporary embezzlement of Page 5 of 6 W.P.(S) No. 2201 of 2019 Rs. 39,440/- as he kept the same for two years from 2009 to 2011, therefore, there is a case of temporary embezzlement of money and the order of deduction of 5% amount from his pension for ten years, under Rule 43(b) of Jharkhand Pension Rules, has rightly been passed. It has been further submitted that the amount for purchase of the agricultural tools and implements was to be allotted from the material head, but, the then Executive Engineer allotted the amount to the petitioner from the contingency fund which is against the provision. The departmental proceeding was initiated under Rule 55 of Civil Services (Classification, Control and Appeal) Rule-1930 and after retirement on 31.03.2015, the departmental proceeding got converted under rule 43(b) of Jharkhand Pension Rules vide memo dated 26.06.2015. As a result the total amount of Rs. 9,93,740/- has been deposited by the petitioner and others. For the sake of brevity Rule 43(b) is quoted herein below:-

"43 (b) The State Government further reserve to themselves the right of withholding or 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 pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused caused pecuniary loss to Government by misconduct or negligence, during his service including 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;

Page 6 of 6 W.P.(S) No. 2201 of 2019

(ii) Shall be in respect of an event which took place not more than four years before the institution of such proceedings; and

(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) Judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub--clause (ii) of clause

(a); and

(c) The Bihar Public Service Commission, shall be consulted before final orders are passed. "

7. Having gone through the rival submission of the parties, this Court is of the considered view that admittedly there is no pecuniary loss to the government and also no allegation of grave mis-conduct. In absence of the same the impugned order dated 01.02.2019 is not tenable in the eyes of law and hence hereby quashed and set aside. As a sequel to the quashment of the impugned order dated 01.02.2019 the petitioner is entitled for full pension and further the respondents are directed to refund the entire amount to the petitioner and also to refund the forfeited amount, if any, within a period of six weeks from the date of receipt of a copy of the order.

8. In view of the above observations, the writ petition stands allowed.

(Dr. S.N. Pathak, J.) Jharkhand High Court MM / 07.01.2019 AFR/NAFR

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