SHIV NARAYAN SAH, SON OF LATE HARI SAH, RESIDENT OF VILLAGE, P.O AND P.S. BHAWANIPUR RAJDHAM, DISTRICT Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) (C.A.V.) - In the accompanied writ application, the petitioner has inter alia prayed for quashing impugned Resolution as contained in Memo dated 20.01.2016 by which a departmental proceeding has been initiated against the petitioner and for quashing the impugned charges dated 26.02.2011 drawn in Prapatra K against the petitioner and also for quashing impugned notification as contained in Memo dated 30.10.2015 by which the suspension of the petitioner has been revoked, so far as it relates to initiation of departmental proceeding against the petitioner prior to formal and regular initiation of departmental proceeding and also so far as it mentions in paragraph 3 that payment of salary during suspension period will be done after outcome of vigilance inquiry and departmental proceeding.

(2.) Bereft of unnecessary details, the facts as delineated in the writ application, is that while the petitioner was discharging his duties as District Superintendent of Education, Bokaro a criminal case was instituted by lodging an F.I.R vide Vigilance P.S. Case No. 68 of 2010 dated 06.12.2010 under Sections 403, 406, 409, 120 (B), 467, 468, 471 and 109 of the Indian Penal Code and under Sec. 7/13(2) read with Sec. 13 (1) (d) (c) of the Prevention of Corruption Act, 1988 against 32 persons including the present petitioner on the allegation that the petitioner took construction and supervision work of Kasturba Gandhi Residential Girls School building from teachers of the district and further misappropriated the government fund and also took 12 % cost value of the construction work as bribe. It has been averred that against the criminal case, the petitioner moved this Court by filing Cr. Rev. No. 903 of 2013, which was disposed of vide order dated 28.02.2014, wherein this Court held that there is no legal evidence for putting the petitioner on trial and accordingly the petitioner was discharged from the accusation. It has further been submitted that from perusal of order dated 28.02.2014 it is clear even a prima facie case was not established against the petitioner, therefore, the petitioner was discharged at the very beginning of trial as no case could be made out against him. The petitioner was placed under suspension on 26.02.2011 for unauthorized absence and dereliction of duty but no departmental proceeding was initiated against him for five long years and when even after order passed in Cr. Rev. No. 903 of 2013, the order of suspension was not revoked, the petitioner was compelled to move this Court by filing W.P. (S) No. 4877 of 2015 praying therein for quashing the order of suspension. The said writ petition was disposed of being in fructuous as during the pendency of the writ application, the order of suspension stood revoked. But vide Memo dated 20.01.2016, a departmental proceeding was initiated against the petitioner under Rule 49 and 55 of the Civil Services (Classification, Control and Appeal) Rules for the charge of financial irregularity and unauthorized absence and accordingly charge was framed in Prapatra K on 26.02.2011. It has been averred that from bare perusal of impugned resolution dated 20.01.2016 and charges drawn thereupon, it appears that the same charges have been levelled against the petitioner as has been levelled in Vigilance P.S. Case No. 68 of 2010.

(3.) Learned counsel for the petitioner submitted that initiation of departmental proceeding by impugned resolution dated 20.01.2016 on the same set of charges upon which F.I.R. in Vigilance P.S. Case No. 68 of 2010 was lodged against the petitioner, which culminated to quashing of the same as no office was made, amounts to abuse of process of Court and law. Learned counsel for the petitioner further submitted that initiation of departmental proceeding by impugned resolution dated 20.01.2016 after a lapse of about 5 years, i.e. when the petitioner was for the first time placed under suspension 26.02.2011, is wholly prohibited under the law. Learned counsel for the petitioner further submitted that Deputy Commissioner-cum-District Magistrate, Bokaro is not at all competent to draw charge in Prapatra K against the petitioner, as he is appointed by the Governor and is a member of State Education Service Cadre. It has further been submitted that the impugned resolution dated 20.01.2016 against the petitioner is in the very teeth of order dated 28.02.2014 passed in Criminal Revision No. 903 of 2013 but the petitioner was discharged from the charges as no offence was made out against the petitioner but surprisingly on the set of charges, the present departmental proceeding has been initiated, which is wholly prohibited under law. Learned counsel for the petitioner further submitted that on bare perusal of the impugned resolution dated 20.01.2016, it finds mention in the opening paragraph that charge of financial irregularity and unauthorized absence has been prima-facie found to be proved against the petitioner, which shows that the respondents-authorities have prejudged the entire issue and departmental is only an empty formality because if the charges are already proved against the petitioner, there is no need of domestic inquiry.