MOTI LAL CHOUDHARY v. THE STATE OF BIHAR & Ors.

Heard learned counsel for the petitioner and learned counsel for the State. The petitioner was placed under suspension and proceeded departmentally. Memo of charges was served on him on 31.3.1998, at annexure-B to the counter affidavit. The allegations were construction of ‘Chitkohra fly over’ in the town of Patna was supervised by the petitioner between the period ‘1984-1989 in the capacity of S.D.O., Assistant Engineer. That the construction was of a very poor quality leading to collapse of the beams and cross beams in 17 spans out of 22 and partial damage to the other 5 spans. The concrete used was badly damaged and had fallen down. The Government had suffered a loss of Rs.21,25,000/-in addition to the cost escalation that shall now arise by approximately Rs.6,00,000/-. That the concrete structure was not in conformity with 2 the specifications, which was ignored by the petitioner at every stage etc. The petitioner demanded certain documents which were not found to be superfluous by the enquiry officer. No documents were given when the enquiry officer submitted the enquiry report on 2.1.2002. The conclusion of the report holds that after three years neither did the department produce any evidence nor had it served any documents to the petitioner. No materials were made available before the enquiry officer. No superior officer made any complain against the petitioner during the period when he is alleged to be in charge of the construction. This finding was arrived at in absence of any evidence and records exonerating the petitioner. Learned counsel for the petitioner submitted that in pursuance of such an enquiry report of exoneration when no departmental proceeding was ever held, in accordance with law, the order of punishment dated 4.9.2002 came to be passed finding him guilty, stopping two increments with cumulative effect, nothing beyond subsistence allowance was payable for the period of suspension and in future he shall not be given charge of any work. It was urged that in view of the 3 absence of any proper departmental proceeding, no service documents, non-production documents/evidence by the prosecution, disciplinary authority still desired to differ with the enquiry report, it was required to give a show cause notice setting out briefly the tentative grounds for such difference of opinion along with materials in support of the same. In absence of this procedure having been followed, the order of punishment dated 4.9.2002 was vitiated. It is next urged that the charges relates to the period ‘1984-1989. The petitioner was promoted to the post of Executive Engineer in 1994. Quite obviously, there was nothing prejudicial against the petitioner in discharge of his official duties. The other grounds urged with regard to certain enquiry reports etc., in context of the same works to this Court, are matters to be more appropriately considered in a departmental enquiry only. Learned counsel for the petitioner next for an occurrence of 1984-1989, a departmental proceeding was initiated in 1998 concluded in 2002, contrary to all procedures known in the law. After the order of punishment dated 4.9.2002, 4 the petitioner was promoted the post of Superintending Engineer after the order of punishment dated 4.9.2002 and retired from that post in 2004. It shall, therefore, not be in the interest of justice to now subject him to fresh departmental proceedings at this belated stage. Learned counsel for the State referred to the gravity of the allegations and submitted that if there were irregularities in the conduct of the departmental proceedings, the matter has to be remanded back to the stage from where irregularities have been committed. The normal law applicable in a case, where a departmental proceeding is held to be bad, is to remand the matter to proceed afresh from the stage of irregularity. However, in appropriate cases, considering the passage of time, the Courts have declined to remand the matter and have set aside the departmental proceeding. This shall, however, necessarily have to be balanced with the gravity of the allegations. When the allegations are of a nature as serious as the present, causing a loss of approximately Rs.30,00, 000/- to the Government, this Court is not persuaded to accept the submission on behalf of the petitioner to set aside the order of punishment simpliciter. 5 The order of punishment dated 4.9.2002 is set aside and the matter is remanded to the enquiry officer to proceed afresh with the enquiry in accordance with law. It shall be open to the petitioner in the departmental enquiry to raise all issues including his subsequent promotions. In the facts and circumstances of the case, this Court does consider it proper to further direct that if the departmental proceedings are not held accordance with law and not concluded within a maximum period of five months from the date of receipt/production of a copy of this order, the respondents shall be precluded from proceeding further with the departmental enquiry. This Court considers it necessary to order so in view of the fact that the petitioner has now superannuated and has to be left in peace to enjoy his days of retirement and he cannot be left with a Democles sword hanging over his head for the rest of the life. The writ application stands allowed to the extent indicated with directions. At this stage, learned counsel for the petitioner rightly submits that the respondents, while passing final orders hereinafter, shall be adequately 6 obliged to consider that the punishment imposed by the order dated 4.9.2002 can no more visit the petitioner in view of his intervening superannuation and pass appropriate orders in that regard also. KC ( Navin Sinha, J.)