Ambar Kumar Akhouri vs The State Of Jharkhand
2022 Latest Caselaw 3634 Jhar

           IN THE HIGH COURT OF JHARKHAND AT RANCHI

                        W. P. (S) No. 5263 of 2015

             Ambar Kumar Akhouri, Son of Late R.P. Akhouri, resident of
             Aryapuri, Opposite T.V. Tower, P.O. G.P.O., P.S. Sukhdeo Nagar,
             District Ranchi                          ...     ...      Petitioner
                                   Versus
          1. The State of Jharkhand, though the Chief Secretary, Road
             Construction Department, Government of Jharkhand, Ranchi,
             Project Building, Dhurwa, P.O. & P.S. Dhurwa, District Ranchi
          2. Chief Secretary, Road Construction Department, Government of
             Jharkhand, Ranchi, Project Building, Dhurwa, P.O. & P.S.
             Dhurwa, District Ranchi
          3. Principal Secretary, Road Construction Department, Government
             of Jharkhand, Ranchi, Project Building, Dhurwa, P.O. & P.S.
             Dhurwa, District Ranchi
          4. Deputy Secretary, Road Construction Department, Government of
             Jharkhand, Ranchi, Project Building, Dhurwa, P.O. & P.S.
             Dhurwa, District Ranchi
          5. Engineer-in-chief, Road Construction Department, Government of
             Jharkhand, Ranchi, Project Building, Dhurwa, P.O. & P.S.
             Dhurwa, District Ranchi            ...       ...       Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. Pandey Neeraj Rai, Advocate : Mr. Rohit Ranjan Sinha, Advocate : Mr. Akchansh Kishore, Advocate For the Respondents : Mr. Mihir Kumar Ekka, Advocate

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21/12.09.2022

1. Heard the learned counsel for the parties.

2. This writ petition has been filed for the following reliefs: -

"for issuing appropriate writ(s)/order(s)/direction(s) quashing/setting aside the order of penalty as contained in memo no. 2369(s) dated 28.04.2011 issued by the Deputy Secretary, Road Construction Department, Ranchi (Annexure-6) with all consequences as also the order of dismissal of appeal vide Notification No. Nig./Sara-2-Vividh-180/09/6715(s) dated 14.09.2012 issued by the Deputy Secretary, Road Construction Department, Ranchi (Annexure-7)."

Arguments of the Petitioner

3. Learned counsel for the petitioner submits that vide notification dated 12.11.2009, the petitioner was suspended under the provisions of Rule 49A of The Civil Services (Classification, Control and

Appeal), Rule 1930 alleging dereliction of duty and negligence in road work during his period of posting as Executive Engineer, Road Division, Ranchi. On the same day, vide another notification dated 12.11.2009, Assistant Engineer, Road Sub Division No. 1, Ranchi, namely, Pravin Kumar Jha was also suspended. A Charge-sheet dated 12.05.2010 (Annexure-3 series) was issued to the petitioner and departmental proceeding was initiated as per Rule 55 CCS (CCA), Rules, 1930.

4. The background fact being that the petitioner was associated as Executive Engineer with construction of the approach road from National Highway-33 to Mega Sports Complex, which eventually got damaged before completion of construction and an inquiry committee headed by a Chief Engineer, who had given an enquiry report from which dereliction of duty and irregularity was made out against the petitioner. Altogether four charges were levelled. Departmental proceeding was also initiated against the then Assistant Engineer Pravin Kumar Jha. The charge-sheet of Pravin Kumar Jha is contained at Annexure-13 to the rejoinder dated 29.11.2017. It has been submitted by the learned counsel for the petitioner that the allegations in charge No. 1 and 2 against Pravin Kumar Jha were same as those in charge No. 1 and 3 against the petitioner and the 3rd charge against Pravin Kumar Jha was identical to charge no. 4 against the petitioner.

5. It is submitted by the learned counsel for the petitioner that in the Enquiry report dated 24.08.2010 with regards to the proceedings against the petitioner (Annexure-15 to the rejoinder), it was recorded that the petitioner had no involvement in defective work prior to taking charge and the petitioner defaulted in getting acquainted towards work done by the predecessor from quantitative and qualitative angle. It was recorded that it was not technically proper to rectify defects by bituminous material after knowing the reason for damage during rains and thus, the petitioner was held guilty of not taking timely action on the contractor.

6. In the proceeding against Pravin Kumar Jha, the enquiry report dated 03.09.2010 (Annexure-14 to the rejoinder) was submitted with the findings that no fault was apparent in the work done before his

posting, therefore, his failure to raise doubts was due to lack of experience. Hence, he was slightly liable. It was also recorded that Pravin Kumar Jha ought to have given proposal to Executive Engineer for complete rectification of defects when the contractor started repair and hence Pravin Kumar Jha was found liable.

7. Vide impugned order of punishment dated 28.04.2011 (Annexure-6), a punishment of censure was inflicted on the petitioner by the order of the Governor and suspension was revoked, but the petitioner was held entitled for only subsistence allowance for that period and therefore, forfeiting the salary for the said period. It is the case of the petitioner that although the proceeding was started under Rule 55 CCS (CCA), Rules, 1930, but Rule 55 was violated as no hearing was afforded before forfeiture of such emoluments. It is also argued by the learned counsel for the petitioner that no witness was adduced and no opportunity of cross-examination was afforded which violates natural justice.

8. The learned counsel for the petitioner further submitted that the Assistant Engineer, namely, Pravin Kumar Jha was also given the same punishment as that of the petitioner by the disciplinary authority vide another order dated 28.04.2011 (Annexure-8). Pravin Kumar Jha filed appeal and he got exonerated vide appellate order dated 12.09.2012 by speaking order and the petitioner's appeal was rejected vide impugned appellate non-speaking order dated 14.09.2012.

9. Learned counsel for the petitioner has further relied upon certain file noting as contained in Annexure-7 to submit that file noting was favorable to both the petitioner and to Pravin Kumar Jha which were considered favorably while deciding the appeal in the case of Pravin Kumar Jha and were not at all considered in the case of the petitioner as apparently, the impugned appellate order is non- speaking. The specific case of the petitioner is that the case of the petitioner and Pravin Kumar Jha stand on similar footing, but Pravin Kumar Jha has been exonerated in appeal and the appeal of the petitioner has been dismissed.

10. The memo of appeal filed by the petitioner dated 25.10.2011 has been brought on record by the respondents by way of supplementary-counter-affidavit dated 14.12.2021. The appellate order has been annexed at Annexure-7. Learned counsel for the petitioner has submitted that a number of points were raised before the appellate authority, but the appellate authority has not considered those points and has passed a non-speaking order.

11. Learned counsel for the petitioner has also relied upon a judgment passed by the Hon'ble Supreme Court reported in (1997) 7 SCC 463 para-30 and (2003) 4 SCC 579 para 16 to 20. And also, upon a judgment passed by the Hon'ble Supreme Court in the case reported in (1990) 4 SCC 594.

Arguments of the Respondents.

12. Learned counsel appearing on behalf of the respondents, on the other hand, while opposing the prayer has submitted that the allegations levelled against the petitioner was not identical as that of Pravin Kumar Jha. Moreover, the petitioner being the Executive Engineer was on the spot and Pravin Kumar Jha was the Assistant Engineer and therefore, the designation as well as nature of work and responsibilities were also different.

13. So far as the appellate order is concerned, the learned counsel has referred to para-9 of the counter-affidavit dated 08.02.2016 wherein it has been mentioned that the appeal of the petitioner dated 15.10.2011 was rejected due to non-presentation of any concrete evidence or any new evidences/papers by which the allegation against the petitioner could be quashed and he has referred to order rejecting the appeal. It is also submitted by the learned counsel appearing on behalf of the respondents that the scope of interference in the matter of disciplinary enquiry is very limited. There is no violation of principles of natural justice or fair play and there is no perversity in the impugned orders and accordingly, the writ petition is fit to be dismissed.

Findings of this Court.

14. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds

that arguments have been advanced from the side of the petitioner with regard to the comparison of the case of the petitioner with that of Pravin Kumar Jha and reliance has been placed on the file noting as contained in Annexure-7.

15. It is not in dispute that the petitioner as well as Pravin Kumar Jha, both were suspended on the same day and subjected to disciplinary proceedings and both of them were punished with the same punishment on the same day. It is further not in dispute that Pravin Kumar Jha was the Assistant Engineer and the present petitioner was the Executive Engineer. However, both of them faced different disciplinary proceedings.

16. Pravin Kumar Jha was exonerated vide appellate order dated 12.09.2012 and immediately after two days, the appeal of the petitioner was rejected vide order dated 14.09.2012 (Annexure-7). The petitioner also has a grievance that the appellate order passed in the case of Pravin Kumar Jha is a speaking order and so far as the petitioner is concerned, the appellate order is non-speaking, although the petitioner had raised several points in the memo of appeal.

17. Upon going through the impugned appellate order dated 14.09.2012 (Annexure-7), this Court finds that the appellate authority while dismissing the appeal of the petitioner has simply stated that the appeal was being dismissed after its consideration. From perusal of the appellate order, it is apparent that the same is ex-facie non-speaking and it does not deal with any of the points raised by the petitioner in the memo of appeal filed by the petitioner before the appellate authority. The stand taken by the respondents in the counter-affidavit that the appeal was rejected, due to non-presentation of any concrete evidence or any new evidences/papers by which the allegation against the petitioner could be quashed, does not find its place in the appellate order. Thus, the respondents through their counter-affidavit are trying to improve upon the appellate order by supplementing reasons through counter affidavit, which is not permissible in law. On the face of the impugned appellate order, this Court finds that the same cannot be sustained as it is ex-facie non-speaking although several points were raised by the petitioner in his memo of appeal. Without going further,

and considering the non-speaking nature of the appellate order and non-consideration of the points raised by the petitioner in the memorandum of appeal filed before the appellate authority, the impugned appellate order dated 14.09.2012 (Annexure-7) cannot be sustained in the eyes of law and is accordingly set-aside.

18. The matter is remitted to the appellate authority for fresh consideration in accordance with law. The petitioner or his authorized representative shall appear before the appellate authority in the first week of November, 2022 by filing a detailed representation along with a copy of the writ records and a copy of this order. The appellate authority shall consider the materials on record with regards to the disciplinary proceedings against the petitioner and pass a reasoned order in accordance with law in the light of the points raised by the petitioner in the memo of appeal and any other point that may be raised by the petitioner in his representation.

19. This writ petition is accordingly disposed of with the aforesaid directions and observations.

20. Pending interlocutory application, if any, is closed.

(Anubha Rawat Choudhary, J.) Mukul