Dr. S.N. Pathak, J
1. Since questions of law and facts involved in both these writ petitions are same and similar, they are heard together and are
being decided analogously.
2. Heard the learned counsel for the petitioner and learned counsel for the respondents.
Prayers
3. W.P.(S) No. 3096 of 2021 was filed by the petitioner for payment of pensionery benefits. W.P.(S) No. 5035 of 2021 was filed by the petitioner for
quashing of the order contained in Memo No. 14/A.8-21/2019-1848 dated 06.12.2019, whereby the petitioner was terminated from service. In this writ
petition, the petitioner has also challenged the appellate order contained in Memo No. 2293 dated 22.11.2021 by which the departmental appeal
preferred against the penalty order dated 06.12.2019 has been rejected. The petitioner has also challenged the enquiry report datedÂ
21.02.2019 whereby the enquiry officer held the charges proved against the petitioner.
The Facts
4. Shorn of unnecessary details, the facts pleaded in these writ petitions are that the petitioner was appointed on 06.04.1991. A memo of charge was
framed in Prapatra-‘Ka’ against the petitioner on 20.6.2016 alleging inter alia that while he was posted as Block Education Extension Officer,
Bagodar, he withdrew a sum of Rs. 4,36,000/- and the amount could not be distributed in the schools and while handing over the charge to his
successor, he did not hand over the aforesaid details of amount. It is further alleged that a complaint was made against the petitioner with respect to 5
bags of rice, as the petitioner has distributed only 35 bags of rice instead of 40 bags of rice. The third allegation against the petitioner is that there was
a criminal case going on against him, being Vigilance P.S. Case No. 14 of 2016. These allegations were enquired into and the enquiry officer
submitted the report on 21.02.2019 holding the charges proved. A second show cause notice was called for from the petitioner on 14.10.2019 which
was replied by the petitioner on 21.10.2019. The penalty of termination from service was passed on 06.12.2019. The petitioner preferred departmental
appeal there-against which came to be dismissed on 22.11.2021. The writ petition was thereafter preferred and in the meantime, the petitioner stood
retired on 31.10.2022.
Arguments advanced by learned counsel for Petitioner
5. Mr. Manoj Tandon, learned counsel appearing for the petitioner while assailing the termination order submits that the very initiation of departmental
proceeding was bad in the eyes of law for the simple reason that the same was proceeded under Rules 49 and 55 of the Civil Services (Classification,
Control & Appeal) Rules, 1930 which stood repealed by coming into existence of Jharkhand Government Servant (Classification, Control & Appeal),
2016. Learned counsel submits that the very initiation of departmental proceeding, therefore, was non-application of mind by the authority. Referring
to the enquiry report dated 21.02.2019, learned counsel submits that the enquiry officer has held the charges proved against the petitioner without
examining even a single witness to support the charge. It is submitted that mere production of document may not be sufficient to prove charge against
the petitioner unless the contents thereof is proved by a witness. Admittedly, not a single witness was examined to prove the charge against the
petitioner. Mr. Tandon further submits that on the basis of complaint against the petitioner, the charge against the petitioner was drawn. However, the
fact remains that the complainant was not examined to support the allegation against the petitioner. It is further submitted that the departmental appeal
was preferred on 31.07.2021 wherein altogether eight points were raised requesting the appellate authority to consider and set aside the termination
order. However, the appellate authority has not dealt with any of such points. In this view of the matter, learned counsel submits that it is a case of no
evidence.
6. To fortify his arguments, learned counsel places heavy reliance upon the judgment of the Hon’ble Supreme Court in the case of Hardwari Lal
Vs. State of U.P. & Ors., reported in (1999) 8 SCC 582 to contend that without examining the complainant, the charge could not be proved.
Reliance has also been placed on the judgment in the case of Roop Singh Negi Vs. Punjab National Bank & Ors.,r eported in (2009) 2 SCC 570
to fortify his argument that without examining the witnesses, the charge could not be proved and unless the charge is proved in accordance with law,
no punishment can be inflicted upon the delinquent. Relying on these judgments, it is submitted by the learned counsel for the petitioner that the
impugned orders are fit to be set aside, the petitioner is fit to be reinstated in service and a direction be given to the respondents to pay the pensionery
benefits to the petitioner.
Arguments advanced by learned counsel for Respondents.
7. Mr. Nehru Mahto, learned counsel appearing for the respondents submits that the departmental proceeding was initiated against the petitioner and
the enquiry officer held the charges to be proved. The petitioner was given ample opportunity to submit second show cause reply and thereafter the
disciplinary authority has punished the petitioner. The petitioner has also preferred departmental appeal which has been dismissed and hence, no
interference is called for by this Court in the writ petition. It is further stated in the counter affidavit that a first information report was lodged against
the petitioner which was registered as Vigilance P.S. Case No. 14 of 2016 which followed the charge sheet dated 20.6.2016. It is pleaded in
paragraph-11 of the counter affidavit itself that the amount said to be misappropriated was deposited by the petitioner after initiation of the
departmental proceeding and hence, there was admission on the part of the petitioner. It is further submitted that the petitioner was earlier punished
with minor penalty of stoppage of three increments without cumulative effect by order contained in letter dated 26.06.2019, enclosed as Annexure-A
to the counter affidavit. As such, learned counsel submits that the writ petitions are bereft of any merit and hence, the same may be dismissed.
FINDINGS OF THE COURT
8. This Court has considered the rival submissions of the learned counsel appearing for the parties and has come to the conclusion that the impugned
orders are neither sustainable in law nor on facts for the following facts and reasons:-
(i) It is true that in a matter of departmental proceeding under the service law, the interference by a Writ Court under Article 226 of the Constitution is
very limited. But it is equally true that even in a matter of departmental proceeding, some sort of evidence is required to be proved against the
delinquent and proceeding has to be conducted in accordance with rules whereby departmental proceeding is governed.
(ii) The State of Jharkhand has framed Jharkhand Government Servant (Classification, Control & Appeal) Rules, 2016 in exercise of powers under
the proviso to Article 309 of the Constitution of India. This Rule governs the field of the departmental proceeding against a Government servant and in
fact, the punishment has been imposed upon the petitioner under Rule 17 thereof, which is mentioned in the impugned order of penalty dated
06.12.2019 itself. Rule 14 thereof prescribes the punishment. Removal from service is under Rule 14 (x), which is under the heading of Major Penalty.
The procedure for imposing major penalty is stipulated under Rule 17 of the said Rules, 2016. Rule 17 (3) (ii) (a) prescribes that where it is proposed
to hold an enquiry against the Government servant, the disciplinary authority shall draw up the substance of imputations and the statement of
imputation of misconduct or misbehaviour in support of each article of charge shall contain a list of such witnesses by whom the article of charge are
proposed to be sustained. It is a mandatory provisions to be complied with by the disciplinary authority.
(iii) In the present case, from perusal of the memo of charge, which is Annexure-1 to the writ petition, it does not appear that this mandatory provision
has been followed, as no list of witness is given thereunder. This Rules came into effect on 15.4.2016 and the charge was framed against the
petitioner on 20.6.2016. The mandatory provisions, therefore, were violated in initiation of the proceeding against the petitioner. Moreover, though the
aforesaid Rule 2016 was invoked on the date of initiation of departmental proceeding on 20.6.2016, the respondents initiated the proceeding mentioning
Rules 49 and 55 of the Civil Services (Classification, Control & Appeal) Rules, 1930 which stood repealed by the aforesaid Rules, 2016, in view of
Rule 32 thereof, which is the repealed and saving clause. This shows complete non-application of mind by the disciplinary authority while initiating the
departmental proceeding.
(iv) From perusal of the enquiry report dated 20.5.2019, it appears that merely by quoting charges, the enquiry officer came to the conclusion that the
charges are proved. How the charges are proved has not at all been discussed in the enquiry report. Not a single witness is examined to prove the
charge against the petitioner. In this context, in the case of Roop Singh Negi (supra), the Hon’ble Apex Court held in paragraph no. 14 which is as
follows:-
“14. 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 contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been
treated as evidence.â€
(v) Admittedly, in the present case, mere documents were produced and no witness was examined. The charges could not said to be proved as mere
production of document would not be sufficient to prove the charge, unless the witness proves the contents thereof. It has been held in the case of
State of Uttar Pradesh & Ors. Vs. Saroj Kumar Sinha, reported in (2010) 2 SCC 77 2that even the delinquent does not appear in the
departmental proceeding, then also procedure for imposing penalty has to be followed, before imposing such major penalty. Mere production of
document cannot be sufficient to prove the charge, unless it is supported by a witness. The relevant paragraph-28 of the said judgment is quoted
herein below:-
“28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the
department/disciplinary authority/ Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent
official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been
observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the
charges have been proved against the respondents.â€
(vi) The contention of the learned counsel for the petitioner that unless the complainant is examined, the charges cannot be said to be proved has some
substance. It is well settled that without examining the complainant which is the basis of initiation of departmental proceeding causes serious defect in
the departmental proceeding. Reference in this context may be made to the judgment in the case of Hardwari Lal (supra), in particular paragraphs- 3
to 5 thereof:-
“3. Before us the sole ground urged is as to the non-observance of the principles of natural justice in not examining the complainant, Shri Virender Singh, and
the witness, Jagdish Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellant that the non-examination of those two
persons has prejudiced his case. Examination of these two witnesses would have revealed as to whether the complaint made by Virender Singh was correct or not
and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical
examination, would have been an important witness to prove the state or the condition of the appellant. We do not think the Tribunal and the High Court were
justified in thinking that non-examination of these two persons could not be material. In these circumstances, we are of the view that the High Court and the
Tribunal erred in not attaching importance to this contention of the appellant.
4. However, Shri Goel, the learned Additional Advocate General, State of Uttar Pradesh has submitted that there was other material which was sufficient to come
to the conclusion one way or the other and he has taken us through the same. But while appreciating the evidence on record the impact of the testimony of the
complainant cannot be visualised. Similarly, the evidence of Jagdish Ram would also bear upon the state of inebriation, if any, of the appellant.
5. In the circumstances, we are satisfied that there was no proper enquiry held by the authorities and on this short ground we quash the order of dismissal passed
against the appellant by setting aside the order made by the High Court affirming the order of the Tribunal and direct that the appellant be reinstated in service.
Considering the fact of a long lapse of time before the date of dismissal and reinstatement, and no blame can be put only on the door of the respondents, we think
it appropriate to award 50 per cent of the back wages being payable to the appellant. We thus allow the appeal filed by the appellant. However, there shall be no
order as to costs.â€
(vii) It has also been rightly argued that if the departmental proceeding is initiated by framing of charge, it must contain the list of witnesses, which is
the requirement of law. This point has also been dealt with by the Hon’ble Apex Court in the case of Union of India & Ors. Vs. B.V. Gopinath,
reported in (2014) 1 SCC 351, as per which, giving the list of witnesses with the name of charge itself is a requirement under the law to initiate the
departmental proceeding. The relevant paragraph-41 is quoted herein below:-
“41. Disciplinary proceedings against the respondent herein were initiated in terms of Rule 14 of the aforesaid Rules. Rule 14(3) clearly lays down
that where it is proposed to hold an inquiry against a government servant under Rule 14 or Rule 15, the disciplinary authority shall draw up or cause to
be drawn up the charge-sheet. Rule 14(4) again mandates that the disciplinary authority shall deliver or cause to be delivered to the government
servant, a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and the supporting documents including a list
of witnesses by which each article of charge is proposed to be proved…….â€
(viii) From perusal of the appellate order dated 22.11.2021, it does not appear that any of the points raised by the petitioner in his appeal dated
31.07.2021 stands considered. The petitioner raised the points that the departmental proceeding was conducted dehors the rules; that no witness was
examined to prove; that proceeding was initiated under a repealed law; that the petitioner deposited the entire amount when there was dispute relating
to hand over the charge of the amount alleged; that punishment imposed was without any evidence; and that the punishment was highly excessive and
disproportionate. But it appears that the appellate authority rejected the appeal without considering any of such points. There was no consideration at
all by the appellate authority while rejecting the departmental appeal of the petitioner. The order of the appellate authority itself should reveal the
application of mind and it cannot be simply adopting the language employed by the disciplinary authority and proceed to affirm its order. In this context,
the Hon’ble Apex Court in the case of Chairman, Life Insurance Corporation of India & Ors. Vs. A. Masilamani, reported in (2013) 6
SCC 530 held in paragraph-19 thereof as under:-
“19. The word “consider†is of great significance. The dictionary meaning of the same is, “to think overâ€, “to regard asâ€, or “deem
to beâ€. Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term “considerâ€
postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of
mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority
cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order.â€
(ix) From perusal of the documents enclosed with the writ petition, being W.P.(S) No. 3096 of 2021, it appears that Pension Intimation Memo was
also issued on 2.7.2021 for payment of pensionery benefits. Even Gratuity Payment Order was also issued on 2.7.2021. But it further appears that the
PPO and GPO were issued pursuant to the requests made by the District Superintendent of Education, Ramgarh by Memo No. 714 dated 10.6.2021
(Annexure-5 to the rejoinder) filed in W.P.(S) No. 3096 of 2021. However, by letter no. 835 dated 15.7.2021, further request was made to the office
of Accountant General, Jharkhand, Ranchi by the same District Superintendent of Education, Ramgarh that such approval order for payment of
pension and gratuity be cancelled. Under what circumstances this was done is not explained in the counter affidavit filed by the respondents. From
very inception, it appears that the authorities were bent upon to punish the petitioner in one way or the other. The respondents have filed counter
affidavit, but none of the points raised in the writ petition has been raised. No paragraph reply has been given in the counter affidavit. Though in the
counter affidavit it has been raised that the petitioner was inflicted a minor penalty. It also shows the predetermined mind of the authority though no
such charge was framed against the petitioner which is evident from the memo of charge against the petitioner.
(x) In these backdrop of the facts, this Court usually directs the authorities to initiate fresh departmental proceeding, but faced with the aforesaid facts
and circumstances, the present matter could not be remitted back to the authority to proceed in accordance with law, as the petitioner has already
retired on 31.10.2022 and now the relationship of employee and employer has already ended.
Conclusion
9. As a sequitur to the aforesaid rules, regulations, guidelines and judicial pronouncements, the enquiry report dated 21.02.2019; penalty order dated
06.12.2019; and the appellate order dated 22.11.2021 are hereby quashed and set aside. Upon quashment of the penalty orders, the petitioner is
entitled to get the pensionery benefits. As such, the respondents are directed to extend the entire pensionery benefits to the petitioner with admissible
statutory interest within a period of six weeks from the date of receipt of a copy of this order. However, it is made clear that the petitioner is not
entitled for back wages from the date of termination till the date of retirement, but the said period shall be calculated for the purpose of pensionery
benefits.
10. Both these writ petitions are, accordingly, allowed.
