Allowed

Babita @ Smt. Babita @ Smt. Babita Kumari @ Babita Kumari v. The State of Bihar

Patna HC11 Jul 2022CWJC/8823/2020

Case brief

AI extract

What is this about?

Retired Justice Madhuresh Prasad quashed an office order terminating a Vikas Mitra for alleged fraudulent fund transfers, holding the enquiry findings baseless. The judgment directed reinstatement of the petitioner as a contractual employee.

What did the court decide?

Quashed the impugned office order dated 12.07.2018 and directed reinstatement of the petitioner as a contractual Vikas Mitra.

Babita @ Smt. Babita @ Smt. Babita Kumari @ Babita… — Service and Employment | Patna HC (2022)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8823 of 2020

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Babita @ Smt. Babita @ Smt. Babita Kumari @ Babita Kumari, wife of Sanjeev Chandra Bharti, resident of village- Jamalpurr, Ward No.06, Police Station- Jamalpur, Block- Kiratpur, District- Darbhanga.

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... ... Petitioner/s

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Versus

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The State of Bihar through the Principal Secretary, Social Welfare Department, Govt. of Bihar, Patna.

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The District Magistrate, Darbhanga.

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The Deputy Director, Welfare, Darbhanga Division, Darbhanga.

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The Sub-Divisional Officer, Biraul, District- Darbhanga.

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The District Welfare Officer, Darbhanga.

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The Block Welfare Officer, Block- Kiratpur, District- Darbhanga.

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The Block Welfare Officer (Head Office), Darbhanga.

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The Branch Manager, Punjab National Bank, Marwari College Branch, District- Darbhanga.

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The Mission Director, Bihar Mahadalit Vikas Mission, IInd Floor, Block-3, Secretariat, Bihar, Patna.

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... ... Respondent/s ====================================================== Appearance : For the Petitioner : Mr.Sanjay Kumar Jha, Advocate For the State : A.C. to A.G. For the P.N.B. : Mr. Ankur Apurv Singh, AC to Mr. Kumar Priya Ranjan For Respondent No.9 : Mr. Ranjeet Kumar Pandey, Advocate

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CORAM: HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL JUDGMENT Date : 11-07-2022

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With the object of making special projects and earmarking special funds for overall development of most deprived sections among Scheduled Castes, the State Government constituted the State Mahadalit Vikas Mission. The structure of the Mission comprise the State Mission Office, District Mission Office and Block Mission Office.

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For effective implementation of the developmental and welfare schemes and for providing a bridge between the Government and the Mahadalit families, the Mission conceptualized “Vikas Mitra”. These Vikas Mitras are to act as `agent of change’ for Mahadalit communities. Vikas Mitras were to be selected from the majority Mahadalit community of their own Panchayat/Ward Cluster and 50% positions were reserved for women.

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In the above background, the Mission published an advertisement for selection of Vikas Mitra on contractual basis on 04.02.2010. The petitioner applied and was selected as Vikas Mitra and employment letter dated 24.03.2010 was issued. Since then, the petitioner has been discharging the duties assigned to her without any complaint ever being lodged against her.

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An amount of Rs.15,38,000/- was withdrawn from the account of the District Welfare Officer, Darbhanga and deposited in different Bank accounts of Vikas Mitras. Petitioner being one such Vikas Mitras was recipient of an amount of Rs.80,000/-.

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On discovery of such transfer of funds from the account of District Welfare Officer, Darbhanga, the District

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Welfare Officer, Darbhanga, under letter dated 07.03.2018, directed the Block Welfare Officer to enquire in the matter of fraudulent withdrawal. The Block Welfare Officer made enquiries from the Punjab National Bank, Darbhanga Branch as also the beneficiary Vikas Mitras and based thereon, has submitted an enquiry report dated 12.05.2018 (Annexure 11) along with the documents collected during the course of enquiry.

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On basis of the report submitted by the Block Welfare Officer, the District Magistrate, Darbhanga has issued an order dated 03.07.2018 and in light of this order, the petitioner’s employment as Vikas Mitra has been cancelled on the charge of having transmitted by Real Time Gross Settlement (RTGS) an amount of Rs.80,000/- from the account of District Welfare Officer, Darbhanga to her own account maintained in the Bank of India, Lagma. This office order dated 12.07.2018, bearing Memo No.1140, is impugned in the instant proceedings.

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The petitioner’s counsel has submitted that the findings in the impugned office order dated 12.07.2018 regarding the petitioner fraudulently withdrawing an amount of Rs.80,000/- from the account of the District Welfare Officer maintained in the Punjab National Bank to her own account in

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the Bank of India is without any basis and perverse. The report of the Block Welfare Officer does not contain any material or any finding that the petitioner has transmitted the said funds from the account of the District Welfare Officer to her own account.

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It is also submitted that the allegations are prima facie and inherently improbable and farfatched. The petitioner is neither the employee/officer of the Punjab National Bank where the amount was in deposit nor is there any finding in the enquiry by the Block Welfare Officer that the petitioner is in any way having any role or any financial authority to give instructions to the Bank for transmitting the funds in question in her own account. The finding therefore, is not based on any material whatsoever, based on non est reasons, and is unsustainable in the eyes of law.

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The petitioner’s bona fide is further evident from the fact that the moment she was informed about the funds being transmitted in her account from the account of the District Welfare Officer, she has returned the amounts in question. The fact that the petitioner’s existence as Vikas Mitra is contractual, cannot allow the respondent-authorities to arbitrarily, remove

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the petitioner by a stigmatic order, even though the finding is baseless and perverse.

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The learned State Counsel, on the other hand, has submitted that the petitioner and six other Vikas Mitras have entered into a conspiracy and got the amounts in question transferred in their accounts through RTGS. The petitioner has, in fact, returned the amount of Rs.80,000/- to the account of the District Welfare Officer in two instalments of Rs.45,000/- on 07.10.2017 and Rs.35,000/- on 09.10.2017. This by itself is glaring proof of the charge that the petitioner was beneficiary of the fraudulent transfer of funds. On realizing that the fraud has been discovered, she has returned the amount. It is also submitted that the petitioner’s existence in the Mission was contractual and therefore the petitioner cannot claim any indefeasible right to continue as a Vikas Mitra. This Court therefore may not direct for reinstatement of the petitioner.

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Having considered the rival submissions, this Court would find that the report of the Block Welfare Officer dated 12.05.2018 forms the foundation of the action taken against the petitioner. From perusal of the report, it is obvious that the petitioner has rendered full co-operation in the enquiry and, in fact, handed over certain documents which were self-

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incriminating. She has given the details of her Bank account and a photo copy of the pass-book etc.

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In the enquiry, as well as before this Court in their counter affidavit, the Bank has clearly stated that on 12.11.2016, the District Welfare Officer, Darbhanga instructed the Branch to transfer the amount of Rs.4,80,000/- in different accounts of named Vikas Mitras. It was under such instructions issued by the District Welfare Officer that the amounts were debited from the account of the Mission at Darbhanga and credited to different accounts, including the petitioner’s accounts. Copy of the letter sent by the District Welfare Officer dated 12.11.2016 has also been placed on record as Annexure R 8/A.

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To ascertain whether the communication of the District Welfare Officer dated 12.11.2016 to the Bank was under a forged signature or not, the enquiry officer has requested the Punjab National Bank, where the account was maintained, to tally the signature in the said communication with the specimen signatures. The Bank has specifically asserted that prior to transmission of the funds, the signature of the District Welfare Officer in the communication dated 12.11.2016 was tallied with the specimen signature in the Bank

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and both the signatures tallied. It is also recorded in the enquiry report that for nearly eleven months, fraudulent fund transfers were being done in between 19.10.2016 to 05.09.2017. Therefore, the then Nazir was contacted by the enquiry officer. He has since retired and only assured that he would come to participate in the enquiry, but never turned up.

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The note-sheet of the Block Welfare Officer dated 01.02.2018 clearly states that the Nazir has not cooperated in the enquiry; and not maintained the cash-book properly. The Block Welfare Officer has found many infirmities and has concluded that detailed enquiry is required.

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The date of transfer of funds (22.11.2016) is also relevant to the veracity of the stand taken by the petitioner before the enquiry officer. The petitioner has stated that the date is in very close proximity, after announcement of demonetization. It is well-known that there was an overwhelming rush in all Banks across the country. The petitioner therefore was unaware of the deposit of Rs.80,000/being made in her account. The amount was returned bona fide immediately after she was informed by the District Welfare Officer that the same had been wrongly credited in her account.

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Such conduct of the petitioner, in absence of any legally sustainable finding otherwise, appears to this Court to be bona fide. This Court would also take notice of the fact that it is nobody’s case that the petitioner had any access to the Bank or that the Bank was a party to the conspiracy; as the Bank or its employees/officials have not been proceeded against. Findings, to the effect that petitioner was responsible for fraudulent transfers of funds, is thus presumptuous, perverse, and not supported by any material.

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The stand of the respondents before this Court in the counter affidavit that the funds were transferred by the petitioner in conspiracy with six other Vikas Mitras is inherently improbable. The Vikas Mitras, even if presumed to be in conspiracy with each other, could not have transferred the funds from an account maintained in the Punjab National Bank without any official/employee of the Bank being in the conspiracy. However, State authorities have not in any manner proceeded against the Bank.

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The conspiracy theory is baseless and unbelievable, also in view of the categorical statement of the Bank that under communication dated 12.11.2016 there was written instructions duly signed by the District Welfare Officer

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to the Bank for transferring the amount in the accounts of the petitioner and other Vikas Mitras.

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Findings of the appellate authority in the order dated 12.09.2019 (Annexure 2) is to the following effect :

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Thus it is apparent that based on a presumption that the petitioner is in some way or the other involved with the transfer of funds in question, the petitioner’s service as Vikas Mitra has been cancelled. The only basis for such suspected participation of the petitioner is borne from the fact that one Aanand Kumar Sada (Vikas Mitra) and others had access to important register in the office of the District Welfare Officer whereas there is nothing to suggest, let alone to establish any nexus between the petitioner and the said Aanand Kumar Sada.

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The appellate authority has also recorded a baseless conclusion that the enquiry officer in his report has been misled by the fact that the petitioner had deposited the amounts back into the account of the District Welfare Officer, to

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record that the petitioner was not involved in the wrong/fradulent transfers. The appellate authority has thereafter proceeded to record a finding that based on the petitioner’s Bank statement, it does not appear that the conclusion of the enquiry officer is correct.

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The findings of the District Magistrate/District Welfare Officer and the appellate authority are therefore based on no material, perverse and unsustainable.

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The Court therefore in view of the settled scope of judicial review in respect of such findings in an enquiry as per decision of the Hon'ble Apex Court in the case of Union of India & Others vs. P. Gunasekaran , reported in (2015) 2 SCC 610 , would find that conclusion of the District Welfare Officer, on the very face of it, is arbitrary and capricious that no reasonable person could ever have arrived at such conclusion. The findings are based on no evidence whatsoever and are presumptuous. This Court exercising judicial review under Article 226 of the Constitution of India would thus quash the impugned order/s as well as the order passed by the appellate authority.

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Having done so, this Court is required to also consider the stand of the State that the petitioner being a contractual employee cannot claim to be reinstated.

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Cancellation of the petitioner’s selection as Vikas Mitra is not by virtue of lapse of the period of contract of engagement, or by assigning a reason that the work is not in existence. It is also not a cancellation simpliciter. Had the cancellation of selection been on any sustainable ground/s, including either one of these three categories, the issue may have been different. But that is not the case.

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In the instant case, cancellation of the petitioner’s selction as Vikas Mitra/termination is based on findings of the allegations regarding fraudulent transfer of money from the account of the District Welfare Officer maintained in the Punjab National Bank by RTGS to the petitioner’s account maintained in the Bank of India, which as has been considered above, is baseless and perverse.

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It is also not the case of the respondentauthorities that had the petitioner not been visited with the impugned order, she would otherwise not be continuing as a Vikas Mitra. The basis of discontinuing/terminating the petitioner’s engagement as a Vikas Mitra, having been found

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illegal, the petitioner, as a consequence of such declaration, would be entitled to be reinstated as a Vikas Mitra, subject, of course, to the terms and conditions of her contractual existence.

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This Court would thus quash the impugned office order dated 12.07.2018, and direct for her reinstatement as a contractual Vikas Mitra, subject to the terms and conditions of her contract.

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The writ application stands allowed.

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(Madhuresh Prasad, J)

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PNM

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Babita @ Smt. Babita @ Smt. Babita Kumari @ Babita Kumari v. The State of Bihar

Case brief

What is this about?

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Babita @ Smt. Babita @ Smt. Babita Kumari @ Babita Kumari v. The State of Bihar

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