1 L.P.A. No.483 of 2014 IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 483 of 2014 Nitya Nand Sharma, son of late Upendra Narayan Sharma, resident of Village – Ganoul, P.O. & P.S. - Narayanpur, District – Bhagalpur (Bihar) … … … … … … Appellant Versus 1. The State of Jharkhand through the Secretary, Minor Irrigation Department, having office at Nepal House, P.O. & P.S. - Doranda, Town and District – Ranchi 2. The Executive Engineer, Minor Irrigation Division, Chaibasa 3. The Accountant General (A&E), Jharkhand, Ranchi … … ... … ... ... Respondents ------ CORAM: HON'BLE MR. JUSTICE D. N. PATEL HON'BLE MR. JUSTICE AMITAV K. GUPTA ----- For the Appellant: M/s. Manoj Tandon, Kumari Rashmi For the Respondents: M/s. LCN Shahdeo (GP-IV), Pratiyush Lal, J.C. ------ 11/Dated:
1. t August, 2016 Oral Judgment Per D.N. Patel, J.
1) This Letters Patent Appeal has been preferred against the judgment and order delivered by learned Single Judge in W.P. (S) No.7166 of 2012, order and judgment dated 16th October, 2014, whereby the petition preferred by this appellant was partly allowed and the order for recovery passed by the respondents-State has been quashed and set aside, nonetheless, simultaneously, liberty was reserved with the State to initiate departmental action against the appellant for the alleged misconduct of the year 1998.
2) It is alleged by the respondents-State that when this appellant was serving as a Junior Engineer at South Kosi Canal Division of Andhrathari, there was some financial irregularity in maintenance of the items at the Stores. For this purpose, directly, orders of recovery for an amount of Rs.14,42,300/- was issued on 31.10.2012, 17.11.2012 and 28.02.2013. These orders were challenged by the appellant in W.P. (S) No.7166 of 2012 and they have now been quashed and set aside by the learned Single Judge reserving liberty with the respondents-State to initiate departmental action against this appellant, for which this appellant has 2 L.P.A. No.483 of 2014 preferred this Letters Patent Appeal mainly on the ground that the alleged misconduct is of the year 1998. This appellant (original petitioner) has retired on 31st August, 2009 and, hence, as per Rule 43(b) of the Jharkhand Pension Rules, if the alleged misconduct has been committed prior to four years of the initiation of the departmental proceedings, the departmental proceedings cannot be initiated against the retired employee.
3) Counsel for the appellant (original petitioner) has also relied upon the decision of the Hon'ble Supreme Court reported in 1995 Supp (3) SCC56(paragraphs 7 and 10 thereof). On the basis of the said decision, it is submitted by the counsel for the appellant that the liberty reserved by the learned Single Judge while partly allowing the writ petition, also deserves to be quashed and set aside, because, for the alleged misconduct of the year 1998, no enquiry can be conducted in the year 2016 i.e. after approximately 18 years. Otherwise also, for a stale misconduct, no enquiry can be held. Counsel for the appellant (original petitioner) has also relied upon the following decision to substantiate the aforesaid legal contention and in view of all these aspects of the matter, the direction given by learned Single Judge to hold departmental proceedings in the penultimate paragraph of the decision given in W.P. (S) No.7166 of 2012 by a judgment and order dated 16th October, 2014 deserves to be quashed and set aside.
4) Counsel for the respondents-State submitted that when this appellant was Junior Engineer in the Stores of the respondents, he committed a grave misconduct and there was defect of several items worth Rs.14,42,300/- and, therefore, notice was given in the year 2010 and ultimately, the orders for recovery were passed. The learned Single Judge has quashed and set aside the orders for recovery and has directed the respondents to take a decision afresh after holding enquiry against this appellant. When this appellant has misappropriated such a huge amount, the State is bound to recover the amount after holding enquiry. Counsel for the respondents-authorities has also relied upon the decision rendered by this Court reported in 2004(2) JLJR426especially upon paragraphs 5 and 6 thereof. On the basis of the aforesaid decision, it is submitted by the counsel for the respondents-State that if any employee of the State has taken wrongly the benefit, the said benefit 3 L.P.A. No.483 of 2014 which is wrongly given to the employee of the State, can always be recovered. This aspect of the matter has been properly appreciated by the learned Single Judge while giving direction to the respondents to hold enquiry and to recover the amount and, hence, this Letters Patent Appeal may not be entertained by this Court. REASONS5 Having heard learned counsels for both sides and looking to the facts and circumstances of the case, we, hereby, quash and set aside the direction given by the learned Single Judge that the respondents- Department shall take a decision afresh in respect of recovery of the amount alleged to be found in a shortage in the stores of the South Koshi Canal Division at Andhrathari after due compliance of the principles of natural justice i.e. after issuance of proper show cause notice to him. This direction is, hereby, quashed and set aside mainly for the following reasons and facts: - (i) This appellant (original petitioner) was serving as a Junior Engineer, Minor Irrigation Division, Ranchi. (ii) This appellant (original petitioner) retired from service on 31st August, 2009. (iii) Rule 43(b) of the Jharkhand Pensions Rules reads as under: - “43(a)xxx xxx xxx xxx (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 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; 4 L.P.A. No.483 of 2014 (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. Explanation.- For the purpose 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 proceeding shall be deemed to have been 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 the 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.” (Emphasis supplied) (iv) In view of the aforesaid Rules, it appears that, if the State wants to hold a departmental enquiry, then it can always hold such enquiry provided the misconduct is committed by the delinquent employee within a period of four years from the initiation of the departmental proceedings. In the facts of the present case, the alleged misconduct is of the year 1998. This appellant also retired on 31st August, 2009 and hence, in view of the aforesaid Rules, the respondents-authorities cannot hold the departmental enquiry. (v) It has been held by Hon'ble Supreme Court in the case of State of Bihar and others Vs. Mohd. Idris Ansari reported in 5 L.P.A. No.483 of 2014 (1995) Supp (3) SCC56in paragraphs 7 and 10 as under: -
“7. A mere look at these provisions shows that before the power under Rule 43(b) can be exercised in connection with the alleged misconduct of a retired government servant, it must be shown that in departmental proceedings or judicial proceedings the government servant concerned is found guilty of grave misconduct. This is also subject to the rider that such departmental proceedings shall have to be in respect of misconduct which took place not more than four years before the initiation of such proceedings. It is, therefore, apparent that no departmental proceedings could have been initiated in 1993 against the respondent under Rule 43(a) and (b), in connection with the alleged misconduct, as it alleged to have taken place in the year 1986-87. As the alleged misconduct by 1993 was at least six years’ old, Rule 43(b) was out of picture. Even the respondent authorities accepted this legal position when they issued notice dated 27-9-1993. It was clearly stated therein that no action can be taken under Rule 43(b) of the Rules as the period of charges has been old by more than four years. It is equally not possible for the authorities to rely on the earlier notice dated 17-10-1987 as proceedings pursuant to it were quashed by the High Court in Writ Petition No. 6696 of 1991 and only liberty reserved to the respondent was to start fresh proceedings. The High Court did not permit the respondent to resume the earlier departmental inquiry pursuant to the notice dated 17-10- 1987 from the stage it got vitiated. The respondent also, therefore, did not rely upon the said notice dated 17-10-1987 but initiated fresh departmental inquiry by the impugned notice dated 27-9-1993. Consequently it is not open to the learned advocate for the appellant to rely upon the said earlier notice dated 17-10-1987.
10. So far as the second type of cases are concerned the proof of grave misconduct on the part of the government servant concerned during his service tenure will have to be culled out by the revisional authority from the departmental proceedings or judicial proceedings which might have taken place during his service tenure or from departmental proceedings which may be initiated even after his retirement in such type of cases. But such departmental proceedings will have to comply with the requirements of Rule 43(b). Consequently a retired government servant can be found guilty of grave misconduct during his service career pursuant to the departmental proceedings conducted against him even after his retirement, but such proceedings could be initiated in connection with only such misconduct which might have taken place 6 L.P.A. No.483 of 2014 within 4 years of the initiation of such departmental proceedings against him. In the present case, the respondent retired on 31-1-1993 and the show-cause notice was issued on the ground of grave misconduct on 27- 9-1993 and not on the ground that service record of the pensioner was not thoroughly satisfactory. It was issued by the State Government as sanctioning authority. It had, therefore, to be read with Rule 43(b). Such notice therefore, could cover any misconduct if committed within 4 years prior to 27-9-1993 meaning thereby it should have been committed during the period from 26-9-1989 up to 31-1-1993 when the respondent retired. Only in case of such a misconduct, departmental proceedings could have been initiated against the respondent under Rule 43(b). In such proceedings, if he was found guilty of misconduct he could have been properly proceeded against under Rule 139(a) and (b). On the facts of the present case it must be held, agreeing with the High Court that the notice dated 27-9-1993 invoking powers under Rule 139(a) and (b) was issued wholly on the ground of alleged past misconduct and was not based on the ground that service record of the respondent was not thoroughly satisfactory. So far as that ground was concerned, on a conjoint reading of Rule 43(b) and Rule 139(a) there is no escape from the conclusion that as the alleged misconduct was committed by the respondent prior to 4 years from the date on which the show-cause notice dated 27-9-1993 was issued, the appellant authority had no power to invoke Rule 139(a) and (b) against the respondent on the ground of proved misconduct. Consequently, it had to be held that proceedings under Rule 139 were wholly incompetent. The High Court was equally justified in quashing the final order dated 13-12-1993 as there is no proof of such a misconduct. No question of remanding the proceedings under Rule 139(a) and (b) would survive as the alleged grave misconduct could not be established in any departmental proceedings after the expiry of four years from 1986-87, as such proceedings would be clearly barred by Rule 43(b) proviso (a)(ii). Consequently the show-cause notice dated 27-9-1993 will have to be treated as stillborn and ineffective from its inception. Such a notice cannot be resorted to for supporting any fresh proceedings by way of remand. For all these reasons no case is made for our interference in this appeal. In the result appeal fails and is dismissed. There is no order as to costs.” (Emphasis supplied) (vi) In view of the decision, if the alleged misconduct committed by 7 L.P.A. No.483 of 2014 the delinquent is earlier than four years from the date of initiation of the departmental proceedings, no departmental proceedings can be initiated against the delinquent employee of the State. These aspects of the matter have not been properly appreciated by the learned Single Judge while giving direction in the penultimate paragraphs of the decision in W.P. (S) No.7166 of 2012 judgment and order dated 16th October, 2014 and, hence, such direction deserves to be quashed and set aside. (vii) Even otherwise also, the alleged misconduct is of the year 1998 and the fresh enquiry permitted to have been conducted and we are in August, 2016 i.e. after 18 years, no enquiry can be conducted for the alleged misconduct as per Rule 43(b) of the Rules. Even otherwise also, the alleged misconduct is a very stale. (viii) It has been held by Hon'ble Supreme Court in the case of State of Madhya Pradesh Vs. Bani Singh and another reported in 1990 (Supp) 738 as under: -
“4. The appeal against the order dated December 16, 1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with this contention of the learned counsel. The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal’s orders and accordingly we dismiss this appeal.” (Emphasis supplied) (ix) It has been held by Hon'ble Supreme Court in the case of State of A.P. Vs. N. Radhakishan reported in (1998) 4 SCC154as under: - 8 L.P.A. No.483 of 2014
“19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.
20. In the present case we find that without any reference to records merely on the report of the Director General, Anti-Corruption Bureau, charges were framed against the respondent and ten others, all in verbatim and without particularising the role played by each of the officers charged. There were four charges against the respondent. With three of them he was not concerned. He offered explanation regarding the fourth charge but the disciplinary authority did not examine the same nor did it choose to appoint any enquiry officer even assuming that action was validly being initiated under the 1991 Rules. There is no explanation whatsoever for delay in concluding the enquiry proceedings 9 L.P.A. No.483 of 2014 all these years. The case depended on records of the Department only and the Director General, Anti-Corruption Bureau had pointed out that no witnesses had been examined before he gave his report. The Enquiry Officers who had been appointed one after the other had just to examine the records to see if the alleged deviations and constructions were illegal and unauthorised and then as to who was responsible for condoning or approving the same against the bye-laws. It is nobody’s case that the respondent at any stage tried to obstruct or delay the enquiry proceedings. The Tribunal rightly did not accept the explanations of the State as to why delay occurred. In fact there was hardly any explanation worth consideration. In the circumstances the Tribunal was justified in quashing the charge memo dated 31-7-1995 and directing the State to promote the respondent as per recommendation of the DPC ignoring memos dated 27-10-1995 and 1-6-1996. The Tribunal rightly did not quash these two latter memos.” (Emphasis supplied) (x) It has been held by Hon'ble Supreme Court in the case of P.V. Mahadevan Vs Md. T.N. Housing Board reported in (2005) 6 SCC636as under: -
“8. Our attention was also drawn to the counter-affidavit filed by the respondent Board in this appeal. Though some explanation was given, the explanation offered is not at all convincing. It is stated in the counter-affidavit for the first time that the irregularity during the year 1990, for which disciplinary action had been initiated against the appellant in the year 2000, came to light in the audit report for the second half of 1994-95.
9. Sections 118 and 119 of the Tamil Nadu State Housing Board Act, 1961 (Tamil Nadu Act 17 of 1961) read thus:
“118. At the end of every year, the Board shall submit to the Government an abstract of the accounts of its receipts and expenditure for such year.
119. The accounts of the Board shall be examined and audited once in every year by such auditor as the Government may appoint in this behalf.”
10. Section 118 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 relates to annual audit of accounts. These two statutory provisions have not been complied with at all. In the instant case the transaction took place in the year 1990. The expenditure ought to have been considered in the 10 L.P.A. No.483 of 2014 accounts of the succeeding year. In the instant case the audit report was ultimately released in 1994-95. The explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions of the Tamil Nadu Act 17 of 1961. It is now stated that the appellant has retired from service. There is also no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. Mr R. Venkataramani, learned Senior Counsel is appearing for the respondent. His submission that the period from the date of commission of the irregularities by the appellant to the date on which it came to the knowledge of the Housing Board cannot be reckoned for the purpose of ascertaining whether there was any delay on the part of the Board in initiating disciplinary proceedings against the appellant has no merit and force. The stand now taken by the respondent in this Court in the counter-affidavit is not convincing and is only an afterthought to give some explanation for the delay.
11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.
12. We, therefore, have no hesitation to quash the charge memo issued against the appellant. The appeal is allowed. The appellant will be entitled to all the retiral benefits in accordance with law. The retiral benefits shall be disbursed within three months from this date. No costs.” (Emphasis supplied) (xi) Counsel for the respondents has relied upon the decision 11 L.P.A. No.483 of 2014 rendered by the Division Bench of this Court reported in 2004(2) JLJR426especially upon paragraphs 5 and 6 thereof. (xii) It appears that in the writ petition preferred by this appellant, two issues were raised, (a) about the recovery of Rs.14,42,300/-, (b) about the enquiry. It appears that while deciding the writ petition preferred by this appellant, the learned Single Judge has quashed and set aside the orders of recovery and the State is directed to hold departmental enquiry. Thus, partly the writ petition was allowed, because, orders of recovery were quashed and set aside. (xiii) Thus, the appellant is now aggrieved by the liberty given to the State to hold departmental proceedings. Thus, there is no Letters Patent Appeal preferred by the respondents-State against the quashing of the recovery notices. In the aforesaid decision, in paragraphs 5 and 6 the ratio decidendi is about the recovery, whereas, the Letters Patent Appeal is mainly preferred by this appellant, because no departmental proceedings can be initiated by the respondents now after 18 years for the alleged misconduct of the year 1998 and, hence, the aforesaid decision is not helpful to the counsel for the respondents-State.
6) As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, we, hereby, quash and set aside the direction given by the learned Single Judge to the State to hold departmental proceedings against this appellant in the penultimate paragraphs of the decision dated 16th October, 2014 while deciding the writ petition being W.P. (S) No.7166 of 2012.
7) Thus, this Letters Patent Appeal is hereby allowed and disposed of. (D. N. Patel, J) Manoj/ (Amitav K. Gupta, J)