The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 5455 of 2017 --------- Shivmuni Ram, son of Late Sukhoo Ram, resident of Caster Town, Near Railway Station, B. Deoghar, P.O. Deoghar, P.S. Deoghar, District Deoghar ..… Petitioner Versus 1. The State of Jharkhand 2. The Principal Secretary, Road Construction Department, Government of Jharkhand, at Project Building, P.O. Dhurwa, P.S. Jagarnathpur, District Ranchi, Jharkhand 3. The Deputy Secretary, Construction Department, Government of Jharkhand, at Project Building, P.O. Dhurwa, P.S. Jagarnathpur, District Ranchi. Road 4. The Engineer-in-Chief, Construction Department, Government of Jharkhand, at Project Building, P.O. Dhurwa, P.S. Jagarnathpur, District Ranchi Road 5. The Chief Engineer, Road Construction Department, Dhurwa, P.O. Dhurwa, P.S. Jagarnathpur, District Ranchi ….. Respondents ---------- CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD For the Petitioner For the Respondents : Ms. Sunita Kumari, ---------- : Mr. Saurav Shekhar, Advocate A.C. to Sr.S.C.II --------- Reserved on 15.02.2024 Pronounced on 27.09.2024 This writ petition has been filed on behalf of the petitioner for quashing the Memo No. 6724 (S) dated 28.09.2015 (i.e.Annexure-15) passed by the In- Charge Engineer-in-Chief, Road Construction Department, Govt. of Jharkhand, Ranchi, by which 1 order of punishment has been passed and also for quashing the Office Order issued by Memo No. 518(S) dated 23.01.2019 (i.e. Annexure-24), passed by the Engineer-in-Chief, Road Construction Department, Government of Jharkhand, Ranchi by which a sum of Rs.18,47,326.50/- (Rupees Eighteen Lakh Forty seven thousand three hundred twenty six and Fifty paise only) has been directed to be recovered from the petitioner. 2. Heard Mr. Saurav Shekhar, learned counsel for the petitioner and Ms. Sunita, A.C. to Sr.S.C.II for the Respondent State. 3. Learned counsel for the petitioner submitted that the impugned order dated 23.09.2015 (i.e. Annexure 15) and Order dated 23. 01. 2019 (i.e. Annexure 24) passed by the Chief Engineer, Government of Jharkhand, Ranchi are illegal, arbitrary and not sustainable in the eye of law. It is submitted that during pendency of the departmental proceeding, defence of the petitioner was not considered by the Disciplinary Authority and although it was specific stand of the petitioner that the petitioner has deducted the cost of non-supply of bitumen from the bill of the contractor and he was not instructed to verify the invoice of the Bitumen at the stage of Junior Engineer, however, his defence was not considered by the Disciplinary Authority and he has been made a scape goat by the department. It is 2 submitted that four charges were framed by the Enquiry Officer against the petitioner and the Enquiry Officer has found the Charge No.1, Charge No.2, Charge No. 3 and Charge No.4 not proved against the petitioner. However, the Disciplinary Authority, by simply issuing second show-cause Notice, after disagreeing with the report of the Enquiry Officer, has passed the impugned order dated 28.9.2015 (i.e. Annexure 15) in a mechanical and arbitrary manner. It is submitted that although the petitioner had filed reply to the Second show-cause Notice issued by the Engineer-in-Chief, but it was not properly considered by the Engineer-in-Chief. It is submitted that even after filing of this writ petition, the Department had issued Order for recovery of a sum of Rs.18,47,326.50/- (Rupees Eighteen Lakh Forty seven thousand three hundred twenty six and Fifty paise)
Legal Reasoning
from the petitioner, which was challenged by him by filing the present amended writ petition by challenging the order dated 23.01.2019 passed by the Engineer- in-Chief (i.e. Annexure-24) by which the respondents had ordered for recovery of the said amount of Rs. 18,47,326.50 in violation of the statutory provisions. Learned counsel for the petitioner, in support of his contention, has placed reliance upon the judgment reported in the case of Lav Nigam Vs. Chairman & M.D. ITI Ltd., reported in 2006 (9) SCC 440. 3 4. It is further submitted that some person had sought certain information under Right to Information Act, as to who is the competent authority who can verify the invoices and for which the reply has been received that the bitumen invoices is done by the Executive Engineer and not by Junior Engineer like this petitioner. 5. It is submitted that the impugned order of punishment is fit to be set aside as the same is cryptic and Non-speaking and the reply given by the petitioner has not been considered at all by the respondents. It is submitted that the entire departmental proceeding is liable to be set aside also on the ground that merely documents have been produced, but that have not been proved by any of the witnesses from the respondents 6. It is submitted that the similarly situated person like the petitioner on whom also the charges were the same, have been given lesser punishment, whereas this writ petitioner has been given harsh punishment and it amounts to discrimination and the petitioner should have been given parity in treatment with them, Hence, the impugned order may be set aside and this writ petition may be allowed. 7.
Decision
the State has submitted that the writ petition is devoid 4 of merit and Order dated 28.09.2015 and 23.01.2019, passed by the Engineer-in-Chief (i.e. Annexure-15 and Annexure-24 respectively) are fit and proper and no interference is required from this Court. It is submitted that the petitioner has caused huge loss to State Exchequer and as such he was rightly demoted to his lowest pay scale by reduction of rank in the pay scale and order for recovery of a sum of Rs.18,47,326.50/- (Rupees Eighteen Lakh Forty seven thousand three hundred twenty six and Fifty paise) has been rightly passed. It is submitted that the Disciplinary Authority can differ from the report of the Enquiry Officer and as such the Disciplinary Authority, after Noticing the glairing illegalities/infirmities in the report of the Enquiry Officer, had differed with the enquiry report prepared by the Enquiry Officer and had issued Second show- cause Notice to the petitioner by pointing out the proposed punishment of reduction of rank to the lowest scale and recovery of sum of Rs.18,47,326.50/- (Rupees Eighteen Lakh Forty seven thousand three hundred twenty six and Fifty paise) after considering all the materials and documents on record. It is submitted that a criminal case was instituted against the petitioner in view of Criminal Case lodged by the C.B.I. bearing RC-01(A)/2010(R) after the order was passed by the High Court of Jharkhand, Ranchi in W.P.(PIL) No.803 of 2009 with regard to utilization of 5 fake Bitumen invoices in the work of special repair of Balumath-Harharganj-Panki under the Agreement No. 07F2/2006-07 of the Road Division, Daltonganj. It is submitted that the C.B.I. has obtained prosecution sanction against the petitioner from the Law (Justice) Department, Jharkhand, Ranchi as contained in Memo No. 52/J dated 21.04.2011. It is submitted that the C.B.I. had informed the Department regarding the irregularities committed by the petitioner and as such on the basis of report of the C.B.I., the competent authority had ordered for suspension of the petitioner and also to initiate a Departmental Proceeding against him for his involvement in the alleged irregularities. Accordingly, the petitioner was suspended vide Order dated 27.08.2013 (i.e. Annexure-5) and the Departmental Proceeding was initiated vide Order dated 02.09.2013 as contained in Annexure-6. However, the Enquiry Officer had reported by submitting the enquiry report that charges were not proved against the petitioner and the Disciplinary Authority, having disagreed with the Enquiry Report of the Enquiry Officer, had served a second Show-cause Notice to the petitioner after giving full reasons. Thereafter, the petitioner had filed reply to the second show-cause Notice on 27.07.2015, but he had stated nothing regarding the points raised in the second show-cause notice and as such his reply to second show-cause Notice was not found acceptable and the 6 Disciplinary Authority had imposed punishment of reduction in rank to the lowest pay scale and for proportionate recovery of loss caused to the Government Revenue. It is further submitted that during pendency of this writ petition, the department had issued the consequential order dated 23.01.2019 passed by the Engineer-in-Chief for recovery of the sum of Rs.18,47,326.50/- (Rupees Eighteen Lakh Forty seven thousand three hundred twenty six and Fifty paise) from the petitioner and thus, there is no illegality committed by the authorities of the State. It is submitted that E1even (11) fake Bitumen invoices were submitted by the Contractor and which were passed by the petitioner without verifying as to how the work was done and the quality of the work done. It is submitted that the petitioner was suspended vide order dated 27.08.2013 as contained in Annexure-A. It is further submitted that no doubt the earlier punishment order dated 15.01.2013 was cancelled but a fresh departmental enquiry was initiated against the petitioner vide order dated 04.01.2016, issued by the Engineer-in-Chief, Road Construction Department and as such there is no illegality in passing the impugned order and hence, this writ petition may be dismissed. 8. Perused the record of this case and considered the submission of both the sides. 7 9. It transpires that at the relevant point of time the petitioner was working as a Junior Engineer in Road Construction Department and one W.P.(PIL) 803 of 2009 was filed and in the light of Order dated 30.06.2009, passed in W.P.(PIL) No. 803 of 2009, by the Division Bench of this Court, the High Court had directed the C.B.I. to enquire and investigate with regard to irregularities in construction of road. Although the petitioner has raised contentions about biasness of Smt. Raj Bala Verma, who was then posted as Vigilance Commissioner, Jharkhand and later on posted as Secretary, Finance Department, Govt. of Jharkhand, Ranchi, but the said fact is not relevant and as such the same is not being looked into. 10. It appears that even the earlier departmental proceeding was also initiated against the petitioner, as per the counter affidavit filed by the State and certain punishment order dated 15.01.2013 was also passed against him which was challenged by the writ petitioner by filing W.P.(S) No. 2298 of 2013 and which was allowed by the Co-ordinate Bench of this Court with certain conditions by remitting the matter back to the Department concerned. However, the copy of the said order passed in W.P.(S) No. 2298 of 2013 has not been brought on record of this case. However, Annexure-C to the counter affidavit dated 08.02.2018 filed by the learned counsel for the State 8 reveals that Engineer-in-Chief vide Order dated 04.01.2016 had ordered for appointment of Conducting Officer and Presenting Officer in the departmental proceeding in the light of the order dated 23.09.2015 passed in W.P.(S) 2298 of 2013. 11. Even the learned counsel for the State has not filed the copy of the said order dated 23.09.2015 passed in W.P.(S) No. 2298 of 2013. 12. It further transpires that the petitioner, who was a Junior Engineer, was suspended on 27.8.2013, vide Annexure-5 on the basis of Criminal Case instituted by the C.B.I. Thereafter, Memo of charge was served upon him on 30.08.2013 and Special Secretary, Shri Bishwanath Sah, Department of Labour Employment & Training, was appointed as an Enquiry Officer and Shri Shyam Nandan Jha, Section Officer, Road Construction Department was appointed as Presenting Officer vide memo no. 7919 (S) WE dated 02.09.2013 by the Engineer-in-Chief i.e. Disciplinary Authority (i.e. Anneuxure-6). 13. It also appears that during pendency of the said enquiry one new Enquiry Officer was again appointed on 26.10.2013 and the matter remained pending and then one another Enquiry Officer was appointed on 03.01.2014 and thus, on three occasions the Enquiry Officer was changed. 14. It also appears that during his period of suspension, no subsistence allowance was being paid 9 to the petitioner and as such the petitioner had filed W.P.(S) No. 2330 of 2014, which was disposed of on 15.04.2015 (i.e. Annexure-8) by a Co-ordinate Bench of this Court with the direction to the Department to pay subsistence allowance to the petitioner, which was not being paid for last 19 months and it was further directed that departmental proceeding may be concluded within a reasonable time, preferably within a period of 16 weeks in accordance with law and the procedure laid down for conduct of such departmental proceeding and the petitioner was directed to cooperate in the said departmental proceeding. 15. It further transpires that although the Departmental Proceeding was not concluded within the said period but finally the Enquiry Officer, after conducting the departmental enquiry, had fully exonerated the petitioner from all the charges on the basis of his reply as well as in the light of the Government Circular. 16. However, it transpires that the Disciplinary Authority, without assigning any reason, had differed with the Enquiry Report and a second show-cause notice was issued by the Deputy Secretary on 13.07.2015 to the petitioner (i.e. Anneuxre-13) by framing a new charge. 17. Thereafter, the petitioner by filing reply to the second show-cause notice on 27.07.2015 (i.e. Annexure-14) had pointed out that Enquiry Officer 10 has exonerated him and he also pointed out that a totally new charge has been framed against him. 18. However, the Disciplinary Authority, i.e. Engineer-in-Chief vide punishment order dated 28.09.2015 (i.e. Annexure-15) has passed the order of punishment as follows:- (i) The petitioner is reduced to the lowest rank of his pay scale (ii) Proportionate recovery of the loss caused to the Govt. revenue. It was also clarified and ordered that the petitioner be paid nothing except the subsistence allowance during his period of suspension and suspension period will not be treated as a break in his service. 19. It further transpires from the Letter dated 22.11.2011 issued by the Under Secretary-cum- Public Information Officer addressed to one Pradip Kr. Mishra, in the light of his application dated 05.08.2011 that verification of invoices of Bitumen consumption has to be done by the Executive Engineer from the concerned oil company vide Annexure-17 and Annexure-17/1 respectively. 20. It appears that the petitioner had preferred appeal before the Appellate Authority on 09.01.2016, which was forwarded by the Jail Authority on 12.01.2016, which remained pending. In the meantime the Department had passed the Office 11 Order vide Memo 518 (S) dated 23.01.2019 for recovery of Rs.18,47,326.50/- from the petitioner vide Annexure-24. 21. Therefore, from the discussions made above, it is evident that the Enquiry Officer had absolved the petitioner of the charges levelled against him by submitting the enquiry report and no witness was examined before the Enquiry Officer. 22. It further transpires that the Disciplinary Authority, after differing with the Enquiry Report, had issued second show-cause notice to the petitioner along with the proposed order of punishment to be passed against him without assigning any reason or without conducting any enquiry with respect to the fresh charges. 23. It is well settled from following judgments passed by the Hon’ble Supreme Court and the Patna High Court that if the Disciplinary Authority differs with the Enquiry Report of the Enquiry Officer, then he has to assign specific reasons and has to give opportunity to the employee to defend his case. 24. It has been held in the case of Punjab National Bank & Others Vs. Kunj Behari Misra reported in 1998 (7) SCC 84 in Para 14 and 17 as follows:- “Para 14. In Ram Kishan case [(1995) 6 SCC 157 : 1995 SCC (L&S) 1357 : (1995) 31 ATC 475] disciplinary proceedings on two charges were initiated against Ram 12 Kishan. The enquiry officer in his report found the first charge not proved and the second charge partly proved. The disciplinary authority disagreed with the conclusion reached by the enquiry officer and a show-cause was issued as to why both the charges should not be taken to have been proved. While dealing with the contention that the disciplinary authority had not given any reason in the show-cause to disagree with the conclusions reached by the enquiry officer and that, therefore, the finding based on that show-cause notice was bad in law, a two-Judge Bench at p. 161 observed as follows: (SCC para 10) “The purpose of the show-cause notice, in case of disagreement with the findings of the enquiry officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the enquiry officer for the reasons given in the enquiry report or he may offer additional reasons in support of the finding by the enquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show-cause on the basis of which the findings of the enquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the enquiry officer. In the absence of any ground or reason in the show-cause notice it amounts to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the disciplinary authority cannot cure the defect.” 13 Para 17:- These observations are clearly in tune with the observations in Bimal Kumar Pandit case [AIR 1963 SC 1612 : (1964) 2 SCR 1 : (1963) 1 LLJ 295] quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the enquiry officer had given an adverse finding, as per Karunakar case [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental 14 proceedings, what is of ultimate importance is the finding of the disciplinary authority.” 25. It has been held in the case of Yoginath D. Bagde Vs. State of Maharashtra & Another reported in 1999 (7) SCC 739 at Paragraph No. 29, 30 and 35 as follows:- “Para 29:- We have already extracted Rule 9(2) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 which enables the disciplinary authority to disagree with the findings of the enquiring authority on any article of charge. The only requirement is that it shall record its reasoning for such disagreement. The rule does not specifically provide that before recording its own findings, the disciplinary authority will give an opportunity of hearing to a delinquent officer. But the requirement of “hearing” in consonance with the principles of natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before the disciplinary authority finally disagrees with the findings of the enquiring authority, it would give an opportunity of hearing to the delinquent officer so that he may have the opportunity to indicate that the findings recorded by the enquiring authority do not suffer from any error and that there was no occasion to take a different view. The disciplinary authority, at the same time, has to communicate to the delinquent officer the “tentative” reasons for disagreeing with the findings of the enquiring authority so that the delinquent officer may further indicate that the reasons on the basis of which the disciplinary authority proposes to disagree with the findings recorded by the enquiring authority are not germane and the finding of “not guilty” already recorded by the enquiring authority was not liable to be interfered with. 15 Para 30:- Recently, a three-Judge Bench of this Court in Punjab National Bank v. Kunj Behari Misra [(1998) 7 SCC 84 : 1998 SCC (L&S) 1783 : AIR 1998 SC 2713] relying upon the earlier decisions of this Court in State of Assam v. Bimal Kumar Pandit [AIR 1963 SC 1612 : (1964) 2 SCR 1] , Institute of Chartered Accountants of India v. L.K. Ratna [(1986) 4 SCC 537 : (1986) 1 ATC 714] as also the Constitution Bench decision in Managing Director, ECIL v. B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] and the decision in Ram Kishan v. Union of India [(1995) 6 SCC 157 : 1995 SCC (L&S) 1357 : (1995) 31 ATC 475] has held that: (SCC p. 96, para 17) “It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority.” The Court further observed as under: (SCC p. 96, para 18) “When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary 16 proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed.” The Court further held that the contrary view expressed by this Court in State Bank of India v. S.S. Koshal [1994 Supp (2) SCC 468 : 1994 SCC (L&S) 1019 : (1994) 27 ATC 834] and State of Rajasthan v. M.C. Saxena [(1998) 3 SCC 385 : 1998 SCC (L&S) 875] was not correct. Para 35:- Since the Disciplinary Committee did not give any opportunity of hearing to the appellant before taking a final decision in the matter relating to the findings on the two charges framed against him, the principles of natural justice, as laid down by a three-Judge Bench of this Court in Punjab National Bank v. Kunj