The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 6334 of 2022 Bijay Kumar … … Petitioner 1. State of Jharkhand; 2. Principal Secretary, Water Resource Department, Govt. of Jharkhand, V E R S U S Nepal House, Doranda, Ranchi 3. Joint Secretary, Water Resource Department, Govt. of Jharkhand, Ranchi … … Respondents. CORAM: HON'BLE DR. JUSTICE S. N. PATHAK For the Petitioner : For the Respondents : Mr. Rajendra Krishna, Advocate Mr. Amit Sinha, Advocate Mr. Utkarsh Krishna, Advocate Mr. Zaid Imam, AC to SC-VII 13/12.07.2024 Heard the parties. PRAYER : 2. Petitioner has approached this Court with a prayer for quashing of order contained in Memo No. 6121 dated 02.12.2022 (Annexure-10), issued by Joint Secretary, Water Resource Department, Government of Jharkhand, by which punishment has been inflicted upon him pursuant to the proceeding under Rule 43(b) of the Jharkhand Pension Rule withholding 50% pension on permanent basis and further, entire gratuity has been forfeited. Further prayer has been made for release of entire arrears of pension and the gratuity along with the interest. FACTS OF THE CASE 3. 4. The factual exposition as has been narrated in the writ petition is that the petitioner was appointed as a Junior Engineer, Water Resource Department and was promoted to the post of Assistant Engineer and retired on 31.10.2021. It is case of the petitioner that while working as an Assistant Engineer, he was served with a charge-sheet vide Resolution as contained in Memo No. 2821 dated 05.07.2021. The list of evidence enclosed only the letter no. 1381 dated 04.10.2017 which relates with Technical Examination Cell, Cabinet Secretariat & Vigilance Department. The charge-sheet was filed against the petitioner which contains the following charges :- RC 1 W.P.(S) No. 6334 of 2022 (a) The total amount to complete the remaining work of Kesho Jalashay Yojna in the agreement executed on 23.03.2007 is Rs. 66,93,99,000/- (Rupees Sixty Six Crore, Ninety three lakh, Ninety nine thousand) and the total period for completion of work is thirty months. An enquiry was made regarding total work executed by the contractor and against the said work the money paid as per the agreement and pursuant to the aforesaid enquiry by the Technical Examination Cell, Ranchi, it has been found that the work was to be executed on turn key basis as per the agreement, and accordingly a sum of Rs. 12,86,61,058.00/- (Rupees Twelve crore, Eighty Six lakh, Sixty One thousand and Fifty Eight) has been paid in excess of the work done and for which the details of expenditure on different heads have been given in a chart. Accordingly, the aforesaid amount which has been paid in excess to the work executed has been considered and accepted as misappropriated money and for which the petitioner being Assistant Engineer has also been found guilty. (b) The second charge against the petitioner is that the petitioner has violated the Rule 6 (1) of Appendix 06 of Public Works Account Code being the Subdivisional Officer. The Sub Divisional Officer is expected to measure at least 50% of total work which has been violated. (c) The third charge is that the petitioner has therefore violated the Rule 3 (1) (I), (II) and (III) of the Government Servant Conduct Rule, 1976. 5. It is further case of the petitioner that during pendency of the aforesaid charge-sheet, he superannuated on 31.10.2021 but duly participated before the enquiry committee. The conducting officer was appointed to conduct the enquiry. During enquiry, the petitioner requested to provide all the relevant documents since the charge were too old and only on the basis of internal enquiry report, it was difficult to proceed in the enquiry. However, petitioner was provided a few photocopies of measurement book and the photocopy of the agreement only and no proper assistance was given to him. 2 RC W.P.(S) No. 6334 of 2022 6. Pursuant to the letter dated 12.08.2021, petitioner requested for certain documents i.e. Copy of the complete agreement of the project, List of complete documents relating to payment, Copies of the estimate of spill channel both outlet and canal, Photocopy of the measurement book as well as entire payment documents, Photocopy of the detailed estimation of work executed, Spot verification/inspection of Superintending Engineer soon after the work was stopped. A copy of the letter was also provided to Ramesh Kumar Dubey, Retired I.A.S., who was the enquiry officer with a request to provide the aforesaid documents so that the petitioner could file the detailed reply to the charge-sheet. Thereafter, vide letter dated 17.11.2021, petitioner requested the conducting/enquiry officer to provide entire documents as per the letter dated 12.08.2021 received in the office of the Executive Engineer on 13.08.2021 but the documents were not provided to him. The presenting officer did not produce any witnesses to corroborate the internal enquiry report which is part of the charge-sheet and said enquiry report dated 10.08.2017 was signed by five engineers who were in the enquiry committee. 7. It is further case of the petitioner that the internal enquiry report dated 10.08.2017, being the only evidence, has not been corroborated by the presenting officer which is evident from the enquiry report itself. Besides that, the Presenting Officer has also not exhibited any documents to corroborate the charges against the petitioner. The enquiring/conducting officer has submitted the enquiry report only upon the written submission of the Presenting Officer and part of the written submission of the petitioner, since the petitioner was not provided with the relevant documents, as the charges were more than ten years old, it was difficult to recapitulate. The enquiry officer has submitted the report on 20.01.2022 and said report was sent to the petitioner vide forwarding letter no. 1973, dated 06.04.2022, in which it has been stated that all the three charges were proved against him and, therefore, the petitioner was asked to submit his reply. In his reply, the petitioner has categorically taken the grounds that he was not provided the relevant documents except few measurements book as well as documents for agreement. The RC W.P.(S) No. 6334 of 2022 3 petitioner was also provided two different enquiry reports by two different committees of engineers constituted before few days of the forced closure of the work. In all the aforesaid two reports, the issue of excess payment has not been found. Those two reports were accepted by the higher authorities which was conducted in 2009. The petitioner also requested to call the members of the enquiry committee whose reports had been enclosed in the charge-sheet so that they can be examined and cross examined that in what manner they have given this report, that too after eight years of stoppage of work. However, during enquiry, none of those officers were examined and therefore, the petitioner was even not given opportunity to cross examine and as such, the internal enquiry report cannot be accepted as evidence. 8. The petitioner has further stated in reply to the second show cause that the agreement was signed on turn key basis in which the provision for making payment to the contractor is not based upon the measurement rather it is based upon completion of individual item. Therefore, such method of payment which is a policy decision and the petitioner being Assistant Engineer who is not a member of that policy decision, cannot be held responsible for making excess payment. From the agreement which has been enclosed and the schedule of payment, it transpires very categorically that payment was made purely on percentage basis. From the agreement, it transpires that it has been designed in such a manner that after completion of 60% of work, the payment which has been made may be upto 75% of the total work and therefore, it is not a case where the excess payment has been made rather it is a case where the payment has been made as per the schedule of payment and any error or discrepancy in the schedule of payment executing engineers like petitioner cannot be held responsible. The petitioner has also stated that he has not submitted the last bill rather he had perused those bills during his posting in that project and since the project is not yet complete, there is no issue of any last bill relating to payment of contractor in the said project. 9. RC According to petitioner, so far as the charge no. 1 is concerned, payment appears to have been made as per the schedule of payment 4 W.P.(S) No. 6334 of 2022 which is based on item-wise payment and not on measurement and as such, even for part of the payment for which the petitioner has acknowledged, he cannot be held responsible. So far the second charge is concerned, the petitioner has stated that he had supervised 50% of the total work in terms of financial code and therefore financial code has not been violated as because 50% work supervised by the petitioner has been completed and against that payment has been correctly made. In the entire work, there were two Executive Engineers, three Assistant Engineers and eight Junior Engineers but the departmental proceeding was initiated only when all other persons were superannuated except the petitioner and one Junior Engineer who were likely to be superannuated within few months. The occurrence is of the year 2009 and charge-sheet was given in 2021 i.e. after almost twelve years. The authorities did not explain the reason for delay for initiation of departmental proceeding for the period of twelve years approximately. 10. It is further case of the petitioner that the enquiry report has discussed about three different Committees of engineers constituted to enquire about the work done of the Dam and the payment made before
Legal Reasoning
the work had finally been stopped in the year 2009. The first Committee headed by the Chief Engineer, Design, Master Planning and Hydrology, in its report contained in Letter No. 478, dated 13.07.2009, has found that the payment has been correctly made against the work done of the Dam as per the payment schedule. The second enquiry Committee headed by the Superintending Engineer, Waterways Circle has also stated in its report submitted vide forwarding letter no. 1086, dated 06.08.2009, that the payment made against the work done of the Dam is correct and in accordance with the payment schedule. The third Committee known as Vigilance Committee inspected the Dam on 13.06.2017 and 14.06.2017 i.e. after almost eight years of the inspection made by the earlier two Committee and had found that a sum of Rs.12,86,61,058.00 (Rupees Twelve Crore Eighty Six Lac. Sixty One Thousand and Fifty Eight) had been made in excess of the actual work done and, therefore, the said amount was alleged to have been misappropriated. All the aforesaid preliminary report of the Committees was issued before the charge-sheet RC W.P.(S) No. 6334 of 2022 5 and as such, the aforesaid three different preliminary reports looses its significance/ importance once a regular enquiry proceeding had been initiated as decided by the Hon’ble Apex Court in the case of Nirmal J. Jhala Vs. State of Gujarat and othars. The only evidence in the charge- sheet is a letter dated 04.10.2017 which enclosed the report of third preliminary Committee which ought not have been enclosed as evidence once it looses its significance. Moreover, the third preliminary enquiry report, vide forwarding letter dated 04.10.2017 has not been corroborated/ approved during regular enquiry proceeding, therefore, the enquiry officer should not have given any finding against the charges relying upon the said third preliminary report. 11. It is further case of the petitioner that the State Government without meeting the points raised by him in the second show cause, has passed the final order vide Memo No 6121 dated 02.12.2022 by which 50% of the total pension has been withheld on permanent basis and the total amount of gratuity has also been withheld which is under challenge in the instant writ petition. ARGUMENTS ON BEHALF OF THE PETITIONER 12.
Legal Reasoning
Mr. Rajendra Krishna, learned counsel appearing on behalf of the petitioner assisted by Mr. Amit Kumar Sinha and Mr. Utkarsh Krishna, assailing the impugned order vociferously argues that the entire findings of the enquiry officer is based on the internal enquiry/preliminary report. The said enquiry report cannot be made the basis for holding the petitioner guilty of the charges. Learned counsel further argues that without affording any opportunity to cross examine the author of the internal enquiry dated 10.08.2017, the report itself is not tenable in the eyes of law and not worth to be considered for holding the petitioner guilty of the charges. Learned counsel emphatically argues that other than the internal/preliminary enquiry, there is no other evidence against the petitioner. Therefore, it can comfortably be inferred that the enquiry report is based on no evidence. It has also been argued that it is a case of discrimination as other persons have been left scot-free and it is the petitioner who has been punished. The onus lies not only on the RC W.P.(S) No. 6334 of 2022 6 petitioner rather on all the persons who are involved. The State cannot discriminate anyone. The petitioner has been made scape goat and others have been left scot-free. Neither any deduction has been made against them nor any proceeding has been initiated against them. Petitioner being a small fry, has been punished. 13. Concluding his arguments, learned counsel submits that the order of the disciplinary authority, appellate authority and the revisional authority, are not tenable in the eyes of law as the same is not based on any cogent reason and that the authorities have mechanically affirmed order of the disciplinary authority, which is based on the preliminary enquiry. The proceeding under Rule 43(b) of the Pension Rule is also not justified as it is purely mechanical and procedural aspects have been overlooked and as such, the order of punishment based on ‘No Evidence’ and the same is fit to be quashed and set aside and a direction may be issued to the respondents to refund the amount of forfeited pension as well as gratuity. 14. To buttress his arguments, learned counsel places reliance upon the