The High Court · 2024
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) LPA No. 427 of 2023 through 1.The State of Jharkhand, the Principal Secretary, Road Construction Department, Project Building, PO and PS Dhurwa, District Ranchi. 2.The Joint Secretary, Road Construction Department, Government of Jharkhand, Project Building, PO and PS Dhurwa, District Ranchi 3.The Deputy Secretary, Road Construction Department, Government of Jharkhand, Project Building, PO and PS Dhurwa, District Ranchi ...… Appellants Versus Shio Dayal Saxena, son of late Shivvaran Ram, resident of village Pandey Dehariya, PO Shukla Pipra, PS Mohaniya, District Kaimur (Bihar), presently residing at Bairiya Chowk, PO and PS Sudna, District Palamau …. ... Respondent (Jharkhand) CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE ARUN KUMAR RAI For the Appellants : Mr. Ratnesh Kumar, SC (L&C)-I Mr. Rakesh Kumar Shahi, AC to SC (L&C)-I For the Respondent : None 21st February 2024 Per, Shree Chandrashekhar, A.C.J. I.A. No. 84 of 2024 This interlocutory application has been filed under section 5 of the Limitation Act seeking condonation of delay of 139 days in preferring the present appeal. 2.
Legal Reasoning
We are satisfied with the cause shown by the appellant-State in this application and, therefore, the delay of 139 days in preferring this Letters Patent Appeal is condoned. 3. I.A. No. 84 of 2024 is, accordingly, allowed. LPA No. 427 of 2023 4. The State of Jharkhand has challenged the order dated 22nd February 2023 passed in W.P(S) No. 1980 of 2017 by which the punishment order passed against the respondent herein has been quashed. 2 LPA No. 427 of 2023 5. Briefly stated, the respondent was appointed as Assistant Engineer on 16th June 1987 in the Road Construction Department and in course of his service he was transferred to the Building Division under the Building Construction Department and made In-charge Executive Engineer in the Directorate of Monitoring-cum-Evaluation at Ranchi. Between 2nd July 2004 to 28th October 2015, the respondent was transferred and posted at Koderma, Ranchi, Garhwa and Daltonganj. While posted at Garhwa, the respondent supervised the construction work which was awarded to M/s Lalita Construction. This is the case set-up by the respondent that he issued instructions vide letters dated 20th September 2008, 6th July 2010, 12th February 2011 and 25th March 2011 to M/s Lalita Construction indicating deficiency in construction work. However, a charge memo in Prapatra-Ka was issued to him on 17th February 2014 purportedly pursuant to a decision taken vide Resolution dated 24th February 2014 to initiate a departmental proceeding against him under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930. The allegation against the respondent was of dereliction of duty in supervising the construction of central warehouse, work-sheds for prisoners and other buildings. The imputations of charge against the respondent further indicate that the construction of the buildings was not as per the approved building plan and there were serious deficiencies in the quality of constructions. 6. In the domestic inquiry, the Department did not produce any evidence nor examine any witness to establish the charges against the respondent in Prapatra-Ka. The respondent offered his explanation through reply dated 5th January 2015 to the inquiring officer denying the charges against him but the inquiring officer held the charges against him proved and, the disciplinary authority by an order dated 12th November 2015 awarded punishment of lowering in the minimum of pay-scale. This order of punishment awarded to the respondent has been affirmed by the appellate authority by an order dated 26th August 2016. 7. The aforementioned order of punishment dated 12th November 2015 and the appellate order dated 26th August 2016 were put to challenge by the respondent in WP(S) No. 1980 of 2017. 3 LPA No. 427 of 2023 8. The writ Court held that the inspection report was prepared behind the back of the respondent and except tendering some documents no other evidence was brought on record to show involvement of the respondent in the misconduct alleged against him. 9. The writ Court has held as under:
Decision
“4. After going through the record and after hearing the parties I find that this writ petition can be disposed of on very short point which the petitioner has raised. The petitioner has raised the point that no witness has been examined in this case. This fact has also been admitted by the State. 5. The Hon’ble Supreme Court in the case of “Roop Singh Negi – versus Punjab National Bank and Others, reported in (2009) 2 SCC 570”, in para- 14 has held as under:- “14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.” to prove 6. The Hon’ble Supreme Court thus has held that some evidence should have been brought on record to show that the petitioner was involved in misconduct, for which he has been proceeded against. Merely tendering the documents is not sufficient. 7. In this case, merely some documents and the inspection report have been tendered. Further, the petitioner was not party to the said inspection. 8. Thus, I find that the entire procedure adopted by the Enquiry Officer is bad in law. Thus, the punishment order as contained in Notification No. 7765(S) dated 12.11.2015 and consequent appellate order dated 26.8.2016 as contained in Notification No. 5512(S) are set aside and quashed. 9. Thus, this writ application stands allowed.” 10. In the counter-affidavit filed before the writ Court, the appellant-State pleaded that a recommendation with memo of charge in Prapatra-Ka was received from the Department of Building Construction vide letter dated 3rd December 2013 and a decision thereon was taken by the competent authority to initiate a departmental proceeding against the respondent vide Resolution dated 24th February 2014. Such statements are made in paragraph nos. 8 and 9 of the counter-affidavit dated 2nd January 2018 filed before the writ Court which are reproduced as under: “8. That it is relevant to state that a recommendation to take necessary action against Shri Shiv Dayal Saxena, the then Incharge Executive Engineer, Building Construction Department, Building Division, Garhwa was received vide letter no. 3031 dated 03.12.2013 of Building 4 LPA No. 427 of 2023 Construction Department, Jharkhand along with the charge sheet in Prapatra-“KA” and relevant documental proofs. 9. That it is also relevant to state that after considering the charge sheet, charges leveled against the petitioner was found to be a grave in nature by to conduct departmental proceeding against the delinquent officer. After taking approval from the Competent Authority, departmental proceeding was initiated against the petitioner vide resolution contained in Memo No. 1568(S) dated 24.02.2017.” the disciplinary authority and it was proposed 11. It further appears that pursuant to the direction issued by the Chief Engineer vide memo dated 24th September 2012 a Three-Men Committee conducted an inquiry and submitted its report on 18th December 2012 observing that there was lack of technical supervision and deficiency in the construction works. According to this report, there were as many as three Executive Engineers, two Assistant Engineers and two Junior Engineers who were involved in the project which was awarded to M/s Lalita Construction at Garhwa. This is an admitted position that on the basis of this preliminary inquiry report a decision was taken to initiate departmental proceedings against the respondent. In response to 2nd show- cause notice dated 28th June 2015, the respondent had submitted that (i) necessary documents were not supplied to him, (ii) no witness was examined by the Department and (iii) ex-parte inquiry report prepared by the Cabinet Vigilance Department was relied upon. The inquiring officer has also recorded that the Department did not produce the documents and thus not supplied to the respondent. In these facts, the decision in “Roop Singh Negi Versus Punjab National Bank and Others” (2009) 2 SCC 570 shall apply in the present case with full force inasmuch as the preliminary inquiry report which was the only basis for imposing punishment on the respondent was prepared behind the back of the respondent. Quite obviously, the said inquiry report could not have been relied upon against the respondent without proving the same through one of the members of the Enquiry Committee. The respondent was, therefore, denied an opportunity to defend himself as he had no opportunity to challenge the said inquiry report by cross-examining the member/members of the Enquiry Committee. No doubt the inquiring officer considered the defence put forth by the respondent but the fact remains that the Department did not produce any 5 LPA No. 427 of 2023 other evidence in support of the allegations in charge memo dated 17th February 2014. 12. Besides such serious infirmity in the domestic inquiry conducted against the respondent, the punishment order dated 12th November 2015 is seriously flawed in law also for the reason that the charge memo was prepared on 17th February 2014, that is, even before a decision was taken vide Resolution dated 24th February 2014 to proceed against the respondent under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930. This has also not been brought on record that the charge memo was approved by the competent authority. 13. Mr. Ratnesh Kumar, the learned State counsel submits that the matter is then required to be remitted back to the departmental authority to start the proceeding afresh against the respondent. However, having regard to the circumstance in the present case, we have formed an opinion not to give this option to the State of Jharkhand to start the domestic inquiry afresh against the respondent. One of the reasons why this Court is not inclined to do so is that for the mistake of the authorities of the State of Jharkhand the respondent should not suffer. In “P.V. Mahadevan Versus M.D., Tamil Nadu Housing Board” (2005) 6 SCC 636 the Hon’ble Supreme Court observed that for the fault of the departmental authority the government employee should not be made to suffer. This is also bearing in our mind that the charge memo was served to the respondent about a decade in the past and now relegating him to undergo the rigors of the departmental inquiry would definitely cause insurmountable harassment to him. In “State of M.P. Versus Bani Singh, 1990 Supp SCC 738 the Hon’ble Supreme Court did not approve remanding of the matter for a fresh consideration before the departmental authority. In “M.V. Bijlani Versus Union of India” (2006) 5 SCC 88 the Hon’ble Supreme Court followed the same path and held as under: “28. The appeal is, therefore, allowed. The consequence of the said order would have been to remit the matter back to the disciplinary authority. We, however, do not intend to do so as the charges relate to the year 1969-70. The appellant, due to pendency of these proceedings, has suffered a lot. He is, therefore, directed to be reinstated in service, if he has not reached the age of superannuation. However, keeping in view the fact that he has not worked for a long time, we direct that he may only be paid 50% of the back wages. He is also entitled to costs of this appeal. Counsel's fee assessed at Rs 5000.” 6 LPA No. 427 of 2023 LPA No. 427 of 2023 is dismissed. Consequently, I.A No. 7556 of 2023 filed for stay stands (Shree Chandrashekhar, A.C.J.) (Arun Kumar Rai, J.) 14. 15. dismissed. Tanuj/-