Subas Das vs The State Of Jharkhand Through Its ...
2022 Latest Caselaw 4135 Jhar

                    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                          WP(S) No. 4833 of 2019
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                    Subas Das...                                            ......Petitioner.
                                           Versus

1. The State of Jharkhand through its Secretary, Water Resources Department, Ranchi.

2. The Under Secretary, Water Resources Department, Ranchi.

3. The Deputy Commissioner, Godda.

4. The Deputy Development Commissioner-cum-District Programme Coordinator, Godda.

5. The Executive Engineer, Minor Irrigation Division, Godda.

.....Respondents.

          CORAM          :    HON'BLE MR. JUSTICE ANANDA SEN.
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For the petitioner(s): M/s Arun and Ashwini Sharan, Advocates. For the respondent(s): Mr. Suresh Kumar, SC (L&C)-II

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09/12.10.2022: In this writ petition, the petitioner has prayed to quash the order dated 4.2.2019 (Annexure-5) by which, the punishment has been inflicted upon the petitioner for committing misconduct.

2. The punishment which has been inflicted upon the petitioner vide Memo No. 726 dated 4.2.2019 is as follows:

(i) Censure.

(ii) Stoppage of three increments without cumulative effect.

3. Aggrieved by the said order, the petitioner has approached this Court by filing this writ petition.

4. Learned counsel for the petitioner argues that the charge, which has been levelled against the petitioner does not come within the purview of "misconduct", thus he cannot be punished. As per him, admittedly this is not a case of embezzlement, as opined by the Enquiry Officer thus the petitioner could not have been punished with stoppage of three increments, at best, it can be said to be a minor irregularity, which does not call for any penal action against the petitioner. The counsel for the petitioner lastly submits that the fund was allocated and sanctioned is by the higher authority which was merely disbursed by the petitioner after purchasing the materials.

5. Counsel for the State submits that the petitioner who happens to be the Assistant Engineer should have been aware of the Circulars/Rules of the Department, but he ignoring the Rules and Circulars of the Department, purchased the materials like axe, sabals etc. to be used by the MANREGA workers from the "contingency fund" and not from the fund under "Material Head". He further submits that being a responsible officer, he should have taken adequate caution while withdrawing the fund from a particular head at the time of purchasing the materials and by not doing so, the petitioner has committed

misconduct for which, he has been punished.

6. Heard the counsel for the parties and gone through the record.

7. The petitioner was an Assistant Engineer, Minor Irrigation Division, Godda at the relevant point of time. He was supervising MANREGA works. Some tools and materials were to be purchased. As there was some irregularity/illegality, the petitioner was proceeded against in the departmental proceeding. The charge which is against the petitioner is that by ignoring Circulars/Rules, the petitioner sanctioned Rs.9,93,740/- for purchasing of axe, sabals etc. which were to be supplied for MANREGA Workers, the price of such purchased materials were to be paid from the "material head" but it was sanctioned and paid from the "contingency fund". Further no tender was invited for purchasing the materials. The petitioner denied the aforesaid allegations.

8. Being dissatisfied with the reply of the petitioner, the Disciplinary Authority initiated a proceeding against the petitioner. An Enquiry officer was appointed, who submitted his report, which is on record at Annexure-2 to this writ petition. As per the report, I find that there is specific finding by the Enquiry Officer that the action of the petitioner is not of any financial embezzlement. The Enquiry Officer found that there was some irregularity as tools and emplements of non- schedule items should have been purchased from the "material head" and not from the "contingency head" and further he allowed his junior officer to purchase the said materials without tender. On receipt of the said report, the petitioner was issued second show cause notice proposing the punishment of censure and stoppage of three increments with cumulative effect, to which the petitioner replied. After considering the reply of the petitioner, the Disciplinary Authority imposed punishment of censure and stoppage of three increments but without cumulative effect.

9. From the enquiry report and the order impugned, it is quite clear that there was initial allegation that the petitioner embezzled government money but the Enquiry Officer during the course of enquiry has found that this is not a case of embezzlement rather, the same only relates to paying the price of materials from an incorrect head i.e. the price was paid from 'contingency head' and not from the 'material head'. Further the allegation is that the materials were purchased without tender.

10. The punishment order in the departmental proceeding is challenged in this writ petition by invoking jurisdiction under Article 226 of the Constitution of India. It is well settled law that under Article 226 of the Constitution of India, the Court does not sit as an Appellate Authority. It is not the function of the High Court under the writ jurisdiction to review the evidence and arrive at an independent finding based on the evidence. This Court's power of interference is very limited.

The High Court can interfere where the departmental authority has acted against the principle of natural justice, where the finding is based on no evidence or where there is violation of statutory rules or the punishment is shockingly disproportionate to the charge proved. In the case of Director General of Police, Railway Protection Force and Others versus Rajendra Kumar Dubey, reported in 2020 SCC Online SC 954, the Hon'ble Supreme Court, by referring to the decision in the case of State of Andhra Pradesh versus S. Sree Rama Rao, at paragraph 33 has held as follows: -

"33. In State of Andhra Pradesh v. S. Sree Rama Rao, a three judge bench of this Court held that the High Court under Article 226 of the Constitution is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is not the function of the High Court under its writ jurisdiction to review the evidence, and arrive at an independent finding on the evidence. The High Court may, however interfere where the departmental authority which has held the proceedings against the delinquent officer are inconsistent with the principles of natural justice, where the findings are based on no evidence, which may reasonably support the conclusion that the delinquent officer is guilty of the charge, or in violation of the statutory rules prescribing the mode of enquiry, or the authorities were actuated by some extraneous considerations and failed to reach a fair decision, or allowed themselves to be influenced by irrelevant considerations, or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. If however the enquiry is properly held, the departmental authority is the sole judge of facts, and if there is some legal evidence on which the findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a writ petition."

Further, from the aforesaid judgment, it is clear that under Article 226 or 227 of the Constitution of India, the High Court shall not :-

(i) re-appreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in the case the same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findings can be based;

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its conscience.

Further, in the case of Deputy General Manager (Appellate Authority) and Others versus Ajay Kumar Srivastava reported in (2021) 2 SCC 612, it has been held that "the power of judicial review, of the constitutional courts, is an evaluation of the decision making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion".

11. Considering the aforesaid judgment, it is clear that this Court not being the Appellate Authority cannot go into the details of the evidence and materials. In this case, I find that there is no procedural irregularity/illegality in the departmental proceeding as the petitioner was given full opportunity which the petitioner availed. It has also been established that there is no violation of principle of natural justice nor there is violation of any law, in this case.

12. One of the grounds mentioned above, for which the Court can exercise jurisdiction under Article 226 of the Constitution of India and can review the punishment orders is if the proportionality of the punishment is shockingly disproportionate to the proved charge. In the instant case, as observed earlier, i.e. there is no material to conclude that the petitioner has embezzled any money from Government exchequer nor has misappropriated any fund, as this fact is evident from the enquiry report also. The only allegation is of procedural irregularity. This procedural irregularity i.e. purchasing of materials and paying their cost from different head and not from the allocated fund cannot be said to be misconduct to attract the punishment of stoppage of three increments. At best, the petitioner should have been cautioned and censured. Thus, the punishment of forfeiting three increments is shockingly disproportionate to the proved misconduct. Thus, this Court is inclined to interfere with the quantum of punishment.

13. In view of the above finding, the punishment of stoppage of three increments without cumulative effect, which has been imposed upon the petitioner by the departmental authority, is set aside. Consequential benefit, which will flow after quashing of the impugned order of punishment with regard to stoppage of three increments be immediately calculated and credited in Account of the petitioner.

14. It is made clear that I have not interfered with the punishment of censure imposed upon the petitioner.

15. With the aforesaid observation and direction, this petition stands partly allowed.

Anu/-CP2                                                            (ANANDA SEN, J.)