Lalan Mochi vs The State Of Jharkhand Through The ...
2022 Latest Caselaw 87 Jhar

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         IN THE HIGH COURT OF JHARKHAND AT RANCHI

                          W. P. (S) No. 3670 of 2015

              Lalan Mochi, son of late Nathuni Mochi, resident of
              Rajwadih, P.O. & P.S.- Medninagar, District- Palamau.
                                                  ...     ...      Petitioner
                                  -Versus-
         1.   The State of Jharkhand through the Secretary/Principal,
              Road Construction Department, Government of Jharkhand,
              having office at Project Building, P.O. & P.S.- Dhurwa,
              Town and District- Ranchi.
         2.   The Secretary/Principal, Road Construction Department,
              Government of Jharkhand, having office at Project Building,
              P.O. & P.S.- Dhurwa, Town and District- Ranchi.
         3.   Deputy Secretary, Road Construction Department,
              Government of Jharkhand, having office at Project Building,
              P.O. & P.S.- Dhurwa, Town and District- Ranchi.
         4.   Under Secretary to government, Road Construction
              Department, Government of Jharkhand, having office at
              Project Building, P.O. & P.S.- Dhurwa, Town and District-
              Ranchi.                        ...      ...       Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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Through Video Conferencing 05/10.01.2022

1. Heard Mr. Manoj Tandon, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Om Prakash Tiwari, learned counsel appearing on behalf of the Respondent-State.

3. The present writ petition has been filed for the following reliefs: -

" (i) To quash/set aside the order by Notification contained in memo no. 3861(S) dated 05.09.2006, issued under the pen and signature of respondent no. 3, whereby and whereunder, the following penalties have been inflicted upon the petitioner: -

(a) Removal from service;

(b) Recovery of a sum of Rs. 27,411/-.

(c) Decision on the period of suspension shall be taken later on.

(i) To also quash/set aside the decision by Notification contained in memo no. 1992(S) dated 10.03.2014, whereby the appeal preferred by the petitioner has been rejected.

(ii) To also quash/set aside the decision by Notification contained in memo no. 5477(S) dated 7.12.2006, whereby

the period of suspension of the petitioner has not been treated to be on duty.

(iii) To direct the respondents to reinstate the petitioner in service with all consequential benefits including back wages as the petitioner is not gainfully employed anywhere after the order of removal dated 5.9.2006.

(iv) For any other appropriate relief/reliefs to which the petitioner is found to be entitled in the facts and circumstances of this case as also to do conscionable justice to the petitioner"

4. The learned counsel for the petitioner, submits that the appellate authority while passing the impugned order as contained in Memo No. 1992(S) dated 10.03.2014 (Annexure-11) although has recorded the submissions, including the submission that the punishment imposed upon the petitioner is disproportionate to the charges levelled against him, but has not considered the points raised by the petitioner including the point of disproportionate punishment. He has also submitted that the penalty order as contained in Memo No. 3861(S) dated 05.09.2006 (Annexure-7), which was subject matter of appeal, is also challenged. He submits that the petitioner has also challenged the consequential order as contained in Memo No. 5478(S) dated 07.12.2006 (Annexure-8) relating to treating his period of suspension. He has also submitted that the disciplinary authority has also not considered the points raised by the petitioner in his second show cause notice.

5. The learned counsel for the petitioner has referred to two judgments passed by this Court-

a. Order dated 22.06.2012 passed in W.P.(S) No. 7213/2006 (Binod Kumar Rana vs. The State of Jharkhand & Ors.) (Annexure-12), which related to the concerned Executive Engineer who was also allegedly involved in the same transaction and faced the disciplinary proceedings, this Court found that there was no evidence against him and the punishment order was set-aside by this Court with costs.

b. Judgment passed by this Court in W.P.(S) No.4977/2008 (Binod Kumar Ravi vs. The State of Jharkhand and Ors.) ( Annexure-13) dated 21.05.2015, relating to the Junior Engineer involved in the case and who had also faced the disciplinary proceedings, this Court vide paragraph-10 of the judgment has set-aside the order of punishment dated 02.05.2008 and the matter was remitted back to the disciplinary authority for consideration solely on the question of quantum of punishment and the respondents were directed to pass an appropriate punishment taking into consideration the alleged charges, findings of the enquiry officers, strictly in accordance with law within a period of two months from the date of receipt of a copy of this order.

6. The learned counsel submits that in the present case, the petitioner was the Assistant Engineer and was alleged involved in the same transaction as the other two persons. He submits that the petitioner was merely the recommending officer, the entry in the measurement book was made by the Junior Engineer and the payment was made by the Executive Engineer. Admittedly, judgment in W.P.(S) No.4977/2008 (Binod Kumar Ravi vs. The State of Jharkhand and Ors.) (Annexure-13) dated 21.05.2015 was passed after passing of the impugned order and it is not clear as to what happened to the petitioner of W.P.(S) No.4977/2008, after remand. He also submits that on the face of aforesaid two judgments, the punishment imposed upon the petitioner by the disciplinary authority is highly disproportionate.

7. Learned counsel appearing on behalf of Respondent- State, on the other hand, while opposing the prayer, has submitted that the petitioner has in fact admitted his guilt. However, the learned counsel does not dispute the fact that the impugned order passed by the disciplinary authority does not

deal with the plea raised by the petitioner before the appellate authority on the point of disproportionate punishment, though such plea has been recorded to have been taken.

8. After hearing the learned counsel for the parties, this Court finds that the appellate authority while passing the impugned order dated 10.03.2014 has recorded the submission of the petitioner including the point that the punishment imposed is disproportionate, but the appellate authority has not considered the points raised by the petitioner, though the points have been recorded in the impugned order passed by the appellate authority.

9. This Court also finds that the Order of the Executive Engineer passed in W.P. (S) No. 7213/2006 as well as the Order of Junior Engineer passed in W.P. (S) No. 4977/2008 passed by this Court on 22.06.2012 and 21.05.2015 respectively are on the record of the present case and they arise out of the same incident and the petitioner was the concerned Assistant Engineer.

So far as the Executive Engineer is concerned, the punishment imposed by the authority demoting him from the post of Executive Engineer to the post of Assistant Engineer was set- aside with cost of Rs. 50,000/-.

So far as the Junior Engineer is concerned, his case was remitted back to the disciplinary authority for the purposes of consideration on the quantum of punishment, but it is not on record as to what punishment has been ultimately imposed upon the Junior Engineer.

10. Considering the fact that the appellate authority has not considered the submissions which have been raised by the petitioner although recorded the submissions in paragraph-4 of the appellate order, this Court is of the considered view that the impugned appellate order dated 10.03.2014 cannot be sustained in the eyes of law, being ex-facie is non-speaking order on the

points raised by the petitioner before the appellate authority which included the point regarding disproportionate punishment. In such circumstances, the matter is required to be remanded to the appellate authority for fresh consideration and for passing an appropriate order.

11. Accordingly, the impugned appellate order dated 10.03.2014 (Annexure- 11) is hereby set-aside and the matter is remitted back to the Respondent No. 4 for passing a speaking order on the points which have been raised by the petitioner before the appellate authority and recorded in paragraph-4 of the impugned appellate order.

12. The petitioner shall file a representation before the appellate authority (Respondent No. 4) along with a copy of this order as well as the order dated 22.06.2012 passed in W.P. (S) No. 7213/2006 as well as the order pronounced on 21.05.2015 passed in W.P. (S) No. 4977/2008. The representation should be filed within a period of one month from today. Upon filing of the representation, a date of hearing be fixed for granting an opportunity of hearing to the petitioner. The appellate authority (Respondent no 4) is directed to pass a well- reasoned order after considering the points raised by the petitioner as already mentioned in paragraph-4 of the impugned order including the point regarding proportionality of punishment and also consider the judgments which have been relied upon by the petitioner, within a period of three months from the date of filing of the representation by the petitioner pursuant to this order. The speaking order so passed by also communicated to the petitioner.

13. With the aforesaid observations and directions, the present writ petition is hereby disposed of.

(Anubha Rawat Choudhary, J.) Mukul