Santosh Kumar Singh v. 1.The State of Jharkhand 2.The Principal Secretary, Road Construction Department, Govt. of Jharkhand 3.The
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 2686 of 2016 Santosh Kumar Singh --------- ..… Petitioner Versus 1.The State of Jharkhand 2.The Principal Secretary, Road Construction Department, Govt. of Jharkhand 3.The Department, Govt. of Jharkhand 4.The Deputy Department, Govt. of Jharkhand Secretary, Road Construction Secretary, Road Construction Special ….. Respondents ---------- CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD --------- For the Petitioner For the State : Mr. Krishna Murari, Advocate : Mr. Arun Kumar Dubey, A.C. to G.P. III --------- ORAL JUDGMENT IN COURT 16/18.01.2024 This writ petition has been filed on behalf of the petitioner challenging the Notification dated 23.08.2013 (Annexure 7) issued by the Deputy Secretary of the Government, Road Construction Department, Jharkhand, Ranchi (Respondent No. 4), by which it has been informed and communicated to the petitioner that after rejecting the reply to the second show cause dated 07.6.2013, the department has imposed following punishments: (i) Censure, (ii) Withholding of two annual increments with cumulative effect, (iii) Nothing will be payable to delinquent employee during the period of suspension except the subsistence allowance, but the period of suspension 2 will be treated as a break in service for the purpose of pension. 2. Heard Mr. Krishna Murari, learned counsel for the petitioner and Mr. Arun Kr. Dubey, A.C. to G.P. III. 3. Learned counsel for the petitioner has submitted that while the petitioner was working as an In-Charge Executive Engineer, a Departmental Proceeding was initiated against him vide resolution dated 23.12.2010 under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 (Hereinafter to be referred to as “the Rules”) and altogether 17 charges were framed against him. It is submitted that after conducting the Departmental Proceeding, several charges were not proved and some charges were partly proved, which has been
Decision
mentioned in Paragraph 14 of the writ petition filed on behalf of the petitioner and which has not been replied. It is submitted that after conclusion of the Departmental Proceeding, the enquiry report was submitted and the petitioner was given major punishment in violation of the principles of natural justice. It is also submitted that the petitioner retired on 31.08.2016. It is further submitted that respondents have not denied the fact of the case of the petitioner, by filing their counter affidavit and also the supplementary counter affidavit that no witness was examined and no document was served to the petitioner. 3 It is submitted that neither the separate article of charges along with enclosures were supplied to the petitioner nor any document has been proved on behalf of the department and the authorities concerned have passed the order of punishment in violation of the judgment of the Hon’ble Supreme Court. The learned counsel for the petitioner has relied upon the following judgments:- (i) UNION OF INDIA AND OTHERS Vrs. GYAN CHAND CHATTAR reported in (2009) 12 SCC 78, (ii) STATE OF UTTAR PRADESH AND OTHERS Versus SAROJ KUMAR SINHA, reported in (2010) 2 SCC 772, (iii) MURARI BHAGAT Vs. STATE OF JHARKHAND & ORS. reported in 2019 (4) JBCJ 94, (iv) SANAT KUMAR MANDAL Vs. STATE OF JHARKHAND & ORS. reported in 2021 (2) JBCJ 485 and (v) RAJENDRA RAM Vs. THE STATE OF BIHAR reported in 2018 (2) PLJR 10 Learned counsel for the petitioner has also produced the web copy of the order dated 11.10.2022, passed by a Co-ordinate Bench of this Court in W.P.(S) No. 210 of 2018. It is submitted that Notification dated 23.8.2013 (Annexure-7) passed by the departmental authorities is illegal, arbitrary and not sustainable in the eye of law and hence, the same may be set aside. 4. On the other hand, learned A.C. to G.P.III has submitted that the order dated 23.8.2013 (Annexure-7) passed by the Deputy Secretary, i.e. Respondent No.4 is fit and proper and no interference is 4 required. It is submitted that the petitioner has been found guilty of several charges and he was given second show-cause Notice and was also supplied the enquiry report and the department has fully complied with the requirements under Rule 55 of the Rules. It is submitted that the petitioner was acting as In-Charge Executive Engineer at the relevant time and he failed to act as per duties. Learned counsel for the State has emphatically placed reliance upon Rule 247 of Jharkhand Public Works Department Code and has submitted that the petitioner has failed to follow the rules and regulations during construction of the road. It is submitted that the charges were of grave nature. It is submitted that five charges were proved out of 17 charges framed against the petitioner, whereas six charges were partially proved and remaining six charges were not proved against the petitioner. It is submitted that after enquiry report was served and second show cause notice was issued upon the petitioner on 27.05.2013 for imposing major punishment upon him and after considering the reply dated 07.6.2013 filed by the petitioner, same was reviewed by the authorities and the case of the petitioner was rejected by passing major punishment by the State authorities. 5. Heard both sides and perused the records of this case. 6. It appears that the petitioner has joined the services in the State Government in the year 1981 as an Assistant Engineer in P.W.D. (Now known as Road 5 Construction Department) and after bifurcation of State of Bihar, he was allotted the cadre of Jharkhand in the year 2004 and he has served in various places and he was also made In-Charge Executive Engineer, N..R.E.P., Deoghar in the year 2002. 7. It appears that the petitioner was suspended with effect from 20.2.2009 and his headquarter was fixed at Daltonganj under Road Circle, Palamau. 8. It transpires that his suspension was revoked on 22.07.2011 with effect from 01.04.2011. 9. In the meantime, the department had initiated Departmental Proceeding against the petitioner vide resolution dated 23.12.2010 issued by the Special Secretary to the Government, Road Construction Department, Jharkhand, Ranchi and one Murari Bhagat, Chief Engineer, Jharkhand, Ranchi was appointed as the Conducting Officer, whereas one Satya Nand Sinha, Special Officer (Traffic), Head Quarter, Road Construction Department, Jharkhand, Ranchi was appointed as the Presenting Officer and they were also served copy of memorandum of charges dated 15.12.2010, containing as many as 17 charges against the petitioner. 10. It transpires that the petitioner has filed his reply on 17.8.2011 vide Annexure 3 refuting all 17 charges levelled against him and has mentioned that department has not proceeded in the light of Rule 55 of the Rules. 6 11. Thereafter, second show-cause notice dated 27.5.2013 (Annexure 5) along with Enquiry Report dated 01.01.2013 (Annexure 5/1) were served upon the petitioner. 12. Thereafter, the petitioner has filed his reply to the second show-cause notice on 07.6.2013, i.e. Annexure 6 and vide Annexure 7, i.e. Notification dated 23.8.2013, the department has imposed punishment as mentioned above. 13. From perusal of the enquiry report, as contained in Annexure 5/1, it is evident that out of 17 charges, six charges were not proved against the petitioner, whereas five charges were proved and six charges were partially proved against the petitioner. 14. It further transpires from the copy of the enquiry report that neither any witness was examined on behalf of the department nor any document was produced and marked on behalf of the department during the entire departmental proceeding. 15. It is further evident that enquiry has been conducted in complete violation of principles of natural justice as neither the list of witnesses nor the list of documents have been given to the petitioner and the Department has fully relied on the letter issued by the Deputy Commissioner and the letter issued by the Chief Engineer, without even giving the same to the petitioner in complete violation of the principle of natural justice and punishment imposed by the Department is per se illegal. 16. It has been held in the case of UNION OF INDIA AND OTHERS Vrs. GYAN CHAND CHATTAR 7 reported in (2009) 12 SCC 78, Para 33 and 35 as follows:- “Para 33:-In a case where the charge-sheet is accompanied with the statement of facts and the allegation may not be specific in charge- sheet but may be crystal clear from the statement of charges, in such a situation as both constitute the same document, it may not be held that as the charge was not specific, definite and clear, the enquiry stood vitiated. (Vide state of A.P. v. S.Sree Rama Rao.) Thus, where a delinquent is served a charge-sheet without giving specific and definite charge and no statement of allegation is served along with the charge-sheet, the enquiry stands vitiated as having been conducted in violation of the principles of natural justice. Para 35:- In view of the above, law can be summarized that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjecture and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be 8 a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct.” 17. It has been held in the case of STATE OF UTTAR PRADESH AND OTHERS Versus SAROJ KUMAR SINHA, reported in (2010) 2 SCC 772 at para 28, 30 and 33 as follows: “Para 28:- An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary Authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents. Para 30:- When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure 9 that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service. Para 33:- As noticed earlier in the present case not only the respondent has been denied access to documents sought to be relied upon against him, but he has been condemned unheard as the inquiry officer failed to fix any date for conduct of enquiry. In other words, not a single witness has been examined in support of the charges levelled against the respondent. The High Court, therefore, has rightly observed that the entire proceedings are vitiated having been conducted in complete violation of the principles of natural justice and total disregard of fair play. The respondent never had any opportunity at any stage of the proceedings to offer an explanation against the allegations made in the charge-sheet.” 18. It has been held in the case of MURARI BHAGAT Vs. STATE OF JHARKHAND & ORS. reported in 2019 (4) JBCJ 94, Para 3 as follows:- “Para 3:-Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration. From perusal of Rule 17 of the CCA Rules, 2016 it appears that, (a) The disciplinary authority is to frame or get framed definite and distinct article of charge containing the substance of imputation of misconduct or 10 misbehaviour as also statement of allegation containing all relevant facts in support of article of charge as also a list of witnesses and a list of documents; (b) The disciplinary authority is to serve the article of charge, statement of allegation, etc. on the government servant and is to call for a written statement of defence thereto from him; (c) On receipt of the written statement of defense the disciplinary authority is to then consider the same and decide whether to hold enquiry into the article of charge or not and in case, on a consideration it decides to hold enquiry then it could be by itself or through an enquiry officer; and (d) Once the disciplinary authority after such consideration decides to hold an enquiry through an enquiry officer then it is to transmit the records to the enquiry officer including the article of charge, statement of allegation, written defence of the government servant. 15. Thus, from perusal of the aforesaid rules it is crystal clear that in the instant case mandatory procedure has been violated as the disciplinary authority prior to initiation of the departmental proceeding vide resolution dated 04.08.2017, did not call upon the petitioner to submit his written defence 11 statement to the article of charge so as to decide whether to proceed further by holding an enquiry or not. It can be confortably inferred that the disciplinary authority not calling before itself the written statement of defence of the petitioner to the article of charge and also appointing an Enquiry Officer as well as Presenting Officer simultaneously thereunder with direction to the petitioner to appear before the Enquiry Officer, shows a clear predisposition and predetermination on the part of the disciplinary authority to hold enquiry against the petitioner without even waiting for his defence. The disciplinary authority acquiring jurisdiction to order for an enquiry to be held by the Enquiry Officer against the petitioner, the issue of waiver or acquiescence on behalf of the petitioner in the above proceeding does not arise.” 19. It has been held in the case of Sanat Kumar Mandal Vs. State of Jharkhand & Ors. reported in 2021 (2) JBCJ Page 485 (HC) at Para 9, 10 as follows: “Para 9:- The Form is also prescribed of issuing major penalties. Annexure-3 speaks about the list of documents. Annexure-4 speaks about list of witnesses. On perusal of enquiry report, the Court finds that not a single witness has been examined for proving the charge against the petitioner. It is well settled principle of 12 law that even in departmental proceeding a document needs to be proved by way of adducing evidence and a major punishment has been passed against the petitioner and Statutory Rule i.e. Civil Services C.C. & A Rules, 1930 has not been followed. Reference in this regard may be made in the case of Roop Singh Negi vs. Punjab National Bank & Others reported in (2009) 2 SCC 570 particularly para 14 and 15 which is quoted hereinbelow:- “14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence. 15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the 13 purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left. 23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act 14 may not be applicable in a departmental proceeding but principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof. Para 10:- The petitioner has been honorably acquitted in the criminal case and particularly by way of paragraph nos. 30, 40 and 78 of the said judgment, it transpires that the petitioner has been honorably acquitted in the criminal case. A departmental proceeding was initiated on the basis of criminal case. The departmental proceeding has not been conducted in terms of the Rule prescribed under Rule 55 of Civil Services C.C. & A Rules, 1930. This aspect of the matter has been considered by the Patna High Court in the case of Kumar Upendra Singh Parimar (supra)” 20. Lastly it has been held in the case of Rajendra Ram Vs. The State of Bihar through Chief Secretary & Ors. reported in 2018 2 PLJR 10 at paragraph 7 & 8 as follows: “Para 7:-………………………………………….. …………………………………………………….. …………………………………………………….. Learned counsel for the petitioner has rightly argued that in a departmental 15 proceeding for serious misconduct oral evidence was necessary. However, on going through the enquiry report, of course it was not required for this Court to examine it while exercising power of judicial review, but on going through the report it is evident that none of the witnesses were examined from the Department side to prove any charges against the petitioner. The issue regarding non-examination of witnesses in a departmental proceeding for serious charge has already been set at rest by a Bench of this Court in Kumar Upendra Singh Parimar case (supra). In the said case one of the main reasons for interference with the punishment order was that no witness was examined to prove charge against the delinquent. It would be better to quote paragraph nos. 9 and 10 of Kumar Upendra Singh Parimar case (sura)….. …………………………………………………………… …………………………………………………………… Para 8. Similarly, this Court has already incorporated paragraph no..9 of Kumar Upendra Singh Parimar (supra) in this order. Nothing has been indicated as to what was the reason for non-examination of any witness to establish charge against the petitioner. In a departmental proceeding for serious charges particularly in view of Rule 55 of the C.C.A. Rules, 1930 it was mandatorily required to examine oral witness. In the present case in specific term the petitioner vide his letter no. 3855 dated 24.8.2004 16 (Annexure-“8” to the writ petition) had requested the Departmental Enquiry Commissioner to allow him to produce oral evidence besides submitting his supplementary written defence before the Departmental Enquiry Commissioner however in prove of establishing charge no witness was examined in the proceeding. Accordingly, in view of non-prove of any charges by any of the witnesses on behalf of the Department, there was no occasion for holding that the charges were proved against the petitioner by the Conducting Officer and on this score alone the order of punishment is liable to be set aside. …………………………………………………………… …………………………………………………………… ………..” 21. It transpires that one major charge against the petitioner is that he has caused loss of Rs.9,91,65,064/- (Rupees Nine crore ninety one lakh sixty five thousand and sixty four) in making payment to the Contractor even after defective work. However, the said charges have not been proved and enquiry officer has exonerated the petitioner from the said charges. 22. The Charge No. 6, pertaining to violation of work by the petitioner in terms of Sections 113, 121, 900, 903 I.R.C. Code & MORT&H Specification is also not proved against the petitioner. It also reveals that said charges were made against the petitioner merely on the basis of the letters of the authorities and not a 17 single witness was examined nor a single document was marked, which renders the enqury report defective and in complete violation of principles of natural justice. 23. Even the department, while filing counter affidavit had not controverted the statement of the petitioner that he was not supplied with the list of documents and the list of witnesses and has made a vague statement that these are matters of record. The conduct of the respondent even in filing counter affidavit is not appreciated by this Court as a vague counter affidavit has been filed. 24. In view of the discussions made above and in view of the law laid down by the Hon’ble Supreme Court, it is evident that the punishment imposed upon the petitioner is completely illegal, arbitrary and not sustainable in the eye of law and also in violation of the principle of natural justice and accordingly, Notification dated 23.08.2013 (Annexure 7) issued by the Deputy Secretary of the Government, Road Construction Department, Jharkhand, Ranchi (Respondent No. 4) is quashed and set aside and the petitioner will be entitled to all the consequential benefits. 26. Thus, this writ petition is allowed. s.m. (Sanjay Prasad, J.)