Jharkhand High Court
Baldeo Ram vs The State Of Jharkhand; on 4 October, 2024
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 778 of 2024
---------
Baldeo Ram, aged about 78 years, Son of Shri Krishna
Mahato, Resident of Flat No.09, Govind Bhawan, AG
Colony, Kadru, P.S.-Argora, District-Ranchi, at present
residing at Flat No. C/302, Bansal Plaza, Station Road,
Ranchi, PO & PS-Chutia, District-Ranchi.
....Petitioner
Versus
1. The State of Jharkhand;
2. The Secretary, Water Resources Department, Govt. of
Jharkhand, having its office at Nepal House,
Doranda, P.O. & P.S.-Doranda, District-Ranchi;
3. The Under Secretary, Water Resources Department,
Govt. of Jharkhand, having its office at Nepal House,
Doranda, P.O. & P.S.-Doranda, District-Ranchi;
4. Dy. Secretary, Water Resources Department, Govt. of
Jharkhand, having its office at Nepal House,
Doranda, P.O. & P.S.-Doranda, District-Ranchi;
5. Office of Accountant General through PAG, Ranchi,
P.O. & P.S.-Doranda, District-Ranchi, Jharkhand.
....Respondents
---------
CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
---------
For the Petitioner : Mr. Saurabh Shekhar, Adv.
For the Resp.-State : Mr. K.K. Singh, S.C.-V
---------
C.A.V. ON: 14.08.2024 PRONOUNCED ON: 04/10/2024
Heard learned counsels for the parties.
2. The instant writ application has been preferred by the
petitioner praying therein for quashing and setting aside the order
as contained in memo No. 4979 dated 12.09.2023 (Annexure-22),
issued under the signature of respondent No.3; whereby the
respondents have passed and inflicted the punishment of
withholding of pension, to the extent of 50%, for life time, under
the provisions Rule 43(b) of Pension Rules, for a departmental
proceeding that was initiated in pursuance to departmental
resolution dated 05.09.2002, under Rule 55 of CS(CCA) Rules,
1930, after the retirement of petitioner on 31.01.2004 and further,
it has been directed that for the period of suspension only
subsistence allowance will be admissible.
Petitioner has further prayed for quashing and setting
aside of entire departmental proceeding, that was initiated, in
pursuance to the Government Resolution as contained in Memo
No. 2838, dated 05.09.2002 (Annexure-2), issued under the
signature of respondent No.4, under the provisions of Rule 55 of
CS(CCA) Rules, 1930, and later on the proceeding was converted
into one under Rule 43(b) of Pension Rules, after petitioner's
retirement on 31.01.2004, i.e. vide departmental Resolution, as
contained in Memo No. 746 dated 13.03.2004 (Annexure-12).
Petitioner has also prayed for a direction upon the
respondent authorities to release the entire arrears of pensionary
benefits, which has been withheld, in pursuance to the original
order of punishment dated 16.04.2007, and further to direct the
respondents to make payment of full pensionary benefits as on
current date, and also to enhance the benefit of full salary for the
period of suspension.
3. Learned counsel for the petitioner submits that while
the petitioner was in additional charge of Superintending
Engineer, under whose jurisdiction, the District of Giridih was
also located; he was put under suspension, vide departmental
order, as contained in memo No. 2980, dated 06.07.2002, under
the provisions of Rule 49(a)(i)(a) of the Civil Services
(Classification, Control and Appeal) Rules, 1930 (hereinafter to be
referred as CS(CCA) Rules) and the suspension was inflicted on
the ground of the breach of Dam, and the Headquarter was
pleased to fix the responsibility upon the petitioner and several
others, and decision was taken to initiate departmental
proceeding.
During the period of suspension, the petitioner was to
join at the headquarter in the office of Chief Engineer, Designing,
Planning, Investigation and Hydrology, Ranchi.
He further submits that after issuance of order of
suspension, the respondents took a decision to initiate
departmental proceeding against the petitioner, with respect to the
irregularity, corruption and indiscipline, for the reason of which
the Check Dam had collapsed, while the petitioner was posted as
Superintending Engineer, Minor Irrigation Department,
Hazaribagh. The proceeding was initiated, when the petitioner was
still in services, under the provisions of Rule 55 of CS(CCA Rules),
vide departmental Resolution, as contained in memo No. 2838
dated 05.09.2002. Further, one IAS Officer was appointed as
Enquiry Officer and the petitioner was to submit his reply before
him within the specified period. He submits that in the matter, the
presenting officer was also appointed to assist in the departmental
enquiry and place the case of department.
He further submits that the petitioner co-operated in
the departmental enquiry and appeared before the Enquiry Officer
and the petitioner submitted his reply, vide letter dated
25.09.2002, which was duly received by the Enquiry Officer on the
same day.
4. Learned counsel contended that the Chief Engineer,
Minor Irrigation, Ranchi had received one letter and
communication, bearing memo No.19, dated 12.01.2019, from the
office of Chief Engineer, Design, Planning and Hydrology, Ranchi,
wherein, it was intimated that the earlier measurement of the
catchment area of the reservoir/Project, prescribed to the extent of
3.50 sq. km. does not seem to be correct. Further, it was called
upon to do a fresh contour mapping of the area, so as to get a
correct measurement and figure of the catchment area was found
to be 1.68 sq. km. and accordingly, length of dam, spillway, outlet,
canal, etc. were fixed.
He further submits that the administrative approval of
the project was Rs.87,59,845/- and against that the technical
sanction of Rs.98.45 lac was approved, which amounts to increase
of 12.38% and the Cabinet Secretariat and Co-ordination
Department, Circular No.948, dated 16.07.1986, permits for 15%
of revise of estimate, in the technical sanction, compared to that
prescribed in the administrative sanction, in the matter of the
project of Rs.20 lacs to Rs.1 crore.
He further submits that the revised estimate, at the
stage of technical sanction, to the extent of 15% was further duly
approved by the Secretary of the Department. The Lead Chart is
the measurement chart of the soil and earth used for the purpose
of filling up in any project, further, it also includes the
measurement of the soil that is cut out from pit and its distance
from the project site and in this relation, the government circular
bearing Memo No.2/M1-805/80-3587, Patna, dated 11.10.1980,
provides that the Lead Chart is to be prepared after the
completion of work of the earth filling and even as per common
sense, the measurement chart of the quantity of earth cut out and
filled, as also the distance from the project site can be done only
after the earth filling work is already complete.
5. Learned counsel further contended that the Enquiry
Officer fixed the date of hearing on 26th September, 2002 vide his
letter bearing memo No.671 dated 21.09.2002. Thereafter, on
different dates, the petitioner has appeared before the Enquiry
Officer, and the enquiry was finally concluded on 03.10.2002.
Though, the enquiry had been concluded, but the report was not
being submitted before the Disciplinary Authority, resulting into
non-conclusion of the departmental proceeding.
He further submits that the State of Bihar through its
Department of Personnel and Administrative Reforms, vide
circular dated 17.07.1979, had framed a time period to conclude
the departmental proceeding within 90 days and this time period
had not been complied by the respondents.
6. He further submits that the petitioner, therefore,
immediately moved representation before the respondents, but
since nothing was being done, hence, the petitioner was forced to
move before this Hon'ble Court in WPS No.3783/2003, wherein
prayer was made to set aside the order of suspension. The Hon'ble
Court did not interfere; rather passed an order that the
departmental proceeding should be concluded within a period of
three months, vide its judgement and order dated 07.08.2003.
He submits that since the departmental proceeding
could not conclude within a period of three months, as specified
by the Hon'ble Court, the decision was taken by the respondents
to revoke the suspension and they gave him joining on the post of
Superintending Engineer, vide Notification dated 02.01.2004. The
notification specified the joining of the petitioner being affected by
the department.
Subsequently, the respondents had offered a second
show cause notice to the petitioner, vide departmental letter dated
13.03.2004 and the punishment that was proposed in the second
show cause notice was to deduct 50% of pension, under the
provisions of Pension Rules, Rule 43(b) along with the copy of the
Enquiry Report dated 11.11.2003, which was also supplied to the
petitioner. This report, however, did not contain the signature of
Enquiry Officer and by the same order dated 13.03.2004, the
departmental proceeding initiated under Rule 55 of the CS(CCA)
Rules was converted into proceeding under Rule 43(b) of the
Pension Rules.
7. Learned counsel contended that after the retirement of
petitioner, his Enquiry Report was submitted, with opinion, but
the report did not bear any signature and the reply of the
petitioner was also not considered by the enquiry officer. The
petitioner had given a detailed reply denying all the allegations
and he had also adduced evidences in support of the statements
given by him. The petitioner also made series of representations
that he should be supplied with the Enquiry Report, bearing
signature of the Enquiry Officer. The petitioner's representation
was duly received and was dated 09.04.2004. The petitioner had
also demanded a copy of report related to the administrative
approval of the construction of Kodai Baandh medium irrigation
scheme, which was signed by the Chief Engineer/Superintending
Engineer, Design, Planning and Hydrology, Ranchi (Water
Resources Department). He adds that the reason for demand of
this document is that it is intrinsically related with the allegations
levelled against the petitioner.
It has been submitted that the document contained the
feasibility report, and in pursuance of the said report, the estimate
was made by the Design Organization and the detailed report was
submitted to the Chief Engineer (Monitoring), Water Resources
Department, Ranchi. The petitioner had time and again demanded
for supply of copy of the report, which forms the very basis of
allegations levelled against the petitioner. The petitioner preferred
letters dated 28.03.2004 and 07.04.2004, but the respondents
with mala fide intentions, never supplied the copy of the report.
The petitioner, therefore, has been deprived from
submitting his defence, on the basis of valuable document, in the
absence of which he was not in a proper position of defending
himself and give a proper reply, in order to meet the principles of
natural justice. The petitioner thereafter wrote several letters and
reminders to the respondents to supply copy of report of design
organization, on the basis of which, the administrative approval of
the estimate was done, through different reminders dated
19.04.2004, 06.06.2004 and 19.07.2004, but the copies were not
made available.
The petitioner, thereafter on 28.07.2004, represented
and stated that he is submitting his reply in the absence of the
documents, not being supplied to him. The documents were not
supplied at the stage of enquiry, as such, the petitioner is
submitting his reply in the absence of documents demanded, in
reply to second show cause notice.
8. Learned counsel contended that the primary allegation,
i.e. in relation to breach of the work, is related to administrative
and technical approval, but the documents in relation to this has
not been scrutinized by either the Enquiry Officer or the
Disciplinary Authority. The Disciplinary Authority on the
mechanical appreciation of the Enquiry Report has passed the
final order, whereby a punishment of withholding of 50% of
pension has been passed against the petitioner and the order of
punishment has been passed on 16.04.2007.
He further submits that the petitioner had raised his
grievances before this Hon'ble Court and challenged the order of
punishment dated 16.04.2007, in a writ proceeding, being W.P.(S)
No.4885/2004. He submits that the order of punishment was
quashed and set aside and the matter was remanded back, with a
direction to consider the case of the petitioner with that of
similarly situated employees. The case of the petitioner was also
allowed, for the want of non-compliance of consultation with
JPSC, as has been provided under Rule 43(b) of the Pension
Rules.
He submits that the order passed by the writ court was
thereafter challenged by the State before the Division Bench in
L.P.A. No.491/2017, in the matter of the State of Jharkhand and
others Vs. Baldeo Ram. The matter was heard at length, and the
Division Bench declined to interfere in the findings of the Writ
Court and the appeal of the State was dismissed, vide Judgment
and order dated 04.07.2022. He further submits that the matter
was remanded back to the department, and specific direction was
passed to the Secretary to consider all the irregularities that have
been there in the departmental proceeding.
The respondents, thereafter, called for a Second Show
Cause Notice to the petitioner, being Second Show Cause Notice
dated 25.07.2023 and the petitioner has submitted detailed reply
in different letters before the respondent, a copy of which are
annexed at Annexure 21 series.
He further submits that the respondent, thereafter,
has passed the punishment order, vide order as contained in
memo No. 4979 dated 12.09.2023, and have decided to keep the
order of punishment as it is and the pensionary benefit has been
withheld to the level of 50%, for the entire life. Further, the
petitioner has been denied to be paid any salary for the period of
suspension, other than subsistence allowance.
He lastly submits that the Respondents have taken
decision to exonerate the officials of the department, in connection
with same work of the Dam, who are Shri Devbrat Ram (Engineer-
in-Chief), Shri Binod Kumar Srivastava (Dy.Secretary,
Management, additional charge-Executive Engineer, Minor
Irrigation, Quality Control Division, Ranchi), Shri Ravi Bhushan
Ray (Assistant Engineer, Minor Irrigation Division, Jamua), Shri
Abdul Qaem (Assistant Engineer, office of Chief Engineer, Minor
Irrigation, Ranchi), Shri Anil Kumar Singh, (Assistant Engineer,
Minor Irrigation, Quality Control Division, Ranchi), Shri Mahadev
Kumhar (Assistant Engineer, Minor Irrigation, Quality Control
Division, Ranchi), all of them have played role in construction of
the Dam, and their duty and responsibility was in relation to
supervision of quality and execution of work, and despite of
collapse of the Dam, all these employees have been exonerated,
whereas, the petitioner, who was also connected with the same
work has been found to be guilty and has been saddled with major
punishment.
9. Learned counsel for the respondents submits that the
presented case is related to Kodai Baandh Jharna Nala Irrigation
Project, Block-Tisri, District-Giridih under Minor Irrigation
Division, Giridih under the jurisdiction of the then Chief Engineer,
Minor Irrigation, Ranchi. He submits that in the year 2002, as a
result of damage caused to the dam on 04.07.2002, which was
under construction, an investigation was conducted by the
departmental flying squad and in the investigation report, work
wise engineers were held responsible. He further submits that as
per the investigation report it prima facie found petitioner guilty in
the irregularities committed in the Kodai Baandh Jharna Nala
Irrigation Project, henceforth, vide Departmental Order No. 2980
dated 06.07.2002, he was suspended till the completion of the
departmental proceedings which was conducted under Rule 55 by
Departmental Resolution No 2838 dated 25.09.2002.
Learned counsel for the respondents further submits
that there is no illegality or irregularity in the entire departmental
proceeding and further, there is no perversity in the order; as such
the impugned order does not require any interference.
10. Having heard learned counsels for the parties and after
going through the documents available on record and the
averments made in the respective affidavits, it appears that the
petitioner was appointed as Assistant Engineer in Water
Resources Department on 24.01.1972 and thereafter, he was
promoted in hierarchy. In the year 2000, the petitioner was given
Jharkhand cadre and he joined on 30.11.2000. When he was
posted in Jharkhand in 2000-01, as Secretary Technical to the
Chief Engineer, Minor Irrigation at Ranchi, holding additional
charge of Superintending Engineer, Minor Irrigation Circle,
Hazaribag, one Check Dam was proposed to be constructed under
Kodai Bandh Jharna Nala Irrigation Scheme, Giridih. The
construction was undertaken and the said Check Dam collapsed
due to heavy rainfall on 04.07.2002 and the petitioner who was
posted as Superintendent Engineer was put under suspension
under the relevant Rules on 06.07.2022.
The Departmental proceeding was decided to be
initiated against the petitioner on 05.09.2002 for irregularity,
misconduct and indiscipline, under Rule 55 of Civil Services
(Control Classification and Appeal) Rules, 1930, vide circular, as
contained in memo No.2838, dated 05.09.2002, along with
Prapatra 'K'.
11. From the documents annexed it appears that the first
allegation is about interference with the important elements of the
irrigation project and getting the estimate a technical approval
with such modifications, after the administrative sanction was
granted.
The enquiry report has found the charge to be proved
without any oral evidence. Further, the entire finding has been on
the basis, as if the enquiry officer was relying upon some
preliminary report, in which imputations had already been proved,
but the mention of that is totally missing. The enquiry officer has
proceeded, as if the facts in the case are already proved, and as
such, no fact-finding process has been done and no reliance on
evidence has been made. Therefore, the finding of the Enquiry
Officer appears to be perverse.
12. So far as the second allegation that the estimate
involved in the project was quoted differently (at increased value)
in the technical approval, as compared with that of the
administrative sanction, has been said to be against the provision
of Circular dated 16.07.1986 is concerned; the enquiry officer
starts by saying that on the basis of the evidence produced and
thereafter, she does not make reference of any of the evidences;
rather, she keeps referring the departmental circular.
The delinquent has replied that the administrative
sanction for the project was Rs.87,59,845/- and there was
increase of 12.38% in the technical sanction. The upper limit of
15% has been provided, as per the circular dated 16.07.1986.
Therefore, the increase of the estimate at the technical sanction
level was less than 15% and therefore, the charge cannot be said
to be proved.
The enquiry officer, however, has added in the finding
that the reason for the increase has not been mentioned and
therefore, the charge is proved. This however, was not the
allegation. The allegation was that the increase in the estimate,
different from administrative approval, at the level of technical
sanction, has been granted against the provision of Circular dated
16.07.1986. The delinquent, therefore, appropriately replied that
the increase was within the prescribed limit. However, the enquiry
officer travelled beyond the charge and found that the reason for
increase has not been provided.
13. So far as the third allegation which says that the
technical sanction, the statistics, dates, etc. that were used for the
purpose of designing was on the basis of tentative map, on which
the working estimate was approved and the statistics was not
actually collected is concerned; the enquiry officer relied upon the
report of flying squad and no independent evidence has been
tested in order to prove this charge.
14. So far as the fourth allegation that NIT was invited and
bill of quantity was approved, before the estimate was sanctioned
and lead chart was approved after the completion of work of earth
filling is concerned; the enquiry officer relied upon the report of
flying squad and no independent evidence has been tested in
order to prove this charge.
15. So far as the fifth allegation that the spot verification of
the project was not done and all statutory officers were not
appropriately instructed in performance and supervision of the
project is concerned; the enquiry officer relied upon the report of
flying squad and no independent evidence has been tested in
order to prove this charge.
16. So far as the sixth allegation regarding criminal
conspiracy to commit irregularity in the designing and execution
of the work, with an intention to create a situation of
embezzlement and misuse of public money is concerned; no
evidence has been tested or relied upon.
17. Now the law is no more res integra that in order to
prove any charge, the respondents are required to prove the
documents by oral evidence. Merely, by placing the documents on
record without proving it, cannot be sustained in the eye of law.
18. In the instant case, the only basis of the departmental
proceeding is the report of the flying squad and as stated
hereinabove, none of the flying squad has been examined during
the departmental proceeding; as such, on this score alone the
punishment order is unsustainable and has no legs to stand in
the eye of law.
19. Having regard to the aforesaid discussions, even on
merit, the impugned order has no legs to stand in the eye of law
and accordingly, the same deserves to be quashed, inasmuch as,
in the instant case, the specific reply of the delinquent that the
administrative sanction for the project was Rs.87,59,845/- and
there was increase of 12.38% in the technical sanction and the
upper limit of 15% has been provided, as per the circular dated
16.07.1986. Therefore, the increase of the estimate at the
technical sanction level was less than 15% and therefore, the
charge cannot be said to be proved. However, this categorical
stand of the petitioner has not been addressed either by the
Enquiry Officer or by the Disciplinary Authority.
As stated hereinabove, earlier the petitioner challenged
the order of punishment of recovery of 50% of the pension by way
of filing writ application being W.P.(S) No.4885 of 2004, which was
allowed in favour of the petitioner and the order of punishment
was quashed and the matter was remitted to the respondents to
take a decision in terms of Rule 43(b) of Bihar Pension Rules on
the quantum of punishment and pass appropriate order in
accordance with law.
20. It is also relevant to point out here that the respondent
authorities were specifically directed to look into the quantum of
punishment as the Executive Engineer and Assistant Engineer,
who were also proceeded in contemplation of the said faulty
construction of the Kodai Baandh Dam Scheme in Tisri Block,
Giridih District; were exonerated. However, the impugned order
does not transpire that any such type of consideration was given.
21. As a result, this Court holds that the order of
punishment dated 12.09.2023 (Annexure-22) and the
departmental proceeding initiated in pursuance to the
Government Resolution as contained dated 05.09.2002
(Annexure-2) do not have any legs to stand in the eye of law and is
hereby quashed and set aside. Accordingly, the concerned
respondents are directed to release the entire arrears of
pensionary benefits, which has been withheld in pursuance to the
original order of punishment dated 16.04.2007.
22. Accordingly, the instant writ application stands
allowed.
(Deepak Roshan, J.)
Jharkhand High Court
Date: 04/10/2024
vikas/-
AFR /NAFR
