Ram Lakhan Yadav v. ………
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S). No. 2464 of 2020 Ram Lakhan Yadav ---------- Versus ………. Petitioner 1.The State of Jharkhand through the Commissioner-cum-Secretary, Primary, Secondary and Mass Education, School Education & Literacy Department, Government of Jharkhand, having its office at- Nepal House, Dist.-Ranchi 2.The Director, Primary, Secondary and Mass Education Department, School Education & Literacy Department, Government of Jharkhand, Project Building, Dhurwa, Dist.-Ranchi 3.The Sub-Divisional Education Officer, Dist.-Chaibasa 4.The District Education Officer, Dist.-Chaibasa 5.The District Education Officer, Dist.-Simdega ---------- ………. Respondents CORAM: HON'BLE DR. JUSTICE S.N.PATHAK For the Petitioner For the Respondents ----------- : Mr. Prem Pujari Roy, Advocate : Mr. Ajit Kumar, AC to GA-V 17/ 10.04.2024
Legal Reasoning
Heard the parties. ---------- 2. Petitioner is aggrieved by the order of punishment dated 19.08.2021 inflicted by the Director, Secondary Education, Jharkhand Ranchi whereby order for recovery of Rs.10,32,000/- from the retiral benefits of the petitioner has been passed. Further prayer has been made to immediately make payment of the entire post retiral benefits, along with statutory/penal interest for delayed payment. 3. Petitioner was appointed to the post of Clerk-cum-Accountant vide Memo No. 297 dated 25.05.1987 in the pay scale of 580-860. Laten on the entire non-formal education establishment was abolished vide Notification dated 16.05.2001, and the petitioner's salary was paid up to 15.05.2001. However, subsequently the Petitioner was absorbed to the post of Accountant pursuant to Resolution No. 824 dated 30.05.2007 in the Upgraded +2 S.S. Uchha Vidyalaya, Bolba, Simdega, vide Memo No. 314 dated 01.02.2008. During his service, he was served with a memo of charge contained in Memo No. 1226 dated 02.05.2011, alleging that he had connived with the then District Mass Education Project Officer in defalcation of Rs.10,32,000/-. -1- Subsequently departmental proceedings were initiated vide Memo dated 02.05.2011. Vide Memo dated 03.04.2012, the petitioner was asked to file his explanation to the charges leveled against him. On 11.04.2012, the Petitioner filed his detailed reply before the enquiry officer. After a thorough investigation, the enquiry officer concluded that the charges against him could not be proved, and he was not found guilty of any charges. Simultaneously, the Petitioner was put under suspension vide Memo No. 1088 dated 19.04.2011, while a criminal case was instituted against him. However, he was honourably acquitted of all charges vide order dated 24.02.2018 in a T.R. No. 13/2018. Immediately afterward, the Petitioner approached the authorities and requested for payment of all post-retrial benefits, including arrears of salary and other benefits withheld since 30.01.2017. Thereafter, the Authorities decided to reinitiate fresh departmental proceedings on the same set of charges vide Memo No. 4861 dated 27.12.2018, solely on the ground that the earlier enquiry report submitted by the Conducting Officer could not hold the petitioner guilty. Earlier, the Petitioner had approached this Hon’ble Court in W.P.S No. 1630 of 2014, wherein the Respondents were directed to pay arrear of salary not paid from 16.05.2001 to 10.02.2008. In compliance of the order, the respondents made a partial payment of salary arrears amounting to Rs. 2,46,541/- only, while the remaining amount of Rs. 5,27,847/- is still due. Aggrieved by this, the Petitioner has approached this Hon’ble Court to quash the entire departmental proceeding, asserting that the proceeding initiated on 02.05.2011 has not reached its lawful consideration even after more than three and a half years from the date of superannuation, and for payment of the entire post-retiral benefits. During pendency of this Writ Petition, the Respondents issued an order contained in Memo No. 867 dated 21.08.2021, wherein the petitioner was directed to deposit a sum of Rs. 10,32,000/- in view of the order passed by the Director of Secondary Education, Jharkhand, contained in Memo No. 1434 dated 19.08.202. This order of recovery was issued without following the due procedure of law or affording any opportunity to be heard. The petitioner has challenged the same by way of I.A. No. 4992 of 2021, which was allowed vide order dated 03.11.2021. -2- 4. Learned counsel for the petitioner submits that impugned order has been challenged on the ground that though the petitioner has been exonerated by the enquiry officer, without differing with the enquiry report and without issuance of second show-cause notice, punishment has been inflicted. Learned counsel further submits that even the disciplinary authority has not
Legal Reasoning
adhered to the rules before passing the order of punishment. Learned counsel further submits that proceeding was though initiated under Rule 55(a) of the CCS Rules, the same was concluded after retirement of the petitioner. It was open for the respondents to convert the departmental proceeding under Rule 43 (b) of the Jharkhand Pension Rules and thereafter pass the order but the same was not done. On this score itself the entire proceedings vitiates and the punishment order goes. Learned counsel further submits that even on merits petitioner has never been made liable for any embezzlement of the amount. The enquiry officer was of the clear view that it one Janmayjay Ram the then District Education Officer who was responsible for the embezzlement. Petitioner was not held guilty of the charges even in the criminal case, petitioner has been exonerated and thereafter it was open for the respondent- authorities to consider the same and pass orders and as such impugned order is nullity in the eyes of law and is fit to be quashed and set aside. 5. Learned counsel for the respondent-State submits that petitioner cannot be left scot free. He was the person who prepared the file and thereafter on that basis the embezzlement was done and as such petitioner was equally responsible for the embezzlement. Learned counsel further submits that though nothing has been mentioned against the petitioner by the enquiry officer rather he has been exonerated by the officer holding there in that it was Janmayjay Ram who was responsible for embezzlement. Learned counsel further submits that however in the counter-affidavit the same has been brought on record and it has been mentioned that petitioner cannot be left scot free. Since he was also equally responsible for the same, the respondents have clearly held that petitioner cannot be exonerated from the charges and inquiry officer was completely wrong in holding the petitioner not guilty of the charges. Learned counsel justifying the impugned order -3- submits that rightly the same has been passed and petitioner is not entitled for any benefits. 6. Having gone through the rival submissions of the parties, across the bar, this Court is of the considered view that impugned order has been passed in a mechanical manner. Interference is warranted in the instant writ petition for the following facts and reasons; (i) Admittedly in the departmental proceeding, charges were framed and thereafter departmental proceeding was initiated against the petitioner under Rule 55(a) of the CCS Rules, the same was thereafter concluded and punishment order was inflicted by the disciplinary authority. It is not a dispute that the petitioner superannuated in the midst of the proceeding. The enquiry report was submitted on 10.06.2019 whereas petitioner superannuated on 31.01.2017 itself. (ii) It was open for the respondents to convert the proceeding under Rule 43 (b) of the Jharkhand Pension Rules, but the same was not done. Even there was no requirement of seeking permission from the State as automatic conversion could have been done and the proceeding was initiated within time. On this score itself the impugned order is fit to be quashed and set aside. (iii) On merits petitioner was exonerated by the first enquiry officer, thereafter the respondents not being satisfied, a fresh enquiry was conducted in that enquiry also the enquiry officer was of the view that petitioner cannot be held guilty of the charges in view of the reasons that the amount has been defalcated by another person namely Janmayjay Ram. The enquiry officer was also of the view that petitioner’s case is fit for consideration. In view of the fact that he has been acquitted in the criminal proceeding, the disciplinary authority without considering the enquiry reports as well the acquittal of the petitioner has come to a finding mechanically that petitioner was held guilty of the charges by the enquiry officer and hence inflicted order of punishment. It has been argued by learned counsel for the respondents-State that though nothing has come out against the petitioner in the enquiry report but in the counter-affidavit reasons have been assigned and it has been held that enquiry officer was wrong in concluding that petitioner was not responsible for the embezzlement. This is well settled law that the impugned order cannot be improved -4- by way of counter-affidavit, reasons cannot be supplemented by way of affidavit. The Hon’ble Apex Court in the case of Commissioner of Police Vs. Gordhan Das Bhanji, reported in AIR 1952 SC 16, and para-9 has held as under:- "9. An attempt was made by referring to the Commissioner's affidavit to show that this was really an order of cancellation made by him and that the order was his order and not that of Government. We are clear that public orders, publicly made, in exercise of a statutory authority, cannot be construed in the light of the explanations subsequently given by the officer making the order of what he meant, or of what was in his mind or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." The same view was reiterated in the case of Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi & Ors. reported in (1978) 1 SCC 405. 7. As a sequitur to the aforesaid rules, guidelines and judicial pronouncement the impugned order dated 19.08.2021 is fit to be quashed and set aside, the same is hereby quashed and set aside. 8. Resultantly, the petitioner is entitled for the entire benefits which has accrued to him after retirement, including the amount of gratuity which was withheld earlier. 9.
Decision
Accordingly, the writ petition stands allowed. Rohit- (Dr. S.N. Pathak, J.) -5-