1. Heard through V.C.
2. The instant writ application has been preferred by the petitioner for following reliefs:
(i) For the issuance of an appropriate writ order direction for quashing the order as contained in Memo No. 2922 dated 1.4.2009 issued under the signature of Managing Director of Bihar State Food and Civil Supply Corporation Limited whereby and whereunder it has been ordered to deduct 50% of the amount from the Gratuity and Leave encashment of the petitioner.
(ii) For the issuance of an appropriate writ order direction to direct the respondent to forthwith release all retiral dues like the amount of Provident Fund along with statutory interest, amount of gratuity, amount of leave encashment, group insurance alongwith penal interest.
(iii) For the issuance of an appropriate order writ order direction commanding upon the respondents to complete all formalities for fixing and finalizing the pension of the petitioner with a further direction to release full pension alongwith its arrear and continue to pay the current pension regularly on month to month basis.
(iv) For the issuance of an appropriate writ order direction commanding upon the respondents to grant the benefit of 5th Pay Revision Committee recommendation which has arbitrarily been not granted in favour of the petitioner and thereafter finalize the pension on the basis of enhanced pay scale by virtue of benefit granted by way of 5th Pay Revision Committee recommendation alongwith legally permissible dues which the petitioner is entitled to get.
For the issuance of any other appropriate writ order direction for doing conscionable justice to the petitioner.
3. The brief facts as disclosed in the instant writ application are that while the petitioner was posted at Madhubani, a vigilance enquiry was conducted with respect to the lifting of food grains to be distributed among the person below the poverty line and the vigilance department of the State of Bihar has submitted a detailed report finding the District Manager, the Transport Contractor and Godown Manager responsible for irregularities. Pursuant to that; a regular departmental proceeding was initiated against the District Manager and he has been dismissed from service. In contemplation with the said vigilance enquiry, a proceeding was also initiated against this petitioner to which he duly replied and finally after converting the proceeding under Rule 43 B of the Bihar Pensions Rules; the punishment was imposed upon him whereby 50% of his post retiral benefits i.e. the pension and gratuity was to be deducted from the pensionary benefit of the petitioner (Annexure-9).
4. Mr. Saurabh Shekhar, learned counsel for the petitioner draws attention of this Court towards the show cause notice and submits that there was a common charge against one Md. Nazim who was holding the post of District Manager and other subordinate officers. He further referred the finding given by the Inquiry Officer and submits that the Inquiry Officer after discussing everything came to a conclusion that the main person who was responsible for lifting of food grains and its distribution was the District Manager and not the accountant who is a subordinate officer and whose work is also different.
The Inquiry Officer, however, in the concluding paragraph has given finding that the petitioner being an accountant and subordinate to the District Manager should have taken instruction and should have verified the distribution.
Learned counsel contended that there was no specific duty of this petitioner for verification and distribution of the food grains and the Hon’ble Apex Court in the case of Union of India and others Vs. J. Ahmed, reported in (1979) 2 SCC 286 has held that “Deficiencies in personal character or personal ability do not constitute misconduct for taking disciplinary proceedings”. He further submits that negligence in performance of duty or inefficiency in discharge of duty are not acts of “commission or omission” under Rule 4 of Discipline and Appeal Rules nor a failure to maintain “devotion to duty” under Rule 3 of the Conduct Rules. This aspect of the matter has been clearly dealt at para 13 of the aforesaid judgment which is quoted hereinbelow:
“13. Having cleared the ground of what would constitute misconduct for the purpose of disciplinary proceeding, a look at the charges framed against the respondent would affirmatively show that the charge inter alia alleged failure to take any effective preventive measures meaning thereby error in judgment in evaluating developing situation. Similarly, failure to visit the scenes of disturbance is another failure to perform the duty in a certain manner. Charges 2 and 5 clearly indicate the shortcomings in the personal capacity or degree of efficiency of the respondent. It is alleged that respondent showed complete lack of leadership when disturbances broke out and he disclosed complete ineptitude, lack of foresight, lack of firmness and capacity to take firm decision. These are personal qualities which a man holding a post of Deputy Commissioner would be expected to possess. They may be relevant considerations on the question of retaining him in the post or for promotion, but such lack of personal quality cannot constitute misconduct for the purpose of disciplinary proceedings. In fact, Charges 2, 3 and 6 are clear surmises on account of the failure of the respondent to take effective preventive measures to arrest or to nip in the bud the ensuing disturbances. We do not take any notice of Charge 4 because even the Enquiry Officer has noted that there are number of extenuating circumstances which may exonerate the respondent in respect of that charge. What was styled as Charge 6 is the conclusion viz. because of what transpired in the inquiry, the Enquiry Officer was of the view that the respondent was unfit to hold any responsible position. Somehow or other, the Enquiry Officer completely failed to take note of what was alleged in Charges 2, 5 and 6 which was neither misconduct nor even negligence but conclusions about the absence or lack of personal qualities in the respondent. It would thus transpire that the allegations made against the respondent may indicate that he is not fit to hold the post of Deputy Commissioner and that if it was possible he may be reverted or he may be compulsorily retired, not by way of punishment. But when the respondent is sought to be removed as a disciplinary measure and by way of penalty, there should have been clear case of misconduct viz. such acts and omissions which would render him liable for any of the punishments set out in Rule 3 of the Discipline and Appeal Rules, 1955. No such case has been made out.”
5. Relying upon the aforesaid judgment learned counsel submits that the charge alleged against this petitioner and the finding given by the Inquiry Officer does not constitute misconduct in the light of ratio laid down in the case of J. Ahmed (Supra).
6. His next limb of argument is that the said District Manager, Md. Nazim who was at serial no.1 in the chargesheet; after the punishment of removal was imposed upon him, he preferred a writ application before the Patna High Court and the Hon’ble Court after discussing the entire facts and circumstance of the case remitted the matter back to the authority to take a fresh decision and pass a fresh order. Thereafter, the respondent-authorities have exonerated said Md. Nazim. This has been admitted by the respondents in para 6 of their counter affidavit dated 15.05.2014.
Relying upon the aforesaid facts, Mr. Shekhar contends that since the department has exonerated the District Manager; as such, the petitioner is also entitled for the same and similar relief and the impugned order deserve to be quashed and set aside. He further submits that after quashing the impugned order, it is necessary to direct the newly added respondent-Jharkhand State Food & Civil Supplies Corporation Limited to refund the deducted amount. He further referred a notification dated 04.02.2016 issued by the respondent- Jharkhand State Food & Civil Supplies Corporation Limited, and submits that since the petitioner has retired on 31.07.2008 from the territorial jurisdiction of the Jharkhand; as such, the entire consequential benefits shall be extended to the petitioner by the newly added respondents-Jharkhand State Food & Civil Supplies Corporation Limited.
7. Mr. A.K.Singh, learned counsel for the respondent No.4 submits that initially the answering respondent was not even a party and after the direction of this Court it was added as the respondent. He further submits that the entire order has been passed by Bihar State Food & Civil Supplies Corporation Ltd., as such, if any consequential benefit is to be given; Bihar State Food & Civil Supplies Corporation Ltd. should be responsible for that and not the answering respondents.
8. Having heard learned counsel for the parties and after going through the documents and averments made in the respective affidavits, it transpires that by the common charge the said Md. Nazim was removed from service. It further transpires from the enquiry report, that the Inquiry Officer has categorically held that it was the responsibility of District Manager to look after the distribution of food grains to the persons who are below poverty line and as per the Inquiry Officer it was the District Manager who was the main persons responsible for irregularities in lifting and distributing of food grains between the period from July, 1998 to 2002. However, in concluding portion of the enquiry report; the Inquiry Officer has gone one step ahead for proving the charge against this petitioner by holding that the petitioner should have taken instructions from the District Manager and should also be vigilant and see the distribution of food grains that it must be distributed to the persons below the poverty line and if the petitioner would have been vigilant and should have inspected after seeking instructions; there should not be any irregularities in lifting and distributing the food grains.
In this regard the Hon’ble Apex Court in J. Ahmed (supra) has held that deficiencies in personal character or personal ability do not constitute misconduct for taking disciplinary proceedings.
9. The other aspect of the matter is that the District Manager who was removed from service filed a writ application before the Patna High Court and the Court remitted the matter back to the respondent-authorities to take a final decision after verifying the records and pursuant to that the respondent authorities took a decision for exonerating the said Md. Nazim.
Admittedly, the charges against Md. Nazim (Supra) was on a higher latitude and looking to the ju
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dgment passed by the Patna High Court in C.W.J.C No. 2508 of 2009 it appears that there was lacuna in enquiry and for that reason the case was remitted back and finally the said District Manager was exonerated by the respondentauthorities. As such, this Court sees no reason not to interfere with the impugned order whereby 50% of pension and gratuity was deducted from the pensionary benefit of the petitioner. 10. In view of the aforesaid findings, the instant writ application is allowed and the impugned order as contained in Memo No. 2922 dated 01.04.2009, is hereby, quashed and set aside. It goes without saying that since the petitioner has retired from service from the territorial jurisdiction of Jharkhand and in view of the notification as contained in Memo No. 389 dated 04.02.2016; it is the Jharkhand State Food and Civil Supply Corporation Limited, who is responsible for payment of retiral benefits; as such, respondent No.4 is directed to refund the entire amount which was deducted pursuant to the impugned order within a period of three months from the date of receipt/production of the copy of this order. 11. With the aforesaid terms, the instant writ application stands allowed.