NATHUN SAHU Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Challenging the entire departmental proceeding and order of punishment passed by respondent No. 5 vide order dated 12.02.2013 and the order dated 26.02.2013 vide Annexure-19 whereby the recovery of 90% provisional gratuity and leave encashment amount towards post reitral benefits have been ordered, the instant writ petition has been preferred for quashing the aforesaid orders.

(2.) The brief facts as depicted in the writ petition is that earlier the petitioner approached this Court in W.P.(S) No. 5667 of 2009 challenging the departmental proceeding and major punishment of reversion and recovery of huge amount from the petitioner and the said punishment was quashed by this Court dated 07.03.2011 with liberty to respondent to conduct enquiry in a proper manner. The petitioner while working as Forester in Jhumra Forest Depot under the D.F.O. Departmental Working Division, Hazaribagh was transferred to Social Forestry Division, Hazaribagh vide order dated 23.07.2003 and the petitioner was relieved from the charge of Jhumra Forest Depot w.e.f. 12.09.2003 by the order of the Forest Range Officer. On the very next day, the petitioner requested the then D.F.O., Departmental Working Division, Hazaribagh (Controlling Authority) respondent No. 5 for handing and taking over the charge of Jhumra Forest Depot. The physical verification of the Jhumra Forest Depot was never made by the respondents in the presence of the petitioner after relinquishing the charge of depot on 12.09.2003 but surprisingly on 10.01.2006 the petitioner received the order by which the charges were framed for initiation of departmental proceeding against the petitioner by Conservator of Forest, Departmental Working Circle, Hazaribagh. The charges contained are as follows:-

(3.) Learned senior counsel for the petitioner has strenuously urged that there has been violation of Rule 55 of the C.C.A Rules, since the petitioner was not given opportunity to cross examine the witness oral or documentary evidence, nor was any evidence brought on record by the enquiry officer and simply on the basis of hypothetical considerations, surmises and conjectures, the impugned order of punishment has been passed. Learned senior counsel further submits that the impugned order of punishment vide Annexure-19 has been issued by the Subordinate Officer like D.F.O., who has enhanced the scope of recovery in contravention of the service/disciplinary rules, which is not tenable in the eye of law. The D.F.O by ordering recovery has exceeded his jurisdiction which is de hors service rules and disciplinary procedure. Learned senior counsel has submitted that the order passed by the disciplinary authority is fit to be set aside, when the petitioner has not been provided adequate opportunity as claimed at the time of inquiry stage and as such inquiry proceeding is vitiated in the eye of law. Learned senior counsel has further submitted that the impugned order is liable to be set aside because the respondents have not provided opportunity even to cross examine the witnesses for which he made specific request before the authority as per mandatory provisions under Rule 55 of Civil Service (Classification, Control and Appeal Rule) read with section 10 of the Public Servant Enquiries Act, 1850. Learned senior counsel has referred to decision rendered in the case of State of Uttar Pradesh and Ors. Vs. Saroj Kumar Sinha reported in (2010) 2 SCC 772. In para -28 of the said judgment the Honourable Apex Court has been pleased to hold: