The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 5233 of 2016 Subodh Kumar Singh … … Petitioner - V E R S U S – 1. The State of Jharkhand 2. The Secretary, Road Construction Department, State of Jharkhand, Project Bhawan, Dhurwa, Ranchi 3. The Deputy Secretary, Road Construction Department, State of Jharkhand, Project Bhawan, Dhurwa, Ranchi 4. The Engineer-in-Chief, Road Construction Department, State of Jharkhand, Project Bhawan, Dhurwa, Ranchi 5. The Enquiry Conducting Officer – cum – Deputy Collector, Palamau, Daltonganj. … … Respondents. CORAM: HON'BLE DR. JUSTICE S. N. PATHAK For the Petitioner For the Respondents : :
Legal Reasoning
Mr. Amarendra Kumar, Advocate Mr. Om Prakash Tiwari, GP-III 09/24.04.2024 2. Heard the parties. Petitioner has approached this Court with a prayer for quashing the order as contained in Nig./Sara (Path)-01-V.Ka.-05-82/2012 – 8760(S), dated 29.12.2015 (Annexure-8), passed by the Disciplinary Authority (Respondent No. 4) by which punishment has been inflicted upon him. Petitioner has further prayed for quashing the appellate order dated 10.05.2016, as contained in Nig./Sara (Path) – 01 – V.Ka.-05 – 82/2012 – 2963 (S) (Annexure-9/1) by which punishment imposed against him has been affirmed. 3. As per the factual matrix, petitioner was working as Junior Engineer under the Road Construction Department and posted at Ramgarh under the Road Division, Hazaribagh. In view of order and direction dated 30.06.2009, passed in W.P.(PIL) NO. 803 of 2009 filed before this Court, a preliminary enquiry vide No. PE-03(A)/09 (R) was taken up by the Central Bureau of Investigation and relying upon the said preliminary enquiry, a regular First Information Report being RC 11(A)/2009 (R) was instituted and investigation was taken up by the Central Bureau of Investigation. After thorough investigation, the CBI submitted charge-sheet vide No. 392/P/11(A)/ 2009 (R), dated 31.01.2011 under Section 13(2) read with Section 13(1)(d) of the P.C. RC 1 Act, 1988 and Section 120(B) read with Sections 420, 468 and 471 of the Indian Penal Code against the petitioner and others. The main allegation levelled against the petitioner is that petitioner did not ensure utilization of proper amount of Bitumen in contractual work and facilitated illegal payment to the contractor on the basis of fake invoices. 4. It is further case of the petitioner that during pendency of criminal case i.e. R.C. Case No. 11(A)/2009 (R) before the Special Judge, CBI, Ranchi, an office order 236, under the signature of Engineer-in-Chief, Road Construction Department, Jharkhand, Ranchi and contained in Ka.Aa.San:Nig./Sara (Path)-01-v.Ka.-05-82/2012, dated 20.10.2012 was issued by which a departmental enquiry was ordered to be initiated against the petitioner under the Bihar and Orissa (Discipline and Appeal) Rules, 1945 and Rule 55 of the Civil Services (Classification, Control and Appeal) Rule, 1930. The said order was communicated to the petitioner through Memo NO. 7545(S) WE, dated 21.10.2012 along with the memo of charge. Petitioner appeared and submitted his detailed written reply before the enquiry officer denying all the charges levelled against him in memo of charge. The Enquiry Officer submitted his enquiry report to the Engineer-in-Chief, Road Construction Department, Jharkhand, Ranchi vide letter no. 777/Ra. Dated 10.06.2015 and a copy thereof was provided to the petitioner giving a finding that it was legally not tenable to give separate finding on the point of charges levelled against the delinquent officer as the matter was subjudice. 5. Thereafter, second show-cause notice was issued to the petitioner dated 04.09.2015 under the signature of Deputy Secretary, Road Construction Department, Government of Jharkhand directing the petitioner to file his defence statement in writing, which was duly submitted by him. however, defence of the petitioner was rejected vide order dated 29.12.2015 holding the petitioner guilty for the charges and punishment of reduction to the lowest pay scale of his post and proportionate realization of loss caused to the government exchequer was awarded to him with a further direction that no payment except RC 2 subsistence allowance for the period of suspension. Against the said order, petitioner filed appeal before the Engineer-in-Chief on 05.02.2016 which was rejected vide order dated 10.05.2016. Being aggrieved, petitioner has knocked door of this Court. 6. Mr. Amarendra Kumar, learned counsel appearing on behalf of 7. 8. the petitioner assiduously argues that the impunged order is not tenable in the eyes of law on the ground that the enquiry officer has not returned any finding of guilt. Without holding the petitioner guilty of charge, the enquiry report has been submitted. It has been argued that the disciplinary authority, without differing with the enquiry report or coming to the independent enquiry, has imposed punishment upon the petitioner which is not tenable in the eyes of law. Mechanically the appellate authority has affirmed the order passed by the disciplinary authority. Learned counsel submits that in the circumstances, the impunged orders are liable to be quashed and set aside. To buttress his arguments, learned Counsel has relied upon the following Judgments: (i) State Bank of India Vs. Neelam Nag reported in 2016(4) JLJR 82; (ii) M. Paul Anthony Vs. Bharat Gold Mines Ltd. reported in AIR 1999 (SC) 1416; (iii) G.M. Tank Vs. State of Gujrat reported AIR 2006 (SC) 2129 Mr. Om Prakash Tiwari, learned GP-III emphatically argues that contention of the learned counsel for the petitioner is totally misconceived. Nothing has been brought on record to show whether any folly has been committed by the disciplinary authority or by the enquiry officer during the course of enquiry. The petitioner has been given ample opportunity of hearing. The cardinal principles of natural justice have been adhered to. Copy of enquiry report along with relevant documents were duly served upon the petitioner. The order of the disciplinary authority has been duly affirmed by the appellate authority.
Decision
No interference is warranted and the writ petition is fit to be dismissed. Learned counsel further argues that criminal case is pending for final trial. If petitioner is acquitted in criminal case, he may approach before the competent authority for redressal of grievance. RC 3 9. Learned counsel has further drawn attention of this Court to the Judgment dated 31.08.2012 passed in Criminal Appeal No. 1334 of 2012 wherein the Full Bench of the Hon'ble Apex Court has held that exoneration in departmental proceeding ipso facto would not result into quashing of the criminal prosecution. Learned counsel further submits that the Hon'ble Apex Court has clearly held that criminal trial and the departmental proceedings are held by two different entities and are not in the same hierarchy. The departmental proceeding and criminal proceeding are two distinct matters and may not overlap each other. The outcome of departmental proceeding has no bearing upon the criminal proceeding and hence it does not seem any legal bar in continuing both simultaneously. 10. Learned counsel further argued that there is no bearing of departmental proceeding upon the criminal proceeding and hence question of any prejudice against the petitioner does not arise. Learned counsel has placed reliance in the case of Sunil Kumar Vs. Central Coalfields Limited, Ranchi & Others reported in 2017 (1) AIR Jhar. HCR 283 11. Having heard counsel for the parties and considering facts and circumstances of the case, I find no interference is warranted in the instant writ petition. Reliance has been placed by the petitioner in the case reported in 2016(4) JLJR 82 that if witnesses in criminal case as well as departmental enquiry are same, then it shall prejudice case of the delinquent, does not come to rescue of the petitioner. Now coming to the legal proposition of law, as enunciated by the Hon'ble Apex Court in para-22 of the Judgment in the case of Captain M. Paul Anthony v. Bharat Gold Mines Ltd. and another reported in 1999 AIR (SC) 1416, which reads as under: “22. The conclusion which are deducible from various decisions of this Court referred to above are: (i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately (ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the RC 4 charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. (iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet. (iv) The factors mentioned at (ii) and (iii) above, cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed. (v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at any early date, so that if the employee is found not guilty his honour may be the in case he vindicated and administration may get rid of him at the earliest.” found guilty, is 12. The Hon'ble Apex Court in the case of Avinash Sadashiv Bhosale V. Union of India and Ors. Reported in 2012 AIR (SC) 755, has been pleased to hold as under: “54.1 There is no legal bar for both proceedings to go on simultaneously. 54.2 The only valid ground for claiming that the disciplinary proceedings may be stayed, would be to ensure that the defence of the employee in the criminal case may not be prejudiced. But even such grounds would be available only in cases involving complex question of facts and law. to 54.3 Such defence ought not unnecessarily delay the departmental proceeding. The interest of the delinquent officer as well as the employer clearly lies in a prompt conclusion of the disciplinary proceedings. 54.4 Departmental proceedings can go on simultaneously to the criminal trial, except where both the proceedings are based on the same set of facts and the evidence in both the proceedings is common.” to be permitted 13. Coordinate Bench of this Court, in the case of Sunil Kumar V. Central Coalfields Limited, Ranchi & Others has considered aforesaid RC 5 Judgments and has reiterated same view and has been pleased to hold that there is no legal bar for both criminal as well as departmental proceedings to proceed simultaneously. 14. Admittedly charges against the petitioner is very serious and grave in nature. Petitioner has been slapped with the order of punishment as he has been held guilty of manipulating huge amount to the tune of Rs.58,47,819/-. Though the enquiry officer has not given a clear finding regarding proving of guilt, the enquiry officer returned the finding that petitioner has been held guilty of charge. Ample opportunity was given to the petitioner. The cardinal principles of natural justice have been duly adhered to. No interference is warranted. 15. 16. Consequently, this writ petition stands dismissed. Pending interlocutory application, if any, also stands disposed of. (Dr. S.N. Pathak, J.) RC 6