Sheshnath Singh … v. 1. The State of Jharkhand through the Secretary, Department of
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P. (S) No. 7495 of 2016 Sheshnath Singh …… Petitioner …. Versus 1. The State of Jharkhand through the Secretary, Department of (Co- Agriculture, Animal Husbandry and Co-operative operative Division), Government of Jharkhand, Ranchi 2. The Registrar, Co-operative Department Division), Government of Jharkhand, Ranchi (Co-operative 3. The Joint Registrar, Co-operative Department (Co-operative Division), Government of Jharkhand, Ranchi 4. The Deputy Secretary, Department of Agriculture, Animal (Co-operative Division), and Co-operative Husbandry Government of Jharkhand, Ranchi 5. The District Co-operative Officer, Dhanbad …… Respondents ----- CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD ----- For the petitioner For the Resps. : Mr. Rahul Kumar, Advocate : Mr. Ashutosh Anand, AAG-II ….. ORAL ORDER IN COURT 14/29.01.2024 Heard learned counsel for the petitioner and learned counsel for the respondents. 2. The present writ petition has been filed on behalf of the petitioner for quashing the order dated 10.04.2015 passed by the Registrar, Co-operative Society, Government of Jharkhand, Ranchi, Annexure-8 of the writ petition by which the petitioner has been punished under Rule 2 of the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935 and under Rules 166 and 168 of Board’s Miscellaneous Rules by which the petitioner has been reduced to lower pay scale of Rs. 9,300- 34,800/- basis Grade Pay- 4,200/- and his future promotion will be blocked by revoking him from the suspension and with a direction that he will not be entitled to receive anything except subsistence allowance.
Legal Reasoning
The petitioner has further challenged the order dated 2 27.06.2016 passed by the Secretary, Department of Agriculture, Animal Husbandry and Co-operative (Co-operative Division), Government of Jharkhand, Ranchi (i.e. the Appellate Authority),
Decision
Annexure-12 of the writ petition by which the appeal preferred by the petitioner has been dismissed after concurring with the finding of the Disciplinary Authority i.e. Annexure-8. 3. Learned counsel for the petitioner has submitted that the impugned order dated 10.04.2015, Annexure-8 and the impugned order dated 27.06.2016, Annexure-12 passed by the Authorities concern are illegal, arbitrary and not sustainable in the eye of law. It is further submitted that the petitioner was not given proper opportunity to defend his case and merely on the basis of show cause notice, the department proceeding was closed against him by demoting/reducing him in the lower pay scale of Co-operative Extension Officer and which has been upheld after issuing 2nd show cause notice. It is submitted that even the Appellate Authority did not properly appreciate the case of the petitioner while concurring the order passed by the Disciplinary Authority. It is submitted that similarly situated concerned person namely Ghanshyam Mandal has been given minor punishment of censor and warning, who is alleged to have recommended to disburse the loan for Rs. 87,00,000/- in the Co-operative Society whereas this petitioner, who was made Administrator vide order dated 30.04.2007, Annexure- 1, but he has not taken over the charge of Administrator for which he mad correspondence with the authorities on 14.07.2007, 29.06.2007, 04.05.2008, 26.08.2008 and 09.09.2008 respectively (Annexure- 2 series). It is further submitted that even the authorities have also clarified while the superseding this committee vide Annexure-3 and the said committee superseded by letter dated 22.09.2008 in light of the correspondence made by the petitioner and as such, charges for not 3 taking steps for recovery of loan and not conducting the election are not proved against the petitioner, yet the Enquiry Officer has held the petitioner guilty for the charges of negligence vide Enquiry Report and without considering the fact that the petitioner has not taken charge of Administrator. It is submitted that the Appellate Authority has committed illegality by upholding the order of the Disciplinary Authority and hence, this writ petition. It is further submitted that regular departmental proceeding has not held and in support of his submission, learned counsel for the petitioner has relied upon the judgment reported in the case of Roop Singh Negi Versus Punjab National Bank and Others reported in (2009) 2 SCC 570. It is further submitted that even parity has not been given to the petitioner in passing the order of punishment and Ghanshyam Mandal was given lesser punishment i.e. censor and warning whereas this petitioner has been given punishment of reduction in pay scale and his promotion has been withheld for future. In support of his contention, learned counsel for the petitioner has placed reliance upon the judgment reported in the case of Rajendra Yadav Versus State of Madhya Pradesh and Others reported in (2013) 3 SCC 73. In view of above, the writ petition may be allowed and the impugned orders passed by Disciplinary Authority and Appellate Authority may be set aside. 4. Learned counsel for the respondent-State has submitted that the writ petition filed by the petitioner is devoid of merit. It is submitted that the petitioner was thoroughly negligent while working as Administrator and he has not taken necessary steps for recovery of loan and has not conducted the election for which he was appointed. It is submitted that so far as the claim of parity in respect of Ghanshyam Mandal is concerned, the same is also not applicable as Ghanshyam Mandal had merely recommended for grant of loan of Rs. 87,00,000/- whereas this petitioner was 4 Administrator and his duty was to conduct the Election and to take necessary steps for recovery of loan. It is submitted that representation filed on behalf of the petitioner merely shows his negligence and he should be taken part of good governance instead of complaining against the authority concerned. Therefore, the Respondents have rightly held the petitioner guilty vide Enquiry Report marked as Annexure-C, however the same has been shown as Annexure-3 in the supplementary counter affidavit filed on behalf of the State. It is submitted that due to the act of the petitioner, the department has suffered huge loss. 5. It is submitted that even the petitioner has enclosed only the letter dated 22.09.2008 before the Enquiry Officer and has not submitted any letter before the Enquiry Officer and as such, there was no occasion for the Enquiry Officer to consider the representation of the petitioner. It is submitted that the judgment reported in the case of Roop Singh Negi Versus Punjab National Bank and Others reported in (2009) 2 SCC 570 is not applicable in the facts and circumstances of the present case as the order passed in the case of State of Jharkhand and Ors. Versus Awadhesh Prasad Mehta passed in L. P. A. No. 404 of 2021 vide order dated 08.11.2023 by the learned Division Bench of this Court has interpreted the case of Roop Singh Negi (Supra) and which is not applicable to the fact of this petitioner. It is further submitted that the order dated 13.03.2023 passed in the case of State of Jharkhand and Ors. Versus Amar Kumar Sinha in L. P. A. No. 212 of 2021 is not applicable and hence, he has been rightly held guilty by the Enquiry Officer and punishment was imposed to the petitioner by the Disciplinary Authority vide order dated 10.04.2015, Annexure- 8 and the same was upheld by the Appellate Authority vide order dated 27.06.2016 vide Annexure- 12 and which may be upheld and as such, the writ petition may be 5 dismissed. 6. Perused the records of this case and counter affidavit and supplementary counter affidavit on behalf of the State and rejoinder as well as supplementary affidavit filed on behalf of the petitioner. 7. The petitioner was appointed on 26.10.1989 in the Co- operate Society and since then he has been working. 8. It transpires that the petitioner was posted as a Co- operative Extension Officer, Dhanbad from the year 2006 to 2008 and in the said period, the petitioner was appointed as Administrator of four Co-operative Societies i.e. (i) Dhanbad Block Matashyajivi Co-operative Society Ltd., Dhanbad, Lakusuma, (ii) Shakti Motor Transport Co-operative Society Ltd. Tata, Dhanbad, Sijua, (iii) North Tisra Colliery Employees Branch Co-operative Society Ltd. Jharia and (iv) Koylanchal Educated Unemployed Co-operative Society Ltd. Jharia, vide notification dated 386 dated 30.04.2007 as contained in Annexure-1 of the writ petition. 9. It appears from the pleadings and submission of the petitioner that the petitioner has specifically informed his Controlling Officer vide letter dated 14.07.2007, 29.06.2007, 04.05.2008, 26.08.2008 and 09.09.2008 respectively vide (Annexure-2 series) regarding North Tisra Colliery Employees Branch Co-operative Society Ltd. Jharia that he has not been given the charge of the Administrator and none of the members were present, although, he has gone to the office several times and no documents were provided to them. Thereafter, he has been transferred and posted as Block Co-operative Extension Officer, Kundhit, Jamtara and from where he was sent to Palamau. 10. Thereafter after six years, he has received the several communication regarding enquiry report dated 27.09.2013 6 conducted by one Anup Kumar Sinha vide Annexure-4 and 4/1 respectively by which he was informed that several irregularities were found with regard to disbursement of loan with different co- operative societies including the North Tisra Colliery Employees Branch Co-operative Society Ltd. Jharia by which he has been informed that the petitioner has not taken any steps for recovery of loan while working as an Administrator and the petitioner has not been conducted election within the schedule time. 11. Thereafter the petitioner has filed reply to the show cause notice, but thereafter department has issued memo of charges as Prapatra- “K” vide order dated 26.11.2013 vide Annexure- 5 against the petitioner for the reason he being the Block Co-operative Extension Officer has not taken prompt action against illegal disbursement of loan at North Tisra Colliery Employees Branch Co-operative Society Ltd. Jharia. 12. The petitioner appeared before the Enquiry Officer and has raised the ground in his defence. However, the Enquiry Officer submitted his enquiry report dated 19.04.2014, which has been enclosed as Annexure- C, although it has been shown as Annexure-3 in the pages of the supplementary counter affidavit. 13. Thereafter the Disciplinary Authority i.e. the Registrar, Co-operative Society vide order dated 10.04.2015 has passed the order of punishment by which the pay scale of the petitioner has been reduced in the original pay scale of the post of Co-operative Extension Officer and his promotion has been withheld in future and the order dated 10.04.2015 passed by the Disciplinary Authority has been affirmed by the Appellate Authority vide order dated 27.06.2016 i.e. Annexure-12. 14. From perusal of the Enquiry Report marked as Annexure- C, it transpires that vide notification dated 22.09.2008 enclosed as Annexure-3 to the writ petition that two co-operative 7 societies including the North Tisra Colliery Employees Branch Co-operative Society Ltd. Jharia were superseded by appointing another Administrator. From perusal of the Enquiry Report as contained in Annexure-C, it would further appear that Enquiry Officer has held the petitioner guilty for his non co-operative approach for not appearing on 08.01.2014, 11.02.2014, 12.02.2014, but he appeared on 10.04.2014 and has held the petitioner guilty for the reason that his reply was not satisfactory to the effect that he had gone to the office of the Co-operative Society, which was found locked and he had not taken steps for conducting the election. This part of the report seems to absurd and arbitrary as it is evident from the letter sent by the Conducting Officer that he was not given charge of the Co-operative Society and even he has not given the records from the office of the Co-operative Society and hence he was not in a position, either to conduct the election or to take the charge as Administrator. The said fact has also appeared from the notification dated 09.06.2008 as contained in Annexure- 3 by which it is evident that fresh Administrator was appointed as earlier Administrator had not taken the charge itself. 15. Thus, the charges that the petitioner has not taken steps for recovery of loan and has not conducted election, has not been proved. However, Disciplinary Authority has imposed the punishment against the petitioner and the same has not been considered by the Appellate Authority. 16. It is further evident that as per Rule 55 of the Bihar and Orissa Subordinate Services (Discipline and Appeal) Rules, 1935, a regular departmental enquiry has to be held while examining the witnesses and for supplying the necessary documents to the petitioner, which has not been done by the department to the petitioner while conducting the enquiry. 8 17. It appears from Annexure-C described as Annexure-3 in the supplementary counter affidavit that Enquiry Officer has proceeded merely on the basis of Prapatra –‘K’ giving by showing the articles of charges against the petitioner and has not supplied any documents with regard to the same and has not been examined any witnesses in support the charges against the petitioner. 18. It has been held in the case of Roop Singh Negi Versus Punjab National Bank and Others reported in (2009) 2 SCC 570, at para- 23 as follows:- “Para-23:- Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.” 19. Therefore, inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for a legal proof. 20. Similar view has been considered in the case of State of Jharkhand and Ors . Versus Amar Kumar Sinha passed in L.P.A. No. 212 of 2021 vide order dated 13.03.2023 passed by the Hon’ble Division Bench of this Court that without proving the 9 documents and without examining any witnesses, the order of punishment has been passed, although, the departmental proceeding is quasi-judicial proceeding and the enquiry officer performs a quasi-judicial function. 21. It has been held in the case of State of Jharkhand and Ors . Versus Amar Kumar Sinha passed in L.P.A. No. 212 of 2021 vide order dated 13.03.2023 passed by the Hon’ble Division Bench of this Court, at para- 8 and 9 as follows:- “Para-8:- In the case of Roop Singh Negi Vs Punjab National Bank and another, (2009) 2 SCC 570, the Hon’ble Supreme Court has also examined a similar question and held that indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the documents. Reliance, inter alia, was placed by the enquiry officer on the F.I.R. which could not have been treated as evidence. Para-9:- In the aforesaid reported judgment, the Hon’ble Supreme Court also intervened in the matter. In the present case, it is seen that no witness was examined, only certain documents purported to be a report, prepared by the Chief Engineer, CDO, was produced before the enquiry officer, he accepted the same and passed the final order. The enquiry made by an officer of the department, prior to the initiation of a departmental enquiry is in the nature of a preliminary enquiry. In such cases, a copy of the preliminary enquiry should be handed over to the petitioner and the evidence that led to preparation of the preliminary enquiry 10 and the conclusion arrived thereon, has to be produced before the enquiring officer, who should apply his mind and come to the conclusion, whether such conclusion of the preliminary enquiry report is correct or not. While doing so, he should also afford a reasonable opportunity of cross-examining the witnesses, produced before the enquiring officer to prove the charges and also allow him to pass rebuttal evidence. In this case, nothing has been done, thus, there has been a clear violation of the principles of natural justice. 22. Apart from this, it is further evident that there appears to be some disparity even awarding punishment. The petitioner has awarded higher punishment considering the fact that he was appointed as the ‘Administrator’, which was never done whereas Ghanshyam Mandal, who was working as Block Co-operative Extension Officer, was awarded punishment of Censor and warning though he was appointed for disbursement of loan of Rs. 87,00,000/- (Rs. 87.00 Lakh). 23. It has been held in the case of Rajendra Yadav Versus State of Madhya Pradesh and Others reported in (2013) 3 SCC 73, at para- 9 as follows:- “Para-9:-The Doctrine of Equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The Disciplinary Authority cannot impose punishment which is disproportionate, i.e., lesser punishment for serious offences and stringent punishment for lesser offences.” 11 24. In view of the above, this Court is of the view that the order of punishment passed by the Disciplinary Authority i.e. Registrar, Co-operative Society, Government of Jharkhand, Ranchi, vide order dated 10.04.2015 i.e. Annexure-8 of the writ petition and the order dated 27.06.2016 i.e. Annexure-12 of the writ petition, passed by the Appellate Authority i.e. the Secretary, Department of Agriculture, Animal Husbandry and Co-operative (Co-operative Division), Government of Jharkhand, Ranchi (i.e. the Appellate Authority), are illegal and hence, the same are hereby quashed. 25. 26. Accordingly, this W. P. (S) No. 7495 of 2016 is allowed. Before parting this order, it would appear that there are several irregularities in disbursing the loan by the Co-operative Society and State should take it proper care and note this fact and they should not be lenient in letting the person by imposing the simple and minor punishment instead of imposing proper punishment against the erring officials. Kamlesh/ (Sanjay Prasad, J.)