1. Sushila Sharma 2. Rakesh Kumar Gautam 3. Sunita Sharma 4. Rupesh Kumar Gautam v. 1. The State of Jharkhand. 2. The Secretary, Water Resources Department, Government of Jharkhand
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No.2589 of 2014 ------ 1. Sushila Sharma 2. Rakesh Kumar Gautam 3. Sunita Sharma 4. Rupesh Kumar Gautam 5. Annu Sharma 6. Kumari Archana 7. Kumari Rashim …. …. Petitioners Versus 1. The State of Jharkhand. 2. The Secretary, Water Resources Department, Government of Jharkhand, Nepal House Secretariat, Doranda, Ranchi. 3. The Chief Engineer, Minor Irrigation Circle, Water Resources Department, Dumka. 4. The Superintending Engineer, Minor Irrigation Circle, Dumka. 5. The Executive Engineer, Minor Irrigation Division, Dumka. 6. The S.D.O., Minor Irrigation Sub-Division Kathikund, P.O. & P.S. Kathikund, District-Dumka. 7. The Accountant General, Jharkhand, P.O. and P.S. Doranda, District Ranchi .... .... Respondents
Legal Reasoning
CORAM : HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD ------ For the Petitioner : Mr. Umesh Pathak, Advocate Mr. Kishore Kr. Mishra, Advocate For the State For the Resp. No.7 : Mr. Ashutosh Anand, AAG-III : Mr. Sunil Kr. Agarwal, Advocate ------ 09/Dated: 17.02.2024 1.
Decision
The writ petition is under Article 226 of the Constitution of India, whereby and whereunder, the order dated 04.03.2014 by which, a sum of Rs.2,00,000/- along with interest @ 12 per cent per annum 2 w.e.f. 31.11.2008 has been directed to be recovered, has been questioned. 2. The further direction has been sought for that the aforesaid decision of making recovery has already been acted upon by recovering the amount from the gratuity of the petitioner after his retirement and hence, the direction to refund the said recovery amount of the petitioner, has also been sought for. 3. The brief facts of the case, as per the pleading made in the writ petition, required to be enumerated, which reads as under:- 4. It is the case of the petitioner that he was initially appointed as Junior Engineer vide letter dated 26.01.1979 and pursuant thereto;, he joined his said post of Junior Engineer in Master Planning Investigation Division, Jamui on 03.02.1979 and he remained there till 31.08.1984 and therefrom consequent upon his transfer from Jamui to Irrigation Division, Dumka, the petitioner joined the post on 01.09.1984 and therefrom, he was again transferred to Design Division to Deoghar whereby he joined his said post of Junior Engineer on 08.06.1990 and remained there till 25.06.1992. 5. Thereafter, the petitioner was again transferred from Design Division, Deoghar to Minor Irrigation Division, Dumka and therefrom he was transferred to Minor Irrigation Design Division, Deoghar, whereby the petitioner joined his post of Junior Engineer on 01.01.1999 and remained there till 31.03.2000. After working to the different places, he was ultimately transferred to Minor Irrigation Sub Division, Kathikund under Minor Irrigation Sub Division, Dumka to 3 the post of Junior Engineer. 6. Thereafter, the petitioner has made an application for grant of leave from 20.01.2012 to 30.05.2012 before the authorities concerned which was subsequently forwarded for doing the needful. 7. Vide memo no.4518 dated 31.08.2012 issued under the signature of the under Secretary to the Govt. of Jharkhand, water Resources Department Ranchi, an order was passed regarding transfer of the Junior Engineers working at different places of the water resources department in the State of Jharkhand, wherein, the name of the petitioner has been assigned at serial no.189. No salary w.e.f. 20-1-2012 to 31-8-2012 has been paid to the petitioner despite his repeated representations and best efforts. The petitioner was put under suspension vide letter No. 06 dated 17-1-2013 of the Assistant Engineer in pursuance of order contained in Memo No. 7473 dated 27-12-2012 of the Deputy Secretary, Govt. of Jharkhand, Water Resources Department, Dumka. 8. It is the further case of the petitioner that he made representation on 8-2-2013 before the Deputy Secretary, Water Resources Department, Jharkhand, Ranchi with a copy to Chief Engineer, Water Resources Department, Medininagar, Palamau requesting him to change his Head Quarter during suspension from Medininagar to Dumka in any offices taking into the consideration of the fact that he has been advised to go for cardiac surgery which has not yet been done in absence of money. The petitioner was served with a copy of memorandum of charge dated 27.12.2012. The 4 petitioner vide letter dated 19.03.2013 requested the Inquiry Officer, i.e. Superintending Engineer, Barrage and Gate Design Circle, Ranchi to supply him relevant documents to enable him to submit a proper show cause. 9. On 13.03.2013 and 21.05.2013, the petitioner was asked to submit clarification regarding charge no.I, i.e., Rs.2 lakhs and 3 lakhs in cash which the petitioner submitted on 17.06.2013. 10. Vide letter dated 16-1-09 addressed to Chief Engineer, Minor Irrigation Zone, Dumka the petitioner requested him to make available the details of entries made in the Cash Book by the then Assistant Engineer, Sri P.C. Jha duly approved by the Executive Engineer, Minor Irrigation Division, Dumka with respect to work done as well expenditure for the period from 1-1-08 to 31-7-08 relating to Narega Scheme of Kathikund Sub-Division which was made available to him vide letter No. 537 dated 17-7-10 & 571 dated 31-7- 10. 11. On completion of his age, the petitioner superannuated on 31.07.2013 but he has not yet been paid his legitimate dues till date, hence, this petition. 12. It is evident from the factual aspect that the writ petitioner while working as Junior Engineer, an allegation of embezzlement of Rs.2 lakhs has been alleged and in consequence thereof, a regular departmental proceeding under the provision of CCS (C.C.A.) Rules, 1930 was initiated. The inquiry proceeded and the charge having been proved by the inquiry officer. The charge no.(i) causing loss to 5 the government to the tune of Rs.2 lakhs has been found to be proved. The other charges, have not been found to be proved. 13. The inquiry report was forwarded to the disciplinary authority, who on its acceptance, has imposed the punishment of recovery of Rs.2 lakhs along with 12 per cent interest, which is under challenged. 14. It has been contended that the said order has been acted upon by making recovery of Rs.2 lakhs along with 12 per cent interest, which comes to Rs.3 lakhs 42 thousand and hence, the consequential direction has been sought for to refund the said amount in favour of the petitioner. 15. The ground has been agitated that the inquiry proceeding has been conducted without providing any relevant documents which is contrary to the mandate of the provision as contained under Rule 55 of CCS (C.C.A.) Rules, 1930, wherein, the stipulation has been made while conducting an inquiry, the delinquent employee is to be given adequate and sufficient opportunity. 16. It has been submitted that due to non-supply of the relevant documents, a serious prejudice has been caused and hence, the order of punishment of making recovery of Rs.2 lakhs along with the interest of 12 per cent, cannot be said to be just and proper. 17. The second ground has been taken that the copy of the second show cause notice was not supplied to him and hence, the petitioner is not in a position to know that what exactly has come in the inquiry report since the purpose of service of second show cause notice is to 6 provide an opportunity to rebut the finding as recorded by the inquiry officer and therefore, the necessary requirement at the time of service of second show cause notice is that the copy of the inquiry report is also to be supplied. But due to non-supply of the second show cause notice together with the inquiry report, a serious prejudice has been caused. 18. The third ground has been taken that by virtue of the impugned order one identically placed junior engineer namely, Ramadhar Singh, against whom also the order was passed for making recovery of Rs.4 lakhs along with the interest at the rate of 12 per cent w.e.f. 31.11.2008, has approached this Court by filing the writ petition being W.P.(S) No.2471 of 2014 and the coordinate Bench of this Court vide order dated 15.03.2021, has quashed and set aside the order dated 04.03.2014 (impugned), so far as it relates to Ramadhar Singh, the petitioner of W.P.(S) No.2471 of 2014. 19. The matter was remitted to the department to pass a fresh order after issuing second show cause notice to the petitioner and after getting his reply, if any, after following the principles of natural justice. Such exercise is to be completed within the period of four months from the date of receipt/production of copy of the order. 20. Learned counsel for the petitioner, based upon the aforesaid ground, has submitted that the instant writ petition also needs to be interfered with. 21. Mr. Ashutosh Anand, learned AAG-III appearing for the State has submitted that since the coordinate Bench of this Court has 7 already taken the view in W.P.(S) No.2471 of 2014, therefore, the same order may be passed. 22. This Court has heard the learned counsel for the parties and gone across the merit of the issue so far as the rival contention of the parties which is to be looked into by the inquiry officer after providing adequate and sufficient opportunity, is of the view that when the coordinate Bench has already quashed the part of the order dated 04.03.2014 so far as it relates to identically placed person, namely, Ramadhar Singh with a direction to initiate proceeding afresh, therefore, there is no reason to take distinct view. 23. But, it has been pointed out by the learned counsel for the petitioner that the order so far as it relates to remitting the matter before the authority to initiate proceeding afresh, cannot be said to be justified order, reason being that the employee is no more. 24. The reliance which has been placed upon the order passed by the coordinate bench in W.P.(S) No.2471 of 2014, has also been relied upon by the State on the ground that the matter was remitted before the competent authority to initiate a proceeding afresh. 25. But, the question herein is whether in a fact that the delinquent employee himself has died then who will contest the inquiry proceeding. 26. The departmental inquiry as per the statutory provision is meant for fixing accountability upon the public servant, since, the conduct rule is applicable for the public servant and not his legal heirs. 8 27. If the matter would be remitted before the authority then the widow of the deceased employee cannot be in a position to contest the case by disapproving that her husband, has embezzlement the said amount as per the allegation as contained in the memorandum of charge. 28. The remand cannot be for the purpose of remand only, rather, the principle of remand is to come a fresh finding after considering the entire facts into consideration. Since the part of the order dated 04.03.2014, whereby and whereunder, the order of punishment has been quashed by the coordinate bench, then, following the principle of judicial discipline, this Court is to follow the said judgment since the State has also not come with the fact that the said judgement has been questioned before the higher forum. 29. Therefore, this Court is of the view that once the order of punishment so far as it relates to order dated 04.03.2014, has been quashed on the ground that the second show cause notice has not been supplied to the delinquent employee, i.e., the writ petitioner of W.P.(S) No.2471 of 2014, hence, it would not be just and proper to take distinct view so far as showing interference with the impugned order, herein which was passed against the deceased husband of the petitioner. 30. This Court, therefore, is of the view that once the State has accepted the propriety of the order of punishment with respect to one person who is also subjected to punishment by virtue of the common order, by which, the petitioner is punished, i.e., the order dated 9 04.03.2014 and once the order of punishment has been quashed, the same principle is to be applied and accordingly, this Court has applied as above. 31. The only question is the second part of the order by which the matter was remitted before the authority to proceed afresh for the purpose of passing order afresh, is the issue now after the death of the husband of the petitioner, namely Sushila Sharma (substituted), as has been referred hereinabove that there cannot be any proceeding against the dead person or any proceeding against the dead person, the same is applicable herein also. 32. If the matter will be remitted, then the wife, the widow herein, will not be in a position to defend the allegation of mis-conduct alleged to be committed on the part of her husband. 33. Therefore, remitting the matter will not serve the purpose, rather, it will be a futile exercise. 34. As such, this Court is of the view that the part of the order passed by the coordinate bench of this Court in W.P.(S) No.2471 of 2014 is partly applicable in the facts and circumstances of the present case due to demise of husband of the writ petitioner. 35. In the result, the order dated 04.03.2014 as contained in memo no.1940, is hereby quashed and set aside. 36. Accordingly, the instant writ petition stands allowed. 10 37. In consequence thereof, the amount already recovered, is directed to be refunded in favour of the petitioner within the period of three months’ from the date of receipt of copy of the order. (Sujit Narayan Prasad, J.) Rohit/-N.A.F.R.