Secretary, Road Construction Department, Govt. of Jharkhand v. Ranchi
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S). No. 5019 of 2009 ---------- Binod Kumar ………. Petitioner 1. State of Jharkhand 2. Secretary, Road Construction Department, Govt. of Jharkhand, Versus Ranchi. 3. Deputy Secretary, Road Construction Department, Govt. of Jharkhand, Ranchi. 4. State of Bihar through the Secretary, Road Construction Department, Govt. of Bihar, Patna ………. Respondents. ---------- CORAM: HON'BLE DR. JUSTICE S.N.PATHAK For the Petitioner For the Respondents ----------- : :
Legal Reasoning
this Court in W.P.(S). No. 2737 of 2009 challenging the charge-sheet issued to the petitioner. However, subsequently the petitioner filed I.A. 3084 of 2009 for withdrawing of the main writ application and accordingly the said writ petition stood dismissed as withdrawn. Thereafter, the present writ petition has been filed challenging the order of punishment. 4. Shorn of unnecessary details, vide notification No. 2199 (S) dated 16.06.1987 the petitioner was appointed in the erstwhile State of Bihar 1 under Road Construction Department. The petitioner was appointed as per the merit list determined by the Bihar Public Service Commission. Thereafter, a tentative seniority list was published in the year 1989 in which the name of petitioner figured at Sl. No. 2363. It is the specific case of the petitioner that while preparing the seniority list the name of petitioner figured at Sl. No. 2363 which according to the petitioner was a wrong determination of his ranking in the gradation list and as such, he made representation on 10.12.1989 for making rectification in the seniority position. Thereafter, in the seniority list rectifications were made and petitioner was placed at Sl. No. 2061-A. Though rectifications were made but his position at Sl. No. 2343 has not been not been deleted. 5. It is the further case of petitioner that a subsequent notification was issued by the State of Bihar through Road Construction Department on 07.05.2002 in which the name of the petitioner appeared at Sl. No. 2235 whereas with the present position his name is figuring at Sl. No. 2061-A. After bifurcation a fresh seniority list of the Assistant Engineers was prepared by the State of Jharkhand which shows that the service of petitioner was confirmed and regularized with seniority position 2061-A. In view of said seniority list petitioner represented before the respondent- authorities for consideration of his case for final allocation of cadre on the basis of his ranking at Sl. No. 2061-A. Thereafter, the petitioner’s cadre was allocated Jharkhand cadre and fresh notification No. 1354(S) dated 16.05.2005 was issued. 6. It is the further case of petitioner that petitioner along with others were considered for grant of benefits of Assured Career Progression Scheme in which the petitioner’s seniority was mentioned as 2061-A and his name figured at Sl. No. 23. Thereafter, final gradation list was published on 10.04.2007 and the name of petitioner also figured at Sl. No. 99 on the basis of earlier ranking i.e. 2061-A in the previous gradation list issued by the Road Construction Department. Even objections were invited from all the concerned and after giving opportunities to all and taking into 2 consideration various aspects, final gradation list was published on 10.04.2007. It is the further case of petitioner that though juniors to the petitioner were considered for promotion to the rank of Executive Engineers and were granted further promotion also but the case of the petitioner was not considered. Aggrieved by non-consideration of his case, the petitioner made representation before the respondent-authorities. Thereafter, the respondents asked the petitioner to file fresh affidavit and accordingly, the petitioner filed fresh affidavit annexing the documents in which his seniority was shown as 2061-1. Thereafter, when nothing was done, the petitioner insisted for considering his case for promotion in view of seniority list published on 10.04.2007. 7. It is the specific case of the petitioner that on 25.02.2009, a notification was issued putting the petitioner under suspension under the provisions of Rule-49A(1) a of Civil Services (Classification, Control and Appeal) Rules, 1930 for submitting wrong affidavit before the respondent- authorities. Thereafter, following the procedure a regular departmental proceeding was initiated in which petitioner participated and thereafter, the Enquiry Officer held the petitioner guilty of the charges levelled against him. Agreeing with the finding of the Enquiry Officer, the Disciplinary Authority inflicted punishment which has been subject matter of challenge in the instant writ application. 8. Learned counsel for the petitioner attacks the impugned order on the following grounds: It has been argued that enquiry report is perverse. (i) (ii) Enquiry Officer while conducting the enquiry did not provide opportunity of hearing to the petitioner and thus, the entire proceeding vitiates as the same has been done in complete violation of cardinal principle of natural justice. (iii) It has been further argued that the Enquiry Officer failed to consider the documents produced by the petitioner in which the 3 name of petitioner appeared at Sl. No. 2061-1 and being prejudiced, the report has been finalized. (iv) It has been further argued that the petitioner was also considered for grant of benefits of ACP on the basis of same gradation list and as such, it ought not have been overlooked by the Enquiry Officer and on the basis of perverse report any punishment awarded to the petitioner is nullity in the eyes of law and therefore, is fit to be quashed and set aside. 9. On the other hand, learned counsel for the respondent-State of Jharkhand and State of Bihar vehemently opposing the contention of learned counsel for the petitioner submits that there is no procedural irregularity in the departmental proceeding inasmuch as ample opportunity was given to the petitioner to present his case. It was unbecoming of a government servant since the petitioner has filed a false affidavit before the respondents. Learned counsel further argues that lesser punishment has been inflicted to the petitioner since for the misconduct as committed by the petitioner the only punishment which could have been awarded was order of dismissal from services. 10. Having gone through the rival submissions of the parties, this Court is of the considered view that no interference is warranted in the instant writ petition for the following facts and reasons: I) Ample opportunity has been provided to the petitioner/ delinquent before coming to a finding. Never any objection was raised that petitioner was not provided opportunity of being heard. II) Never any objections were raised during the entire departmental proceeding regarding any foully committed by the Enquiry Officer. III) A full-fledged departmental proceeding was conducted and thereafter, on the issue raised by the petitioner matter was duly enquired with and it was found that petitioner has furnished a false document. The affidavit on which petitioner is relying with 4 is completely a false affidavit. The same was duly considered by the Enquiry Officer and thereafter, agreed upon by the Disciplinary Authority. IV) Since no foully has been pointed-out by the petitioner, there is no scope for interference in the order passed by the Disciplinary Authority based on the enquiry report. 11. The Hon’ble Apex Court in plethora of judgments has held that the Writ Court sitting under Article 226 of the Constitution cannot reappraise the evidences. 12. The Hon’ble Apex Court in the case of B.C. Chaturvedi Vs. Union of India & Ors., reported in (1995) 6 SCC 749 has held thus: “ The High Court does not act as appellant authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to the decision of a case on merit as an appellate authority.” (ii) Insufficiency of materials cannot be a ground to annul the findings of the Enquiry Officer neither can a substituted view be in place of Enquiry taken officer/disciplinary authority in cases of departmental proceeding. Further, the Hon’ble Apex Court in case of Apparel Export Promotion Council v. A.K. Chopra, reported in (1999) 1 SCC 759 has held as under: 16. The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to reappreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the 5 evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as an appellate authority over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned Single Judge and the Division Bench of the High Court, it appears, ignored the well-settled principle that even though judicial review of administrative action must remain flexible and its dimension not closed, yet the court, in exercise of the power of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial review, it must be remembered, is directed not against the decision, but is confined to the the decision-making process. Lord examination of Hailsham in Chief Constable of the North Wales Police v. Evans1 observed: “The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized or enjoined by law to decide for itself, a conclusion which is correct in the eyes of the court.” 22. In the established facts and circumstances of this case, we have no hesitation to hold, at the outset, that both the learned Single Judge and the Division Bench of the High Court fell into patent error in interfering with the findings of fact recorded by the departmental authorities and interfering with the quantum of punishment, as if the High Court was sitting in appellate jurisdiction. From the judgments of the learned Single Judge as well as the 6 Division Bench, it is quite obvious that the findings with regard to an “unbecoming act” committed by the respondent, as found by the departmental authorities, were not found fault with even on reappreciation of evidence. The High Court did not find that the occurrence, as alleged by the complainant, had not taken place. Neither the learned Single Judge nor the Division Bench found that the findings recorded by the enquiry officer or the departmental appellate authority were either arbitrary or even perverse. As a matter of fact, the High Court found no fault whatsoever with the conduct of enquiry. The direction of the learned Single Judge to the effect that the respondent was not entitled to back wages and was to be posted outside the city for at least two years, which was upheld by the Division Bench, itself demonstrates that the High Court believed the complainant’s case fully for otherwise, neither the withholding of back wages nor a direction to post the respondent outside the city for at least two years was necessary. The High Court in our opinion fell in error in interfering with the punishment, which could be lawfully imposed by the departmental authorities on the respondent for his proven misconduct. To hold that since the respondent had not “actually molested” Miss X and that he had only “tried to molest” her and had “not managed” to make physical contact with her, the punishment of removal from service was not justified, was erroneous. The High Court should not have substituted its own discretion for that of the authority. What punishment was required to be imposed, in the facts and circumstances of the case, was a matter which fell exclusively within the jurisdiction of the competent authority and did not warrant any interference by the High Court. The entire approach of the High Court has been faulty. The impugned order of the High Court cannot be sustained on this ground alone. But there is another aspect of the case which is fundamental and goes to the root of the case and concerns the approach of the Court while dealing with cases of sexual harassment at the place of work of female employees. 13. In case of Union of India & Ors. vs. P. Gunasekaran, reported in (2015) 2 SCC 610, dealing with the similar issues, the Hon’ble Apex Court has clearly observed that, “High Court in exercise of its powers under Articles 226 and 227 cannot venture into appreciation of evidence 7 or interfere with conclusions in enquiry proceedings if the same are conducted in accordance with law, or go into reliability/ adequacy of evidence, or interfere if there is some legal evidence on findings are based, or correct error of fact however grave it may be, or go into proportionality of punishment unless it shocks conscience of court”. 14. Further, recently the Hon’ble Apex Court in case of State of Bihar & Ors. vs. Phulpari Kumari, reported in (2020) 2 SCC 130 has held as under: “6. The criminal trial against the respondent is still pending consideration by a competent criminal court. The order of dismissal from service of the respondent was pursuant to a departmental inquiry held against her. The inquiry officer examined the evidence and concluded that the charge of demand and acceptance of illegal gratification by the respondent was proved. The learned Single Judge and the Division Bench of the High Court committed an error in reappreciating the evidence and coming to a conclusion that the evidence on record was not sufficient to point to the guilt of the respondent: 6.1. It is settled law that interference with the orders passed pursuant to a departmental inquiry can be only in case of “no evidence”. Sufficiency of evidence is not within the realm of judicial review. The standard of proof as required in a criminal trial is not the same in a departmental inquiry. Strict rules of evidence are to be followed by the criminal court where the guilt of the accused has to be proved beyond reasonable doubt. On the other hand, preponderance of probabilities is the test adopted in finding the delinquent guilty of the charge. 6.2. The High Court ought not to have interfered with the order of dismissal of the respondent by re- examining the evidence and taking a view different from that of the disciplinary authority which was based on the findings of the inquiry officer.” 15. This Court is in full agreement with the punishment order. Even the claim of petitioner for payment of full salary for the period of suspension is 8 not tenable since until and unless the petitioner has been exonerated by the Enquiry Officer, he is not entitled for the same. In the instant case, petitioner was given subsistence allowance and hence, is not entitled for anything else. 16. Since petitioner has already superannuated, no interference is warranted in the instant writ application and the same is hereby dismissed. kunal/- (Dr. S.N. Pathak, J.) 9
Arguments
Ms. Nidhi Kumari, Advocate Mr. Ranjan Kumar, AC to Sr.SC-I Mr. Ranjit Kumar, AC to GA(Bihar) ---------- 06/ 10.04.2024 Heard the parties. 2. Petitioner has thrown challenge to the order dated 23.09.2009, issued under the signature of respondent No. 2, whereby he was saddled with the following order of punishment: (i) Withholding of three annual increment; (ii) Petitioner will not be entitled to get anything save and except the subsistence allowance for the period of suspension; & (iii) There shall be adverse entry in the confidential record of the petitioner. 3. This case has got a chequered history. Earlier petitioner had moved