The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 290 of 2024 Phuleshwar Mandal, aged about 78 years, S/o. Late Thakur Mandal, residing at Flat No.402, Devkiran Apartment, Pathal Kudwa, Purulia Road, PO- GPO, PS- Lower Bazar, District – Ranchi (Jharkhand) ... ... ... Writ Petitioner/Appellant Versus 1. The State of Jharkhand 2. The Secretary, Road Construction Department, Government of Jharkhand, Project Bhawan, PO – Dhurwa, PS – Jagannathpur, District – Ranchi (Jharkhand) 3. The Commissioner, North Chotanagpur Division, Hazaribagh, PO + PS & District – Hazaribagh (Jharkhand) 4. The Deputy Secretary, Road Construction Department, Government of Jharkhand, Project Bhawan, PO – Dhurwa, PS – Jagannathpur, District – Ranchi (Jharkhand) … … ... Respondents/Respondents --------- CORAM: HON’BLE THE ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE ARUN KUMAR RAI For the Appellant: --------- Mr. Amit Kumar Das, Advocate Mr. Shivam Utkarsh Sahay, Advocate For the Respondents: Mr. Ratnesh Kumar, S.C. (L&C)-I --------- 05/Dated: 19.09.2024 Per Sujit Narayan Prasad, A.C.J. 1) The present appeal filed under Clause 10 of the Letters Patent is directed against the order dated 28.02.2024 passed by the learned Single Judge in W.P. (S) No.6565 of 2013, whereby and whereunder the order passed under the signature of Deputy Secretary, Road Construction Department, Government of Jharkhand, Ranchi as contained in Notification No. 8801(s) dated 14.12.2012 by which the punishment of forfeiture of 1/3rd pension of the writ petitioner has been passed, has been declined to be interfered with by dismissing the writ petition. -1 of 19- Factual Matrix 2) The brief facts as per the pleadings made in the writ petition read as under:- 2.1) The writ petitioner was in employment of the State Government and he was employed as an Assistant Engineer in Building Sub-Division. Hazaribagh in Road Construction Department, Government of Jharkhand. While in service, the writ petitioner along with Executive Engineer and Junior Engineer was entrusted with the work to make valuation of the structures over the land admeasuring 14.23 acres situated over the village-Salga, Thana No. 79, P.S. Keredari, District- Hazaribagh for the purpose of payment of compensation and the writ petitioner along with the Executive Engineer and the Junior Engineer accordingly by adopting the scientific process as prescribed and duly recognized made the valuation and the same was duly accepted by the Department and on the basis of the said valuation a further enquiry was conducted by the Deputy Commissioner and on being satisfied with the valuation, after dealing with the objection, a final award was published and on the basis of which, payment was made. The writ petitioner subsequently retired from his service with effect from 01.12.2007. Subsequently, on the basis of an anonymous complaint, the Department decided to initiate a disciplinary proceeding against the writ petitioner, for which Commissioner, South Chhotanagpur Division, Hazaribagh was appointed as an Enquiry Officer and Shri Binod Chandra Jha was appointed as Presenting Officer vide Memorandum No. 6542(s) WE dated 22.12.2009. The said resolution also included the chargesheet -2 of 19- wherein the Department framed the following three charges as against the petitioner. (i) In Land Acquisition Case No. 01/2004-05 with respect to village-Salga, Chadar no. 1 and 4, Thana No. 79, P.S. Keredari (Hazaribagh), the petitioner was alleged to have made wrong valuation and forwarded the same to the Executive Engineer. Building Division, Hazaribagh, who in turn vide letter no. 2203 dated 8.10.2007 forwarded the same to the District Land Acquisition Officer, Hazaribagh. (ii) On the basis of the said measurement, the District Land Acquisition Officer, Hazaribagh prepared an award with respect to 94 structures being Award No. 33 to 126 and on the basis of the same, made payment. Pursuant to the payment, one Mahila Jagriti Manch, Keredari submitted a report on 16.01.2009, on the basis of which spot verification was done in which Sub Divisional Officer, Sadar, Hazaribagh and Executive Engineer, Rural Development Sub Division, Hazaribagh was also present and they had taken measurement of six big structures and vide letter no. 53 dated 19.01.2009, another valuation report was submitted and on the basis of the same it was found that the valuation done by the petitioner was found to be erroneous. -3 of 19- (iii) On seeing the irregularities of the valuation done by the petitioner, revaluation was done through the Executive Engineer, Building Division, Hazaribagh, on the basis of which, a huge difference and irregularities were detected and it was found that on the basis of a wrong valuation, higher amount has been paid to which the land losers were not entitled, for which the department has suffered a monetary loss. 2.2) Thereafter, the Enquiry Officer was appointed and on conclusion of enquiry, the Deputy Secretary, Road Construction Department, Government of Jharkhand, issued a second show cause notice under Rule 43(b) of the Pension Rules vide letter No.7219(S)
Decision
WE dated 06.10.2012 directing the writ petitioner to show cause as to why not the report submitted by the Enquiry Officer be admitted. The writ petitioner on receipt of the letter and the enquiry report submitted a detailed reply stating therein that when the Enquiry Officer holds that the valuation done by the writ petitioner cannot be said to be erroneous, in the same breath he cannot say that the charge is partly proved. The writ petitioner also stated that the Enquiry Officer himself admits in his report that the valuation has been done by the writ petitioner in accordance with the prescribed norms, however, he presumed that if the writ petitioner so wanted he could have taken the actual measurement and prepared the sketch as per the actual. In this regard, the writ petitioner had stated that major portions of the structures were already demolished by the Department and, therefore, as per the prescribed norms of engineering, valuation is to be done after making the measurement verified by making assumption of the -4 of 19- size on the basis of existing structures and the said norms were duly followed by the writ petitioner and accordingly the valuation was made. The writ petitioner had also stated that as the Enquiry Officer had stated that charge Nos.2 and 3 have not been proved, the question of State suffering revenue loss does not arise and, therefore, the writ petitioner requested for acceptance of his show cause and for exonerating him of the charges. Without considering the said facts, the Deputy Secretary, Road Construction Department, Government of Jharkhand, by Notification No.8801(s) dated 14.12.2012 held the writ petitioner guilty of the charge and further ordered for forfeiture of 1/3rd of the pension of the writ petitioner. The said order has been challenged by filing writ petition being W.P. (S) No.6565 of 2013. 2.3) The State has appeared and has taken the ground regarding the charge having been found to be proved and has also referred the applicability of the provision of Rule 43(b) of the Jharkhand Pension Rules. 2.4) The learned Single Judge has passed the order by declining to interfere with the impugned notification, against which the present appeal. Argument of the learned counsel appearing for the appellant-writ petitioner 3) Mr. Amit Kumar Das, learned counsel appearing for the appellant-writ petitioner, has taken the following grounds in assailing the impugned order. 3.1) The duty which was assigned to the writ petitioner was to get the structures measured for the purpose of making payment in favour of one or the other beneficiaries. -5 of 19- 3.2) It is also admitted case as would be evident from the enquiry report that the structures were not found to be there in the entirety, since, it has been referred in the enquiry report that altogether 151 structures were to be constructed, out of which only 94 structures have been found there which have been measured by the writ petitioner. 3.3) It has been submitted that the petitioner based upon the remains of the available structures has measured by creating a model for the aforesaid purpose and the report was submitted, based upon that the payment was made in favour of beneficiaries. 3.4) The ground has been taken that although the provision of Rule 43(b) of the Jharkhand Pension Rules provides that even in the case of grave misconduct as one of the grounds if found to be there, the money is to be recovered from the pensionary benefits either by withholding the full pension or part thereof, but, here, even if the enquiry report is to be taken into consideration, it would be evident that the Enquiry Officer has not come to the conclusive finding regarding the finding of proof of the charge, but as per the finding of the Enquiry Officer, Charge No.1 has partially been proved. 3.5) It has further been submitted by referring to the finding so recorded so far as Charge No.1 is concerned wherein the Enquiry Officer has also admitted that it is only on the basis of the model, the measurement was done and to that extent, the reply furnished by the writ petitioner has been admitted by the Enquiry Officer. That is the reason the Enquiry Officer has found the said charge i.e. Charge No.1 said to be partially proved. -6 of 19- 3.6) So far as Charge Nos.2 and 3 are concerned, the same have not been found to be proved. The learned counsel for the appellant-writ petitioner, therefore, has advanced his submission that the order which has been passed under Rule 43(b) of the Pension Rules, therefore, is only on the ground of partial proved charge so far as Charge No.1 is concerned. 3.7) Further ground has been referred by referring the provision of Rule 43(b) of the Jharkhand Pension Rules wherein the provision itself clarifies that in the case of grave misconduct of the charge either proved in the departmental or the judicial proceedings, the pension can be withheld full or part of it, but when the Enquiry Officer himself has come out with a finding that the charge has been found to be partially proved, then it cannot be said that it is a case of grave misconduct, otherwise the Enquiry Officer would have come with the finding that the charge has been found to be proved and not to say about partial proving of the charge. 3.8) The learned counsel has taken a further ground that even while passing an order to recover 1/3rd of pension, the assessment of pecuniary loss has not been taken into consideration and without any application of mind, 1/3rd of the pension has been withheld. 3.9) The learned counsel appearing for the appellant-writ petitioner based upon the aforesaid grounds has submitted that the learned Single Judge has not properly appreciated all these aspects, and, therefore, the order impugned suffers from error. Argument of the learned counsel appearing for the respondents- State -7 of 19- 4) Per contra, Mr. Ratnesh Kumar, learned S.C. (L&C)-I appearing for the respondents-State, has taken the following grounds while defending the impugned order:- 4.1) It has been submitted that it is incorrect on the part of the learned counsel for the writ petitioner that the charge has not been found to be proved leading to passing of the order of withholding 1/3rd pension from the pensionary benefits of the writ petitioner. According to the learned State Counsel, the enquiry report itself suggests that the charge has been found to be proved so far as the charge no.1 is concerned. It has been submitted that it is immaterial that the charge has been proved partially or entirely. Rule 43(b) of the Jharkhand Pension Rules speaks that in case of finding of grave misconduct, even though there is no pecuniary loss sustained to the State exchequer, even then, the power can be exercised under Rule 43(b) of the Pension Rules for making recovery from the pensionary benefits. 4.2) The learned State Counsel based upon the aforesaid grounds has submitted that the learned Single Judge has taken into consideration those aspects of the matter and by considering the implication of Rule 43(b) of the Pension Rules, the impugned notification has been refused to be interfered with, which cannot be said to be suffering from error. Analysis 5) This Court has heard the learned counsel appearing for the parties and gone across the finding recorded by the learned Single Judge in the impugned order as also the pleadings as available in the paper-book. -8 of 19- 6) The consideration which requires to be made in the facts and circumstances of the instant case is; (i) whether the provision of Rule 43(b) of the Pension Rules can be made applicable if the charge has not been found to be proved in entirety, rather the charge has been found to be proved partially; (ii) whether the provision of Rule 43(b) of the Pension Rules can be applied on the basis of surmises and conjectures where the Enquiry Officer himself is not sure with respect to the authenticity of the charge. 7) Since both these issues are interlinked, as such, both the issues are being taken up together, but, before answering the said issues, it needs to be referred herein the provision of Rule 43(b) of the Jharkhand Pension Rules, which reads as under:- “43(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; -9 of 19- (i) shall not be instituted save with the sanction of the State Government; (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) 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.” 8) The aforesaid provision thus provides that in two eventualities, the pension whole or part of it can be withheld either in the case of -10 of 19- pecuniary loss sustained to the State Exchequer or in the case of grave misconduct if found to be proved by the Enquiry Officer in case the proceeding having been initiated after superannuation of the concerned employee subject to fulfillment of the condition stipulated in the explanation contained under rule 43(b) of the Pension Rules based upon the specific finding of the State on consideration of the reply furnished by the employee. 9) The writ petitioner has been proceeded after his retirement by initiating a proceeding under Rule 43(b) of the Pension Rules. The petitioner has disputed the charge by filing reply but the same having been found not satisfactory, a regular enquiry has been conducted. The petitioner has participated and defended himself that there is no error on his part. The following defence has been taken which is in Hindi, but for ready reference, the same is being referred herein below along with the pleading of the Presenting Officer which has been taken note in the documents which is part of the enquiry report:- आरोप आरोप की िववरणी आरोिपत पदािधकारी का ঋ(cid:721)ाता पदािधकारी का सं० 1. जवाब म(cid:566)(cid:681) भू-अज१न वाद सं0-1/04- आरोिपत पदािधकाौरयों (cid:554)ारा ঋ(cid:721)ोता पदािधकारी का 05 म७ ঁाम सलगा चादर' 1 आरोपों को पूण१तः अ(cid:738)ीकृ त ঋितवेदन ঋ(cid:721)ोता एवं 4 थाना नं0-79. थाना िकया गया है। उनके (cid:554)ारा पदािधकारी (cid:554)ारा सूिचत कै रे डारी, हजारीबाग म७ कहा गया िक िजला भू अज१न िकया गया है। िक ঁाम गरही जलाशय योजना पदािधकारी हजारीबाग (cid:554)ारा सलगा म७ 14.23 एकड़ िनमा१ण हेतु अिज१त रै यती हजारीबाग िजला(cid:566)ग१त भूिम भू अज१न की कार१ वाई रकबा 14.23 एकड़ भूिम के रे डारी अंचल के ঁाम सलंगा ঋारं भ की गयी तथा पर अव्(cid:830)थत संरचनाओं चादर 1 एवं 4 म७ गरही संरचनाओं के मू(cid:670)ांकन का मू(cid:670)ांकन हेतु जलाशय योजना हेतु हेतु भवन ঋमਔल, तਚालीन िजला भू-अज१न अज१नाधीन 14.23 एकड भूिम हजारीबाग को सूची ঋेिषत पदािधकारी, हजारीबाग के पर अव्(cid:830)थत 151 संरचनाओं की गयी। भवन ঋमਔल, पআांक-492/भू०अ० िदनांक की सूची मू(cid:670)ांकन हेतु भवन हजारीबाग से मू(cid:670)ांकन 7.9.07 से सूची आपको ঋमਔल हजारीबाग को ঋेिषत ঋितवेदन 8.10.07 को -11 of 19- ঋेिषत िकया गया, िजसके की गयी थी। िजला भू अज१न ঋा(cid:593) ॽआ िजस पर आलोक म७ आपके (cid:554)ारा पदािधकारी हजारीबाग (cid:554)ारा ঋाজलन तैयार कर गलत तरीके से गलत दर संरचनाओं की ल(cid:638)ाई X ঋमਔलीय आयुঢ के के आधार पर मू(cid:670)ांकन चौड़ाई X ऊं चाई के ॺप म७ मा(cid:559)म से रा৸ सरकार िकया गया है। मू(cid:670)ांकन मापी भी अंिकत की गयी थी। को ঋेिषत िकया गया। ঋितवेदन के (cid:554)ारा अपने ঋ(cid:721)ुत संरचनाओं की सूची के रा৸ सरकार के अनुमोदन पআांक 2203 िदनांक आधार पर कु ल 94 संरचनाओं के उपरांत 19.10.2007 8.10.07 से िजला भू-अज१न की मापी की गयी थी। अतः को पंचाट की घोषणा कर पदािधकारी, हजारीबाग को 94 संरचनाओं का ही िदनांक 03.10. 2008 एवं भेजा गया। मू(cid:670)ांकन िकया गया है। 18.10.2008 एवं िविभ(cid:580) संरचनाओं की ऊं चाई 29.12.2008 को पंचािटयों अलग-अलग थी तथा को भुगतान करते ॽए भूिम अिधक(cid:517)र संरचनाओं (cid:600)ा(cid:720)र का दखल क(cid:613)ा vf/k;kph सिहत ए(cid:732)े(cid:720)्स छत की थी। िवभाग को िदनांक मू(cid:670)ांकन हेतु एक मानक 12.01.2009 को सौंप ঋाজलन सृिजत िकया गया। िदया गया। xkzeh.k ds (cid:554)ारा िजसका औसत आकार िदये गये आवेदन ds 15"x10"x7' फीट रखा गया। vkyksd म७ तਚालीन इस औसत पर उपायुঢ से vkns’k ls ঋाজलन बनाया गया िजसम७ अपर समाहता१, हजारीबाग नी ंव की गणना से लेकर (cid:554)ारा (cid:830)थल िनरीण करते सामঁी ढुलाई का आकलन ॽए एक जांच ঋितवेदन िकया गया एवं इस मानक िदनाक 11.09.2008 को ঋाজलन के आधार पर उपायुঢ को समिप१त संरचनाओं का आकलन िकया िकया गया। पुनः भारतीय गया। यह मू(cid:670)ांकन 2007 के मिहला जागृित मंच, ঋभावी अनुसूिचत दर पर है कै रे डारी (cid:554)ारा िदनांक एवं मू(cid:670)ांकन म७ मू(cid:670) gkzl 22.12.2008 को fn;s गये (Depreciation) की गणना आवेदन के आलोक म७ भी की गयी है। िबना (cid:600)ा(cid:720)र, उपायुঢ (cid:554)ारk िबना ्खड़की दरवाजा एवं 16.01.2009 को (cid:830)थल (cid:600)ा(cid:720)र एवं ्खड़की दरवाना िनरीण िकया गया। म७ भवनों को अलग-अलग िजसds प(cid:686)ात् उपायुঢ दशा१ते ॽए आकलन िकया (cid:554)ारा िदनांक 20.01.2009 गया है। ভोंिक िजला भू अज१न पदािधकारी, हजारीबाग (cid:554)ारा घनफीट म७ नापी की सूची -12 of 19- को जांच ঋितवेदन सह आदेश िनग१त िकया गया। दी गयी थी। जाच ঋितवेदन के आलोक अतः उसी आधार पर esa 6 छ: बडी संरचनाओं मू(cid:670)ांकन िकया गया। इस का मू(cid:670)ाकन कर मू(cid:670)ांकन ij ftyk भू अज१न अितौरঢ रािश की olwyh पदािधकारी काया१लय से अथवा मूल िवभाग (िसचkई हेतु पंचािटयों को नोिटस िनग१त िकया िकया है। िवभाग) से कोई आपि(cid:517) नहीं आरोिपत पदािधकारी (cid:554)ारा की गयी। अतः गलत तरीके से िजन िब(cid:802)दुओं का िजॿ मू(cid:670)ांकन िकये जाने का िकया गया है, वह आरोप उिचत नहीं है। तकनीकी िब(cid:802)दु है. िजस 2. आपके (cid:554)ारा ঋ(cid:721)ुत मू(cid:670)ांकन के प(cid:686)ात् एवाड१ पर जाच पदािधकारी के मू(cid:670)ांकन ঋितवेदन के घोषणा के उपरांत अपर (cid:721)र से ही िनण१य िलया आधार पर तਚालीन िजला समाहता१ के मा(cid:559)म से ঋ(cid:690)गत जाना है। भू-अज१न पदािधकारी, संरचनाओं की जांच की गयी हजारीबाग के (cid:554)ारा थी, अपर समाहता१ (cid:554)ारा जांच संरचनाओं के मू(cid:670)ांकन ঋितवेदन म७ यह (cid:729)(cid:700) उ(cid:671)ेख सिहत अिज१त रकबा के िकया है िक भू-अज१न की िलए कु ल 94 संरचनाओं के अिधसूचना के प(cid:686)ात् कु छ िलए एवाड१ 33 से 126 लोगों के (cid:554)ारा भूिम ॿय करने एवाड१ घोिषत कर िदया एवं इससे अितौरঢ लाभ पाने गया तथा घोिषत एवाड१ के की नीयत से नयी संरचनाओं अनुसार संबंिधत पंचािटयों का िनमा१ण िकया गया था। को भुगतान िकया। भुगतान उनके (cid:554)ारा अपने जांच के प(cid:686)ात् मिहला जागृित ঋितवेदन म७ कोई िवपरीत मंच, के रे डारी के िट(cid:596)णी नहीं की गयी। िदनांक अ(cid:631)ावेदन के आलोक म७ 19.10.2007 को एवाड१ अधोह(cid:721)ारी (cid:554)ारा िदनांक घोषणा के उपरांत िदनांक 16.1.09 को (cid:830)थल जांच 22.12.2008 को भारतीय िकया गया। (cid:830)थल जांच के मिहला जागृित मंच के नाम से समय अनुमਔल एक िशकायत पআ िदया गया। पदािधकारी, सदर िजसके आधार पर पुनः हजारीबाग एवं काय१पालक उपायुঢ (cid:554)ारा काय१पालक अिभयंता ঁामीण िवकास अिभयंता, ঁामीण िवकास िवशेष ঋमਔल, हजारीबाग िवभाग से मापी करवायी गयी। भी तकनीकी पदािधकारी उनके (cid:554)ारा माআ 6 छ: के ॺप म७ उप्(cid:830)थत थे। संरचनाओं की वा(cid:721)िवक मापी िजनसे छ बड़ी संरचनाओं की गयी। िक(cid:566)ु इस जांच की -13 of 19- का मापी कराया गया। सूचना आरोिपत पदािधकाौरयों िज(cid:590)ोन७ अधोह(cid:721)ारी को से नहीं दी गयी। ভोंिक ঋथम अपने पআांक 53 िदनांक मू(cid:670)ांकन भवन ঋमਔल के 19.1.09 से पुन१मू(cid:670)ांकन ঋितवेदन समिप१त िकया। (cid:721)र से िकया गया था। अतः उ(cid:590)७ इस दोबारk मापी के समिप१त पुन१मू(cid:670)ांकन समय सूिचत िकया जाना ঋितवेदन एवं आपके (cid:554)ारा चािहए था। िवशेष ঋमਔल के पूव१ म७ की गयी मू(cid:670)ांकन (cid:554)ारा िकया गया मू(cid:670)ांकन ঋितवेदन का तुलना(cid:527)क आधारहीन है। ভोंिक इसम७ िववरणी म७ पाया गया िक नी ंव की गणना नहीं है। िजला आपने संरचनाओं का भू-अज१न पदािधकारी, मू(cid:670)ांकन बॽत अिधक हजारीबाग (cid:554)ारा ঋेिषत सूची से दशा१या है। आपका मू(cid:670)ांकन ঋितवेदन काफh আुिटपूण१ पाया गया। इस िवशेष ঋमਔल (cid:554)ारा की गयी नापी की सूची मेल नहीं खाती है। mDr नापी म७ ए(cid:732)े(cid:720)्स आलोक म७ अधोह(cid:721)ारी को माআ बांस की चचरी पर (cid:554)ारा जांच ঋितवेदन सह माना गया है। जबिक िबना आदेश ৯ापांक 67/सी ब(cid:671)ा एवं साईज लकड़ी के िदनांक 20.1.09 यथोिचत ए(cid:732)े(cid:720)्स को रखा जाना संभव कार१ वाई हेतु िनग१त िकया नहीं है। (cid:600)ा(cid:720)र, चौखट, गया। िकवाड़ आिद का िजॿ नहीं है तथा सामঁh ढुलाई पर भी िवचार नहीं िकया गया है। िजस 6 छः संरचनाओं का मू(cid:670)ांकन िकया गया है। उनका दर 26.89 ॺ0 ঋित वग१ फीट से अिधक(cid:517)म 36.91 ঋित वग१ फीट है, जो िब(cid:651)ु ल अ(cid:681)वहाौरक है। 3. आपके मू(cid:670)ांकन ঋितवेदन उपायुঢ (cid:554)ारा पुनः के अिनयिमतता को देखते काय१पालक अिभयंता, भवन ॽए पुनः वत१मान ঋमਔल, हजारीबाग से काय१पालक अिभयंता, फरवरी 2009 म७ मू(cid:670)ांकन भवन ঋमਔल, हजारीबाग ঋितवेदन मांगा गया। उঢ से सभी संरचनाओं का मू(cid:670)ांकन म७ काय१पालक पुन१मू(cid:670)ांकन कराया गया। अिभयंता ने यह (cid:729)(cid:700) िकया िक -14 of 19- िजसके अनुसार आपके िजन 94 संरचनाओं का (cid:554)ारा पूव१ म७ की गयी मू(cid:670)ांकन ঋितवेदन भेजा गया मू(cid:670)ांकन ঋितवेदन से था वे पूव१ ्(cid:830)थित म७ नहीं है तथा काफी अंतर एवं कई सरचनाएं (cid:560)(cid:721) हो चुकी अिनयिमतता पायी गयी। है, िजसकी मापी एवं िजसके आलोक म७ पाया पुन१मू(cid:670)ांकन संभव नहीं है। गया िक पंचािटयों को इस कथन से यह (cid:738)तः (cid:729)(cid:700) है आपके गलत मू(cid:670)ांकन के िक काय१पालक अिभयंता कारण अिधक रािश का भवन ঋमਔल, हजारीबाग भुगतान िकया गया है। (cid:554)ारा िकया गया पुन१मू(cid:670)ाकन िजसके िलए वे हकदार औिच(cid:529)हीन एवं আुिटपूण१ है। नहीं थे तथा इस कारण एक काय१पालक अिभयंता सरकार को काफी अिधक (cid:554)ारा िदये गये मू(cid:670)ाकन की आिथ१क ित ॽई है। जाच पुनः काय१पालक आपके उঢ अिनयिमतता अिभयंता के (cid:721)र से ही कराया के िलए अधोह(cid:721)ारी (cid:554)ारा जाना उिचत नहीं है। अिधयाची पআांक 86 िदनांक 7.2.09 िवभाग जो एक अिभयंআण से सिचव, पथ िनमा१ण िवभाग है उनके (cid:554)ारा िवभाग, झारखਔ, रांची मू(cid:670)ांकन पर कभी आपि(cid:517) को आपके िवॺ(cid:544) नहीं की गयी। एवाड१ घोिषत कार१ वाई हेतु भेजा जा चुका होने के 14 चौदह माह के है। प(cid:686)ात् करेলन ऑफ एवाड१ की ঋिॿया ঋारं भ की गयी एव उঢ vof/k म७ अिधक(cid:517)र संरचनाओं (cid:560)(cid:721) हो चुकी थी। इस ঋकार (cid:560)(cid:721) अथवा (cid:738)ॺप पौरवित१त संरचनाओं का मू(cid:670)ांकन िवशेष ঋमਔल एव भवन ঋमਔल (cid:554)ारा िकया। पुन१मू(cid:670)ांकन আुिटपूण१ एवं अनुमान के आधार पर है। आरोिपत पदािधकारी (cid:554)ारा िकया गया मू(cid:670)ांकन पूण१तः उिचत थी एवं रा৸ सरकार को काई ित पॽंचाने का काय१ उनके (cid:554)ारा नहीं िकया गया है। -15 of 19- 10) The Enquiry Officer, in sum and substance, has accepted the defence plea of the writ petitioner and that is the reason the Enquiry Officer has come to the conclusion as to how the structures have been created for the purpose of getting compensation from the State Government since no one was found to be residing there. The Enquiry Officer in view of the aforesaid has come to the conclusion that on the basis of the model estimate, the structure cannot be assessed/evaluated and if it has been done, that cannot be said to be suffering from an error, since, in absence of any structure, the only remedy available to the writ petitioner was to have the model structure therein, but the Enquiry Officer has given its finding that in addition to assessing the said structure on the basis of the model estimate, the photographs of the actual measurement could have been taken which has not been done. The question which has been raised on behalf of the writ petitioner that when as per the charge, out of 151 structures, only 94 structures are said to be there for measurement, then, where is the question of taking photographs of all the structures? 11) Thus, even though aforesaid finding so recorded by the Enquiry Officer that all the structures ought to have been photographed is also contrary to the substance of the fact and even though, the Enquiry Officer has taken note of charge no.1 wherein he himself has noted therein that out of 151 structures, only 94 structures are said to be available for measurement. The Enquiry Officer in the aforesaid background, therefore, has come to a finding that the aforesaid charge is said to be partially proved. The charge Nos.2 and 3 have not found to be proved. Charge No.3 was with respect to the finding -16 of 19- that no pecuniary loss was sustained to the Government. The Charge Nos.1, 2 and 3 according to the conscious view of this Court cannot be segregated to each other and charge No.3 which pertains to the pecuniary loss sustained to the Government has not been found to be proved, then where is the question of proving the charge said to be substantially proved so far as the charge no.1 is concerned. 12) Another ground has been taken on behalf of the State by making reference of the provision of Rule 43(b) of the Jharkhand Pension Rules that even in case of partial proving of charge, the provision of Rule 43(b) can be applied. This Court is of the view that provision of Rule 43(b) provides that finding of grave misconduct either in the departmental or judicial proceeding is to be taken note as has been referred in the provision of Rule 43(b). Proving of charge partially in one of the charges without having proved the other charges relating to pecuniary loss and that too, when the charge no.1 is itself co-related with charge no.3 since charge no.1 is with respect to getting the land measured based upon that, as per the charge, the State has come to the conclusion that the beneficiaries have been excessively paid and if the measurement would have been correct, then the payment would not have been made said to be exaggerated or without any construction. Further, the charge no.3 pertains to the pecuniary loss sustained to the State Government which is directly co- related to charge no.1, reason being that if charge no.1 is there, then certainly, there will be pecuniary loss due to the conduct of the writ petitioner, since, the pecuniary loss said to be sustained could have been paid on the basis of the measurement conducted by the writ petitioner which is Charge No.1. Therefore, this Court is of the view -17 of 19- that not proving of charge no.3, which pertains to pecuniary loss sustained, Charge No.1 cannot be said to be come under the fold of Rule 43(b). Further, Rule 43(b) since refers grave misconduct and as such, this Court is of the view that in a case where the fact is admitted that out of 151 structures, only 94 structures have been found, but the Enquiry Officer ignoring the same has given a finding that the photographs of all the structures ought to have been taken. The question is that when the total number of structures is 94 only, then where is the question of taking photographs of all the 151 structures? Further, the photographs are to be taken or not for even 94 structures, that was not anywhere assigned by passing any official order in this regard. A conduct will only come when any official duty has been assigned to the writ petitioner. If the respondents-State would have come out with an office order by giving a specific instruction to the writ petitioner that before getting the measurement and on conclusion of the measurement, the photographs of all the structures were to be taken and if, even thereafter, the writ petitioner would not have provided the photographs, then it could have been said that the conduct was assigned but it has not been adhered to and so, it is a case of misconduct. Therefore, when there is no misconduct, then where is the question of proving the charge said to be grave in nature. 13) On the basis of the aforesaid discussions and adverting to the order/judgment passed by the learned Single Judge, it cannot be disputed that making recovery from the pension cannot be said to be very easy exercise, rather it is a rigorous punishment upon the pensioner and as such, before inflicting that punishment, it is the duty of the State to apply its mind in entirety by taking into consideration all -18 of 19- aspects of the matter, but it appears from the discussions made hereinabove that no such exercise has been undertaken with all due diligence. CONCLUSION AND DIRECTIONS 14) This Court after having discussed the aforesaid facts and adverting to the impugned order passed by the learned Single Judge has found that the learned Single Judge has only referred the ingredients of Rule 43(b), i.e., (a) charge of grave misconduct, and; (b) pecuniary loss of State exchequer, but the learned Single Judge has not appreciated that there is no pecuniary loss due to non-proving of charge no.3, however, for the charge of grave misconduct, since this Court has already referred that there is no official duty assigned to the writ petitioner to get the photographs of the surviving structures and, hence, when the conduct is not there, where is the question of misconduct? But, the learned Single Judge has not appreciated the aforesaid facts, therefore, the order passed by the learned Single Judge needs to be interfered with. Accordingly, the order dated 28.02.2024 passed by the learned Single Judge in W.P. (S) No.6565 of 2013 is hereby quashed and set aside. This Letters Patent Appeal, accordingly, stands allowed. In consequence thereof, the writ petition also stands allowed. The State is directed to refund the amount already recovered within a period of three months from the date of receipt/production of a copy of this order. A.F.R. Manoj/Cp.2 (Sujit Narayan Prasad, A.C.J.) (Arun Kumar Rai, J.) -19 of 19-