Rajesh Kumar Singh vs The State Of Jharkhand
2023 Latest Caselaw 808 Jhar

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           IN THE HIGH COURT OF JHARKHAND AT RANCHI

                        W. P. (S) No. 1937 of 2020

            Rajesh Kumar Singh, aged 42 years S/o Shri Sudama Prasad
            Singh, R/o Triveni Exotica Apartment, Flat No.102, Jai Prakash
            Nagar, Gali No.-8, P.O and P.S. Jai Prakash Nagar, Dist -
            Dhanbad                                 ...      ...      Petitioner
                                   Versus
            1. The State of Jharkhand
            2. Principal Secretary, Personnel, Administrative Reforms and
               Rajbhasa Department, officiating from his office at Project
               Bhawan, Dhurva, Ranchi - 834001
            3. Commissioner, Santhal - Pargana, Division, officiating from
               his office at o/o Commissioner, Santhal Pargana Division, P.O.
               & P.S. Dumka, Dumka.
            4. Deputy - Commissioner, Deoghar, officiating from his office at
               office of Deputy Commissioner, P.O. & P.S. Deoghar, District
               - Deoghar                       ...       ...        Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. Prashant Pallav, Advocate : Ms. Shivani Jaluka, Advocate For the Respondents : Mr. Anil Kumar Singh, Advocate

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09/20.02.2023

1. Heard the learned counsel for the parties.

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

"a. For the issuance of an appropriate writ(s), order(s) or direction(s) for quashing of the order bearing number 8098 dated 17th of July 2017 (Annexire-10) as the same has been passed without completing looking into the facts of the case.

AND b. For the issuance of an appropriate writ(s), order(s) or direction(s) for quashing of the order bearing number 6021 vide dated 15th of July 2016 (Annexire-9), wherein a punishment of stoppage of two increment of having non- cumulative has been fastened against the Petitioner without adhering to the principles of natural justice and without giving the Petitioner ample opportunity to defend himself.

AND c. For the issuance of an appropriate writ(s), order(s) or direction(s) directing the respondents to grant the benefits of increments and promotion to the Petitioner from the date his eligibility/juniors have been granted promotion to the post of junior selection grade on the 15 th of July 2015.

AND/OR

d. For the issuance of such other writ(s), order(s), or direction(s) as this Hon'ble Court may think just and proper in the facts and circumstances of the case doing conscionable justice to the petitioner."

Arguments of the Petitioner

3. Learned counsel for the petitioner, while referring to memo of charge, has submitted that altogether three charges were levelled against the petitioner and only first charge was the basis for the minor punishment and other were dropped pursuant to enquiry and the departmental proceedings.

4. As per the allegation (1st Charge), the petitioner had indulged in purchase of smokeless stoves and name plates without any tender process and without calling for any quotation and the same were purchased only on the basis of a request letter submitted by the firm. It was also alleged that the firm from whom the aforesaid articles were purchased neither had any registration nor had any TIN Number. The petitioner filed his reply by stating that the goods were purchased from M/s Raja Marble House, Deoghar, furnished its Tin Number and its registration with the District Industry Centre, Deoghar.

5. The Deputy Development Commissioner, Deoghar, had issued a letter dated 28.08.2015 addressed to the Deputy Commissioner, Deoghar mentioning that the explanation of the petitioner be accepted. This communication was forwarded to the enquiry officer by the Deputy Commissioner, Deoghar vide letter dated 08.10.2015. While passing the impugned order, the disciplinary authority has recorded the aforesaid view as communicated through letter dated 08.10.2015, but in spite of that, the petitioner was held guilty of the 1st charge.

6. The learned counsel submits that the petitioner has been held guilty on the ground that the aforesaid firm was not a firm approved by the department and accordingly the rate of the smokeless stoves were not approved. The specific case of the petitioner is that the respondents have misread the department circular regarding procurement. The learned counsel has also submitted that otherwise also the charges levelled against the petitioner were totally vague and the order of punishment could not have been passed on the basis of vague charges.

7. The learned counsel has relied upon a judgment passed by the Hon'ble Supreme Court reported in (2011) 14 SCC 379 (Anil Gilurker Vs. Bilaspur Raipur Kshetriya Gramin Bank and Anr.) to submit that no charge can be sustained, if the enquiry is based on vague charges.

8. The petitioner filed appeal but the appellate authority has dismissed the appeal by stating that the appeal was barred by limitation. The learned counsel submits that the original order of punishment was dated 15.07.2016, the appeal was filed on 09.02.2017 and the prescribed period for filing the appeal is 90 days. The learned counsel submits that the appellate authority should have considered the matter on merit and there was a delay of around three months beyond the prescribed period of limitation.

Arguments of the Respondents

9. Learned counsel appearing on behalf of the respondents, on the other hand, has opposed the prayer and has submitted that only a minor punishment has been imposed against the petitioner and the petitioner had not followed the departmental norms for procuring the material. Admittedly the tender process was not followed and as per the circular annexed by the petitioner himself, the procurement was required to be done either through tender process or from such persons whose name is approved by the authority. The learned counsel submits that there is no illegality or perversity in the impugned orders and proceedings calling for any interference.

10. The learned counsel has also submitted that the charges against the petitioner cannot be said to be vague. The learned counsel has also submitted that there is no explanation from the side of the petitioner with respect to the delay in filing the appeal in the entire writ petition. The memo of appeal is not on record. During the course of hearing, it transpired that the enquiry report is not on record.

11. Learned counsel for the respondents has relied upon a judgment passed by the Hon'ble Supreme Court reported in (2020) 9 SCC 471 (Pravin Kumar vs. Union of India & Ors.) to submit that the scope of

interference in the departmental proceedings is very limited in writ jurisdiction.

Findings of this Court

12. It is not in dispute that at the relevant point of time, the petitioner was posted as Block Development Officer, Karo and was in- charge for procurement of 'smokeless chulhas' and 'name tags' under Indira Awas Scheme in accordance with the procedure so established. However, certain complaints/discrepancies were pointed out and consequently, an inquiry was initiated against the petitioner and it was ,inter alia, alleged that the petitioner did not follow the proper process as per procurement rules. A departmental proceeding was initiated and memo of charge was issued to the petitioner vide letter dated 151 dated 25.01.2012.

13. Altogether, three allegations were levelled against the petitioner. Out of that, two allegations were ultimately dropped and accordingly, the allegation with which the petitioner is now concerned, is issuance of procurement order to a firm which was neither registered with the department, nor had a TIN Number.

14. The petitioner filed his reply before the enquiry officer and categorically stated that the 'name tag' under Indira Awas Scheme was procured from M/s Raja Marble House which had TIN number- TIN20522601075 and the firm was also registered with the district office of Deoghar having registration no. 100701945. The petitioner had denied the allegations levelled against him.

15. During the pendency of enquiry, the Deputy Commissioner, Deoghar forwarded the opinion of the Deputy Development Commissioner vide letter dated 08.10.2015 that the explanation as given by the petitioner was valid and acceptable, but in spite of such opinion, the enquiry officer held that M/s Raja Marble House, from whom the items were procured, was not registered, and therefore, procurement could not be made as per the relaxation provided in the notification dated 28.10.2003 and consequently held the petitioner guilty of non-compliance of rules of procurement with regard to 'smokeless chulhas' and 'name tag' and minor punishment has been

imposed. The punishment imposed was stoppage of two increments with non-cumulative effect.

16. The specific case of the petitioner is that the enquiry officer had misread the aforesaid notification dated 28.10.2003. Further case of the petitioner is that no such allegation was levelled against the petitioner regarding non-compliance of the said notification and consequently, the charge levelled against the petitioner was totally vague.

17. This Court finds that the specific allegation against the petitioner was that the petitioner being responsible for procurement, had procured certain articles without following the tender process and procured the goods from a private party on the basis of a request letter without calling for any quotation. It was also alleged that the said party neither had a TIN number nor was registered. In response to such allegation, the petitioner had responded that he had bought the goods from a person who had a TIN number and was also registered with the industry department. It was the petitioner who relied upon the aforesaid circular dated 28.10.2003 to submit that in case of procurement from persons who are registered, no tender process is required. The registration certificate of the person from whom the petitioner has purchased the goods, has been brought on record. The person from whom the petitioner had procured the goods was granted provisional registration certificate as Small Scale Industry vide letter no. 335 dated 22.02.2002 issued by the Government of Jharkhand, Directorate of Industries. Further, the person from whom the petitioner had procured the goods, was also issued 'no objection certificate' from the Commercial Taxes Department, Deoghar certifying that M/s Raja Marble House was registered under Jharkhand Entertainment Act administered by Commercial Taxes, Deoghar and there was no outstanding dues against him.

18. The argument of the petitioner that the allegation was vague, in as much as, no reference was made with regard to the notification dated 28.10.2003 which deals with procurement, is devoid of any merits. This Court finds that specific allegation was leveled that the petitioner neither adopted tender process for procurement of goods nor

any quotation was called. In response to which, the petitioner tried to justify his action by referring to the aforesaid notification dated 28.10.2003 which deals with procurement of goods through the process determined by Director General, Supplies and Disposal. Consequently, the specific case of the petitioner was that no tender was required as the person from whom he had purchased the goods was having a TIN number and was registered with the industry department. The registration certificate is on record.

19. This Court finds that registration of a unit with the industry department as small scale industrial unit has nothing to do with registration of a person in terms of notification dated 28.10.2003. The said procurement policy of the State Government is annexed with the writ petition which clearly demonstrates that the department has to maintain a list of persons from whom the goods can be purchased without going through tender process and the rate of procurement is also prescribed so that the suppliers are readily available from amongst such registered persons and procurement can be made at the rate already prescribed. The certificate issued by the industry department is only for the purposes of registration of a unit as small scale industry and the same by itself does not automatically register the unit under the aforesaid scheme for procurement floated vide notification dated 28.10.2003.

20. In absence of any such registration of the supplier of the petitioner under the aforesaid scheme floated vide notification dated 28.10.2003, no goods could have been purchased from such supplier unless it was routed through tender process. This Court finds that the learned Enquiry Officer has rightly rejected the plea of the petitioner in spite of the fact that the opinion was given by Deputy Commissioner/District Development Commissioner. The opinion of the District Development Commissioner/Deputy Commissioner is not binding on the enquiry officer who has taken up the task of quasi- judicial enquiry.

21. Thus, the argument of the petitioner that the charge was vague and that the respondents have not considered the scheme of

procurement of goods floated by the State vide notification dated 28.10.2003, are devoid of any merits and hence rejected.

22. In view of the aforesaid finding that the charge against the petitioner was not vague, the judgement relied upon by the petitioner reported in (2011) 14 SCC 379 (Supra) to submit that no charge can be sustained if the enquiry is based on vague charges, does not apply to the facts and circumstances of this case.

23. So far as the appeal is concerned, the petitioner filed appeal after expiry of 6 months 24 days although the prescribed period for filing appeal was only 90 days. The appellate authority has rejected the appeal as time-barred. Neither the petitioner has given any explanation in the writ petition for delayed filing of appeal nor the petitioner has annexed the copy of the memo of appeal to show any averment explaining the delay. In such circumstances, this Court finds no illegality on the part of the appellate authority in rejecting the appeal as time-barred. This Court is of the considered view that unexplained delay and laches in approaching the statutory authorities while invoking statutory remedies is also an important consideration in exercising discretionary power under Article 226 of the Constitution of India. It is well settled that the writ courts do not sit in appeal against the orders passed by the authorities in the matter of disciplinary proceedings and the scope of judicial review is very limited. This Court has considered the case of the petitioner on merits also and in view of the aforesaid findings, no interference is called for in the impugned actions and orders under Article 226 of the Constitution of India.

24. Accordingly, this writ petition is hereby dismissed.

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

(Anubha Rawat Choudhary, J.) Mukul/Pankaj