Syed Shakil Ahmad Vs. State of Jharkhand and Ors - Court Judgment

1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 1778 of 2012 Syed Shakil Ahmad son of Late Syed Jamil Ahmad, resident of Mohalla Churi Tola, Millat Colony, P.O. and P.S. Kanke, District Ranchi ….. ….. Petitioner Versus 1. The State of Jharkhand 2. Secretary, Water Resources Department, Government of Jharkhand, Nepal House, Doranda, P.O. and P.S. Doranda, District-Ranchi; 3. Deputy Secretary, Water Resources Department, Government of Jharkhand, Nepal House, Doranda, P.O. and P.S. Doranda, District-Ranchi; 4. Under Secretary, Water Resources Department, Government of Jharkhand, Nepal House, Doranda, P.O. and P.S. Doranda, District-Ranchi 5. Engineer-in-Chief, Water Resources Department, Government of Jharkhand, Nepal House, Doranda, P.O. and P.S. Doranda, District-Ranchi 6. Superintendent Engineer, Minor Irrigation Circle, Medini Nagar, P.O. and P.S. Medini Nagar, District Palamau; 7. Executive Engineer, Minor Irrigation Division, Hussainabad, P.O. and P.S. Hussainabad, District Palamau …. Respondents --------- CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ---------- For the Petitioner : Md. Sohail Anwar, Sr. Adv. & A. Ahmad, Adv. For the Respondents : Mr. Prem Pujari Roy (J.C to G.A) ----------- th 19/Dated:12 January, 2016 Per Pramath Patnaik, J.:

1. In the instant writ application, the petitioner has inter alia prayed for quashing of the order dated 29.04.2009 and amended order dated 05.01.2012 passed by the Deputy Secretary, Water Resources Department, Government of Jharkhand, pertaining to imposition of following punishment: (i) Censure for the year 2004-05; (ii) Recovery of 20% of the amount of Rs.1,22,619.60 paise, and (iii) Withholding to increment of salary with cumulative effect, (as contained in Annexure-3 and 10 respectively to the writ application). The petitioner has also prayed for quashing of the portion of office order dated 06.09.2011 issued by the Executive Engineer, Minor Irrigation Division, Hussainabad pertaining to withholding 20% of 4.38 lakhs i.e. Rs.87,600/- and unadjusted advance amount of Rs.2,10,000/- in making payment of the leave encashment amount payable to the petitioner and also for direction to the respondents to make full payment of leave encashment amount payable to the petitioner by releasing the withheld amount of Rs.87,600/- and Rs.2,10,000/-. 2 2. The facts, as disclosed in the writ application, in nut shell, is that during his incumbency as Assistant Engineer in the Minor Irrigation Department, Palamu, an explanation was sought for from the petitioner basing on the report of the Flying Squad. In pursuance to the report of the Flying Squad, the petitioner submitted his reply denying the allegations levelled against him. So far as charge no.1 and 2 are concerned, it is clear from the report of the Flying Squad that no commission or omission has been done by the petitioner. Basing on the report of the Flying Squad, show cause was asked for and the authorities while considering the show cause passed the impugned order of punishment vide order dated 29.04.2009 and order dated 05.01.2012. The impugned order of punishment dated 29.04.2009 has been modified to the extent that 20% of Rs.1,22,619.60 paise was directed to be recovered from the petitioner. Being aggrieved by the impugned order of punishment, the petitioner preferred representation before the respondent nos.1 and 2 to exonerate him from the charges. Subsequently, the petitioner preferred appeal before Governor of Jharkhand and thereafter, sent several reminders in the department but of no avail. Thereafter, the petitioner being aggrieved by the inaction of the authority filed writ petition before this Court bearing W.P. (S) No.5910 of 2010 and the said writ petition was disposed of by permitting the petitioner to pursue before the appellate authority. The petitioner preferred appeal before the respondent no.2 on 31.01.2011. Again, the petitioner filed writ petition before this Hon’ble Court bearing W.P.(S) No. 4404 of 2011 for payment of legally admissible gratuity and leave encashment. Being aggrieved by the impugned order of punishment dated 29.04.2009 and 05.01.2012, the petitioner left with no alternative, approached this Court under Article 226 of the Constitution of India for redressal of his grievance.

3. Mr. Sohail Anwar, learned senior counsel appearing for the petitioner urged before this Court that the impugned order of punishment is perverse, as the show cause submitted by the petitioner has not been duly considered by the authority. Learned senior counsel submits that the impugned order of punishment vide Annexure-3 to the writ petition suffers from non- application of mind and is without jurisdiction, since the petitioner retired from Government service on 31.01.2009 after attaining the age of superannuation, the impugned order of punishment passed on 29.04.2009 3 and the modified order of punishment passed on 05.01.2012 without taking recourse to rule 43 B of the Bihar Pension Rules, the authorities have imposed punishment which is not legally permissible. Learned senior counsel has further submitted that in the instant case, no regular departmental enquiry has been conducted, therefore, the impugned order of major punishment is not legally sustainable. Learned senior counsel has drawn my attention to the order dated 13.08.2013, wherein the respondents have been directed to answer the queries as to whether any departmental proceeding has been initiated for the alleged misconduct or after his retirement any show cause notice has been issued under the Jharkhand Pension Rules for recovery of the alleged amount from his post retiral dues, a supplementary counter affidavit has been filed in pursuance to the aforesaid order which is absolutely silent on the query of the Court.

4. Learned senior counsel has further submitted that leave encashment amount of Rs. 2,34,524/- including the 20% of the recovered amount could not have been recovered from the salary as per the decision rendered in case of Dr. Dudh Nath Pandey vs. State of Jharkhand reported in [2007 (4) JCR1(Jhr) (FB)], wherein at paragraph 21, 22 and 35 the Hon’ble Court has held: “21.Therefore, we are to hold while answering the first question that the government has no power to withhold pension or gratuity on the ground of pendency of judicial or departmental proceeding and there is no power at all for the State Government to withhold the leave encashment under Rule 43(b) at any stage.

22. Let us now deal with the second question. The second question which is raised as an additional issue due to the stand taken by the counsel for the respondents that the circular issued by the Finance Department dated 06.07.1993 provides the power to the Government for withholding the gratuity and leave encashment on the ground of pendency of judicial or departmental proceedings.

35. To sum up the answer for the two questions are as follows: (i) Under Rule 43(a) and 43(b) of Bihar Pension Rules, there is no power for the Government to withhold gratuity and pension during the pendency of the departmental proceeding or criminal proceeding. It does not give any power to withhold leave encashment at any stage either prior to the proceeding or after conclusion of the proceeding. 4 (ii) The Circular, issued by the Finance Department, referring to the withholding of the leave encashment would not apply to the present facts of the case as it has no sanctity of law.”

5. The judgment of this Court has been affirmed by Hon’ble Apex Court reported in 2013(3) JLJR (SC) 537 (State of Jharkhand & Ors. vs. Jitendra Kumar Srivastava & Anr.), wherein at paragraph 4 the Hon’ble Apex Court has held:

“4. Feeling aggrieved with this action of the withholding of his 10 percent of the pension and non-release of the other aforesaid dues, the respondent preferred the writ petition before the High Court of Jharkhand. This writ petition was disposed of by the High Court by remitting the case back to the Department to decide the claim of the petitioner for payment of provisional pension, gratuity etc. in terms of Resolution No.3014 dated 31.07.1980. The appellant, thereafter, considered the representation of the respondent but rejected the same vide orders dated 16.03.2006. The respondent challenged the rejection by filing another writ petition before the High Court. The said petition was dismissed by the learned Single Judge. The respondent filed Intra Court Appeal which has been allowed by the Division Bench vide the impugned orders dated 31.10.2007. The Division Bench has held that the question is squarely covered by the Full Bench decision of that Court in the case of Dr. Dudh Nath Pandey vs. State of Jharkhand and Ors., 2007 (4) JCR1 In the said Full Bench judgment dated 28.08.2007, after detailed discussions on the various nuances of the subject matter, the High Court has held: “To sum up the answer for the two questions are as follows:- (i) Under Rule 43(a) and 43(b) of Bihar Pension Rules, there is no power for the Government to withhold Gratuity and Pension during the pendency of the departmental proceeding or criminal proceeding. It does not give any power to withhold Leave Encashment at any stage either prior to the proceeding or after conclusion of the Proceeding. (ii) The circular, issued by the Finance Department, referring to the withholding of the leave encashment would not apply to the present facts of the case as it has no sanctity of law.”

6. A counter affidavit has been filed on behalf of the respondents controverting the averments made in the writ application. It has been 5 submitted in the counter affidavit that during the financial year 2004-05 the department allotted Rs.22.50 lakhs for the repair work of Latratu reservoir scheme. The Flying Squad observing the work found that less work was done with respect to payment made by the petitioner as well as the other officials. Thereafter, explanation was sought from petitioner vide departmental memo dated 11.12.2006. The petitioner submitted explanation on 25.12.2006 and the department considered the explanation submitted by the petitioner. Since, the department held that Government fund has been misappropriated in the said work, the impugned order of punishment has been passed for the proved charges of misappropriation of government fund. It has further been submitted that after considering the appeal of the petitioner the department passed revised punishment vide order dated 05.01.2012 and 20% of an amount of Rs.1,22,619/- would be recovered from the petitioner.

7. A supplementary counter affidavit dated 27.06.2014 has also been filed by the respondents, reiterating the stands taken in the counter affidavit. But, the said counter affidavit does not meet the query made by this Court vide order dated 13.08.2013. Learned J.C. to G.A., appearing for the State has assiduously argued before the Court that the impugned order of punishment has been passed for the proved misconduct and for alleged misappropriation committed by the petitioner, so no illegality or irregularity has been done by passing the impugned order basing on the admission of the petitioner as per the averment made in paragraph 14 of the writ application. Learned counsel for the State further submits that the writ Court in exercise of power under Article 226 cannot reappraise or reevaluate the evidence led before disciplinary as well as appellate authorities.

8. After hearing learned counsel for the respective parties and on perusal of the records, I am of the considered view that the petitioner has been able to make out a case for interference, due to the following facts and reasons: (I) Admittedly, in the instant case, the impugned orders have been passed on 29.04.2009 and 05.01.2012 vide Annexures-3 and 10 of the writ petition respectively, without initiation of departmental proceeding. Since impugned order of punishment pertains to major punishment, full dressed departmental proceeding should have been initiated prior to infliction of punishment. In the instant case, no such proceeding having been initiated has vitiated the impugned orders rendering the same legally unsustainable. 6 (II) Assuming the sake of argument, if there is defalcation in the work then the authorities ought to have resorted to Rule 43 (b) of the Pension Rules for recovery of the alleged amount. In the instant case, the same have not been done and the impugned orders dated 29.04.2009 and 05.01.2012 have been passed, which are assailable. (III) On perusal of the impugned orders, it is apparent that the findings recorded by the disciplinary authority appears to be perverse and suffers from non-application of mind as per the findings of the Flying Squad, so far as charge nos. 1 and 2 are concerned, no irregularity has been found out. But, in the impugned order some extraneous facts have been taken into account to justify the punishments, which are not supported by the foundational facts, therefore, the impugned order of punishment are liable to be set aside.

9. As a cumulative effect of the facts, reasons and judicial pronouncements and as a logical sequitur to the reasons stated in the forgoing paragraphs, the impugned order of punishment dated 29.04.2009 and 05.01.2012 vide Annexures-3 and 10 to the writ petition are hereby quashed and the respondents are directed to refund the admissible withheld retiral dues, within four months from the date of receipt of the copy of the order.

10. Accordingly, the writ petition stands allowed. (Pramath Patnaik, J.) Saket/-