The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 6874 of 2019 Ashok Kumar … … Petitioner V E R S U S 1. The State of Jharkhand 2. The Secretary, Water Resources Development Department, Govt. of Jharkhand, Ranchi 3. The Special Secretary, Water Resources Development Department, Govt. of Jharkhand, Ranchi 4. The Under Secretary, Water Resources Development Department, Govt. of Jharkhand, Ranchi 5. The Joint Secretary, Water Resources Development Department, Govt. of Jharkhand, Ranchi … … Respondents CORAM : HON'BLE DR JUSTICE S.N. PATHAK For the Petitioner For the Respondents
Legal Reasoning
Mr. Saurabh Shekhar, Advocate Mr. Shail Lakra, Advocate Mr. Ashish Kumar Thakur, AC to AAG 05/24.04.2023 2. Heard learned counsel for the parties. The petitioner has approached this Court with a prayer for quashing punishment order dated 25.09.2019, as contained in Memo No. 5340, issued by the respondent no. 5, whereby petitioner has been dismissed from services. Petitioner has further prayed for a direction upon the respondents to reinstate him in service along with all consequential benefits including arrears of salary for the period for which he has remained out of service with effect from the order of punishment dated 25.09.2019. 3. According to the petitioner, he was working to the post of Assistant Engineer and on 31.03.2008 i.e. in the year 2007 – 08, he was directed by the Executive Engineer to make payment of advance amount to the tune of Rs.2,28,03,849/- to the beneficiary committee. Said payment was authorized in pursuance to letter dated 28.03.2008, preferred by the petitioner to the Executive Engineer but petitioner had nowhere suggested or requested that these payments to the beneficiary committee should have been done by him. The amount was released on 31.03.2008 from the Divisional Head. The account payee cheque was RC/ 2 handed over to the beneficiary committee and hand receipts were taken and in the records, it was shown that the amount had been adjusted. After the amount was adjusted, the payment was received by the beneficiary committee on different dates thereafter. The work of revival of the lakes was started and it was in progress when the flying squad made a visit in August, 2010. The Flying Squad without appreciating this aspect, gave a report that only half work was done. Thereafter, no further spot verification was done to ascertain the completion of work. On the said incident, the respondents found irregularity in making payment of advance amount through the petitioner and on the basis of report of flying squad, decision was taken to initiate departmental proceeding against the petitioner vide resolution dated 28.02.2014 under the signature of respondent no. 4, under the orders of Hon’ble the Governor of Jharkhand, under the provisions of Rule 55 of the Civil Services (Classification, Control and Appeal), Rules. The Enquiry Officer and the Presenting Officer were appointed and petitioner was directed to submit reply before the enquiry officer. It was further said that if any document was to be seen, the regional office could be consulted. Prapatra ‘KA’ was also issued to the petitioner wherein various allegations were levelled. 4. It is further case of the petitioner that he submitted his reply denying all the charges levelled against him and he took his defence to the charges levelled against him. Thereafter, second show-cause notice dated 25.05.2017 along with enquiry report was served upon the petitioner, which was also replied on 18.08.2018 controverting the findings of the enquiry officer. Upon being dissatisfied with the reply, the respondents passed order of punishment dated 25.09.2019 against the petitioner dismissing him from the service. Being aggrieved with the harsh punishment, petitioner has knocked door of this Court. 5. It has been argued by Mr. Saurabh Shekhar, learned counsel that several charges were levelled against the petitioner and in the enquiry report it has been proved but no document has been brought on record to show that charges levelled against the petitioner were proved by way of any document. It has been strenuously argued that in the entire enquiry report, the respondents have relied upon the preliminary RC/ 3 enquiry which has become the basis of holding the petitioner guilty of charges. Learned counsel argues that the preliminary enquiry cannot be the basis of finding of enquiry report. Independent finding has to be derived upon without considering preliminary enquiry. Preliminary enquiry has been termed as the fact finding enquiry and the same cannot be the basis of holding the petitioner guilty of charges. It is not the case of embezzlement and regarding forgery, the respondents themselves have said that there is no document brought on record to show forgery in spite of that it has been said by the enquiry officer that the same has been partly proved, the same is contrary to their own finding. The entire enquiry report is perverse. Learned counsel for the petitioner further argues that without taking into consider the measurement book, a finding has been derived that the work has not been completed and without completion of work, the petitioner has made entire payment which is contrary to their own record. In absence of any measurement book, the said finding could not have been derived by the enquiry officer. 6. Mr. Ashish Kumar Thakur, AC to learned AAG submits that the charges have been duly proved and this Court sitting under Article 226 of the Constitution of India cannot re-appreciate the same. It has further been argued that the work was incomplete and without completion of work, payments have been made by the petitioner which shows that petitioner though charge of embezzlement was not levelled against the petitioner but the government money has been misused. No prior approval was taken by the petitioner. Learned counsel draws attention of this Court on Page-59 and submits that from the findings itself it appears that work was incomplete and without completion of work payment was made. 7. Having gone through rival submission of the parties, this Court is of the considered view that admittedly preliminary enquiry was taken into consideration by the enquiry officer for coming to a finding that guilt as per the charges have been proved in the enquiry report. The arguments advanced by learned counsel for the State as shown at Page-59 that the work was incomplete, is not acceptable to this Court as the learned counsel for the respondents has tried to rely RC/ 4 upon the preliminary enquiry. The preliminary enquiry cannot be the basis for coming to a finding that the work was incomplete. It was incumbent upon the respondents to rely on the measurement book before coming to a finding that the work was incomplete. The measurement book has neither been exhibited nor brought on record to show that in the enquiry, evidence has been led and it has come to the conclusion that the work was incomplete. In absence of evidence, it cannot be said that the work was incomplete and even then payment has been made. However, since charges have been proved during the course of enquiry, though the petitioner has tried to satisfy and convince this Court that the finding of the enquiry officer was perverse but since he was totally responsible for the work, the petitioner cannot be left scot free. However, looking into the finding of the enquiry report based on the preliminary enquiry and the findings derived in the preliminary enquiry the same is nonest in the eyes of law, this Court is of the view that the order of dismissal is very harsh and the same shocks conscience in view of enquiry report. 8. In view of facts and circumstances and arguments advanced by the parties, this Court is of the considered opinion that the impugned order needs interference and as such, punishment order dated 25.09.2019, as contained in Memo No. 5340, issued by the respondent no. 5 is hereby quashed and set aside. The matter is remitted back to the respondent no. 2 to consider the case on the point of quantum of punishment. The respondents are directed to pass any other order other than order of dismissal, compulsory retirement. 9. With the aforementioned observations and directions, this
Decision
writ petition stands disposed of. (Dr. S.N. Pathak, J.) RC/