The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 1608 of 2022 Sushil Kumar ---- Versus ..... Petitioner 1. The State of Jharkhand 2. The Secretary, Road Construction Department, Govt. of Jharkhand, Ranchi. ......Respondents --- CORAM : HON’BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioner : Mr. Saurav Shekhar, Advocate For the State :A.C to Sr.S.C.-II ------- 11/10.07.2024 Heard learned counsel for the parties. ----- 2. The instant writ application has been preferred for the following reliefs: (i) For quashing of the order of punishment dated 08.03.2019 (Annexure-9), issued under the signature of respondent no. 2, whereby the petitioner has been dismissed from services; as also for quashing and setting aside of the entire departmental proceeding initiated against the petitioner, vide Government Resolution dated 02.12.2015 (Annexure-1) (ii) For direction upon the respondent to reinstate the petitioner, release the entire consequential benefits, including arrears of salary, fixation of pension, pensionary benefits etc. 3. The brief fact of the case is that a departmental proceeding was initiated against the petitioner, vide Government Resolution dated 02.12.2015, under the provisions of Rule 55 of Civil Service (Classification, Control & Appeal) Rules, 1930. The petitioner was also provided a copy of PRAPATRA ‘KA’, wherein the allegations were framed as alleged against him. The said PRAPATRA ‘KA’ was in relation to the charges against the petitioner for the period when he was posted as Assistant Manager, Rural Works Department, Works Division, Lohardaga. The issue in connection with the charges relates to 1. construction of road under Prime Minister Rural Road Development Scheme, between Fatepur to Tiyamu. The construction of road is in relation to Package No. JH-1501- 4th Stage, for the period 2006-07. The road was not completed in time, and a payment of Rs. 1,26,52,175/- was made in excess, compared to the original amount of Rs. 56,19,524/-, for which work was found to be done. It is alleged that in the measurement book, it was shown at the behest of the petitioner that work to the tune of Rs. 1,82,21,669/- was completed; thus, the payment was made to the successive four current bills. On this fact and allegation, an embezzlement of public fund has been alleged against the petitioner. Further loss caused to the public exchequer is also one of the reasons to initiate departmental proceeding. It was further alleged that the conduct of the petitioner amounts to violation of provisions of Government Servant Conduct Rules 3 (1)(i) &(ii). 4. During the pendency of departmental proceeding another PRAPATRA ‘KA’ was supplied to the petitioner vide order dated 02.03.2016, on the basis of the complaint of one Kamal Kumar Agarwal, for the period when the petitioner was posted as Assistant Engineer in Ranchi Municipal Corporation, Ranchi, as Additional Charge. In the second PRAPATRA ‘KA’, allegation was levelled against this petitioner that in allowing the building plan of the complainant of his personal residence, G+4 building, pertaining to Building Application No. BP02/2013/733, the petitioner sat over the matter for 72 days from 11.10.2014 to 23.12.2014, and thereby tried to cancel the application, when bribe for approving the plan was not deposited by the complainant to the petitioner. The petitioner submitted reply denying all the 2. charges by giving his detailed explanation; however, the enquiry report was submitted and the order of punishment was inflicted upon the petitioner vide order dated 08.03.2019 for removal of his service. 5.
Legal Reasoning
Learned counsel for the petitioner contended that the enquiry report is perverse, and the finding that he has been reached, is based on preliminary enquiry reports, charge- sheet and supervision reports of the police. The F.I.R filed by the police has been taken note by the Enquiry Officer. He categorically submits that for the first set of charges, there was no oral evidence and as a matter of fact the preliminary enquiry report that has been relied upon which is the spot verification report, but the author of the report was never brought before the Enquiry Officer so as to give chance of cross-examination. Even the author of supervision report, charge-sheets were not present in the inquiry proceeding. He further referred to the enquiry report, wherein it is admitted that there was no oral evidence adduced by the department in support of their allegation. 6. So far as second charge is concerned, he contended that the Enquiry Officer has not relied upon any evidence, either oral or documentary, and from bare perusal of last paragraph, it is evident that the alleged C.D was neither audible nor visible, which has been admitted by the Enquiry Officer; however, the only finding of the Enquiry Officer is that the reply filed by the petitioner was not acceptable to the enquiry officer. In support of his contention, he relied upon the judgments passed in the cases of A. Savariar Vs. The Secretary, Tamil Nadu Public Service Commission & Anr. reported in (2013) SCC Online SC 157; Delhi Cloth and General Mills Company Vs. Ludh Budh Singh 3. reported in (1972) 1 SCC 595 and Roop Singh Negi Vs. Punjab National Bank reported in (2009) 2 SCC 570. 7. It has been lastly submitted by learned counsel for the petitioner that the petitioner has been terminated at the fag-end of service; as such he would be deemed to be reinstated from the date, he was terminated only for the purpose of calculating the pensionary benefits and consequential benefit may be extended to him. 8. Learned counsel for the respondents by referring to the counter affidavit submits that the departmental proceeding was initiated against the petitioner for irregularities committed by him during his posting at Rural Works Department, Works Division, Lohardaga. He further submits that additional charge was also framed which has been duly proved by the enquiry officer and the enquiry officer has found the charges to be fully proved and since it is a case of major punishment and second show-cause notice was also served to the petitioner; however the department did not receive any reply to the second show- cause; rather the petitioner was lingering the matter and finally vide letter dated 14.06.2018 the department requested consent from JPSC to impose the punishment of termination from service of the petitioner and since the JPSC has granted consent, the petitioner was terminated. Learned counsel lastly submits that there is a provision of appeal; as such the petitioner should have approached the appellate authority. 9. Having heard learned counsel for the parties and after going through the inquiry report, it is evident that no oral evidence has been adduced which is mentioned at Page-2 of the enquiry report; inasmuch as, in front of details of witnesses, it is mentioned 0(Zero). It further transpires from the inquiry report that the entire allegation 4. has been proved on the basis of the letter of Executive Engineer dated 19.02.2023, which was with respect to spot verification; the letter of S.P (Vigilance) dated 18.06.2013 with respect to police verification; the letter of Dy.S.P which was with respect to charge-sheet and the F.I.R; however none of these officers, who conducted the preliminary enquiry and submitted the report as well as filed the complaint vigilance case were examined by the department. In the case of Narayan Dattatraya Ramteerthakhar Vs. State of Maharashtra reported in 1997 (1) SCC 299, it has been held by Hon’ble Apex Court that a preliminary enquiry has nothing to do with the enquiry conducted after issue of charge-sheet. The preliminary enquiry is only to find out whether disciplinary inquiry should be initiated against the delinquent. Once regular inquiry is held under the Rules, the preliminary inquiry loses its importance. 10. Interestingly, in the instant case, the document which has been relied upon by the respondents was the result of preliminary inquiry; as such the Enquiry Officer was duty bound to prove those documents through evidence and the author of the documents were not examined; inasmuch as, none of the oral evidence has been adduced by the respondents. It is also settled principle that the onus lies on the respondents to prove the charge and since it failed to examine any of the person whose letter has been relied upon by the department, it can be safely held that the charges has not been proved. Even with respect to second charge, the complainant himself has not been examined. In the case of Delhi Cloth and General Mills Company Vs. Ludh Budh Singh reported in (1972) 1 SCC 5. 595, the Hon’ble Apex Court has held that it is the primary duty of the person making the allegations to establish the same by producing evidence and not for the delinquent to produce negative evidence to prove his innocence. 11. In the instant case, so far as send chargesheet is concerned; admittedly the CD which was sent to the respondent was neither audible nor visible and this finding has been given by the enquiry officer, but for the reason best known to him only on the basis of reply he took the charges as proved. The role and duty of the Enquiry Officer has been reiterated in the case of State of Uttar Pradesh and others Vs. Saroj Kumar Sinha reported in 2010 (2) SCC 772, wherein the Hon’ble Apex Court has held at Paras-28, 29 and 30, as under: a to of be representative 28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed 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. 29. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee. 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 6. 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 that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service. 12. The procedure with respect to disciplinary proceeding and the role of enquiry officer has also been given in detail in the case of A.Savariar Vs. The Secretary, Tamil Nadu Public Service Commission and another reported in 2013 SCC Online SC 157, wherein the law has been reiterated in paragraph no. 15, 18 and 19 which reads as under: 15. On behalf of the Commission oral evidence is said to have been adduced to substantiate the allegations leveled against the appellant but neither the report of the Enquiry Officer nor the orders passed by the Controller of Examinations or the Chairman of the Commission make a mention of that evidence and none of them relied upon the same for recording a finding that the appellant had arrogated to himself the powers of his superiors and unauthorisedly appointed Invigilators. As a matter of fact, Enquiry Officer simply referred to the statement of the appellant, analysed the same and concluded that Charges No. 1, 2, 4 and 6 have been proved against him. It is thus evident that the inquiry report was not prepared in consonance with Rule 17(b)(i) of the Rules. 18. In Delhi Cloth and General Mills Company v. Ludh Budh Singh (1972) 1 SCC 595, this Court held that it is the primary duty of the person making the allegations to establish the same by producing evidence and not for the delinquent to produce negative evidence to prove his innocence. 19. In Roop Singh Negi v. Punjab National Bank (2009) 2 SCC 570, this Court considered the question whether mere production of the document by the department is sufficient for holding the employee guilty and observed: function. The charges “Indisputably, a departmental proceeding is a quasi- judicial proceeding. The enquiry officer performs a quasi- the judicial 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 levelled against 7. 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. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the 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.” 13. Having regard to the aforesaid discussions and the rulings referred to hereinabove, coupled with the facts of the instant case, where no oral evidence has been adduced, the author of the documents has not been examined; documents which has been relied upon was of preliminary inquiry which does not have any bearing in full-fledged departmental inquiry; as such the impugned order dated 08.03.2019 (Annexure-9) and Government Resolution dated 02.12.2015, are hereby, quashed and set aside. Since the petitioner has been terminated at the fag-end of service; as such he would be deemed to be reinstated from the date, he was terminated only for the 8. purpose of calculating the pensionary benefits and accordingly, the respondents are directed to extend the consequential benefit to him within a period of twelve weeks from the date of receipt/production of copy of this order. 14. Accordingly, the instant writ application stands allowed in the manner indicated hereinabove. (Deepak Roshan, J.) jk 9.