ASHA DEVI v. The State Of Bihar

Patna High Court CWJC No.11404 of 2008 (05) dt.23-04-2012 3 inquiry report is based on a mere interrogation from the original petitioner and on perusal of the written statement of defence filed by the original petitioner. He has further submitted that the original petitioner had already been punished by way of deduction of Rs. 28,000/-from the Provident Fund account even though he had never drawn this amount and therefore further stoppage of payment of salary in the period of more than two years beyond 50 per cent payment of subsistence allowance during the period of his suspension as also the permanent withholding of 10 per cent of pension for rest of his was/is wholly disproportionate to the misconduct alleged against him. Learned counsel for the State on the other hand, while defending the impugned order of punishment and its affirmatory appellate order has submitted that it was pure and simple case of documentary evidence, inasmuch as, acquaintance roll, it could be easily demonstrated that the petitioner had drawn Rs.

60,500/- by acknowledging in writing and in fact he himself had admitted before Patna High Court CWJC No.11404 of 2008 (05) dt.23-04-2012 4 the Authorities prior to the inquiry as also before the inquiry officer that total withdrawal made by him was Rs. 60,500/-. He has submitted that this itself would go to show that even rest of Rs. 28,000/-, for which no receipt could be found in the hand and signature of the original petitioner and which amount was alleged to have been embezzled by the then D.E.O, Sitamarhi and the Head-clerk was also unauthorizedly withdrawn by the original petitioner himself. He has also submitted that withdrawal from G.P.F is governed by the statutory rules i.e Bihar G.P.F Rules and any employee drawing amount without giving receipt and failing to explain such withdrawal would be also held to have committed misconduct. In this regard, he has also drawn attention of this court that there was a big scam going around in the office of the D.E.O, Sitamarhi where a person like the petitioner working on the post of teacher in different High Schools were drawing amount from their own Provident Fund account in violation of the provisions of G.P.F rules even without Patna High Court CWJC No.11404 of 2008 (05) dt.23-04-2012 5 giving any receipt and in this way a substantial amount of Government exchequer was embezzled by the concerned P.F account holder including the original petitioner, in league with the Drawing and Disbursing Officer, namely the D.E.O and the Head- clerk of the office of D.E.O being incharge Provident Fund account.

He emphasized that for such embezzlement even criminal case was lodged against the erring officials and the Provident Fund account holder teachers including the original petitioner. In the considered opinion of this court, there can be no two views that the provision of Bihar G.P.F Rules were violated by the concerned D.E.O causing loss to the State exchequer as has also been noted by this Court in the order dated

13.09.1999 passed in C.W.J.C No. 3757 of 1998, wherein, it was held that the bungling had been committed on account of improper maintenance of G.P.F account in the office of the D.E.O, Sitamarhi. As a matter of fact, only after the intervention of this Court the G.P.F amount were transferred to the Office of District Patna High Court CWJC No.11404 of 2008 (05) dt.23-04-2012 6 Provident Officer, Sitamarhi, prescribed authority competent to deal with the Provident Fund account of all the employees in the district. The fact that this Court did not enter into the defence of the original petitioner as also the lodging of the F.I.R against him by itself would be sufficient to show that at that point of time when the whole bungling of the misappropriation of Provident Fund had come to the notice of the Authorities, it was found that the original petitioner might have played a role. As a matter of fact, the Authorities had lodged a criminal case and had also initiated a departmental proceeding only after the order of this Court and the original petitioner was placed under suspension on 10.01.2000.

The charges against the original petitioner in the departmental proceeding reads as follows:- 1- vki fnukad 19-4-65 ls uoEcj 95 rd mPp fo|ky; [kM+dk esa dk; Zjr FksA o’kZ 1988 rd dh vof/k esa fo|ky; dfeZ;ksa ds Hkfo’; fuf/k ys[kk ls voS/k vkSj vfu; fer vfxze fudklh dh xbZ ijUrq vkius mDr vof/k esa bl laca/k esa dksbZ fyf[kr f” kdk;r ugha fd;k vkSj u gh bl voS/k fudklh ij izdk” k Mkyk cfYd mPp fo|ky; [kM+dk ls vU;= LFkkukUrj.k ds i” pkr o’kksZa ckn 1997 esa lwfpr fd;k fd fo|ky; dfeZ;ksa ds Hkfo’; fuf/k ys[kk ls voS/k vkSj vfu; fer vfxze dh fudklh iz/kkuk/;kid }kjk dh x;h gSA mDr vof/k esa vkidk ekSu /kkj.k :i ddjrk gS fd bl ?kksVkyk esa vki lfEefyr jgsa gSA 2- vkids }kjk le;≤ ij Hkfo’; fuf/k vfxze Lohd‘r gsrq vkosnu d;k x;k gSA vkosnu ds vk/kkj ij gh fofHkUu Lohd`R;kns” k ds rgr jkf” k dh fudklh dh xbZ gSA 3- vkids Hkfo’; fuf/k ys[kk ls dqy 88500&00 :i;s dh fudklh dh Patna High Court CWJC No.11404 of 2008 (05) dt.23-04-2012 7 xbZ gS] ijUrq osru Hkqxrku iath esa ek= 50500&00 :i;s ij gh vkidk izkfIr gLrk{kj vafdr gSA 4- tcfd vkius Lo;a fyf[kr :i esa osru Hkqxrku iath ij izkfIr gLrk{kj vafdr djus ds vfrfjDr 10]000&00 …nl gtkj‰ :i;s vf/kd izkfIr Lohdkj fd;k gSA 5- bl izdkj osru Hkqxrku iath ds vfrfjDr vkids }kjk fyf[kr esa jkf” k ds izkfIr ls ;g izekf.kr gksrk gS fd bl ?kksVkyk esa vkidh vge Hkwfedk gSA bl rjg ckfd 28]000&00 ¼vBkbl gtkj½ :i;s dh jkf” k ftldk la/kkj.k osru Hkqxrku iath esa ugha fd;k x;k gS fd jkf” k vkids }kjk gh izkIr dh x;h gS izrhr gksrk gSA mDr vkjksiksa ds vk/kkj ij Jh jkmr dks foHkkxh; dkjokbZ ds v/kuh fd;k tkrk gSA The petitioner had thereafter filed his written statement of defence on

04.01.2001, wherein, he had categorically denied all the charges and had also stated that he had withdrawn a sum of Rs. 60,500/- in five installments by way of loan from his own P.F account but a sum of Rs. 28,000/- was drawn by someone else by submitting the false application in the name of the original petitioner and for which there was also no documentary proof of the original petitioner having ever been paid such amount. It appears thereafter a departmental proceeding was conducted and inquiry report was submitted by the inquiry officer on 06.11.2001, wherein, he had charges against petitioner to have been proved. It is, however, significant to note here that the Patna High Court CWJC No.11404 of 2008 (05) dt.23-04-2012 8 date of hearing in the departmental proceeding was fixed as 14.03.2001 which was the first date fixed in the inquiry but the concerned Authority of the Education Department including the Headmasters of those Schools did not appear nor any record was produced and when the original petitioner also had not appeared on the aforesaid date of inquiry.

The inquiry officer in such circumstances had fixed another date of inquiry as 04.07.2001, in which all others including the original petitioner appeared barring Headmaster of the School, Kharka. Thus from the inquiry report itself this much becomes clear that when the inquiry was conducted on only one date i.e 04.07.2001, and when the Headmaster of high School, Kharka had not appeared, the charges against the original petitioner on the basis of even documentary evidence could not have been proved inasmuch as whatever applications were allegedly filed by the original petitioner in capacity of teacher of High School, Kharka could not be brought before the inquiry officer on account of absence of the Headmaster of the High School, Patna High Court CWJC No.11404 of 2008 (05) dt.23-04-2012 9 Kharka. In such a situation, this Court find it difficult to approve the following findings of the inquiry officer which seems to be contrary to the materials on record namely:- dafMdk&1- tkap inkf/kdkjh dk earO; %& Jh jkmr }kjk mDr fo|ky; ls LFkkukUrfjr gks tkus ds okn ?kksVkys dh tkudkjh izkIr gksuk rF; ls ijs gSa muds }kjk ?kksVkys dh lwpuk iznku dh x;h tc mDr fo|ky; ds fyfid dh e‘R;q rFkk rRdkyhu iz/kkuk/;kid lsok fuo‘r gks pqds FksA brus vof/k chr tkus ds ckn ?kksVkys dk izdk” k esa vkuk ;g lkfcr djrk fd Jh fo’.kqnso jkmr lgk;d f” k{kd dks ?kksVkys dh tkudkjh Fkh rFkk os mlesa lafyIr FksA dafMdk&2- tkap inkf/kdkjh dk earO; %& foHkkxh; inkf/kdkjh ds earO; ls lgerA dafMdk&3- tkap inkf/kdkjh dk earO; %& Jh jkmr }kjk Hkfo’; fuf/k ls 88]500@:- vfxze izkIr djus ds ckn osru Hkqxrku iath ij ek= 50]500&00 dh izkfIr ij gh gLrk{kj djuk ;g lkfcr djrk gS fd os bl ?kksVkys esa lafyIr gSaA dafMdk&4- tkap inkf/kdkjh dk earO; %& Jh jkmr }kjk vyx ls fyf[kr izLrqr djuk fd os osru Hkqxrku iath ij izkIr jkf” k ls 10]000&00 vf/kd izkIr fd;k gS blls lkfcr gks tkrk gS fd Jh jkmr dk ?kksVkys esa iw.kZ Hkwfedk jgh gSA dafMdk&5- tkap inkf/kdkjh dk earO; %& Jh jkmr }kjk osru Hkqxrku iath ij izkIr jkf” k ls vyx jkf” k dh izkfIr dh LohdkjksfDr ;g lkfcr djrk gS fd mudk bl ?kksVkys esa lafyIrrk FkhA It has to be noted that these findings in respect of the six charges are not supported by any documentary evidence presented before the inquiry officer much less discussed in the inquiry report.

In any event, charge no. 4 and 5 which were the main charges against the original petitioner could not have been proved because the inquiry officer had proceeded on the basis that original Patna High Court CWJC No.11404 of 2008 (05) dt.23-04-2012 10 petitioner had separately admitted in writing of drawing further sum of Rs. 10,000/- beyond a sum of Rs. 60,500/- by way of loan from the Provident Fund account. The fact however remains that his signature on the acquaintance roll was only for a sum of Rs. 60,500/- and no such separate written admission having been brought by the respondents on record in the counter affidavit, despite a categorical assertion made by the original petitioner in the writ application, by itself would be sufficient to show that the so called admission of the original petitioner taken into account by the inquiry officer had made him incorrectly believe that all the charges against the original petitioner were proved.

Let it be noted that the whole approach of the inquiry officer was itself based on surmises and conjectures, inasmuch as, he had proceeded that if a person like original petitioner himself admitted withdrawal of Rs. 60,500/- by way of loan from his own P.F account, receipt showing payment from the acquaintance roll were to the tune of Rs. 60,500/-, it could be presumed that it was the petitioner who Patna High Court CWJC No.11404 of 2008 (05) dt.23-04-2012 11 had also withdrawn further sum of Rs. 28,000/- totalling to Rs. 88,500/-. If the so called admission on the part of the original petitioner, which is not on record, for the time being is removed from the zone of consideration there was no other evidence before the inquiry officer to substantiate this aspect. The inquiry officer in fact in this regard had failed to take into account the specific defence original petitioner, inasmuch as, in his written statement of defence he had categorically asserted that he had applied for loan for a sum of Rs.

60,500/-from his own Provident Fund account and had also received such payment by acknowledging in writing in the acquaintance roll. Thus, acquaintance roll was the main document, its verification was to be made by the inquiry officer by also recording the extract of its relevant pages in the inquiry report where the signature of the original petitioner was found to be there and after synchronization with the date of application original petitioner seeking such withdrawal. Nothing Patna High Court CWJC No.11404 of 2008 (05) dt.23-04-2012 12 of this sort however has been done, as is clear from the aforementioned findings recorded by the inquiry officer. The inquiry proceedings of one day only and sweeping findings therefore leave a lot desired. It departmental proceeding, the onus to prove the charges cannot be of the same standard as is required in a criminal case but nonetheless the charges have to be still proved by the department by applying the principles of preponderance of probability.

Here when no document at all was produced and in support of payment of additional amount of Rs. 28,000/- to the petitioner, the finding of the inquiry was based on either assumptions existent admission of the original petitioner, this Court would find it difficult to approve the approach of the inquiry officer in holding that all the charges against the original petitioner were proved. Unfortunately, when this aspect was specifically asserted by the original petitioner in his second show cause reply before the Director of Secondary Education, the impugned order of punishment did not Patna High Court CWJC No.11404 of 2008 (05) dt.23-04-2012 13 even remotely refer to the same and in a mechanical manner, the Director Secondary Education had passed the impugned order of punishment holding that since the second show cause reply filed by the petitioner was not satisfactory, he must be punished in view of the finding of guilt recorded by the inquiry officer.

As a matter of fact, though appellate Authority, Principal Secretary of the Human Resources Development Department, had passed a reasoned order but he too has not addressed himself to the specific assertion of the original petitioner that he had never admitted to have received payment of Rs. 10,000/- beyond Rs. 60,500/- without giving receipt, aspect specifically asserted by him in the memo of appeal. Thus there is a complete non consideration of the defence of the original petitioner and on this ground also both the order of punishment cannot be sustained. The original petitioner had died during pendency application and it is the widow who is now pursuing the matter because of the Patna High Court CWJC No.11404 of 2008 (05) dt.23-04-2012 14 financial implication, inasmuch as, the original petitioner had stood deprived of payment of salary beyond subsistence allowance for a period of four years and two months i.e. from 10.01.2000 to

31.03.2004, and further permanent stoppage of 10 per cent of pension. Though this Court is not impressed with the submission of Mr. Jha, that such order of punishment could not have been passed after the retirement of the original petitioner, inasmuch as, continuing departmental proceeding during service career of an employee could definitely be continued even after his retirement as was held by the Full Bench of this Court in the case of Shambhu Saran vs The State of Bihar and Ors., reported in 2000(1) PLJR 665. The question, however, would still be, once an inquiry has to be conducted in terms of Rule-43-B of Bihar Pension Rules after the retirement of the Government servant, the same has to be circumscribed with two limitations namely, the misconduct be either a grave misconduct and/or causing pecuniary loss to the Government. Once, the original petitioner himself had withdrawn Patna High Court CWJC No.11404 of 2008 (05) dt.23-04-2012 15 money of his accumulated amount from his own Provident Fund account and in fact had already stood deprived of a sum of Rs.

28,000/- of his own Provident Fund account, it cannot be said that the petitioner had caused pecuniary Government. As regard ingredient misconduct contradistinction concept of a normal misconduct, this Court must hold that the alleged charges would not constitute grave misconduct only as against the original petitioner. In this regard, it has to be original petitioner explained withdrawal Provident Fund account was as follows:- fnukad 4-2-88 15-5-89 14-2-91 29-5-93 31-5-94 i=kad 904&6 5011&13 976&78 1339 1364 “vfxze yh xbZ jkf” k eatwj dh xbZ jkf’k 9]500&00 9]000&00 12]000&00 10]000&00 20]000&00 60500&00 fnukad 22-4-90 17-4-93 i=kad 2004&6 932&34 QthZ fudklh eatwj dh xbZ jkf’k 10]000&00 18]000&00 28]000&00 eatwj djusokys inkf/kdkjh ftyk f” k0 i0 lhrke<+h ftyk f” k0 i0 lhrke<+h ftyk f” k0 i0 lhrke<+h ftyk f” k0 i0 lhrke<+h ftyk f” k0 i0 lhrke<+h eatwj djusokys inkf/kdkjh ftyk f” k{kk inkf/kdkjh ftyk f” k{kk inkf/kdkjh bl izdkj esjs [kkrk la[;k 797 bZ-Mh-,u lhV ls dqy fudklh 88500&00 :0 gS ftlesa ls eSaus ek= 60500&00 :i;s ds y, vkosnu fn;k ,oa izkIr Hkh fd;k rFkk vius osru ls iwjh jkf” k dh okilh fdLrokj ds :i esa dj fn;k] ftldk fooj.k fuEu izdkj gSA m0fo0 Hkxokuiqj cS” kkyh esa& m0fo0 Hkxokuiqj cS” kkyh esa Mh0,e0 ,dsMeh cxgk i0 pEikj.k esa 48000&00 07000&00 08000&00 61000&00” dqy okilh Patna High Court CWJC No.11404 of 2008 (05) dt.23-04-2012 16 This court fails to understand as to how a person like the original petitioner who was allegedly granted loan of Rs. 18,000/- on 17.04.1993, as was alleged by the Authorities could have been granted further amount Rs. 10,000/-