Secretary, Water Resources Department v. Jharkhand, Ranchi
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S). No. 1729 of 2007 ---------- Nand Kishore Sinha ………. Petitioner 1. The State of Jharkhand 2. The Commissioner-cum-Secretary, Water Resources Department, Versus Jharkhand, Ranchi. 3. The State of Bihar. CORAM: THE HON'BLE DR. JUSTICE S.N.PATHAK ………. Respondents. ---------- For the Petitioner For the Respondents
Legal Reasoning
17/ 17.02.2023 Heard the parties. ----------- : :
Legal Reasoning
Mr. Manu Tripurari, Advocate Mr. Rahul Dev, AC to SC(L&C) Mr. Diwakar Upadhyay, Advocate ---------- 2. Petitioner has approached this Court with a prayer for quashing the notification No. 1202 dated 09.12.2003, whereby the disciplinary authority in exercise of power conferred under Rule-55 of Civil Services (Classification, Control and Appeal) Rules (for short ‘CCA Rules’) has passed the following order of punishment: a) Censure for the period 1998-99; b) Stoppage of two increments with cumulative effect; c) Stoppage of further promotion for next 3 years; d) Recovery of Rs.38,000/-; e) No other payment shall be made except subsistence allowance and the period under suspension shall not be considered to be ‘in service’ for other purpose like calculation of pension, etc. 3. As per the factual matrix, in the year 2000, while the petitioner was working as Executive Engineer, Irrigation Division, Birpur, a departmental proceeding was initiated against him vide notification contained in memo No. 1575 dated 21.12.2000, in which a detailed enquiry was held and the Enquiry Officer submitted his report holding that the charges could not be established and the petitioner is quite innocent. However, the Disciplinary Authority without complying with the mandatory provisions of the Service 2 Rules and the law laid down by this Hon’ble Court as well as by the Hon’ble Apex Court straight way issued notification bearing memo No. 1202 dated 09.12.2003 imposing several punishment, which are mentioned above. Since the order of punishment was passed by the appointing authority, so appeal was not maintainable and hence, the petitioner directly preferred review but till date no order has been passed on the same. In the meantime, the petitioner was allocated the Jharkhand Cadre and the entire service records along with records attached to the departmental proceeding was transferred to the State of Jharkhand. The petitioner again filed representation before the State of Jharkhand by way of reminder for disposal of the review bearing No. 08, dated 06.01.2005 but the same went into vain. Aggrieved by the same, petitioner has knocked the door of this Court. 4. Mr. Manu Tripuari, learned counsel appearing for the petitioner vociferously argues that impugned order is not tenable in the eyes of law inasmuch as from the records it would be crystal clear that the alleged charges in the instant departmental proceeding are incorrect and the enquiry officer besides all Senior Technical Officers has come to a definite finding that the charges are baseless and the same has not been established in the departmental proceeding. As such, there is no reason to pass the order of punishment by differing from the report of the Enquiry Officer. Learned counsel further argues that the order of punishment is absolutely illegal, unjust, improper and without jurisdiction inasmuch as the Enquiry Officer did not find the petitioner guilty of the charges and the order of punishment has been passed in complete defiance of the rules and established law relating to difference of opinion between the Enquiry Officer and the Disciplinary Authority and further the review application filed by the
Decision
petitioner has not been disposed of as yet inspite of clear cut finding of the Technical Experts, the Chief Engineer, the Superintending Engineer (Flying Squards) and others to the effect that there is no cogent reason available to the Disciplinary Authority to differ with the findings of the Enquiry Officer, which will appear from perusal of the noting in the concerned file at page 3 17-23. Learned counsel further submits that in complete violation of principles of natural justice, the impugned order has been issued which is fit to be quashed and set aside. 5. To buttress his arguments, learned counsel for the petitioner relies upon the following judgments: I) Brij Nandan Kansal Vs. State of U.P. & Anr., [1998 (Supp) SCC 761]; II) Punjab National Bank & Ors. Vs. Kunj Behari Misra, [(1998) 7 SCC 84]; III) SBI & Ors. Vs. Arvind K. Shukla, [(2004) 13 SCC 797] 6. On the other hand, Mr. Rahul Dev, learned counsel appearing for the respondent-State of Jharkhand and Mr. Diwakar Upadhyay, learned counsel appearing for the respondent-State of Bihar vehemently oppose the contention of learned counsel for the petitioner and jointly submit that the since the Disciplinary Authority disagreed with the enquiry report, asked the petitioner to submit his reply to the 2nd show-cause and upon receipt of the same, it was examined by the State Govt. and thereafter, it was decided to inflict punishment upon the petitioner. Learned counsel further argues that the in the 2nd show-cause notice, the Disciplinary Authority has assigned the reasons for differing with the enquiry report and hence, the argument of learned counsel for the petitioner that reason has not been assigned is misconceived and not sustainable in the eyes of law. Learned counsel further argue that the order of punishment was issued with the approval of the then Hon’ble Chief Minister of undivided State of Bihar and hence, the Secretary of the Department has got no authority to review the punishment order according to the provisions laid down under Rule-57(v) of the CCA Rules, which was accordingly, informed to the petitioner vide letter dated 04.10.2007 of the Water Resources Department, Jharkhand, Ranchi. Learned counsel further argues that in another charge of corruption, the petitioner was dismissed from service vide notification dated 10.08.2007, issued by the Water Resources Department, Jharkhand, Ranchi. Learned counsel further argue that due to the charges of corruption levelled against him, the petitioner was awarded with the punishment, as mentioned 4 in the impugned order. Learned counsel further argue that due to corrupt practice of the petitioner, heavy financial loss has been caused to the State Govt. and as such, the order of punishment is fully justified. 7. Having heard the parties across the bar and upon perusal of the documents brought on record, this Court is of the considered view that the case of the petitioner needs consideration for the following facts and reasons: (I) A detailed enquiry was conducted and the Enquiry Officer has exonerated the petitioner from all the charges levelled against him. (II) Once the Enquiry Officer exonerated the petitioner from all the charges, there is no question of any fresh enquiry, rather, the respondents may proceed with the further enquiry. (III) It was not open for the Disciplinary Authority to go for another enquiry till the report comes holding the petitioner guilty of charges. (IV) Apart from the enquiry report, the petitioner was also exonerated by the Technical Experts, the Chief Engineer, the Superintending Engineer (Flying Squards). (V) The documents on which the order of dismissal was passed differing with the enquiry report has not been supplied to the petitioner (VI) The disciplinary authority though differed with the enquiry report but no cogent reasons has been assigned for the same and as such, the impugned order of punishment is not tenable in the eyes of law. 8. Similar issue fell for consideration before the Hon’ble Apex Court in case of Punjab National Bank & Ors. v. Kunj Behari Misra, reported in (1998) 7 SCC 84 and their Lordships have held as under: “19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must 5 record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.” 9. This Court in case of Bishnu Prasad Raut vs. the State of Jharkhand & Ors., reported in 2020 (2) JLJR 76, reiterating the same view taking into consideration the various judgments passed by the Hon’ble Apex Court, observed interalia that in case of differing with the enquiry report, it was incumbent upon the Disciplinary Authority not only to assign reason but to send the copy of the enquiry report to the petitioner seeking his reply on the same. In absence of the same, the impugned orders cannot be termed to be an order in the eyes of law and hence, the same is fit to be quashed and set aside 10. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the impugned notification No. 1202 dated 09.12.2003, is hereby quashed and set aside. 11. Resultantly, the writ petition stands allowed with all consequential benefits. kunal/- (Dr. S.N. Pathak, J.)