Jharkhand High Court
Md. Nezamuddin vs The State Of Jharkhand Through Its ... on 24 September, 2020
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 2215 of 2019
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Md. Nezamuddin, son of late Md. Ainuddin, aged about 70 years, resident of New Colony, Kajlamani Road, Kabir Chowk, P.O. and P.S. Kisanganj, District-
Kisanganj, Bihar ...... Petitioner
Versus
1. The State of Jharkhand through its Secretary, Water Resources Department, Ranchi
2. The Under Secretary, Water Resources Department, Ranchi
3. Deputy Commissioner, Godda
4. Deputy Development Commissioner-cum-District Programme Co-ordinator, Godda
5. Executive Engineer, Minor Irrigation Division, Godda
6. Assistant Engineer, Minor Irrigation Sub-Division, Sundarpahari, Godda ...... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Ms. Amrita Vijay, Advocate
For the Respondent-State : Mr. Ashish Thakur, A.C. to A.A.G.-III
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C.A.V On: 10/09/2020 Pronounced on 24/09/2020
1. Heard, Ms. Amrita Vijay, learned counsel for the petitioner and Mr. Ashish Thakur, learned counsel for the respondent-State.
2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.
3. The petitioner preferred this writ petition for quashing of order dated 01.02.2019 contained in Annexure-7, whereby the petitioner has been held guilty for temporary embezzlement of Rs. 1,33,255/- and punishment order has been passed deducting 5% from his pension amount for 10 years under Rule 43(b) of Jharkhand Pension Rules. Further prayer has been made for direction upon the respondents to refund the amount of Rs. 1,33,255/- to the 2 petitioner which has been deposited by the petitioner on the direction of respondents.
4. The facts of the case are that the petitioner was a Government Servant, who retired on 30.04.2009 from the post of Junior Engineer working in Minor Irrigation Division, Godda under the Water Resources Department, Jharkhand, Ranchi. To purchase agricultural tools and implements for agricultural purpose and for free distribution to the labourers engaged in the implementation of the National Rural Employment Guarantee Scheme, the then Deputy Commissioner-cum-District Programme Co-ordinator, Godda sanctioned allotment of funds from the contingency head to the Executive Engineer, Minor Irrigation Division, Godda on different dates. On 18-11-2008 Rs. 10,00,000/- and on 05-02-2009 Rs. 25, 00,000/-, total Rs. 35,00,000/- was sanctioned which has been mentioned in Article of Charge. The Executive Engineer advanced fund to the Assistant Engineer, who disbursed the amount of Rs. 1,33,255/- to the petitioner for purchase of the agricultural tools and implements under the NREGA Scheme. The petitioner purchased various agricultural tools and implements and the same was provided through various Labour co-operative Societies/Committee of beneficiaries to the farmers. The agricultural implements so purchased were duly entered into Measurement Book bearing No. 084921 which was verified, passed and signed by the then Executive Engineer, Minor Irrigation Division, Godda. The purchased agricultural implements were received by the respective President/Secretary of the Labhuk Samitti (Committee of Beneficiaries) and through them those articles were finally distributed among the farmers the ultimate beneficiaries. Before initiation of the departmental enquiry, petitioner at the direction of Deputy Commissioner, Godda deposited a sum of Rs. 1,33,255/- to the 3 respondent no. 4. After two years, a departmental enquiry was initiated against the petitioner along with other concerned engineers whereby charge of violation was leveled. It has also been stated that the petitioner in violation of Rules 235 and 241 of Bihar Finance Rules, without calling for tenders, on the basis of forged receipts had purchased the agricultural tools and implements and thereby embezzled Rs. 9,93,740/-. The petitioner filed reply to the show- cause thereafter, the Executive Engineer, Minor Irrigation Division, Godda- cum-Presenting Officer filed his comments. The Presenting Officer has said that there seems no case of embezzlement of money. The Enquiry Officer submitted enquiry report stating that there is no case of embezzlement of money. For proposed punishment of 5% deduction of pension for 10 years, a second show-cause was issued to the petitioner. The petitioner filed reply to the second show-cause on 22.07.2015 disclosing that tools and implements were purchased and is original bills were submitted which were finally passed and adjusted by the Executive Engineer and thus, the higher officials who provided fund to the petitioner, the petitioner only acted as per direction given by the higher officials. On the basis of above, punishment order has been passed.
5. Ms. Amrita Vijay, learned counsel appearing for the petitioner assailed the impugned order on the ground that no pecuniary loss has been caused to the government by the petitioner and in that view of the matter, the punishment order under Rule 43(b) of the Bihar Pension Rules, 1950, is illegal. She submitted that petitioner has not acted contrary to the provision of law or rules. She further submitted that memo of charge and report of the enquiry as against the petitioner is vague and confusing. She submitted that Rs. 1,33,255/- was advanced to the petitioner for purchasing tools and 4 implements but in contrary embezzlement of Rs. 9,93,740/- is mentioned. She submitted that enquiry officer's report was not based on true facts of the case rather based on imagination. She submitted that in the garb of some financial rules which is not consistent with MNREGA schemes and also under threat to initiate proceeding against the petitioner, the respondent-authorities instructed the petitioner to deposit the amount which was sent for purchase of agriculture tools and implements, the petitioner has already deposited the amount. She further submitted that the enquiry officer submitted his report and came to the conclusion that the case of embezzlement has not been proved against the petitioner. She submitted that in view of well-settled judgment in the case of "Punjab National Bank Vs. Kunj Behari Misra" reported in (1998) 7 SCC 84, whereas, the Hon'ble Supreme Court has held as under:
"13. Shri Sunil Gupta, learned counsel for the respondent, drew our attention to the decision in the case of Institute of Chartered Accountants of India. The respondent therein, who was a chartered accountant, was accused of misconduct. An enquiry was instituted under the Chartered Accountants' Act, 1949. The Disciplinary Committee after hearing Ratna submitted its report to the Council opining that he was guilty of professional misconduct. The Council considered the report of the Disciplinary Committee and found him guilty of misconduct and thereupon the Institute wrote to Ratna that the Council had found him guilty of professional misconduct and it was proposed to remove his name from the Register of Members for a period not exceeding five years. Thereupon a writ petition was filed by Ratna in the Bombay High Court which was allowed with the finding that the Council should have given an opportunity to Ratna to represent before it against the report of the Disciplinary Committee. While affirming the decision of the High Court and coming to the conclusion that a member of the Institute of Chartered Accountants accused of misconduct is entitled to hearing by 5 the Council when, on receipt of the report of the Disciplinary Committee, it proceeds to find whether he is or is not guilty, this Court at p. 550 observed as follows: (SCC para 12) "12. Now when it enters upon the task of finding whether the member is guilty of misconduct, the Council considers the report submitted by the Disciplinary Committee. The report constitutes the material to be considered by the Council. The Council will take into regard the allegations against the member, his case in defence, the recorded evidence and the conclusions expressed by the Disciplinary Committee. Although the member has participated in the enquiry, he has had no opportunity to demonstrate the fallibility of the conclusions of the Disciplinary Committee. It is material which falls within the domain of consideration by the Council. It should also be open to the member, we think, to point out to the Council any error in the procedure adopted by the Disciplinary Committee which could have resulted in vitiating the enquiry. Section 21(8) arms the Council with power to record oral and documentary evidence, and it is precisely to take account of that eventuality and to repair the error that this power seems to have been conferred. It cannot, therefore, be denied that even though the member has participated in the enquiry before the Disciplinary Committee, there is a range of consideration by the Council on which he has not been heard. He is clearly entitled to an opportunity of hearing before the Council finds him guilty of misconduct."
14. In Ram Kishan case disciplinary proceedings on two charges were initiated against Ram Kishan. The enquiry officer in his report found the first charge not proved and the second charge partly proved. The disciplinary authority disagreed with the conclusion reached by the enquiry officer and a show-cause was issued as to why both the charges should not be taken to have been proved. While dealing with the contention that the disciplinary authority had not given any reason in the show-cause to disagree with the conclusions reached by the enquiry officer and that, therefore, the finding based on that show-cause notice was bad in law, a two-Judge Bench at p. 161 observed as follows: (SCC para 10) 6 "The purpose of the show-cause notice, in case of disagreement with the findings of the enquiry officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the enquiry officer for the reasons given in the enquiry report or he may offer additional reasons in support of the finding by the enquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show-cause on the basis of which the findings of the enquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the enquiry officer. In the absence of any ground or reason in the show-cause notice it amounts to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the disciplinary authority cannot cure the defect."
She submitted that without following the procedure of the above judgment, the impugned order has been passed. She submitted that the entire case of the petitioner is fully covered with the case of "Satish Sharma Vs. State of Jharkhand & Ors" W.P.(S) No. 2357 of 2019 vide order dated 27.08.2019 and with the case of "Noorul Hoda Vs. State of Jharkhand & Ors" W.P.(S) No. 2201 of 2019 vide order dated 07.01.2020.
6. Per contra, Mr. Ashish Thakur, learned counsel appearing for the respondent-State submitted that petitioner retired on 30.04.2009 from the post of junior engineer. He submitted that there is no illegality in the impugned order. He submitted that the petitioner violated the guidelines and that is why department proceeding has been initiated against the petitioner under Rule 43(b) of the Jharkhand Pension Rules. He submitted that the enquiry officer 7 has taken note of evidences and provided full opportunity to the petitioner and every procedure was followed before passing punishment order. He submitted that amount of Rs. 1,33,255/- was deposited by the petitioner in fear of departmental proceeding as per instruction of the respondent no. 4. The petitioner alongwith other junior engineer deposited Rs. 9,93,740/- vide letter dated 27.06.2011. He submitted that the petitioner was issued second show- cause, who replied to the same but the reply of the second show-cause was not found satisfactory and a case of temporary embezzlement was made out and that is why impugned order has been passed.
7. In view of above facts and submission of the learned counsel appearing for the parties, the question remains to be decided by the Court as to whether the petitioner has been held guilty of grave misconduct and for causing pecuniary loss to the government or not. For appreciating this aspect of the matter, the provisions of Rule 43 of the Bihar (Jharkhand) Pension Rules is quoted here-in-below:-
"43(a). Future good conduct is an implied condition of every grant of pension. The provincial Government reserve to themselves the right of withholding or withdrawing a pension or nay part of it, if the pensioner is convicted of service crime or be guilty of grave misconduct. The decision of the Provincial Government on any question of withholding or withdrawing the whole or any part of a pension under this rule, shall be final and conclusive.
(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 pecuniary loss to Government or negligence, during his service including 8 service rendered on re-employment after retirement. Provided that;-
(a) such departmental proceeding , 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 not 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 places as the State Government may direct and in accordance with 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. Explanation:- For the purposes of the rule-
(a) departmental proceeding shall be deemed to have been instituted when the charges framed, against the pensioner are issued to him or, if the Government servant has been placed under suspension from an earlier date, on such date; and
(b) Judicial proceedings shall be deemed to have instituted:-
(i) in the case of criminal proceedings, on the date on which a complaint is made or a charge-sheet is submitted , to a criminal Court; and
(ii) in the case of civil proceedings, on the date on which the complaint is presented, or as the case may be, an application is made to a Civil Court."
8. In view of the above provision of Rules 43 (a) and 43(b), there is no doubt that the State Government is having power to withhold or withdrew a 9 pension or any part of it whether permanently or for a specified period and the right of recovery from a pension either of the whole or part of any pecuniary loss caused to the Government where the pensioner is found in the departmental or judicial proceeding guilty of grave misconduct or for having caused pecuniary loss to the Government by misconduct or negligence. Rules further prescribe that if department proceeding has already been initiated before retirement, it may continue to only for the purpose of Rule 43(b) of Pension Rules. The exercise of jurisdiction under Rules 43 (b) of Pension Rules for withholding the pension amount cannot be resorted to arbitrarily and without affording opportunity to the petitioner of being heard. Admittedly, in the instant case, the petitioner has been exonerated by the enquiry officer and in absence thereof, order for deducting 5% from the pension amount for 10 years, is not tenable in the eye of law.
9. A temporary embezzlement is also a misconduct. Reference in this regard may be made in "Diwanj Singh Vs. Life Insurance Corporation of India" reported in (2015) 2 SCC 341. Paragraph nos. 8, 9 and 10 of the said judgment are quoted here-in-below:-
"8. As far as argument relating to quantum of punishment, as modified by the High Court, which results in consequential forfeiture of pensionary benefits in view of Rule 23, quoted above, is concerned, we do not find the punishment to be harsh or disproportionate to the guilt, in view of the nature of the charge of which the appellant is found guilty in the present case. Time and again, this Court has consistently held that in such matters no sympathy should be shown by the courts.
9. In NEKRTC v. H. Amaresh, this Court, in para 18 of the judgment has expressed the views on this point as under: (SCC p. 193) "18. In the instant case, the misappropriation of the funds by the delinquent employee was only Rs 360.95. This Court has 10 considered the punishment that may be awarded to the delinquent employees who misappropriated the funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence is the primary factor and not the amount of money misappropriated and that the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of misappropriating the Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment."
10. In Karnataka SRTC v. A.T. Mane in which unaccounted amount was only Rs 93 this Court expressed its opinion in para 12 as under: (SCC p. 259) "12. Coming to the question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment; on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion, when a person is found guilty of misappropriating the corporation's funds, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal."
10. In view of judgment of "Diwanj Singh" (supra) there is not doubt that temporary embezzlement is also misconduct. However, in the present case, the petitioner has already retired on 30.04.2009. The charge of embezzlement may be there in view of deposition of money in question, pecuniary loss to the Government is not there. The petitioner has already retired, thereafter punishment order has been passed. The enquiry officer has also exonerated the petitioner.
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11. The Hon'ble Patna High Court in case of "Md. Fakhruddin Vs. The State of Bihar & Ors." reported in 2001 (3) PLJR 687 has clearly observed that without affording any opportunity of hearing and without coming to a definite finding that employee has been found guilty of grave misconduct or has committed pecuniary loss to the Government, no order for withholding or withdrawing or pension can be passed.
12. In view of the aforesaid discussion and considering this aspect of the matter that the petitioner has been exonerated by the enquiry officer, the impugned order cannot be sustained in the eye of law. Consequently, impugned order of punishment withholding 5% of pension amount for 10 years vide order dated 01.02.2019, is quashed. The respondents are restricted to withhold 5% of pension of the petitioner and are directed to refund the deducted amount in view of punishment passed by the respondents.
13. The writ petition stands allowed and disposed of.
(Sanjay Kumar Dwivedi, J.) Jharkhand High Court, Ranchi Dated 24th of September, 2020 Satyarthi/N.A.F.R.