Lakshman Ram, aged about 70 years, son of Late Ram Badan Ram, resident of v. 1. The State of Jharkhand through its secretary, Project Building, P.O. & P.S.- Dhurwa
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) L.P.A. No. 334 of 2023 Lakshman Ram, aged about 70 years, son of Late Ram Badan Ram, resident of Sindwar Toli, Morabadi, P.O.- University P.O; P.S.- Bariatu, District- Ranchi; … Petitioner/Appellant Versus 1. The State of Jharkhand through its secretary, Project Building, P.O. & P.S.- Dhurwa, District-Ranchi; 2. Principal Secretary to the Government, Road Construction Department, Government of Jharkhand, Project Building, P.O. & P.S.- Dhurwa, District-Ranchi; 3. Deputy Secretary to the Government, Road Construction Department, Government of Jharkhand, Project Building, P.O. & P.S.- Dhurwa, District-Ranchi;
Legal Reasoning
4. Mr. Rajbala Verma, D/o: not known to the appellant, the then Principal Secretary, Food, Public Distribution & Consumer Affairs Department, Government of Jharkhand, Project Building, P.O. & P.S.- Dhurwa, District-Ranchi and then posted as Principal Secretary, Road Construction … Department, Ranchi. Respondents/Respondents --------- CORAM: HON’BLE THE ACTING CHIEF JUSTICE HON’BLE MR. JUSTICE ARUN KUMAR RAI --------- For the Appellant For the Respondents : Mr. Ajit Kumar, Advocate : Mr. Gaurang Jajodia, A.C. to G.P.-II --------- Order No.07/Dated: 12th February 2024 The appellant who was awarded the punishment of lowering to the lowest scale of pay in the original post and recovery of Rs.6,94,196/- approached the writ Court in W.P. (S) No.7175 of 2013 which has been dismissed on the ground that the charges against him were proved in the departmental inquiry and the writ Court shall not exercise its jurisdiction under Article 226 of the Constitution of India to reappreciate the evidences laid by the parties before the Inquiring Officer. 2. The appellant is also aggrieved by the common order dated 2nd January 2023 passed in W.P. (S) No.7175 of 2013 with W.P.(S) No. 397 of -2- L.P.A. No. 334 of 2023 2014 by which the decision of the respondents not to grant him M.A.C.P. benefits has been approved by the writ Court. 3. The writ Court held as under: the Disciplinary Authority. The “8. Be that as it may, having gone through the rival submissions of the parties and in view of the material brought on records, no interference is warranted in the instant writ petition on the ground that admittedly, the petitioner has been found guilty of the charges and the charges have been duly proved in the regular Departmental proceedings. The petitioner has been provided ample opportunity to defend his case in the Departmental Proceeding. No folly has been pointed out in the entire departmental proceedings, rather, the petitioner appeared and filed his reply, second show cause reply and only when it was turned down, the petitioner has raised his voice that the copies of the enquiry report has not been served, whereas, in the second show cause notice, the enquiry report was annexed and supplied to the petitioner. This Court sitting under Article 226 of the Constitution of India, refrain itself from re-appreciating the evidences, which has already been appreciated in the Enquiry by the Disciplinary Authority and thereafter, providing full opportunity, punishment order has been passed. The Court cannot substitute its own finding, which has come from the Enquiry Officer or issue fell for consideration before the Hon’ble Apex Court in case of Pravin Kumar (supra), relevant para is quoted hereinbelow :- Scope of judicial review in service matter 25. The learned counsel for the appellant spent considerable time taking us through the various evidence on record with the intention of highlighting lacunae and contradictions. We feel that such an exercise was in vain, as the threshold of interference in the present proceedings is quite high. The power of judicial review discharged by constitutional courts under Article 226 or 32, or when sitting in appeal under Article 136, is distinct from the appellate power exercised by a departmental appellate authority. It would be gainsaid that judicial review is an evaluation of the decision- making process, and not the merits of the decision itself. Judicial review seeks to ensure fairness in treatment and not fairness of conclusion. It ought to be used to correct manifest errors of law or procedure, which might result in significant injustice; or in case of bias or gross unreasonableness of outcome. [State of A.P. v. Mohd. Nasrullah Khan, (2006) 2 SCC 373, para 11 : 2006 SCC (L&S) 316]. 9. Further, the Hon’ble Apex Court in case of B.C. Chaturvedi Vs. Union of India, reported in (1995 ) 6 SCC 749 and in case of State of A.P. Vs. Mohd. Nasrullah Khan, reported in (2006) 2 SCC 373 reiterated the same view. 10. Regarding submissions of the learned counsel for the petitioner that since the petitioner was exonerated in the criminal case, he ought to have been exonerated in the Departmental Proceeding is concerned, the said argument of the learned counsel is not acceptable to this Court since the para-meters of criminal case and departmental proceedings are quite different. In the criminal case, the involvement of the petitioner was not found, but it was only on the recommendation of the CBI, a regular departmental proceeding has been initiated against the petitioner, in which, he has been found guilty of the charges. This Court is of the further view that a lenient view has been taken by the respondents, by inflicting aforesaid punishment order. 11. Regarding grant of benefits of MACP, the argument of the learned counsel for the petitioner is totally misconceived since the law is very clear that when an employee is inflicted with punishment, he is not entitled for the benefits of ACP/MACP, during the currency of said punishment. 12. As a cumulative effect of the aforesaid Rules, guidelines and judicial pronouncement, writ petitions are devoid of any merit and as such, same are hereby dismissed. 13. Pending I.A, if any, also stands disposed of.” -3- L.P.A. No. 334 of 2023 4. The charge memo dated 6th February 2012 contained four charges against the appellant and one of the charges was that without verifying the genuineness of the bitumen invoices he passed the bills for payment to the contractor. The charge memo also contained a charge regarding complicity of the appellant in supply of less quantity of bitumen and consequent less use of bitumen in the construction of road. The charge memo dated 6th February 2012 indicates that a copy of F2 agreement, Indent issued to the contractor for supply of bitumen, departmental resolution dated 26th March 2002, letters dated 12th November 2009 and 17th November 2009 of the I.O.C.L. at Ranchi and Bokaro respectively were relied upon by the Department. The inquiry report dated 29th May 2012 referred to the opinion of the Presenting Officer (N) and the written defence submitted by the appellant. 5. As would appear from the said inquiry report, the appellant set up a case that no witness was examined nor any document was exhibited in the departmental inquiry against him and, therefore, it was a case of no evidence against him. The Inquiring Officer has referred to the opinion of the Presenting Officer in detail and held that the charges framed against the appellant were proved. 6. Ignoring the language used by the appellant such as Dhrisdhtapurvak, Amaryadit, etc, this Court finds that the defence set up by the appellant was liable to be rejected. This is not the law that the Department must produce a witness to prove the documents even where the documents are not disputed. This is by now well-settled that the rules of the evidence are not strictly applied in a domestic inquiry and sometimes hearsay evidence can also be taken into consideration (refer, “State of Haryana Vs. Rattan Singh” (1977) 2 SCC 491). 7. The disciplinary authority in the order dated 04th December 2012 has recorded that the appellant did not provide any new material in his reply to the second show cause notice. In the inquiry report, it has been recorded that due to negligence on the part of the appellant payment was made to the contractor which caused loss to the Government revenue. The writ Court referred to registration of criminal cases by the Central Bureau of Investigation vide R.C. Case Nos.15A/09(R), 16(A)/09(R), 17(A)/09(R) and 21(A)/09(R) under sections 120-B, 420, 467, 468 and 471 of the Indian Penal -4- L.P.A. No. 334 of 2023 Code and sections 13(2) and 13(1)(d) of the Prevention of Corruption Act. The appellant on account of registration of the aforementioned criminal cases was put under suspension under Rule 49A(i)(b) of the Civil Services (Classification, Control and Appeal) Rules, 1930. This is also a matter of record that the Central Bureau of Investigation had informed the Department about the registration of the criminal cases against the appellant. The case set up by the appellant is that in the aforementioned criminal cases he was not sent up for trial. However, the appellant did not produce any document in support thereof before the Inquiring Officer or the Disciplinary Authority and not even before the writ Court. Even so, the stand taken by the appellant that on his exoneration in the criminal cases he is entitled to be reinstated in service cannot countenanced in law. Just to indicate, the test in a departmental proceeding and the test employed in the criminal trial are different. Moreover, the nature of materials collected during the investigation of the criminal cases against the appellant are not known. There is also no positive assertion by the appellant that the criminal trials in the aforementioned criminal cases have been concluded and, therefore, the possibility of the appellant being summoned under section 319 of the Code of Criminal Procedure cannot be ruled out. Furthermore, this is not disputed that 4 bitumen invoices in connection to which the appellant was chargesheeted were found forged by the Central Bureau of Investigation. These facts are indisputable and negligence of the appellant stood proved. In these facts, the departmental authority passed the punishment order and this Court also finds no justification for any interference in the matter. 8. Apart from the aforesaid lacuna in the defence set up by the appellant, it was not within the jurisdiction of the writ Court to interfere with the findings recorded in the inquiry report. As noticed above, the Department laid documentary evidence to prove the charges framed against the appellant in the charge memo dated 6th May 2012. In “Union of India and others Vs. P. Gunasekaran” (2015) 2 SCC 610, the Hon’ble Supreme Court observed that the writ Court shall not enter into the arena of reappreciation of evidence and hold unsustainable the findings recorded by the Inquiring Officer. Indeed, a writ Court exercising powers under Article 226 of the Constitution of India shall not interfere with the findings of fact recorded in a properly constituted -5- L.P.A. No. 334 of 2023 departmental inquiry. After all, the writ Court is not constituted as a Court of appeal which can re-appreciate the materials produced in the domestic inquiry. This is also beyond any doubt that sufficiency or insufficiency of evidence shall not be an issue which can be agitated in a proceeding for certiorari. 9. In “P. Gunasekaran” the Hon’ble Supreme Court held as under: “12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also In disciplinary the Central Administrative Tribunal. endorsed by proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: (a) the enquiry is held by a competent authority; (b) the enquiry is held according to the procedure prescribed in that behalf; (c) there is violation of the principles of natural justice in conducting the proceedings; (d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) the disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; (i) the finding of fact is based on no evidence. 13. Under Articles 226/227 of the Constitution of India, the High Court shall not: (i) reappreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience.” 10. For the foregoing reasons, we are not inclined to entertain the present Letters Patent Appeal and, accordingly, L.P.A. No.334 of 2023 is dismissed. (Shree Chandrashekhar, A.C.J.) Manoj/- (Arun Kumar Rai, J.)