Narmadeshwar Singh v. House, Ranchi

In reply, counsel for the respondents submitted that though initially the charge- sheet was issued under Rule 55 of the Civil Services (Classification Control and Appeal) Rules but later on a corrigendum was issued and it was informed that due to typographical error, Rule 55 of the Civil Services (Classification Control and Appeal) Rules was mentioned instead of Rule 43(b) of the Jharkhand Pension Rules. As per him the proceeding should be treated to be initiated under Rule 43(b) of the Jharkhand Pension Rules. He further submitted that there was sufficient material before the Disciplinary Authority to impose the order of punishment as there is an inspection report of the flying squad which suggests that the petitioner had committed grave illegality. He submitted that prior to inflicting the punishment, a clarification dated

28.6.2012 was collected from the flying squad and based on the said document, the petitioner has been punished. As per him an opportunity was given to the petitioner to defend himself and even second show-cause notice was issued to the petitioner to which the petitioner replied. Considering his reply and the Inspection Report a punishment was inflicted. As per him, quantum of punishment cannot be said to be disproportionate to the proved misconduct as there is allegation of causing loss to the Government Exchequer. He also submitted that the limitation period of four years as envisaged under Jharkhand Pension Rules is not applicable as the petitioner superannuated on 31.12.2010 whereas the event which led to initiation of proceeding is of the financial year 2007-2008, which is within four years from the date of superannuation.

#5. I have gone through the petition. The petitioner was appointed as an Assistant Engineer on 7.2.1979 in the Irrigation Department of the State of Bihar. Subsequently, he was promoted in the year 2005 as an Executive Engineer. There was some irregularity and illegality committed in construction of a check dam in the year 2008. Petitioner was proceeded against for the said irregularity/ illegality committed in the year 2007-2008. The petitioner superannuated from the post of Executive Engineer, Minor Irrigation Division, Simdega on 31.12.2010. The petitioner was proceeded against by issuing a charge-sheet dated 10.5.2011. The Enquiry Officer was appointed who conducted enquiry and submitted its report on 21.3.2012 finding three charges to be proved. Second show-cause notice was issued to the petitioner and thereafter vide order dated 18.9.2017 the impugned order of punishment was passed whereby the respondents forfeited 10% of the pension of the petitioner for a period of ten years. -3-

#6. From the aforesaid facts itself it is clear that no departmental proceeding was initiated against the petitioner while he was in service. The proceeding was initiated by issuance of a charge-sheet dated 10.5.2011, i.e after the petitioner superannuated on

31.12.2010. The charge-sheet which was issued on 10.5.2011, initially suggested that the same was furnished to the petitioner, as if the Departmental proceeding was initiated in terms of Rule 55 of the Civil Services (Classification Control and Appeal) Rules. The respondents corrected the aforesaid provision of law and intimated that the proceeding actually is under Rule 43(b) of the Jharkhand Pension Rules. No illegality thus has been committed by the respondents in initiating the proceeding under Rule 43(b) of the Jharkhand Pension Rules, as the petitioner had already superannuated by then.

#7. Rule 43(b) of the Jharkhand Pension Rules provides that State Government has a right to withhold or withdraw pension or any part of it whether permanently or for a specified period from the pension, whole or part, for any pecuniary loss caused to the Government. If the delinquent is found guilty in the departmental or Judicial proceeding of grave misconduct, he ought to have caused pecuniary loss to the government by the misconduct or negligence during his service period. The proviso specifies the condition based on which the proceeding cannot be initiated. As per the proviso, proceeding cannot be initiated without the sanction of the Government nor it can be initiated in respect of any event which took place more than four years before the institution of such proceeding. It is necessary to quote rule 43(b) of the Jharkhand Pension Rules, which reads as follows.. “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 retirements: Provided that- (a) such departmental proceedings, if no instituted while the Government servant was on duty either before retirement or during re-employment; (i) shall not be instituted save with the sanction of the State Government; -4- (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.”

#8. Thus from bare reading of the aforesaid provision it is clear that a proceeding under Rule 43(b) of the Jharkhand Pension Rule shall not be initiated for an event which took place more than four years before institution of such proceeding. In this case the proceeding was initiated on the date the charge-sheet was issued i.e on

10.5.2011. It is an admitted fact by both the parties that occurrence/alleged misconduct, which led to initiation of this proceeding is of the financial year 2007-2008. The financial year 2007-2008 came to an end on 31st March, 2008. The charge-sheet was issued on 14.5.2011, thus the event which led to initiation of the proceeding is within four years from the date of issuance of the charge-sheet. Thus, I hold that initiation of the proceeding under Rule 43(b) of the Jharkhand Pension Rules against the petitioner is in accordance with law rules framed, and is not time barred.

#9. In the instant case there was seven charges levelled against the petitioner which was in relation to construction of a check dam. The charge specified in the charge-sheet are well defined. Once the charge-sheet was supplied and Departmental Enquiry officer was appointed, the charges levelled against the petitioner needs to be proved. The charges will be proved with the help of the evidence, which must be led before the Enquiry Officer. When I go through the Enquiry Report which is annexed with the counter-affidavit, I find that charge no.1 (iii) & Charge Nos. 2 & 3 have been proved. Rest of the charges were not proved.

#10. The Hon’ble Supreme Court in the case of Mithilesh Singh Vrs. Union of India reported in (2003) 3 SCC 309 has held that scope of interference with punishment awarded by a Disciplinary Authority is very limited and on amongst other, unless the punishment appears to be the shockingly disproportionate, the Court cannot interfere with the same. -5-

#11. Further in the case of Union of India Vrs. Bodupalli Gopalaswami reported in (2011) 13 SCC 553 it was held that only in an extreme cases which on their face, there is perversity or irrationality, there could be Judicial review and merely on compassionate grounds, courts should not interfere.

#12. The Hon’ble Supreme Court in the case of Director General of Police, Railway Protection Force and Others versus Rajendra Kumar Dubey reported in 2020 SCC OnLine SC 954 at paragraph 37 thereof has held that it is well settled that High Court cannot act as an Appellate Authority and re-appreciate the evidence, which was led before the enquiry officer. By referring to a judgment delivered in the case of State of Andhra Pradesh & Others versus S. Sree Rama Rao reported in AIR 1963 SC 1723, the Hon’ble Supreme Court has held that it is not the function of the High Court to review the findings and arrive at a different decision. In a departmental proceeding, scope is very limited and it is well settled that the High Court can interfere where the departmental authority has acted against the principles of natural justice or where the findings are based on no evidence or in violation of the statutory rules provided. Further, if the punishment imposed is excessive, the Court can interfere. It has also been held by the Hon’ble Supreme Court that under Article 226 and 227 of the Constitution of India, the High Court shall not:- (i) re-appreciate the evidence; (ii) interfere with the conclusions in the enquiry, in the case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based; (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience.

#13. Further, in the case of Deputy General Manager (Appellate Authority) and Others versus Ajay Kumar Srivastava reported in (2021) 2 SCC 612, the Hon’ble Supreme Court at paragraph 24 thereof has held as under:- “24. It is thus settled that the power of judicial review, of the constitutional courts, is an evaluation of the decision making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. -6- If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.”

#14. In paragraph 25 of the aforesaid judgment (Ajay Kumar Srivastava) the Hon’ble Supreme Court has narrated the scope, which reads as follows:- “25. When the disciplinary enquiry is conducted for the alleged misconduct against the public service, the court is to examine and determine: (i)whether the enquiry was held by the competent authority; (ii)whether rules of natural justice are complied with; (iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion.”

#15. In paragraph 28 of the aforesaid judgment (Ajay Kumar Srivastava) the Hon’ble Supreme Court has held that while exercising jurisdiction under Article 226 or 136 of the Constitution, the Court will not interfere with the findings of fact arrived at in the departmental enquiry proceeding except in a case of mala fides or perversity, i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained.

#16. From the aforesaid judgments it is clear that if there is no evidence to prove the guilt, the court can interfere. Considering the aforesaid judgment I have gone through the Enquiry Report. Admittedly as per the Enquiry Officer three charges were found to be proved i.e charge no.1 (iii) & Charge Nos. 2 & 3. Further I find that the Enquiry Officer has only mentioned the charge and the defence version of the employee and thereafter arrived at a conclusion whether the particular charge is proved or not. Nowhere in the entire Enquiry Report he has whispered or discussed about the materials which led to the conclusions that the charges are proved. He has only referred one inspection report. During the course of argument, relying upon the counter- affidavit, learned counsel for the respondents submitted that inspection report of the flying squad was relied upon by the Enquiry Officer. This report is dated 04.03.2008 read with a clarification submitted by the flying squad which is dated 18.2.2013. -7- Surprisingly from the entire Enquiry report I do not find any material to suggest as to whether the said inspection report or the clarification was at all exhibited or not. Counsel for the respondents submitted that report was taken note of but there is nothing to suggest the same was exhibited. Not only this I also find that no witnesses have been examined during the Departmental Enquiry.

#17. The Hon’ble Supreme Court in the case of Roop Singh Negi Vrs. Punjab National Bank & Ors. reported in (2009) 2 SCC 570 has held that in paragraph 14 has held as under. Indisputably, a departmental proceeding is a quasi-judicial “14. 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 document and did not prove the contents thereof. Reliance, inter alia, was placed by enquiry officer on the FIR which could not have been treated as evidence.”

#18. The aforesaid view of the Hon’ble Supreme Court has been reflected in the judgment of State of UP Vrs. Saroj Kumar Sinha reported in (2010) 2 SCC 772. In the aforesaid judgment the Hon’ble Supreme Court in para 30 has held that a departmental enquiry against a government servant cannot be treated to be a casual exercise. The enquiry proceeding also cannot be conducted with close mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only the justice is done but is manifestly seen to be done. Fair treatment should be given to the delinquent employee. It is necessary to quote 30 of the said judgment which reads as follows:- “30. When a departmental enquiry is conducted against the government servant it cannot be treated as casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.” -8-

#19. Further in paragraph 32 of the aforesaid judgment, the Hon’ble Supreme Court dealt with effect of non-disclosure of relevant document to the delinquent employee. It is necessary to quote 32 herein below. “32. The affect of non-disclosure of relevant document has been stated in Judicial Review of Administrative Action by De Smith, Woolf and Jowell, 5th Edn. P. 442 as follows; “ If relevant evidential material is not disclosed at all to a party who is potentially prejudice by it, there is prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing. This proposition can be illustrated by a large number of modern cases involving the use of undisclosed reports by administrative tribunals and other adjudicating bodies. If the deciding bodies is or has the trappings of a judicial tribunal and receives or appears to receive evidence ex parte which is not fully disclosed, or holds ex parte inspections during the course or after the conclusion of the hearing, the case of setting the decision aside is obviously very strong; the maxim that justice must be seen to be done can readily be invoked. In our opinion the aforesaid maxim is fully applicable in the facts and circumstance of the case.” In a Departmental Enquiry if a document is relied upon by the Enquiry Officer

#20. and that too if a document speaks something against the delinquent employee the copies of the said documents must be supplied to the employee. If the document is not supplied, the delinquent employee will not be in a position to meet the charges, thus the natural justice is violated.

#21. In Kashinath Dikshita Vrs. Union of India & Ors. reported in (1986) 3 SCC 229 in paragraph 10 the Hon’ble Supreme court has held has follows:- facing a disciplinary “10………….When a government servant proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in a effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the concerned employee prepare his defence, cross-examine the witnesses, and point out the inconsistencies with a view to show the allegation are incredible……..” In this case Hon’ble Supreme Court has held that non-supply of documents will amount to violation of principle of natural justice.

#22. In the instant case I find that this is an admitted case of the respondents that they have relied upon the routine inspection report made by the departmental flying squad which is dated 04.03.2008 and the clarification dated 18.2.2013. -9- Be it noted that the Enquiry report is dated 21.3.2012 which clearly suggest that clarification, which the disciplinary authority relied upon while punishing the petitioner, was sought after the enquiry report was submitted. This action of the disciplinary authority is perverse and is against principle of natural justice. No clarification could have been sought for behind the back of the petitioner and the respondents could not have used the same against the petitioner. So far as relying upon the routine inspection report is concerned, admittedly the same was prior to issuance of the charge-sheet. It is also an admitted case of the respondents that charge-sheet was issued based on the routine inspection report. Thus this routine inspection report is nothing but a preliminary enquiry report. This preliminary enquiry report led to filing of the charge-sheet, which has been relied upon by the disciplinary authority while inflicting the punishment. The enquiry officer and the disciplinary authority have committed grave illegality in relying on the same.

#23. The Hon’ble Supreme Court in the case of Nirmala J. Jhala Vrs. State of Gujarat reported in (2013) 4 SCC 301 has held that no punishment order can be passed which is based on a preliminary enquiry report. While relying upon the judgment of the Hon’ble Supreme Court in the case of Amlendu Ghosh Vrs. Eastern Railway AIR 1960 SC 992, the Hon’ble supreme Court has held that the preliminary enquiry report in respect of alleged misconduct is only for the purpose of finding a particular fact and prima facie, to know as to whether the alleged misconduct has been committed or not. It has also been held that basing on the preliminary enquiry no order of punishment can be passed. It is used only to take a view as to whether a regular disciplinary proceeding against the delinquent is required to be held or not. It is necessary to quote paragraph 42 of the said judgment which reads as follows:- “42. A Constitution Bench of this Court in Amalendu Ghosh V. North Eastern Railway, held that the purpose of holding a preliminary inquiry in respect of a particular alleged misconduct is only for the purpose of finding a particular fact and prima facie, to know as to whether the alleged misconduct has been committed and on the basis of the findings recorded in preliminary inquiry, no order of punishment can be passed. It may be used only to take a view as to whether a regular disciplinary proceeding against the delinquent is required to be held.” Lastly while concluding, the Hon’ble Supreme Court in paragraph 45 has held that evidence recorded in preliminary enquiry cannot be used in a regular enquiry as the delinquent is not associated with it. -10- Further it has been held that using such evidence would be a violation of the principle of natural justice. It is necessary to quote paragraph 45 of the said judgment which reads as follows. “45. In view of the above, it is evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross-examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of natural justice.”

#24. As held earlier and as it is an admitted fact that the inspection report dated

04.03.2008 is the only material before the enquiry officer to conclude that the charges are proved, I hold that the findings of the enquiry officer based solely on the preliminary enquiry report i.e the inspection report by the departmental flying squad, is in violation of the principle natural justice. Except the said report and the clarification there were no other material before the Enquiry officer to conclude that the charges are proved. Further I find that there was no oral evidence led in the departmental proceeding. Even the so called enquiry report was not exhibited which the respondents are duty bound to exhibit as held by the Hon’ble Supreme Court in the case of Roop Singh Negi (supra).

#25. The cumulative effect of what has been held above, is that the entire departmental enquiry report is vitiated as it is against the principle of natural justice and is perverse. The punishment order based on this enquiry report, is also bad as not only it takes into consideration the enquiry report which is based on no evidence, but also a clarification submitted by the flying squad. As held earlier this action of taking on record the clarification of flying squad is perverse and is against the principle of natural justice. Thus, I have no hesitation to quash and set aside the impugned order dated 18.9.2017 as contained in Memo No. 3994.

#26. Accordingly, the instant writ application stands allowed.

#27. Action of the respondents in recovering 10% of pension by virtue of the impugned order is also declared to be illegal. The respondents are directed to immediately refund the amount which has been deducted till date from the pension of the petitioner within a period of six weeks from the date of receipt of copy of this order. anjali/cp2 (ANANDA SEN , J)