IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 2451 of 2003
Nandlal Pandit ... ... Petitioner.
Versus
The State of Jharkhand & others ... ... Respondents
CORAM: HON'BLE MR. JUSTICE D. N. PATEL
......
For the Petitioner : M/s Ritu Kumar, Ravi Kr. Singh
For the State : Mr. Arvind Kr. Mehta, J.C. to G.P.-I
For the A.G. : Mr. Sudarshan Srivastava
......
03/ Dated 25th June, 2009
1. The present petition has been preferred against an order
passed by respondent no. 4 dated 28th of March, 2003 (Annexure-9 to
the memo of the present petition) whereby the benefit of salary has
been withdrawn which was given to the petitioner due to his
promotion as a Headmaster. It is alleged by respondents that
promotion was wrongly given to the petitioner. This conclusion was
arrived at by respondent no. 4 on the basis of a report given by
Accountant General Office, but, without giving any opportunity of
being heard to the petitioner. Therefore, it has been challenged by way
of writ petition under Article 226 of the Constitution of India.
2. It is submitted by the counsel for the petitioner that the
impugned order at Annexure-9 passed by respondent no. 4 dated 28th
March, 2003 is without any application of mind. In fact, report given
by the Accountant General, which is at Annexure-7 to the memo of
the present petition reveals the fact that because of want of
documents it is not clear about the present petitioner's qualification
etc. and therefore, promotion given to the present petitioner was
illegal. It is also submitted by the counsel for the petitioner that
looking to the affidavit in reply filed by the respondents also it has
been admitted fact that no documents were supplied by the concerned
respondent authorities to the audit party of the respondents and
therefore, if an opportunity of being heard would have been given to
the present petitioner by the concerned respondent authorities, it
could have been pointed out by petitioner that the present petitioner
was correctly promoted by order dated 15th May, 1989 on the post of
Headmaster w.e.f. 1st January, 1988. It has submitted by the counsel
for the petitioner that neither the office of the Accountant General has
given any opportunity of being heard to the petitioner nor the other
respondents have given any opportunity of being heard to the
petitioner and an ex-parte conclusion has been arrived at by the
respondents about the promotion of the present petitioner. Thus,
there is a gross violation of the principles of natural justice before
passing the impugned order at Annexure-9 to the memo of the
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present petition by respondent no. 4 dated 28th of March, 2003 and
the same deserves to be quashed and set aside.
3. I have heard counsel for the respondents-State, who has
submitted that the order is passed by respondent no. 4 at Annexure-9
was on the basis of report given by the Accountant General Office and
as per the report of the Accountant General Office, promotion given to
the present petitioner on the post of Headmaster was wrong and
illegal and therefore, the order of recovery was passed at Annexure-9
to the memo of the present petition. It is also submitted by the
counsel for the respondents-State that once the report of the
Accountant General was given, it has to be implemented by the State
and therefore, order at Annexure-9 has been passed by the
respondent no. 4 and therefore, the petition deserves to be dismissed.
4. I have heard counsel for the respondent no. 5, who has
drawn the attention of this Court to paragraph nos. 6, 7, 10 & 11 of
his counter affidavit, which read as under:-
"6. That at the outset it is stated and submitted that the
inspection report contains initial audit findings which are
taken up with the appropriate authorities in the concerned
department/organization for their comments/
clarifications/ remedial actions and thereafter the final
finding of the audit will be incorporated in the Audit Report.
The observations mentioned in Audit memos/statement of
fact, Inspection Report etc. are unpublished official records
and are not final findings of the audit as such no testimony
can be given on them. The office of the answering
respondent, thus, is not a proper and necessary party at
this stage and hence prays for deletion.
7. That so far merit of case is concerned it is stated and
submitted that the Audit suggested that the higher
authorities may investigate the matter and thereafter
recoveries, if any, may be made from the concerned
officials.
10. That it is also pertinent to state and submit, besides
the promotion from retrospective effect, the promotion of the
petitioner to the post of Headmaster with effect from
1.1.1988
by District Superintendent of Education,
Sahebganj by his letter no. 4554-56 dated 15.5.1989, is
also illegal on the ground that as per report dated
25.6.1996 of the District Estt. Committee, which was
authorised to grant promotion, the petitioner was junior in
the seniority list. Inspite of repeated reminders for
submission of seniority list and concerned file of approval
of District Establishment Committee by which the petitioner
was recommended for promotion and other related
documents were not made available to the audit by the
District Superintendent of Education, Pakur. The Deputy
Commissioner, Pakur was also informed for the same even
then the documents were not produced before the Audit
party.
11. That it is stated that the office of the answering
respondent, on the basis of the documents produced by the
auditee has merely pointed out the illegality and
irregularity in the Inspection Report and suggested that
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matter may be investigated by the higher authorities,
responsibilities may be fixed and recoverable amount may
be recovered under intimation from the concerned officials.”
(Emphasis Supplied)
In view of the aforesaid submission, it appears that never
a final report was given by the Accountant General Office. It is also
clearer from the submission of the counsel for the respondent no. 5 as
well as from the counter affidavit filed by respondent no. 5 that a
direction was never given to the State to straightway deduct the
amount. Looking to the aforesaid paragraphs of the counter affidavit,
especially looking to the paragraph nos. 7 and 11, it was suggested by
the Accountant General Office that matter may be investigated,
enquiry may be conducted and therefore, action may be initiated, but
it appears that respondent nos. 1 to 4 has never applied their mind at
all upon the report of respondent no. 5-Accountant General Office. It
was never insisted by the Accountant General Office that the report is
conclusive piece of evidence. On the contrary, very cautiously,
guardedly and legally it has been suggested by the report of the
Accountant General Office that in absence of documents from District
Superintendent of Education, Pakur, enquiry should be made and
thereafter, amount can be deducted. Report of the Accountant
General office is a mere suggestion. It is meant for awakening the
senses of the respondent authorities so that upon holding proper
enquiry, necessary action may be initiated against the present
petitioner. This aspect of the matter has not been properly
appreciated by the respondent nos. 1 to 4 and straightway, ex-parte
an order at Annexure-9 has been passed by respondent no. 4. Even
previously also orders have been passed in Writ Petitions that
whenever report of the Accountant General Office is given for
deduction of any benefit, the principles of natural justice ought to
have been followed by the State authorities. Straightway, there cannot
be a recovery on the basis of Accountant General’s Office report.
Procedure established by law ought to be followed before taking away
any benefit and at least principles of natural justice must be followed
and observed despite there being a report given by the Accountant
General Office. It appears that State authority is always straightway
implementing the report given by the Accountant General office,
without giving any opportunity of being heard to the concerned
persons. In fact, in the present case also, no show cause notice, no
hearing, much less an opportunity of being heard was given to the
petitioner and as stated hereinabove even affidavit filed by the
Accountant General Office reveals the fact that the report given by the
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Accountant General is mere suggestion and matter must be enquired
into by the concerned respondent department and thereafter only the
action must be initiated.
5. As a cumulative effect of the aforesaid facts and reasons
and counter affidavit filed by the respondent no. 5, I hereby quash
and set aside the order passed by respondent no. 4 dated 28th of
March, 2003 at Annexure-9 to the memo of the present petition.
6. I also direct the Registry of this Court to send a copy of
this order to the Chief Secretary of the State of Jharkhand so that he
shall issue a Circular to all the concerned subordinate officers that
whenever there is a report of the office of the Accountant General for
deduction, withdrawal or taking away any benefit given to the
employee of the respondent-State, then the same may not be
implemented straightway like a decree of a court, but, it should be
implemented at least after following principles of natural justice.
Report given by Accountant General Office can never be executed like
a decree of competent court. It is never a conclusive piece of evidence
and an opportunity of being heard ought to have been given to the
person concern. Even counsel who is appearing on behalf of the
Accountant General Office has also submitted that they are never
insisting that the procedure, establishment by law or principles of
natural justice should never be followed. In view of this repeated
errors on behalf of the State of Jharkhand, the aforesaid directions is
given to the Chief Secretary so that he shall issue a necessary
Circulars/Orders so as to avoid multifariousness of the petitions. I
also direct the Chief Secretary of the State of Jharkhand that the
aforesaid Circulars/Orders shall be issued within a period of twelve
weeks from the date of receipt of a copy of this order and the same
shall be supplied to this Court also.
7. I hereby also direct the Registry to enlist this matter, even
though it is disposed of, on 1st December, 2009 under the heading
“For Compliance of the Order”.
8. In view of the aforesaid directions, this writ petition
stands disposed of.
(D. N. Patel. J)
VK