State of Jharkhand through its Additional Chief Secretary, Water Resources v. Depart. Nepal House, Ranchi
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P(S) No. 7322 of 2019 ------ Devendra Kumar Singh …. …. Petitioner(s). 1. State of Jharkhand through its Additional Chief Secretary, Water Resources Versus Depart. Nepal House, Ranchi 2. Joint Secretary, Water Resources Depart., Nepal House, Ranchi 3. Under Secretary, Water Resources Depart. Nepal House, Ranchi 4. SDO Nagar Untari, Garhwa 5. Chief Engineer, (Monitoring) Water Resources Depart., Nepal House, Ranchi …. …. Respondent(s)
Legal Reasoning
CORAM : HON'BLE MR. JUSTICE ANANDA SEN. ------ ------ For the Petitioner(s) For the Respondent : Mr. Arun, Advocate Mr. Ashwini Sharan, Advocate : Mr. Rahul Kamlesh, Ac to GA-II 10/17.01.2023 Heard the parties at length. 2. In this writ application, petitioner challenges the order dated 28.12.2016 contained in Memo No.5770 whereby the Disciplinary Authority inflicted punishment of withholding two increments with non-cumulative effect and punishment of censure. Appellate Order contained in Memo No. 2170 dated 24.4.2019 r/w corrigendum Letter No. 2805 dated 28.5.2019 is also under challenge whereby the punishment was modified and the Appellate Authority imposed punishment of censure and withholding one increment with non-cumulative effect. Further prayer has been made by the petitioner to grant 3rd MACP with effect from the date when his immediate juniors have been granted the same. 3. Petitioner was appointed as Assistant Engineer in Water Resources Department, Govt. of Bihar in the year 1987. He was transferred and was posted in several places including Garhwa. While he was posted at Garhwa, through Guaranteed Employment Scheme, it was decided to construct a passenger shed vide Scheme No. 26/96-97 in bus stand. Approval was granted and the estimate was prepared and the estimated cost was Rs.75,000/-. The Block Development Officer, Bhawnathpur was the executing Agency and the petitioner was a Technical Supervisor therein. It was alleged that the petitioner without physically inspecting the construction work had made several endorsements in the measurement book. It was found that the quality of the work was inferior, thus the purpose of construction of the shed was not fulfilled. The petitioner was charge-sheeted vide Charge Memo dated 23.7.2011. The aforesaid charge-sheet is at page 25 of this writ application. The petitioner submitted his reply taking a defence that in fact he had inspected the work on 25.11.2013. -2- He denied all the charges levelled against him and stated that there was four junior engineers involved in the entire process of construction work thus there is a possibility of deviation of quality for which he solely cannot be made responsible. Admittedly, after receipt of his reply, Disciplinary Authority forwarded the charge-sheet and reply to the Chief Engineer. The Chief Engineer considered the charge and reply of the petitioner and thereafter with his comments submitted his opinion to the Disciplinary Authority. After receipt of opinion of the Chief Engineer, vide letter dated 8.8.2016 notice was issued to the petitioner asking him to show-cause as to why not the punishment of censure and forfeiture of two increments without cumulative effect be inflicted upon the petitioner. Petitioner replied to the same and thereafter impugned order of punishment was passed on 28.12.2016. Petitioner thereafter preferred an appeal which was also dismissed but the punishment was modified only to the effect that forfeiture of increment was reduced to one from two. 4. From the aforesaid admitted fact it is clear that a departmental charge-sheet was issued to the petitioner, which he replied. Thereafter his reply was sent to Chief Engineer who is a technical person. His opinion was sought for and on the basis of his opinion the Disciplinary Authority concluded that the charge against the petitioner stands proved, for which he needs to be punished, thus notice dated 8.8.2016 was issued to the petitioner proposing punishment. 5. Admittedly an employee cannot be punished based on an opinion of an individual, if at all opinion is sought to be taken as an evidence then an opportunity should have been given to the employee to cross-examine the person who has given the opinion. The person who gives the opinion becomes a witness in the proceeding. In this case admittedly, the petitioner was not given an opportunity to cross-examine the Chief Engineer. Chief Engineer who has opined after going through the charge and the reply of the petitioner, has given his opinion as per his own prudence, but he should have been allowed to be cross-examined by the petitioner. Without giving any opportunity to rebut the opinion and to cross-examine the author of the opinion, the Disciplinary Authority could not have solely relied upon the said opinion to conclude that the petitioner is guilty. The fact that the Departmental Authority had concluded and arrived at a finding that the petitioner is guilty solely based on the opinion, is evident from the notice dated 8.8.2016. From perusal of the notice dated 8.8.2016, I find that the said notice to show-cause is on the point of punishment. Notice on the point of punishment is given to a delinquent employee only when the Disciplinary Authority concludes that the charges are proved against the employee. -3- The charge in this case, as held earlier, stood proved only on the basis of an opinion of the Chief Engineer. Thus, a grave procedural illegality has been committed by the Disciplinary Authority in holding the charge to be proved without giving an opportunity of hearing to the petitioner. Every document, opinion or report, upon which the Disciplinary Authority wants to rely which is purported to be detrimental to the delinquent employee, should be placed before the employee during the departmental proceeding so that he can get a proper opportunity to rebut the same. This provision has been done away with in the instant case. The Principle of natural justice thus, has been violated. 6. The Hon’ble Supreme Court in the case of Deepak Ananda Patil Vrs. State of Mahrashtra & Ors. reported in 2023 Live Law (SC) 30 relying upon the judgment of Managing Director, ECIL, Hyderabad Vs. B. Karunakar reported in (1993) 4 SCC 727 has held that in order to set aside the order of punishment, the aggrieved person must be able prove that prejudice has been caused to him due to non-disclosure. To prove prejudice, he must prove that had the material been disclosed to him the outcome or the punishment would have been different. Further it has been held that the actual test is whether the material that is required to be disclosed is relevant for purpose of adjudication. If it is, then the principles of natural justice require its due disclosure. 7. Considering what has been held above, I find that the impugned order holding the petitioner guilty, is based upon an opinion and no proper opportunity was given to the petitioner to rebut the same, which is in violation of the principle of natural justice. Thus, the punishment order dated 28.12.2016 and Appellate Order dated 24.4.2019 are set aside and quashed. 8. 9. Accordingly the instant writ application stands allowed. So far as grant of MACP is concerned from the date when his immediate juniors got benefit, I direct the petitioner to approach Secretary, Water Resources Department, Govt. of Jharkhand within a period of six weeks along with the copy of this order. The Secretary will consider the claim of the petitioner and if it is found that the petitioner has not been granted the benefit of 3rd MACP from the date when his immediate juniors has been granted, will grant the same and will pass an order within three weeks thereafter. The consequential monetary benefits should follow immediately. anjali/cp2 (ANANDA SEN , J)