Jharkhand High Court
Devashish Das vs Union Of India & Ors on 1 February, 2013
Author: Narendra Nath Tiwari
Bench: Narendra Nath Tiwari
W.P.(S) No.1558 of 2011
Devashish Das ...... Petitioner
-Versus-
Union of India represented by the Commissioner,
Coal Mines Provident Fund, Dhanbad & Ors. ...... Respondents.
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PRESENT
HON'BLE MR. JUSTICE NARENDRA NATH TIWARI
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For the petitioner : Mr. Mahesh Tewari, Advocate
Mr. Ganesh Pathak, Advocate
For the Respondents : Mr. Ratnesh Kumar, Advocate
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By Court: The petitioner had initially filed a writ petition challenging the
notice issued to him whereby he was asked to explain as to why penalty of removal from service be not imposed.
2. During pendency of the writ petition, the respondents concluded the departmental proceeding and awarded punishment of petitioner's removal from service by oder dated 4/5th April, 2011 (Annexure-5). The petitioner brought the said order on record by way of amendment which was allowed by the Court. The petitioner challenged the legality and validity of the said order of punishment and has prayed for quashing the same. He has also prayed for direction to the respondents to reinstate him with full back wages and other consequential benefits.
3. By impugned order dated 4/5th April, 2011, the petitioner has been held guilty in departmental inquiry initiated under Rule 14 of CCS (CCA) Rules, 1965.
4. A memorandum of charge was issued to the petitioner containing two articles of charges. The charges were as follows:-
Article - I That the said Shri Devashish Das, while functioning as Upper Division Clerk / Dealing Assistant, Coal Mines Provident Fund organization, Regional Office, D-I, Dhanbad during the year -2- 2006, processed and settled two Daughter Marriage Advance (DMA) claims in respect of Shri Pado Manjhi, CMDMA A/c No.C/433422 without proper scrutiny and verification of the claims, which resulted in fraudulent withdrawal from their respective fund accounts.
Article - II That during the aforesaid period and while functioning in the aforesaid office the said Shri Devashish Das, UDC, committed grave negligence of duty while processing and settling the two Daughter Marriage Advance (DMA) claims in respect of Shri Pado Manjhi, CMDMA A/c No.C/433422.
5. The petitioner denied the charges in his written-reply stating, inter alia, that the charges are baseless and have been framed without any complain from Shri Pado Manjhi or from management of Bhagabandh colliery. The Regional Commissioner, who was in the full charge and control of the matter, was not consulted in the matter. The orders were passed by one G. Sengupta, the then Regional Commissioner. He had also approved the draft / pay order and issued the cheque. He was the competent authority for passing the order and drawing and disbursing the fund. The petitioner was a Dealing Clerk. When the competent authority approved the claims, it was not within the power of the Dealing Clerk to put any objection. He had absolutely no role in the entire process, except to process the file after the order was passed by the competent authority. The petitioner had no business to judge genuineness of the claim of the claimants. The Regional Commissioner was the competent authority, who after proper scrutiny of the entire process, had passed the order. The Personnel Manager one Shri L. Sahu of Putki Balihari Area had -3- certified and confirmed his signature. If there was any irregularity, it was on the part of the said authorities who had the duty and power to scrutinize the claim.
6. In spite of the said denial and the supporting material on record, the Inquiry Officer submitted a report holding the petitioner guilty of the charges without any contrary evidence or material on record.
7. The Inquiry Officer totally ignored the petitioner's reply that he was not competent to scrutinize and review the order passed by the competent authority. The Inquiry officer, without taking into consideration the relevant facts and material on record, has only repeated the charges and in the conclusion held that the same were established.
8. The disciplinary authority also mechanically accepted the said inquiry report and held the petitioner guilty of the charges and awarded penalty of removal from service of CMPFO under Rule 11(viii) of the CCS (CCA) Rules, 1965.
9. The impugned order of the disciplinary authority dated 4/5th April, 2011 has been assailed on the following grounds:-
9.1 The petitioner is an employee of the Coal Mines Provident Fund Organization and he is guided by the provisions of CMPF (Staff and Conditions of Service) Regulations, 1964 (hereinafter to be referred as the Staff Regulation) and not by the CCS (CCA) Rules, 1965 under which he was proceeded against. The entire proceeding conducted under the CCS (CCA) Rules, 1965 is vitiated and wholly without jurisdiction.-4-
9.2 The said Staff Regulation provides for exhaustive procedure for conduct and discipline in Chapter-5 of the Regulation. 9.3 Regulation 33 prescribes procedure for imposing penalties, which reads as under:
"33. Procedure for imposing penalties :- No order imposing on an employee any of the penalties specified in regulation 31 shall be passed except in the manner and after following the procedure laid down in Schedule III."
9.4 Schedule III appended to the said Regulation lays down exhaustive procedure for imposing minor and major penalties.
9.5 The disciplinary authority, contrary to the provisions, arbitrarily passed the impugned order.
9.6 Rule 33 clearly provides that no order imposing any penalty on an employee can be passed except in the manner and after following the procedure laid down in Schedule III. 9.7 Admittedly none of the procedures laid down in Schedule-III has been followed in the instant case. The entire proceeding as well as the impugned order, being contrary to the said provision, are nonest.
9.8 The charges against the petitioner were regarding processing and settling two daughters' marriage advance claims of one Shri Pado Manjhi. The petitioner was a Dealing Assistant. The daughters' marriage advance claims are to be settled by the Regional Commissioner. The file comes to the Dealing Assistant after the order passed by the Regional Commissioner only to process the file further. -5- 9.9 A Dealing Clerk has no authority to put any objection against the order passed by the competent authority - the Regional Commissioner.
9.10 The charges are absurd and frivolous. The petitioner specifically denied the charges. But neither enquiry officer nor the disciplinary authority considered the reply. 9.11 The charges are not substantiated by any evidence.
10. The penalty of removal from service is the result of total non- consideration of facts and materials on record by the inquiry officer as well as by the disciplinary authority and total non-application of their independent mind.
11. The punishment is also unconscionably disproportionate and on that ground too, the impugned order is not sustainable and is liable to be quashed.
12. The respondents have contested the writ petition by filing counter affidavit. It has been, inter-alia, stated that the petitioner was a Dealing Assistant in the Section and he had processed the file and settled the two daughters' marriage advance claims of Shri Pado manjhi - CMDMA A/c No.C/433422 without proper scrutiny and verification of claims. The said settlement of the claims without proper scrutiny resulted into fraudulent withdrawal from the fund account and committed grave negligence of duty.
13. It has been further submitted that inquiry officer, after due inquiry, has come to the conclusion and found the petitioner guilty of the said charges. The disciplinary authority agreed with the inquiry report and has imposed penalty of removal of the petitioner from service. Since the petitioner was found to be a -6- negligent employee, removal from service is not disproportionate penalty and there is no illegality in the impugned order.
14. I have heard learned counsel for the parties and considered the facts and materials on record.
15. It has not been denied by the respondents that the petitioner is governed by the provisions of the Coal Mines Provident Fund (Staff & Conditions of Service) Regulations, 1964 which provides for dealing with the disciplinary proceeding of the employee in a great detail.
16. Learned counsel for the respondent submitted that Rule 4 of the Regulation empowers to take aid of CCS (CCA) Rules in the matter not covered by the Regulation which are applicable to the corresponding category of Central Government Servants subject to such modifications and variations as the Commissioner may, with the approval of the Central Government, by order, specify from time to time. He further submitted that Regulation 27 almost also provides for the same Conduct Rules which is applicable to the Central Government employees.
17. Learned counsel submitted that in view of the said provisions of Rules 4 and 27 of the Regulation, there is no illegality if the proceeding was initiated under the CCS (CCA) Rules. He further submitted that admittedly the petitioner was a Dealing Assistant in the Section in which the marriage advance claims were processed and settled. Though the order is to be passed by the officer, the Dealing Assistant, through whom the files passed, cannot be absolved from the charges. He further submitted that since the petitioner has been found to be negligent, his continuation in the -7- service is not in the interest of Organization and, as such, the penalty of removal from the service is not disproportionate, arbitrary or illegal.
18. The Staff Regulation, 1964 has been brought on record by the respondents as Annexure-1, I find that Chapter-V of the Regulation deals with conduct and discipline of the employees of the Organization in details.
19. Regulation-31 prescribes the various penalties to be imposed on an employee.
20. Regulation 33 provides that no order imposing on an employee any of the penalties specified in Regulation 31 shall be passed except in the manner and after following the procedure laid down in Schedule-III. Schedule-III is appended to the Regulation.
21. I find that an exhaustive procedure has been provided for imposing minor and major penalty against employee of the Organisation.
22. Admittedly, the said provisions and procedures, which are applicable to the petitioner, have not been followed. The proceeding against the petitioner was initiated under the CCS (CCA) Rules and the penalty has been imposed under that Rules.
23. In view of the clear bar imposed by Regulation-33 of the Staff Regulation, no order of any penalty can be passed except in the manner and after following the procedure laid down under Schedule-III of the Staff Regulation.
24. I, therefore, find that the order of penalty passed by them is contrary to the said mandatory provisions of Regulation 33 of the Staff Regulation.
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25. I further find that it is an admitted position that the petitioner was only a Dealing Clerk and he had not passed the order on the daughters marriage advance claim of Shri Pado Manjhi. The order was passed by the Regional Commissioner. The petitioner, thereafter, had processed the order.
26. Once the authority passes an order, an employee like a Dealing Assistant normally cannot have courage to put any objection or judge the merit of the order. The petitioner had taken the same defence in his reply, but that has been totally brushed aside by the inquiry officer as well as by the Disciplinary Authority without assigning any reason.
27. There is no finding that the Regional Commissioner had passed order on the recommendation of the petitioner. The inquiry officer has only dealt with the charges and the probabilities and has concluded that charges are proved against the petitioner. The finding is not based on material and evidence on record is wholly unfounded and perverse.
28. For the reasons aforementioned, the impugned order dated 4/5th April, 2011 passed by the Commissioner, CMPFO is quashed. This writ petition is allowed.
29. The petitioner is, accordingly, held entitled to be re-instated forthwith with full back wages and other consequential benefits.
(Narendra Nath Tiwari, J.) Jharkhand High Court, Ranchi Dated 1st February, 2013 Shamim/NAFR