Laxman Ram Panwar vs State And Ors (2023/Rjjd/013467)
2023 Latest Caselaw 4033 Raj

[2023/RJJD/013467]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 9279/2016

Laxman Ram Panwar S/o Shri Mangi Lalji Panwar, aged about 58 years, R/o 115 Mahaveer Nagar, Mahamandir, Jodhpur.

----Petitioner Versus

1. The State of Rajasthan through the Secretary, DOP, Jaipur (Rajasthan)

2. The State of Rajasthan through the Chief Secretary to the State of Rajasthan, Secretariat, Jaipur (Rajasthan)

3. The Additional Secretary cum Chief Engineer, Water Resource Department, Jaipur (Rajasthan)

----Respondent

For Petitioner(s) : Mr. Manoj Bhandari, Senior Advocate assisted by Mr. Aniket Tater For Respondent(s) : Ms. Abhilasha Bora

JUSTICE DINESH MEHTA

Order

04/05/2023

1. By way of the present writ petition, the petitioner has

challenged the disciplinary proceeding that has been initiated

against him by way of charge-sheet dated 12.06.2013

( Annexure-1).

2. Before adverting to the rival contentions, it would be

apposite to be abreast of the facts of case to the extent necessary.

3. The petitioner was appointed as a Junior Engineer on

01.03.1983 and was promoted on the post of Assistant Engineer

on 12.03.1999.

[2023/RJJD/013467] (2 of 16) [CW-9279/2016]

4. During his service as an Assistant Engineer, the petitioner

was posted for a brief stint at Sankal Khera Pariyojna, Chittorgarh,

where he joined on 31.08.2006 and was transferred on

24.02.2007.

5. During his posting at Sankal Khera, a Dam which was being

constructed was at its final / finishing stage, where the petitioner

had allegedly verified a payment of Rs. 6,18,593/- in relation to

14th running bill which was made to the Contractor.

6. In the year 2007 itself, immediately after the Dam was

complete, but before it was inaugurated in July, 2008, a seepage

was noticed. A committee was later constituted to enquire into

the reasons and lapses which had caused the seepage.

7. Said Committee, which was constituted on 10.03.2011,

comprising of one Superintending Engineer and two Executive

Engineer gave its report after site inspection on 15.03.2011

indicating that the Dam in question was not constructed as per the

approved drawing and design.

8. A notice dated 25.04.2011 came to be issued to the

petitioner asking him to explain as to why disciplinary proceedings

under Rule 16 of the Rajasthan Civil Services (Classification,

Control and Appeal) Rules, 1956 (hereinafter referred to as the

'CCA Rules') be not initiated against him.

9. The petitioner filed a reply dated 07.06.2011 and stated that

during his tenure neither any work was done nor was any

payment made to the firm.

[2023/RJJD/013467] (3 of 16) [CW-9279/2016]

10. The comments from the officers of the Department were

sought, but the State Government was not satisfied with the

petitioner's reply and the comments, resultantly a disciplinary

enquiry came to be instituted against the petitioner by way of the

charge-sheet dated 12.06.2013.

11. After issuance of the charge-sheet, nothing substantial was

done and it was only on 07.04.2016, an inquiry officer came to be

appointed. On appointment of the inquiry officer, the petitioner

rushed to this Court assailing the disciplinary inquiry on the

ground of delay so also on the ground of it being arbitrary and

without application of mind.

12. On 10.08.2016, an interim order in petitioner's favour was

passed and the inquiry officer was restrained from proceeding in

furtherance of the charge-sheet issued to the petitioner.

13. A reply to the writ petition and an application seeking

vacation of interim order under Article 226(3) of the Constitution

of India too has been filed by the respondent - State.

14. The matter came up for consideration of the Court on various

occasions. However, proceedings drawn by the co-ordinate Bench

of this Court on 07.02.2017 needs a special mention, in which the

Court made the following observations:-

"Learned counsel for the respondents prays for time to satisfy this Court as to why the Enquiry Officer was not appointed for last 03 years in spite of the charges having been framed on 12.06.2013 and also as to why 03 Preliminary Enquiries were conducted during

[2023/RJJD/013467] (4 of 16) [CW-9279/2016]

this period before the Enquiry Officer was appointed. In case, these reports have come at the instance of the department itself, then where was the necessity to appoint an Enquiry Officer when those reports have come in favour of the petitioner.

Put up on 01.03.2017, as prayed.

Interim order to continue till then."

15. Today, the matter has come up for consideration of the

application under Article 226(3) of the Constitution of India, but

Mr. Bhandari, learned Senior Counsel, appearing on petitioner's

behalf prayed that since the matter is old and the petitioner has

since superannuated (in the year 2018), the writ petition itself be

heard finally, as the arguments in the application under Article

226(3) of the Constitution of India and the main writ petition

would be common.

16. Ms. Bora, learned counsel for the respondents did not object

to Mr. Bhandari's such request and hence, the Court proceeded to

hear the writ petition finally.

17. Calling in question the disciplinary proceedings, learned

Senior Counsel argued that when the petitioner was posted at the

said Dam (between 31.08.2006 and 24.02.2007), the construction

of the Dam was almost complete and only some finishing work

remained to be done. While maintaining that neither any work was

done nor was any payment made during petitioner's short stint, he

submitted that even if it is accepted that the payment of Rs.

6,18,593/- was made to the Contractor with respect to his 14 th

running bill during his term, then also, the petitioner cannot be

held responsible or liable particularly when the finding of the

[2023/RJJD/013467] (5 of 16) [CW-9279/2016]

committee is, that the work was not done as per approved

drawing and design, whereas the payment that the petitioner

made, related to minor finishing work done during his period.

18. While reminding the Court that the Dam was constructed in

the year 2007 and the untoward incident of seepage occurred in

August, 2007, after the petitioner had been transferred from the

Dam site, learned counsel submitted that after serving the charge-

sheet in June, 2013 even the respondents were in dilemma, as to

whether they should proceed against the petitioner or not. He

highlighted that during such period, at least three authorities of

the Department itself have opined in petitioner's favour. He

submitted that during petitioner's tenure only 1.72% of work was

done and no specific lapse on the part of the petitioner has been

pointed out by any of the authorities. He added that the

authorities have rather suggested that the proceedings against the

petitioner be dropped.

19. Learned counsel submitted that regardless of such

reports/opinions, the State has proceeded to appoint an inquiry

officer on 07.04.2016. He argued that the delay in initiation of

proceedings has prejudiced the petitioner's rights, inasmuch as

the petitioner, who was posted for a short duration, when the Dam

was at its finishing stage (in the year 2006-07), would find it very

difficult to properly defend his case after about 9 years of his short

posting at that place. He argued that an employee cannot be

expected to remember the minute details for such a long time and

then defend his case, particularly when he has no access to the

relevant record.

[2023/RJJD/013467] (6 of 16) [CW-9279/2016]

20. Learned counsel for the petitioner navigated the Court

through various reports placed on record, the reply to the show-

cause notice furnished by the petitioner and the report (Annexure-

12) prepared by the Superintending Engineer, which was duly

approved by the Additional Chief Engineer and argued that none

other than the Additional Chief Engineer of the Department has

given a finding in petitioner's favour, hence, there was no

justification with the respondent - State to have continued with

the disciplinary proceedings given that only 1.72% of work was

done during his term. He submitted that the inquiry officer has

been appointed mechanically and equally mechanically had the

charge-sheet been proposed.

21. In support of his argument, that the disciplinary proceedings

can be quashed on the ground of delay, Mr. Bhandari, learned

Senior Counsel relied upon judgment of Hon'ble the Supreme

Court in the case of State of Madhya Pradesh vs. Bani Singh &

Anr., reported in 1990 (Supp.) SCC 738 as also in the case of

State of Andhra Pradesh vs. N. Radhakishan, reported in

(1998) 4 SCC 154; P.V. Mahadevan vs. Md. T.N. Housing

Board reported in (2005) 6 SCC 636 and the judgment dated

30.05.2019 passed by this Court in the case of Laxman Ram

Panwar vs. The State of Rajasthan & ors. (S.B. Civil Writ

Petition No. 7328/2016), which was affirmed by the Division

Bench vide order dated 22.02.2022.

22. Ms. Abhilasha Bora, learned counsel for the respondent -

State, vehemently argued that maybe only 1.72% of the work was

done during petitioner's tenure, but such fact by itself cannot be a

[2023/RJJD/013467] (7 of 16) [CW-9279/2016]

reason to exonerate the petitioner or to quash the disciplinary

proceedings against him. She submitted that the question as to

whether the petitioner was at fault or negligent in discharging his

duties is better left to be examined and adjudicated by the

disciplinary authority, who is having technical knowledge. She

added that having no expertise in such field, this Court should

refrain from entering into the arena of inquiry considering the

nature of the charge framed against the petitioner.

23. In response to Mr. Bhandari's arguments about delay,

learned counsel argued that the delay by itself cannot be a reason

to quash the disciplinary proceedings. She submitted that the

petitioner has not been able to establish before this Court that

how purported delay in the disciplinary proceedings has prejudiced

his rights much less fundamental rights.

24. It was also argued by Ms. Bora that the competent authority

has taken a conscious decision after examining the record and

since the disciplinary inquiry is not being challenged on the ground

of competence or being without jurisdiction, this Court should be

loath to interfere in an otherwise technical matter.

25. Learned counsel also argued that the petitioner has verified

and made final payment of 14 th running bill and before verifying

and making such payment, he ought to have satisfied himself

about the quality of the construction. The detailed memo of

allegation sent with the charge-sheet clearly records such

allegation against the petitioner and it is for the inquiry officer to

pronounce upon petitioner's delinquency or innocence.

[2023/RJJD/013467] (8 of 16) [CW-9279/2016]

26. In support of her contention that the proceedings in question

cannot be quashed on the ground of delay, learned counsel relied

upon judgment of Punjab and Haryana High Court dated

16.03.1998 in the case of Bajinder Kumar Chopra vs. The

Food Corporation of India reported in 1998 (3) SCT 517 and

also the judgment of Hon'ble the Supreme Court in the case of

The Secretary, Ministry of Defence & Ors. vs. Prabhash

Chandra Mirdha reported in (2012) 11 SCC 565. Reliance was

also placed upon the judgment of Hon'ble the Supreme Court in

the case of Union of India (UOI) & Ors. vs. Kunisetty

Satyanarayana reported in (2006) 12 SCC 28, to assert that the

Court should not ordinarily interfere in the disciplinary proceedings

initiated against an employee.

27. Heard learned counsel for the parties and perused the

record.

28. Considering the principles laid down by Hon'ble the Supreme

Court in relation to the scope of High Courts under Article 226 of

the Constitution of India in the matters relating to disciplinary

proceedings, there cannot be two opinions that normally a charge-

sheet should not be quashed on the ground of delay.

29. In the instant case, after the construction of the Dam was

over in the year 2007, the accumulated rain water went waste on

account of seepage. When the dam was handed over to public in

the year 2008 local villagers informed the Minister that a seepage

was found in the dam in the preceding year. It appears that such

complaint brought the State Machinery in motion and an in-house

inquiry began after eliciting response of all concerned.

[2023/RJJD/013467] (9 of 16) [CW-9279/2016]

30. Lately, a committee was constituted by order dated

10.03.2011 and a fact finding inquiry was got conducted. Member

of said committee inspected the dam site on 15.03.2011 and gave

its report. Based on the report so furnished, the disciplinary

proceedings were initiated against four persons including the

petitioner and the charge-sheet impugned came to be served in

June, 2013.

31. In the opinion of this Court, there is no substantial delay in

initiating disciplinary proceedings given that the incidence of

seepage in the Dam was noticed in the rains of 2007, whereafter

inter-departmental correspondence continued for quite some time

and lately a three member committee was constituted which gave

its report in March, 2011.

32. Immediately on receipt of the report of the committee a

show cause notice dated 25.04.2011 was issued to the petitioner

asking his response as to why disciplinary proceedings be not

initiated against him. The petitioner gave his reply and after

exchange of a few representations and comments, the charge

sheet was served on 12.06.2013.

33. In the extant facts, this Court is clearly of the opinion that

the disciplinary proceedings do not suffer from undue delay,

because during this period, the State was considering the

error/fault and lapse in technicalities of the construction and fixing

responsibility/liability of erring officials.

34. According to this Court, neither the date when the petitioner

was posted (31.08.2006) nor the date when the seepage was

noticed (31.08.2007) can be taken to be a date relevant for the

[2023/RJJD/013467] (10 of 16) [CW-9279/2016]

purpose of counting delay. The relevant date is 15.03.2011, when

the committee constituted by the State Government gave its

technical report pointing out the fault and lapses. Indisputably,

the report dated 15.03.2011 is the basis for the proceedings under

challenge. And counted from such date, the facts on record clearly

suggest that during such period, the authorities were considering

petitioner's representation / reply to the show cause notice and

various comments and reports that were furnished by the

authorities concerned.

35. Hence, the proceedings oppugned herein cannot be held to

be violative of Article 14 of the Constitution on the ground of

delay. Since it has been found on facts that there is no significant

delay in initiation of the proceedings, applicability of the

judgments cited by rival counsel need not be gone into.

36. The proceedings in question have not been challenged on the

ground of the same being without jurisdiction.

37. But, upon wading through the record carefully, this Court

strongly feels that initiation of the proceedings against the

petitioner so also appointment of inquiry officer is without

application of mind, for which they fall foul to Article 14 of the

Constitution. The reasons for holding such opinion are set out in

the following paragraphs.

38. It is not in dispute that when the petitioner was posted at

the Dam (from 31.08.2006 to 24.02.2007), the construction of

the dam and more particularly, its structural work was already

over. The petitioner, as an Assistant Engineer had overseen only

[2023/RJJD/013467] (11 of 16) [CW-9279/2016]

the finishing work of the Dam during his short span of service

from 31.08.2006 to 24.02.2007.

39. First time the water was received in the dam in the rainy

season of 2007 and seepage was noticed in August 2007, much

after the petitioner had been transferred from Sankal Khera Dam.

40. Furthermore, a report was submitted by Executive Engineer

on 23.07.2013 to the Superintending Engineer clearly stating that

the petitioner was not at fault. Similar opinion was echoed by the

Superintending Engineer (Annexure.12), which was duly approved

by none other than the Additional Chief Engineer of the

Department (Page No. 137 of the paper book).

41. Regardless of such reports, the respondent - State, after

keeping the proceedings on hold for quite some time, resurrected

it for no good reason. Ideally, the State ought to have dropped

the proceedings at least against the petitioner.

42. The basis or reason for kick starting the proceedings against

the petitioner and other officers was, the report in pursuance of

site inspection done on 15.03.2011 given by the committee, which

after inspecting the site found that the dam was not constructed

as per the approved design and drawing. Certain fundamental

flaws have been pin pointed in the construction of the dam.

43. On going through the report, this Court finds that there is

hardly any material to proceed against the petitioner. It is

deemed appropriate to reproduce the finding of the committee:-

"Conclusions: following are the reasons for the water seepage from the body of dam as well pick up weir.

[2023/RJJD/013467] (12 of 16) [CW-9279/2016]

Construction not as per design & drawing supplied by ID & R: The tenders of the work were floated after administrative approval based on tentative drawings. Later on project authorities initiated the proceedings for getting the approval of IDR unit on the drawing & design. The IDR unit approved the drawings on 27.09.05. It was appraised by the staff that, at the time of receiving the drawings from IDR, the work of foundation was already over & masonry work was in progress on higher levels, due to late receipt of Drawings following necessary works could not be incorporated in foundation.

1. Anchoring of foundation of Dam as well as pickup weir.

2. Grouting of foundation of dam & pickup weir (Consolidation & curtain grounding).

Geological Investigation: As per advice of IDR the geological investigations of foundation was necessary before its filling. But only Geological mapping of block no.4 & 5 was got done from Geologist. The project authorities have not taken approval of Geologist for the other components of the project.

Inadequate design of pick up weir: The design of the pickup weir was not approved by ID & R. The Downstream protection works of pickup weir have not been done. This may result in damage to the pickup weir in future."

44. A look at the decision dated 22.01.2015 of the State

Government pursuant to petitioner's representation/reply and

comments sent by the department reveals that the State

Government decided to proceed against the petitioner because the

work was not done as per ID & R Essential Norms and according

to approved drawing and design. The Deputy Secretary noted

following three lapses and faults in the construction of the Dam:-

 [2023/RJJD/013467]                   (13 of 16)                        [CW-9279/2016]


       (i)     no    proper     compaction            of     sub-grade
       underneath the lining;

       (ii)    grit was less in proportion to the sand in the
       concrete mix;

(iii) concrete was not filled in the alternate panels.

45. Indisputably, above three faults reported in the Dam were

the reasons which led the State Government to form an opinion

that disciplinary proceedings against the petitioner were

warranted. One wonders that if the petitioner can be alleged to be

negligent for the above faults completely ignoring the fact that he

remained posted when the Dam was at its final stage and only

1.72% work was done during his posting, then how only 4 persons

have been roped in while giving clean chit to 70 odd officers right

from AEns to the Chief Engineer who were posted during the

construction of the Dam.

46. If the lapses, which have been noticed by the State

Government while deciding to proceed against the petitioner are

examined in the backdrop of the petitioner's reply and more

particularly his stand that the structural work of the dam was

already over when he was posted (31.08.2006 to 24.02.2007),

State's decision turns out to be absolutely without application of

mind.

47. That apart, the charge-sheet served upon the petitioner

contains a sweeping allegation, no specific role of his delinquency

has been mentioned or disclosed.

[2023/RJJD/013467] (14 of 16) [CW-9279/2016]

48. Though the detailed statement of charges makes a mention

of payment of Rs. 6,18,593/- in relation to 14 th running bill, but

even such payment does not relate to work which has been found

faulty. Normally, an Assistant Engineer or the Officer is expected

to verify the work done during his tenure and is supposed to see

the quality of the work done before making payment. The

petitioner could not have been expected to go into the quality of

the work which had earlier been done and in which the fault was

found later in the year 2011.

49. This Court is not oblivious of limitation and scope of its

jurisdiction in the matters relating to disciplinary inquiries and is

fully cognizant of the principle that the Court should not go into

technicalities, but the facts of the present case are telling rather

startling.

50. Even the respondents' own documents do not reflect any

delinquency of the petitioner and so is the charge-sheet and

statement of charges drawn against the petitioner. The

respondents ought to have applied their mind objectively to the

facts available on record. Having regard to the fact that the

allegations in relation to the lapses in the Dam do not relate to the

petitioner and that do not coincide with petitioner's stint, and in

view of the fact that department's officers have found the

petitioner to be not liable, the State's action of triggering

disciplinary proceedings against the petitioner is without the

application of mind.

51. The facts of the instant case do not require rocket science or

indepth technical knowledge to determine the delinquency of the

[2023/RJJD/013467] (15 of 16) [CW-9279/2016]

petitioner. A simple look at the committee's report coupled with

the undeniable fact that the petitioner remained at the dam -

project between 31.08.2006 to 24.02.2007, when only 1.72%

work that too finishing work was done, are enough for a man with

reasonable prudence to reach to a conclusion that amongst all, at

least the petitioner cannot be proceeded with. It appears that the

petitioner an officer at the lowest rung of the Engineering staff has

been made a 'scapegoat'. He is sure to be made a 'scarecrow' by

continuing the proceedings.

52. The inquiry should not be initiated simply because an

employee has remained posted at some point of time at a site

where the construction was faulty. The State should not conduct

disciplinary inquiry against the incumbent merely because it has

power to do so. Unless there is some prima-facie material or

evidence against an employee, inquiry should not be ordered as a

matter of routine, as has been done in the present case.

53. If the disciplinary proceedings against the petitioner is

allowed to continue now, when the petitioner has retired (in the

year 2018), it will be undue harassment to the petitioner on the

one hand and sheer waste of State's manpower and resources on

the other.

54. The writ petition, therefore, succeeds.

55. The impugned charge-sheet dated 12.06.2013 (Annexure-1)

issued qua the petitioner and the disciplinary proceedings

consequent thereto are hereby quashed.

[2023/RJJD/013467] (16 of 16) [CW-9279/2016]

56. Needless to clarify that the observation made herein are

confined to the petitioner's case alone and it shall have no binding

effect on the case of any other person(s) against whom

disciplinary proceedings are being conducted or has been

concluded in relation to the irregularities or lapses in construction

of Sankal Khera dam.

57. The stay application also stands disposed of accordingly.

(DINESH MEHTA),J 25-akansha/-Mak

Powered by TCPDF (www.tcpdf.org)