Moti Prasad … v. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S). No. 4460 of 2012 Moti Prasad …. Versus ……Petitioner the secretary, Road through 1.The State of Jharkhand Construction Department. 2. Deputy Secretary, Road Construction Department 3. Engineer In-Chief, Road Construction Department 4. Superintending Engineer, Road Construction 5. Superintending Engineer, Central Design, Road Construction 6. Executive Engineer, Road Division, Godda 7. Executive Engineer, Road Division, Sahebganj ----- ……Respondents CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD ----- For the Petitioner For the Respondents : Mr. Saurav Arun, Advocate : Mr. Sharon Kerketta, Advocate : Mr. Om Prakash Tiwari, Advocate : Mr. Shashank Saurav, AC to GP-III …… ORAL ORDER IN COURT 09/26.06.2024 Heard Mr. Saurav Arun, learned counsel for the petitioner on 20.05.2016 and Mr. Shashank Saurav, AC to GP-III. 2. This W.P. (S). No. 4460 of 2012 was filed on behalf of the petitioner for quashing the office order no. 03/2012 dated 03.03.2012 passed by the Superintending Engineer by which punishment of censure, stoppage of one annual increment with cumulative effect and recovery of Rs. 87,500/- with up-to-date interest and even the memo dated 29.06.2012 showing recovery of
Facts
Rs. 1,71,500/- has been challenged. 3. The respondents had filed counter affidavit on 17.01.2013 and later on the writ petition was amended by the petitioner by filing the amended writ petition by challenging the order of the 1 Appellate Authority passed on 04.02.2013 issued by the Engineer In-Chief, Road Construction Department by which the appeal preferred by the petitioner was dismissed. 4. This appellate order was furnished to the petitioner only after passing of the order dated 05.02.2024 passed by the Co-ordinate Bench (Hon’ble. Dr. Justice. S. N. Pathak) to bring on the record about any order passed in appeal or not. 5. Learned counsel for the petitioner has submitted that the impugned order dated 03.03.2012 as contained in Annexure-3 by which the disciplinary authority has imposed punishment upon the petitioner and the order dated 04.02.2013 passed by the Appellate Authority Engineer In-Chief are illegal, arbitrary and not sustainable in the eye of law. It is submitted that a copy of enquiry report was not served upon the petitioner by the Enquiry Officer and also by the Department. It has further submitted that even the respondents, in their counter affidavit, had admitted about constitution of eight (08) member Enquiry Committee on 12.07.2010 as contained in Annexure-B to the counter affidavit dated 16.01.2013. However, the petitioner was not allowed to participate before the said Enquiry Committee and was not even informed to participate in the said enquiry. It is further submitted that the petitioner had filed appeal before the Appellate Authority which was rejected on 04.02.2013 by a non-speaking order. It is submitted that order of stoppage of one annual increment with cumulative effect is a major punishment and the same cannot be done without holding a regular departmental proceeding. It has further submitted that the recovery 2 of Rs. 87,500/- with up-to-date interest, amounting to Rs. 1,71,500/- is also illegal as there is no defalcation on the part of the petitioner because as the report of the Accountant General submitted by letter dated 03.02.2011 and 07.02.2011 that all the bills have adjusted and thus, their can’t be any defalcation and loss caused to the department by the petitioner. 6. Learned counsel for the petitioner in support of his contention has relied upon the judgment passed in Managing Director, ECIL, Hyderabad Vs. B. Karunakar, reported in 1993 (4) SCC 727 and also in the case of Chairman, L.I.C of India and Others Vs. A. Masilamani reported in 2013 (6) SCC 530. It is submitted that in view of the above, the impugned order dated 03.03.2012 may be set aside and W.P. (S). No. 4460 of 2012 may be allowed. 7.
Legal Reasoning
also devoid of substance. It is settled law that the Evidence Act has no application to the inquiry conducted during the disciplinary proceedings. The evidence adduced is not in strict conformity with the Indian Evidence Act, though the essential principles of fair play envisaged in the Evidence Act are applicable. What was meant by ‘evidence’ in the proviso to Article 311(2) is the totality of the material collected during the inquiry including the report of the enquiry officer forming part of that material. Therefore, when reliance is sought to be placed by the disciplinary authority, on the report of the enquiry officer for proof of the charge or for imposition of the penalty, then it is incumbent that the copy thereof should be supplied before reaching any conclusion either on proof of the charge or the 6 nature of the penalty to be imposed on the proved charge or on both. Para-63:- The emerging effect of our holding that the delinquent is entitled to the supply of the copy of the report would generate yearning for hearing before deciding on proof of charge or penalty which Forty-second Amendment Act had advisedly avoided. So while interpreting Article 311(2) or relevant rule the court/tribunal should make no attempt to bring on the rail by back track the opportunity of hearing as was portended by the Gujarat High Court. The attempt must be nailed squarely. Prior to the Forty-second Amendment Act the delinquent had no right of hearing before disciplinary authority either on proof of charge or penalty. So after Forty-second Amendment Act it would not be put on higher pedestal. The Gujarat High Court's decision is, therefore, not good law. However, the disciplinary authority has an objective duty and adjudicatory responsibility to consider and impose proper penalty consistent with the magnitude or the gravity of the misconduct. The statute or statutory rules gave graded power and authority to the disciplinary authority to impose either of the penalties enumerated in the relevant provisions. It is not necessarily the maximum or the minimum. Based on the facts, circumstances, the nature of imputation, the gravity of misconduct, the indelible effect or impact on the discipline or morale of the employees, the previous record or conduct of the delinquent and the severity to which the delinquent will be subjected to, may be some of the factors to be considered. They cannot be eulogised but could be visualised. Each case must be considered in the light of its own scenario. Therefore, a duty and responsibility has been cast on the disciplinary authority to weigh the pros and cons, consider the case and impose appropriate punishment. In a given case if the penalty was proved to be disproportionate or there is no case 7 even to find the charges proved or the charges are based on no evidence, that would be for the court/the tribunal to consider on merits, not as court of appeal, but within its parameters of supervisory jurisdiction and to give appropriate relief. But this would not be a ground to extend hearing at the stage of consideration by the disciplinary authority either on proof of the charge or on imposition of the penalty. I respectfully agree with my brother Sawant, J. in other respects in the draft judgment proposed by him.” 19. It further transpires that the Appellate Authority i.e. Engineer In-Chief has simply rejected the appeal filed by the petitioner by observing that in the light of finding of the enquiry officer and the punishment imposed by the disciplinary authority, the appeal of petitioner has dismissed. 20. The above order shows complete non-application of mind on the part of the Appellate Authority that order should be speaking one and reasons should be assigned by passing such an order. 21. It has been held in the case of Chairman, L.I.C of India and Others Vs. A. Masilamani reported in 2013 (6) SCC 530 at Para-19 as follows:- “Para-19:- The word “consider” is of great significance. The dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself 8 should reveal such application of mind. The Appellate Authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order. (Vide Indian Oil Corpn. Ltd. v. Santosh Kumar [(2006) 11 SCC 147 : (2007) 1 SCC (L&S) 388] and Bhikhubhai Vithlabhai Patel v. State of
Arguments
On the other hand, learned counsel for the respondent has submitted that the enquiry report was not required to be served as the petitioner was given full opportunity to participate in the departmental proceeding and also allowed properly to defend his case and hence, there is not in violation of principles of natural justice. 8. It is submitted that although, the appellate order has not assigned any reason while passing the order dated 04.02.2013. However, the Appellate Authority has applied its mind before passing of order dated 04.02.2013 this order. It is further submitted that petitioner has caused loss of Rs. 87,500/- to the department by preparing forged bills and has falsely blamed the superior authorities and hence, the petitioner cannot be allowed to blame his superior officers. It is further submitted that supply of enquiry 3 report is not mandatory in each and every cases. It has further been submitted that stoppage of one annual increment with cumulative effect is not a major punishment and hence, there is no merit in this writ petition and same may be dismissed. 9. Having heard learned counsel for the petitioner and learned counsel for the respondents and after perusal of the record, this court finds that petitioner has been subjected to face enquiry for causing loss of Rs. 87,500/- by passing forged and fabricated bills. 10. It further transpires that vide memo dated 02.02.2011 as contained in Annexure-1, a departmental proceeding was initiated under Rule 55 of Bihar and Orissa Subordinate Services Rules, 1930 and articles of charges were also served upon the petitioner which reveals that five charges were framed against the petitioner and one Sameer Kumar Sinha, In-Charge Superintending Engineer, Road Construction Department, Jharkhand, Ranchi and Executive Engineer were made Enquiry Officer and Presenting Officer respectively. 11. It transpires that pursuant to memo of charges, the petitioner filed his reply. 12. Thereafter vide officer order dated 03.03.2012 issued by the Superintending Engineer, Dumka, the disciplinary authority on the basis of Enquiry Report submitted by the Enquiry Officer, passed the punishment orders against the petitioner as follows:- (i) Censure (ii) Stoppage of one annual increment with cumulative effect and (iii) Recovery of Rs. 87,500/- with up-to-date interest for the period 2003-04. 4 13. It further transpires that vide another letter dated 22.03.2012, the Executive Engineer informed the petitioner for recovery of Rs. 87,500/- (occurrence of the year 2003-04) with interest in 12 installments. 14. Thereafter, the petitioner had filed appeal through proper channel before Engineer In-Chief on 07.04.2012 vide Annexure-5. 15. In the meantime, the Executive Engineer vide order dated 29.06.2012 issued office order for recovery of Rs. 1,71,500/- from the petitioner for irregularities period of 2003-04 by him. 16. Thereafter, the Engineer In-Chief, Road Construction Department vide order dated 04.02.2013 had rejected the appeal filed by the petitioner by endorsing the punishment of the disciplinary authority by a non-speaking order. 17. It transpires from the record that the respondents had taken the plea in the counter affidavit filed on 16.01.2013 that copy of all the enquiry report was not required to be served to the petitioner as he was given full of opportunity to appear before the departmental enquiry and to participate in the enquiry. This Court is of the view that the stand taken by the department is erroneous and not sustainable in the eye of law and it violates the principle of natural justice. 18. It has been held in the case of Managing Director, ECIL, Hyderabad Vs. B. Karunakar, reported in 1993 (4) SCC 727 at para 60, 61 and 63 as follows:- “Para-60:- Section 44 of the Forty-second Amendment Act did away with supply of the copy of the report on the proposed punishment but was not intended to deny fair, just and reasonable opportunity to the delinquent, but to be a reminder to the disciplinary authority that he is still not absolved of his duty to 5 consider the material on records, the evidence along with the report, but before he does so, he must equally accord to the delinquent, a fair and reasonable opportunity of his say on the report when the disciplinary authority seeks to rely thereon. Para-61:- It is now settled law that the proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. It is well-settled law that the principles of natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a post-mortem certificate with putrefying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Articles 14, 21 and 311(2) of the Constitution, but also, the principles of natural justice. The contention on behalf of the Government/management that the report is not evidence adduced during such inquiry envisaged under proviso to Article 311(2) is