Jharkhand High Court

Rasbiharee Prasad Singh vs The State Of Jharkhand Through The ... on 5 May, 2022

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         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   W.P.(S) No.5663 of 2014
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RasBiharee Prasad Singh ... ... Petitioner Versus

1. The State of Jharkhand through the Chief Secretary.

2. Principal Secretary, Road Construction Department, Government of Jharkhand.

3. ShilaKiskuRafaz, Departmental Enquiry Officer.

4. Under Secretary, Road Construction Department, Government of Jharkhand, Ranchi.

                                                        ...     ...Respondents
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    CORAM     : HON'BLE MR. JUSTICE DEEPAK ROSHAN
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         For the Petitioner        :Mr. A. K. Sahani, Adv.
         For the Res-State         : Mr. RaunakSahay, A.C to G.P. V
                                         -------
C.A.V. on 11.02.2022                     Pronounced on 5/5/2022

Heard learned counsel for the parties.

2. The instant writ application was initially

preferred by the petitioner praying therein for quashing of

the letter/show-cause issued under Memo No.7632 (S)

WE dated 13.10.2014 (Annexure-7); whereby the

respondent No.4 asked the petitioner to submit his

written statement of defence within a period of 15 days.

During pendency of the instant writ

application the punishment order was passed under

Memo No.5957 (S) dated 19.08.2015 issued by the

Deputy Secretary, Road Construction Department,

Government of Jharkhand, whereby the petitioner has

been demoted to the minimum scale of pay of his post.

Thereafter, the petitioner filed an amendment

application challenging the punishment order dated

19.8.2015 and the said amendment application was

allowed.

3. The facts relevant for disposal of the instant

writ application is that the petitioner was appointed on

the post of Assistant Engineer in the Public Works

Department in the then Government of Bihar on

12.02.1980. Subsequently on 30.12.2000, petitioner was

promoted on the post of Executive Engineer and was

posted in the Building Division, Dumka and so on.

On 28.6.2010 petitioner was transferred from

Building Division Deoghar to the post of Executive

Engineer, Building Division-II Ranchi. On 1.7.2010

petitioner took charge to the post of Executive Engineer

Building Division-II, Ranchi. All of a sudden on

17.6.2013; a charge-sheet was issued against the

petitioner to which he duly replied and finally respondent

No.3 was appointed as Enquiry Officer to hold enquiry in

respect of charges leveled against this petitioner.

4. It is specific case of the petitioner that he

appeared before the respondent No.3 in the enquiry

proceeding and he made an application dated 25.9.2013

(Annexure-4) for providing the copy of the documents.

However, the Presenting Officer declined to provide the

copy to the petitioner, which forced the petitioner to file

reply to show-cause in absence of required documents

and finally during pendency of this writ application the

impugned order of punishment was passed whereby the

petitioner was demoted to the lowest pay scale of his

post.

5. Mr. A. K. Sahani, learned counsel for the

petitioner assailed the impugned order on following

grounds:-

(i) All the charges are prior to his posting as

Executive Engineer which is apparent from

Annexure-2. He further submits that the

petitioner took the charge of Executive

Engineer Building Division-II, Ranchi on

1.7.2010 and all the charges were prior to his

posting.

(ii) Before filing show-cause reply, petitioner

asked for several documents, however the

respondents have denied to provide the

documents to this petitioner which is apparent

from the order-sheet (Annexure-6) which

clearly transpires from the order dated

27.11.2013 wherein it has been noted in the

order that the department had held that

required documents is not necessary to be

provided to this petitioner.

(iii) No oral or documentary evidence has

been laid down by the department which is

mandatory as per service jurisprudence.

(iv) The finding recorded by the Enquiry

Officer is beyond the charge which is clear

from the impugned order.

(v) Though there was no allegation / charge

for payment, however the Enquiry Officer has

held that since the paymentswere made at the

time when the petitioner was posted as such

he is guilty for payment.

In support of his contention he relied upon

several judgments and submits that in view of the settled

preposition of law the impugned order should be set

aside.

6. Mr. RaunakSahay, learned counsel appearing

for the respondent-State submits that the Building

Construction Department, Jharkhand recommended

initiation of departmental proceeding against the

petitioner for some serious charge of irregularities

committed by the petitioner.Subsequently, after review of

the aforesaid recommendation, respondents initiated

departmental proceeding. He further submits that the

enquiry report clearly transpires that all the charges

leveled against the petitioner has been proved and the

Disciplinary Authority while agreeing with the enquiry

report issued second show cause notice to the petitioner

before imposing any punishment and the petitioner duly

replied to the same and finally the impugned order of

punishment has been passed.

He further submits that soon after the

initiation of aforesaid departmental proceeding, the

Building Construction Department recommended

another departmental proceeding for the charges of

irregularities for repairing of quarters of the Members of

Legislative.While the above two proceedingswere going

on; the department again recommended for another

departmental proceeding and as a result another

departmental proceeding was also initiated and in other

departmental proceeding also the conducting officer has

held the charges to be proved.

In crux, learned counsel for the respondent

tries to impress this Court that several departmental

proceedings were initiated against this petitioner with

regard to irregularities. However, he could not

demonstrate by any documents that oral or documentary

evidence has been produced by the department and he

could also not defend as to how the department denied to

provide the documents to the petitioner.

Learned counsel for the State concludes his

arguments by submitting that the writ application should

also not be entertained on the ground of statutory

appeal.

In support of his contention he relied upon the

judgment passed by the Hon'ble Apex Court in the case

of Chennai Metropolitan Water Supply & Sewerage

Board&Ors.v. T.T. MuraliBabureported in (2014) 4

SCC 108 wherein at paragraph 29 as under:-

29. In Union of India v. G. Ganayutham, the Court analysed the conception of proportionality in administrative law in England and India and thereafter addressed itself with regard to the punishment in disciplinary matters and opined that unless the court/Tribunal opines in its secondary role that the administrator was, on the material before him, irrational according to Associated Provincial Picture Houses Ltd. v. WednesburyCorpn and Council of Civil Service Unions v. Minister for the Civil Service norms, the punishment cannot be quashed.

Learned counsel further referred the judgment

passed in the case ofNarinder Mohan Arya Vs. United

India Insurance Co. Ltd. &Ors.reported in(2006) 4

SCC 713 wherein it has been held that a Court of judicial

review should not interfere with the findings of Enquiry

Officer.

7. Having heard learned counsel for the parties

and after going through the documents available on

record and the averments made in the respective

affidavits; it appears that the charge-sheet was issued

against the petitioner alleging therein that:-

(i) Allotment of work of sitting arrangement

and civil and interior works, electrification

works and fire works were allotted to Godrej

and BoiceManufacturingcompany Ltd.

(ii) Dereliction in preparing the estimate.

(iii) Without having technical sanction of the

estimate, the tender was published and

without disposing of the tender, work was

allotted.

8. From record it appears that the charge-sheet

was dated 17.6.2013. From perusal of enquiry report

which has been brought on record by both the parties, it

clearly transpires that on 25.9.2013 petitioner has

demanded few documents, however vide order-sheet

dated 27.11.2013, it appears that the respondent

department took a decision that they are not bound to

give the documents asked by the delinquent employee,

which is in violation of principles of natural justice.

From the impugned order it further transpires

that the Disciplinary Authority had admitted that before

posting of this petitioner the work of

agreement/allotment was completed however since the

payment has been made during his tenure; as such the

petitioner is guilty.

Relevant portion of the impugned order is

quoted herein below;-

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9. It further transpires from the entire enquiry

report that no oral evidence has been adduced by the

respondents. It further appears from paragraph No.3 of

the enquiry report that one letter dated 26.7.2012 of

Deputy Secretary, Vigilance was produced; however no

oral evidence was laid down. Another letter of Chief

Engineer, Building Construction Department dated

29.4.2013 was also produced; however this letter was

also not supported by any oral evidence.

10. The law in this regard is well settled, inasmuch

as, an Enquiry Officer acting in quasi-judicial authority

is in the position of an independentadjudicator and if no

oral evidence has been examined the documentsare not

considered to be proved and could not be taken into

consideration to conclude that the charges have been

proved against the delinquent. This principle squarely

applies in the instant case.

Paragraph 27 and 28 of the judgment passed

by Hon'ble Apex Court in the case of State of

U.P.&Ors.v. Saroj Kumar Sinhareported in 2010 (2)

SCC 772 is quoted herein below:-

27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge.

28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined

the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

In this regard another judgment in the case of

Mohd. Yunus Khan v. State of U.P.&Ors.,reported in

(2010) 10 SCC 539 the Hon'ble Apex Court has held as

under at paragraph 16.

16. We have to proceed keeping in mind the trite law that holding disciplinary proceedings against a government employee and imposing a punishment on his being found guilty of misconduct under the statutory rules is in the nature of quasi-judicial proceedings. Though the technical rules of procedure contained in the Code of Civil Procedure, 1908 and the provisions of the Evidence Act, 1872 do not apply in a domestic enquiry, however, the principles of natural justice require to be observed strictly. Therefore, the enquiry is to be conducted fairly and reasonably and the enquiry report must contain reasons for reaching the conclusion that the charge framed against the delinquent stood proved against him. It cannot be an ipse dixit of the enquiry officer. Punishment for misconduct can be imposed in consonance with the statutory rules and principles of natural justice.

Both the aforesaid judgments basically

suggests for proper compliance of principle of natural

justice which has not been done in the instant case,

inasmuch as, no oral evidence has been laid down to

prove the document /letter and further admittedly the

respondents have denied to provide documents to this

petitioner.

11. The judgment cited by learned counsel for the

State is not applicable in the instant case, inasmuch as,

the basic ingredients of principle of natural justice has

not been complied in the instant case. Further;the

Enquiry Officer has not acted as a sole arbitrator and she