Narendra Choudhary vs State Of Jharkhand & Ors on 20 November, 2014

[Cites 0, Cited by 4]

Jharkhand High Court

Narendra Choudhary vs State Of Jharkhand & Ors on 20 November, 2014

Petitioner has retired on 31.1.2011 from the post of Section Officer in Water Resource Department, Government of Jharkhand. He had joined service on 10.6.1980. The writ petition has been preferred by the petitioner challenging the order of Censure dated 2.1.2004, (Annexure-6) passed by the Secretary, Water Resource Department, Government of Jharkhand in a departmental proceeding initiated by the resolution no. 1019 dated 22.8.2001(Annexure-4). He has prayed for grant of 2nd A.C.P w.e.f 10.6.2004 instead of 1.4.2005 and accordingly pay all the retirement benefits to him in the revised scale after setting aside of the order of Censure. Petitioner has also prayed for payment of arrears of salary for the period from 10.6.2004 to 31.1.2011 upon shifting of the date of 2nd A.C.P. Petitioner has also asserted at para 11 of the writ petition that he has preferred an appeal before the Secretary of the Department against the order of Censure on 31.1.2004, but no order has been passed till date. Such statement, however is not supported by any documents rather have been categorically denied by the respondents in their counter affidavit at para 14.

The respondents have filed their counter affidavit and stated that the departmental proceeding was initiated on charge of indiscipline and insensitiveness in making delay in putting up the concerned files with regard to appointment on compassionate ground against the petitioner by resolution dated 22.8.2001. After giving proper opportunity to the petitioner the punishment of Censure was imposed upon him by the impugned order at Annexure-6 dated -2- 2.1.2004. It is the contention of the respondents that on account of imposition of punishment of Censure the benefit of 2 nd A.C.P was given w.e.f. 1.4.2005 as the order of Censure operated till 31.3.2005. It is further stated that the impugned order of Censure was passed after giving proper opportunity to the petitioner.

Petitioner has sought to challenge the Office Order dated 25.1.2012 through I.A. No. 5988 of 2014 where under the provisional grant of M.A.C.P w.e.f. 10.6.2010 has been cancelled as the benefits of M.A.C.P got deferred as 2nd A.C.P was also deferred for 9 months 21 days on account of effect of Censure upon him. According to the petitioner, he has been penalized more than once on account of the punishment of Censure passed on 2.1.2004. Therefore, learned counsel for the petitioner prays that the proposed amendments may be allowed to be incorporated in the main writ application.

Having heard counsel for the parties and after going through the relevant materials on record, this Court is not satisfied with the grounds made out by the petitioner for quashing of the order of punishment of Censure dated 2.1.2004 or to shift the date of grant of A.C.P. when the writ petition has been preferred on 14.11.2011 after a delay of more than 7 years and after retirement of the petitioner on 31.1.2011. Petitioner was conscious that the benefits of 2 nd A.C.P had been deferred for a period of 9 months and 21 days on account of order of Censure passed on 2.1.2004 upon him. The contention of the petitioner that he has preferred an appeal against the order of Censure is not supported by any documents or proof thereof rather squarely denied by the respondents.

It is well settled that in a proceeding like in the writ Jurisdiction, pleadings are to be substantiated by the supporting documents as has been held by the Hon'ble Supreme Court in the case of Bharat -3- Singh & others Vrs. State of Haryana & others reported in 1988(4) SCC 534, para 13 thereof. Therefore, the prayer of the petitioner for grant of 2nd A.C.P from 10.6.2004 also does not appear to be sustainable as the A.C.P itself was deferred in view of the order of Censure being in force till 31.3.2005 where after it was granted w.e.f. 1.4.2005. It further appears that petitioner was granted M.A.C.P, Annexure-7 vide order dated 3.11.2010 on purely provisional basis subject to the confirmation and that it would be covered by the relevant provisions of the scheme / resolution as contained in resolution no. 2981 dated 1.9.2009. It further contained a condition that if the grant of such provisional M.A.C.P is found to be suffering from errors and irregularity, any payment made there upon would be liable to be recovered. Apparently, at the time of confirmation of 2 nd A.C.P, the respondent- department has found that due to the specific provision contained in the resolution no. 2981 dated 1.9.2009, the grant of M.A.C.P would also be deferred for the proportionate period for which the benefits of 2nd A.C.P was deferred in view of the punishment of Censure imposed upon the petitioner i.e. for 9 months 21 days. Petitioner would have completed 30 years of service on 10.6.2010 and would have been entitled to the benefits of M.A.C.P there upon but by adding 9 months 21 days there to, the relevant date on which he would be entitled would be 31.3.2011. The petitioner has however already superannuated on 31.1.2011 itself. So the benefit of 3rd M.A.C.P was not permissible to be paid to the petitioner.

Therefore, for the reasons indicated herein above, the order dated 25.1.2012, which is sought to be impugned also does not suffer from any infirmity. More so the order of M.A.C.P was only provisional in nature and subject to the confirmation. Therefore, the proposed amendments are also refused and I.A. No. 5988 of 2014 -4- stands rejected.

So far as prayer of the petitioner for payment of retirement benefit is concerned, learned counsel appearing on behalf of the respondent- Office of Accountant General, Jharkhand has pointed out that the relevant service book and sanction order for finalization of the pension and issuance of authority slip has also not been received in their Office by the time when their affidavit was being filed.

If that be so, petitioner would made a representation before the Secretary, Department of Water Resource, Government of Jharkhand, respondent no.1 for redressal of his grievance relating to fixation of final pension, gratuity, etc duly supported with all the necessary facts and documents and also enclosing the copy of this judgment. On receipt of such representation, the respondent no.1, Secretary, Department of Water Resource, Government of Jharkhand would take a decision thereupon in accordance with law after due scrutiny of the relevant record of the petitioner within a period of 10 weeks, thereafter. Based upon such decision, necessary sanction order be also issued in favour of the office of Accountant General, Jharkhand - respondent no.6 without any delay thereafter so that the respondent no.6, the office of Accountant General may scrutinize the same and issue authority slip in favour of the petitioner for payment of admissible pensionary dues preferably 4 weeks, thereafter.

Accordingly, the writ petition is disposed of with the aforesaid observation.

(Aparesh Kumar Singh, J.) A. Mohanty

Unlock Advanced Research with PRISMAI

Jharkhand High Court