2025:JHHC:18031 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S). No. 4165 of 2020 ---------- Mohan Lal Marandi, aged about 43 years, son of Badan Marandi, resident of Bara Itahari, Bhagamarka, P.O. & P.S. Bhagamarka, District Godda, Jharkhand. …. Petitioner Versus 1. The State of Jharkhand through its Principal Secretary, Personnel, Administrative and Rajbhasha Department, having its office at Project Building, Dhurwa, P.O. Dhurwa, P.S. Jagannathpur, District Ranchi. 2. The Deputy Secretary, Personnel, Administrative and Rajbhasha Department, having its office at Project Building, Dhurwa, P.O. Dhurwa, P.S. Jagannathpur, District Ranchi. ………. Respondents. ---------- CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN ----------- For the Petitioner : Mr. Saurabh Shekhar, Advocate Mr. Anurag Kumar, Advocate For the Respondents : Mr. Rahul Saboo, GP-II Mr. Kunal Chandra Suman, AC to GP-II ---------- C.A.V. on 12/06/2025 Pronounced on 03/07/2025 Heard learned counsel for the parties. 2. By way of present writ application the Petitioner has thrown challenge to the order dated 14.07.2016 issued by respondent No. 2, whereby punishment of stoppage of 5 annual increment with cumulative effect has been passed against the petitioner and further direction has been issued for recovery of Rs.45,95,582/- from him. Further, prayer has been made for releasing the arrears of salary after setting aside the order of punishment and further allow appropriate promotion to the petitioner which has been kept in abeyance due to the effect of punishment. 3. The brief facts of the case as per the pleading are that the Petitioner was appointed on the post of Deputy Collector on 01.07.2006 and while being posted as Block Development Officer at Dhanwar, Giridih, a departmental proceeding was initiated against him by a government resolution, dated 05.01.2012, issued in the name of Governor of Jharkhand, under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. 2025:JHHC:18031 2 4. The memo of charge was supplied to the Petitioner in which four allegations were levelled against him. Thereafter, imputation of charge was also supplied to the petitioner in which one supplementary charge was leveled. There were charges including that the funds that were allocated for the year 2001-02 and 2005-06 was not spent fully but the Petitioner instead of depositing the fund, utilized it in new project without obtaining administrative sanction. The Petitioner being the administrative head of the Block could not stop such practices and had not undertaken any effort to protect the ongoing fraudulent activities, during the period of his posting as BDO, Dhanwar, Giridih. 5. In the supplementary allegation, which is based on the complaint filed before the Lokayukta and a report submitted in pursuance to the directions of Lokayukta, it has been alleged that in the case of Indira Avas Yojna, fake transfers of money were made, in which the involvement of Petitioner has also been suspected. The Petitioner had replied to the allegations denying all the charges in substance. Further, the Enquiry was completed and a report was submitted on 20.12.2013. The Enquiry Officer had come to conclusion that the charges levelled against the Petitioner had been proved. 6. The case of the Petitioner is that the Enquiry Officer had found the charges proved against him on the basis of some reports and spot inspections, along with the opinion of the Deputy Commissioner, that have been prepared and authored separately, away from departmental proceeding. The authors of such reports and opinions were never examined before the Enquiry Officer and the Petitioner had no chance to cross examine them. Therefore, the material witnesses whose preliminary Enquiry reports and opinions had been relied upon and considered by the Enquiry Officer, to find the charges proved, were not witnesses in the enquiry proceeding. The Petitioner has not preferred any appeal being a member of Class-II services as the decision against him was passed in the name of Hon’ble the Governor of Jharkhand. Hence, this writ application. 2025:JHHC:18031 3 7. Learned counsel for the Petitioner submits that the reports that are not part of the present departmental proceeding and have been authored separately from the departmental proceeding, are the only documents that have been relied upon by the Enquiry Officer to find the charges proved against him. Further, at many places the Petitioner had been obligated to disprove the charges against him. This approach has been seriously discarded by the Supreme Court in so many judgments. Additionally, it is a principle set in law that the person who levels allegation owes responsibility to prove it, that is the department in the present case. 8. He contended that the preliminary reports and the opinion of the Deputy Commissioner are the only documents on the basis of which the findings of the Enquiry report had been premised, to prove the charges. They have been used as evidences by the Enquiry Officer to prove the charges against the petitioner. This is an incorrect approach and not valid in the eyes of law. Discarding these documents, there are no other evidences in the entire departmental proceeding that has been used against the Petitioner. 9. Learned counsel for the Respondents submits that in terms of the 2nd Report submitted by the Enquiry Officer vide Memo No. 512 dated 16.10.2015, he has reported that during examination the Petitioner neither denied the allegations with respect to pecuniary loss nor produced any evidence in his support. However, it was found that the petitioner vide Challan No. 49 dated 06.10.2010 had deposited a sum of Rs.45,95,582/-. In this regard, the Enquiry Officer concluded that this itself shows that the Charges with respect to pecuniary loss was true and depositing the said money on being caught is not going to exonerate the Petitioner from the delinquency. Hence, the charge in respect of pecuniary loss was also found proved against the Petitioner. He further submits that the contention of the Petitioner made under para-14 of the writ petition is not sustainable in view of the fact that in terms of order of punishment issued under Rule 14 of the Jharkhand Government Servants (Classification Control and Appeal) Rules, 2016, there is a provision of Appeal under Rule 24, procedural details of which has been 2025:JHHC:18031 4 mentioned under Rule 25 to 28 of the same. In such circumstances, the instant writ petition filed by the Petitioner itself is immature and liable to be dismissed on this score alone. He lastly submits that no objections were raised by the Petitioner before the Enquiry Officer at any point of time during the entire Departmental Proceeding. As such, this plea is not available to him at this stage. 10. Having heard learned counsel for the parties and after going through the respective documents annexed with the affidavits it appears that due to some irregularities in implementation of MANREGA, INDIRA AWAS YOJNA; and enquiry was conducted and charges were framed against the petitioner in the year 2012. Thereafter PRAPATRA ‘KA’ was served upon the petitioner and subsequently supplementary PRAPATRA ‘KA’ was also served upon him in the year 2015. The petitioner replied to the allegations denying all the charges; however, as per the enquiry report submitted by the Enquiry Officer the charges were found to be proved except one. Thereafter, second show-cause notice was issued to which the petitioner duly replied and being not satisfied with the reply, punishment order dated 14.07.2016 was passed. 11. From bare perusal of the enquiry report it appears that the Enquiry Officer had found the charges to be proved against the petitioner on the basis of report prepared by additional collector, spot inspections along with opinion of Deputy Commissioner that have been prepared and authored separately away from the departmental proceeding .The authors of such reports and opinions were never examined before the Enquiry Officer and the petitioner was never given the chance to cross examine them. Therefore, the material witnesses whose preliminary enquiry reports and opinions have been relied upon considered by the Enquiry Officer, to find the charges proved, were not witnesses in the enquiry proceeding. Further, the above-mentioned reports, opinion and spot verification that are not part of the present departmental proceeding and have been authored separately from the departmental proceeding are the only documents that have been relied upon by the Enquiry Officer to find 2025:JHHC:18031 5 the charges proved against the Petitioner. 12. It further appears that allegation no. 2(2) and 2(3) have been dealt by the Enquiry Officer as if the petitioner is obligated to disprove the charges against him in opposition to the fact that it is the department which owes the responsibility to prove the allegations against the petitioner. As aforesaid, the above-mentioned preliminary reports and the opinion of the Deputy Commissioner are the only documents on the basis of which the findings of the enquiry report have been premised, to prove the charges. They have been used in evidence by the Enquiry Officer to prove the charges against the petitioner. For brevity the documents relied upon by the Enquiry Officer to find the allegations to be proved against the petitioner are provided in a tabular form herein below: Allegation Nos. Village /Panchayat Charge levelled Documents relied are report of different officers 1. Dhanbar block different village MGNREGA Scheme – alleges the use of fund of the year 2001-02 and 2005- 06, in a new project, without any administrative sanction, instead of depositing the same in the Treasury i. Report of Additional Collector, Giridih, contained in letter no. 1790, dated 08.09.2010; ii. Opinion of Deputy Commissioner, dated 28.03.2012, on the reply supplied by the petitioner. 2(1) Village Sonbad MGNREGA scheme –fraudulent payment shown to be made to labourers without deployment i. Report of Additional Collector, Giridih, contained in letter no. 1403, dated 24.07.2010; ii. Opinion of Deputy Commissioner, dated 28.03.2012, on the reply supplied by the petitioner. 2(2) Village Khesramba -same- i. Report of Additional Collector, Giridih, contained in letter no. 1403, dated 24.07.2010; ii. Opinion of Deputy Commissioner, dated 28.03.2012, on the reply supplied by the petitioner. 2(3) Village Ghosedih -same- i. Report of Additional Collector, Giridih, contained in letter no. 1403, dated 24.07.2010; ii. Opinion of Deputy Commissioner, dated 28.03.2012, on the reply supplied by the petitioner. 3 Village Dhanwariadih Indira Awas Yojna – fraudulent payment to non-beneficiaries has been alleged i. Report of DDC, Giridih, contained in Letter No. 21/Go., dated 20.01.2011; ii. opinion of Deputy Commissioner dated 2025:JHHC:18031 6 28.03.2012, on the reply supplied by the petitioner. iii. another report submitted by the Deputy Commissioner. 4. Mundari Panchayat -same- i. Report of Zila Panchayati Raj Officer, Giridih, vide letter no. 577, dated 22.06.2011; ii. opinion of Deputy Commissioner dated 28.03.2012, on the reply supplied by the petitioner. iii. another report submitted by the Deputy Commissioner. Supplementary Complaint before Lokayukta -same- i. Preliminary Enquiry conducted on 12.06.2012, as per the direction of Deputy Commissioner, in pursuance to one complaint lodged before the Lokayukta Office; ii. opinion of Deputy Commissioner, dated 28.03.2012, on the reply supplied by the petitioner. 13. The above is a brief picture of the enquiry report and its reliance upon different opinions and reports of the authorities of the department; and at the cost of repetition, the authors were never produced before the enquiry proceedings. No witnesses have been produced to prove the documents. Thereafter, second show cause notice was called for, to which the petitioner replied. Finally, the punishment order was passed on 14.07.2016, placing reliance upon the enquiry report. Therefore, the order of punishment, based upon the enquiry report which is further based on alien reports that are not part of the departmental proceeding is absolutely illegal and non-est in the eyes of law. Reliance in this regard is placed upon the decision of the Hon’ble Apex Court rendered in Bareilly Electricity Supply Co. Ltd. v. Workmen1 , the relevant paragraph is quoted herein below: “14….But the application of principal of natural justice does not imply that what is not evidence can be acted upon. On the other hand, what it means is that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross- examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the questions that naturally arise is, is it a genuine document, what are its contents and are the statements contained therein true. When the appellant produced the balance-sheet and profit and loss account of the company, it does not by its mere production amount to a proof of it or of the truth of the entries therein. If these entries are challenged the appellant must prove each of such entries by producing the books and speaking from the entries made therein. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order 19 of the Civil Procedure Code and 1 (1971) 2 SCC 617 2025:JHHC:18031 7 the Evidence Act both of which incorporate these general principles. Even if all technicalities of the Evidence Act are not strictly applicable except insofar as Section 11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witness who have executed them, if they are alive and can be produced. Again, if a party wants an inspection, it is incumbent on the Tribunal to give inspection insofar as that is relevant to the enquiry. The applicability of these principles are well recognised and admit of no doubt.” Emphasis Supplied 14. From bare perusal of the above it can be safely held that the approach of the Enquiry Officer is an incorrect approach and is not valid in the eyes of law. Further, discarding these documents; there are no other evidences in the entire departmental proceeding that has been used against the petitioner. 15. Having regard to the above discussion and the law laid down by the Hon’ble Apex Court, this Court has no hesitation in holding that the order of punishment contained in memo no. 5901 dated 14.07.2016, based upon the enquiry report is non-est in the eye of law and, is hereby, quashed and set aside and the respondent authorities are directed to release the arrears of salary and grant appropriate promotion which may have been kept pending due to the effect of punishment. 16. Accordingly, the instant writ application stands allowed. Pending I.A., if any, is also disposed of. (Deepak Roshan, J.) kunal/-