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2001 DIGILAW 368 (PAT)

Raj Kumar Mehrotra v. State Of Bihar

2001-04-23

S.N.JHA

body2001
Judgment S.N.Jha, J. 1. The petitioner seeks quashing of an order of the State Government, dated 22.1.2000, by which he has been awarded punishments of (i) Censure to be entered in his ACR for the year 1989-90; (ii) Withholding of promotion for seven years and (iii) Recovery of Rs. 5 lacs from his salary or pension etc. if required. Copy of the said order dated 22.1.2000 of the Water Resources Department, is Annexure 5 to the writ petition. The petitioner further seeks quashing of the consequential communication of the Accountant General, Bihar dated 16.2.2000 directing the Treasury Officer, Patna to recover the said amount in instalments from his salary, and, if such recovery is not possible during his service tenure from his pension and gratuity on retirement. The petitioner also seeks quashing of notification contained in Memo no. 423 dated 20.4.2000 posting him as Executive Engineer in the Minor irrigation Department. According to the petitioner the said order amounts to reduction in rank because at the relevant time he was posted as Superintending Engineer. Copies of the said communication/notification dated 16.2.2000 and 20.4.2000 are Annexures 7 & 8 to the petition. 2. The factual background of the case, so far as relevant, may be briefly stated as under. The work of excavation of the Swarn Rekha Left (Main) Canal at Chandil between K.Ms. 22.555 and 32.308 was allotted to one M/s Bhasin Associates Private Limited (BAPL) under an agreement dated 1.11.85. The contractor could not complete the allotted work within the stipulated period. The contract was rescinded by the then Executive Engineer at a joint meeting held on 20.8.88. The contractor was allowed to go in for arbitration with option to the Department to appoint another contractor(s) without any objection by the BAPL. The case of the petitioner is that pursuant to the decision at the said meeting final measurement of the work done by M/s BAPL was taken by the Junior Engineer, duly checked by the Assistant Engineer as well as the Executive Engineer. The result of the measurement was accepted by M/s BAPL and in token thereof the Executive Engineer signed Abstract of the Cost of the final bill. The payments however were kept in abeyance in the light of decision taken at the meeting held on 20.8.88, in view of the proposed arbitration. The result of the measurement was accepted by M/s BAPL and in token thereof the Executive Engineer signed Abstract of the Cost of the final bill. The payments however were kept in abeyance in the light of decision taken at the meeting held on 20.8.88, in view of the proposed arbitration. The left over work after rescission of the contract with M/s BAPL was allotted to three contractors namely M/s Himachal Construction, Jamshedpur, M/s Alok Coal Agency, Ranchi and M/s Indian Builders, Jamshedpur. The dispute in the present case relates to work allotted to M/s Indian Builders (hereinafter called the Contractor). Agreement with the said contractor was executed on 24/29.12.88. The value of the work was Rs. 128.92 lacs. As per the agreed schedule the contractor was to execute the work of the value of Rs. 25 lacs every month. Pre work level of the canal was taken at site by a team of three Junior Engineers, the Assistant Engineer Incharge and Officers of the Quality Control Wing on behalf of the Department and the contractor. The levels were duly recorded in the Level Book. In January 1989 the contractor submitted bill for Rs. 24.47 lacs. The Executive Engineer issued certificate of completion of work to the tune of Rs. 25 lacs on 6.2.89. On account of non-availability of fund, however, payment was not released. The work nonetheless continued in the succeeding month i.e. February 1989. On 2.3.89 the petitioner assumed charge of the Division as Executive Engineer. The contractor submitted an up to date bill for Rs. 59.60 iacs on 17.3.89. The Junior Engineers took measurement at site, the Assistant Engineer Incharge after checking presented the bill to the tune of Rs. 42.97 lacs. After verification by the petitioner the bill was passed for Rs. 40.42 lacs. On receipt of fund from the Government against the bill, Rs. 33.14 iacs was released for payment to the contractor in April 1989. In this manner it is stated that till January 1991 four bills in all amounting to Rs. 61.28 lacs were passed and paid to the contractor. The contractor was further paid Rs. "3.40 lacs with respect to his 5th on account bill. Thus Rs. 64.68 lacs was paid to the contractor. The petitioner remained posted in the concerned Division up to 16.1.91 when he made over charge of the post. 3. 61.28 lacs were passed and paid to the contractor. The contractor was further paid Rs. "3.40 lacs with respect to his 5th on account bill. Thus Rs. 64.68 lacs was paid to the contractor. The petitioner remained posted in the concerned Division up to 16.1.91 when he made over charge of the post. 3. Meanwhile complaints had been made alleging illegal payments by the petitioner with oblique motive in order to help the contractor in respect of earth works of the canal and cutting of stones etc. The case of the petitioner is that the complaints were enquired into by the Superintending Engineer of the Cabinet (Vigilance) Department who submitted report favourable to the petitioner. The enquiry report was accepted by the Engineer-in-Chief (Technical Examination Cell) of the Cabinet (Vigilance) Department as well as Vigilance Commissioner. The Vigilance submitted its findings to the Water Resources Department. The case of the petitioner is that the matter was also enquired into by the Water Resources Department through its Flying Squad. The officers comprising the Flying Squad after examining the records of the Division and inspection of the site etc. submitted report to the effect that the allegations against the petitioner were not substantiated. Despite the said two favourable enquiry reports, on 1.11.90 the Joint Secretary of the Water Resources Department informed the petitioner that he had been found prima facie guilty of certain irregularities as detailed in the chargesheet and he was asked to submit an explanation. On 10.12.90 the petitioner submitted his explanation. Copies of the said notice dated 1.11.90 and explanation dated 10.12.90 are Annexures 1 and 2 to the writ petition. Nothing happened to the matter for about nine years until 11.5.99 when the petitioner was asked to submit fresh show cause with respect to some new facts vide Annexure 3 to the writ petition. In the meantime he had been promoted to the post of Superintending Engineer on 9.10.98. On receipt of the said notice dated 11.5.99 the petitioner submitted his explanation on 8.6.99 vide Annexure 4. He inter alia took a stand that the matter had been duly enquired into by the Cabinet (Vigilance) Department as well as the Flying Squad of the Water Resources Department and nothing amiss had been found against him. He did not receive any reply until 22.1.2000 when the impugned order of punishment was passed vide Annexure 5. 4. He inter alia took a stand that the matter had been duly enquired into by the Cabinet (Vigilance) Department as well as the Flying Squad of the Water Resources Department and nothing amiss had been found against him. He did not receive any reply until 22.1.2000 when the impugned order of punishment was passed vide Annexure 5. 4. The case of the Department is that the then Executive Engineer- predecessor in office of the petitioner-had signed the Abstract of cost of the bill and entered into agreement with M/s Indian Builders without verifying the pre-level site. It is said that the level at which M/s BAPL left the work and level at which M/s Indian Builders commenced the work, should have tallied. In other words, the post-level of M/s BAPL should the same as the pre-level of M/s Indian Builders but from the record it appeared that final bill of M/s BAPL (35th Bill on account) was framed on the basis of average level. The final bill was finalised by the predecessor of the petitioner in October 1989 with a direction to the subordinates to prepare the pre-levels of the remaining work which shows that the so called final bill (35th bill on account) of BAPL was not in conformity with the guidelines. Without thus verifying and recording the pre-levels the work order was issued to M/s Indian Builders in December 1988 itself. The mobilization advance was also paid. The Contractor started excavation work and, as per the record, submitted bill for Rs. 24,47,585.95 in February 1989. After the petitioner assumed charge of the Division on 2.3.89 he entered into agreement with the other contractor M/s Alok Coal Agency, to which part of the left over work was allotted and issued work order. On receipt of complaints the matter was enquired into by the Cabinet (Vigilance) Department as also the Water Resources Department. The reply to the show cause notice submitted by the petitioner was examined by a Three-Member committee constituted by the Chief Engineer on 14.12.93. The report of the Committee dated 18.12.96 was referred to the Fiying Squad for scrutiny. A fresh show cause notice was issued along with chargesheet on 11.5.99. On examination of the show cause submitted by the petitioner and the records, he was found guilty of the charges mentioned in the impugned orders and accordingly awarded punishments. 5. The report of the Committee dated 18.12.96 was referred to the Fiying Squad for scrutiny. A fresh show cause notice was issued along with chargesheet on 11.5.99. On examination of the show cause submitted by the petitioner and the records, he was found guilty of the charges mentioned in the impugned orders and accordingly awarded punishments. 5. The validity of the impugned order has been assailed by Shri Vinod Kanth, learned counsel for the petitioner on the following grounds. The second show cause after nine years and for charges connected with the earlier charges was a colourable exercise of power to deprive the petitioner of his lawful promotion and other service benefits. Withholdment of promotion for seven years amounts to major penalty which could not be awarded without holding a regular departmental proceeding in accordance with the procedure laid down under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 (in short CCA Rules) particularly in a case where the person is due to superannuate from service within a period of one year or so. The right of promotion to a Government servant is a fundamental right which he can not be deprived of by taking recourse to statutory power under the Discipline Rules. In any view the Department should have held a regular departmental proceeding giving opportunity to the petitioner to rebut the charges and prove his innocence by adducing evidence. 6. On behalf of the State it was submitted that the punishments have been awarded by a reasoned order and it is not open to this Court to re-appraise the findings like appellate authority. The impugned punishments are minor in nature covered by Rule 55A the CCA Rules. Adequate opportunity of making representation having been given to the petitioner which he availed of, there is no infirmity in the decision making process. In the circumstances this Court need not interfere with the impugned orders. 7. From the records it appears that the show cause notice dated 1.11.90 related to three charges namely (i) not lodging the FIR against Sri Sambhu Nath Singh, a Junior Engineer, for the misappropriation of Cement by him; (ii) not making physical verification of the stocks and setting of cement; and (iii) excess payment for cutting of large stones. The show cause notice dated 11.5.99 related to different charges namely (i) excess payment of Rs. The show cause notice dated 11.5.99 related to different charges namely (i) excess payment of Rs. 17 lacs to M/s Indian Builders without making pre-leave measurement after termination of contract with M/s BAPL; and (ii) excess payment of Rs. 15 lacs of M/s Himachal Construction Company. In the impugned order nothing has been stated about charge nos. (i) and (ii) of the first notice and charge no. (ii) of the second notice. Apparently show cause filed by the petitioner with respect to those charges was accepted. He has been found guilty of charge no. (iii) of the first notice and charge no. (i) of the second notice relating to excess payment for cutting of large stones and not making pre-level measurement before making payment to M/s Indian Builders. The latter charge has been divided into three sub- charges in the order. 8. From perusal of the show cause/explanations furnished by the petitioner vide annexures 2 and 4 it appears that the charges are somewhat technical in nature. However, in view of the settled legal position that the correctness or otherwise of the charges or the decision itself is not to be considered by the High Court in writ jurisdiction, and what is to be seen is correctness or otherwise of the decision making process, it is not necessary to undertake any exercise to find out whether the charges levelled against the petitioner have been satisfactorily explained and whether conclusions of the disciplinary authority thereon are correct. In fairness to the parties it must be said that precious little attempt was made by the counsel for the petitioner to find fault with the impugned findings of the disciplinary authority on facts. It may not be out of place to mention here that from para 7 of the writ petition it appears that the predecessor of the petitioner, Shri Shyam Kishore Prasad Singh, too has been awarded punishment for the charges connected with the charges in question on 22.1.2000 itself. 9. The principal contention of the counsel argued with emphasis was that the punishment of withholding of promotion for seven years amounts to major penalty which cannot be awarded without holding regular departmental proceeding in accordance with the procedure laid down under Rule 55 of the CCA Rules. Reliance was placed on Kulwant Singh Gill V/s. State of Punjab, 1991 Supp. (1) SCC 504, in this regard. Reliance was placed on Kulwant Singh Gill V/s. State of Punjab, 1991 Supp. (1) SCC 504, in this regard. It was submitted that though the penalty of withholding of increments or pay has been specified as minor penalty in the relevant Rules, namely, the Punjab Civil Services (Punishment and Appeal) Rules 1970, the Supreme Court held that where the increments are withheld with cumulative effect it amounts to major penalty which can be awarded only in a regular departmental proceeding. 10. The above decision was rendered on construction of the rules of the Punjab Civil Services (Punishment and Appeal) Rules. It is true that the description of minor penalties in the CCA Rules [entries (i), (ii) and (iv) of rule 49] is similar to the one in the Punjab Rules [entries (i), (ii), (iii) and (iv) of rule 5] except that withholding of increments and promotion which is clubbed as one type of penalty in clause (iv) in the CCA Rules, have been mentioned as separate items (ii) and (iv) in the Punjab Rules, but withholding of increments with cumulative effect was held to be major penalty in view of entry (v) of Rule 5 in the Punjab Rules, falling in category of major penalties. Entry (v) is as follows: "(v) reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether or not the Government employee will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay". The Supreme Court held that where increments are withheld with cumulative effect it amounts to reduction of pay with cumulative effect, that is, for all times to come and therefore reduction to a lower stage in the time scale of pay. The following observations at page 507 of the Report may usefully be quoted in order to bring home the distinction: "Withholding of increments of pay simpliciter without any hedge over it certainly comes within the meaning of Rule 5(iv) of the Rules. The following observations at page 507 of the Report may usefully be quoted in order to bring home the distinction: "Withholding of increments of pay simpliciter without any hedge over it certainly comes within the meaning of Rule 5(iv) of the Rules. But when penalty was imposed withholding two increments i.e. for two years with cumulative effect, it would indisputably mean that the two increments earned by the employee was cut off as a measure of penalty for ever in his upward march of earning higher scale of pay. In other words the clock is put back to a lower stage in the time scale of pay and on expiry of two years the clock starts working from that stage afresh. The insidious effect of the impugned order, by necessary implication, is that the appellant employee is reduced in his time scale by two places and it is in perpetuity during the rest of the tenure of the service with a direction that two years increments would not be counted in his time scale of pay as a measure of penalty. The words are the skin to the language which if peeled off its true colour or its resultant effects would become apparent." 11. Even though the corresponding entry in the CCA Rules [entry (iii) of rule 49] is somewhat different from entry (v) in the Punjab Rules (supra), following the ratio of the decision in Kulwant Singh Gills case it would follow that where the annual increments are withheld with cumulative effect the result will be that pay of the delinquent would stand reduced to the lower stage in the time scale of pay making the penalty of withholding of increments a major one. The decision however has no application in the present case. The petitioner has been debarred from promotion, that is to say, promotion has been withheld, for a period of seven years. In the ordinary course, after expiry of the period of debarment the person concerned would not only become entitled to be considered for promotion, where such promotion is eventually granted to him, it would be effective from the due date. The effect of withholdment of promotion therefore is not enduring, as penalty of withholdment of increments with cumulative effecct is. In the ordinary course, after expiry of the period of debarment the person concerned would not only become entitled to be considered for promotion, where such promotion is eventually granted to him, it would be effective from the due date. The effect of withholdment of promotion therefore is not enduring, as penalty of withholdment of increments with cumulative effecct is. What however seems to be hurtful to the petitioner is that he is due to superannuate from service sometime in the year 2001 which means that by virtue of the impugned order, the effect of which is to continue till January 2007, he will never be considered for promotion. But for that reason the penalty as such cannot be treated as major penalty. It is simply a chance that when the penalty was awarded the petitioner was approaching his superannuation. If withholding of promotion for seven years in the case of the Government servant in the beginning or middle of his service career is not to be treated as major penalty on the ground that after expiry of the period of debarment, he becomes entitled to be considered for promotion from due date, similar penalty in the case of Government servant on the verge of superannuation cannot be treated as major penalty simply because he would not get chance to be considered for promotion prior to his superannuation. 12. It was submitted on behalf of the petitioner that right to be considered for promotion is fundamental right which cannot be denied by taking recourse of statutory power under the CCA Rules. Reliance was placed on Ajit Singh and ors. (II) V/s. State of Punjab and ors. (1999) 7 SCC 209 . The decision, it would appear, was rendered to resolve the conflict between the earlier decisions in Union of India V/s. Virpal Singh Chauhan, (1995) 2 SCC 684 and Ajit Singh Januja V/s. State of Punjab, (1996) 2 SCC 715 on the one hand and Jagdish Lal V/s. State of Haryana, (1997) 6 SCC 538 on the other. The point for consideration related to seniority of the employees and officers belonging to reserved categories promoted to higher posts by virtue of reservation vis-s-vis their counter parts in the general category also promoted to higher posts later. The point for consideration related to seniority of the employees and officers belonging to reserved categories promoted to higher posts by virtue of reservation vis-s-vis their counter parts in the general category also promoted to higher posts later. In that context, observing that word employment in Article 16(1) of the Constitution takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment, the Court stated (Page 227 of the Report), "Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right." 13. It would thus appear that the observations relied on by the counsel were made in an entirely different context. The decision cannot be read as an authority for the proposition that a Government servant has fundamental right to be considered for promotion irrespective of imposition of penalty of withholding of promotion for certain period. If it is held so it would amount to virtually deleting the penalty of withholding of promotion from the Rules. The observations relied upon by the counsel therefore are of no avail to the petitioner. 14. Counsel submitted that in any view having regard to the serious implications which the proposed penalty was likely to result in, considering that the petitioner was due to superannuate within a year or so, the authorities should have given him chance of adducing evidence, examining witnesses and and so on, and for giving such opportunity, should have initiated a regular departmental proceedings. In this regard reliance was placed on Dr. Rabindra Nath Singh V/s. State of Bihar and ors., 1983 BBCJ 33 and Bhageshwar Jha V/s. State of Bihar and ors., 1993 (1) PLJR 585. In the first case complaints alleging that the petitioner, a Medical officer of the Bihar Health Service, had charged fees from the patients even though the post held by him was a non-practising one, were enquired into by the Vigilance Department. On the basis of the conclusion arrived at by it two annual increments were withheld with cumulative effect. In the first case complaints alleging that the petitioner, a Medical officer of the Bihar Health Service, had charged fees from the patients even though the post held by him was a non-practising one, were enquired into by the Vigilance Department. On the basis of the conclusion arrived at by it two annual increments were withheld with cumulative effect. The Court held that such mechanical acceptance of the report of the Vigilance Department without active application of mind by the appointing authority was illegal. The Disciplinary Authority in the circumstances was directed to take fresh decision in accordance with law. in the latter case the petitioner, a Police Officer, had been asked to submit explanation with respect to investigation in a criminal case. Later, on the recommendation of the Director General of Police (Personnel) the State Government imposed penalty of censure on him. On behalf of the State plea was taken that the penalty on expiry of period of three years reckoned from the date of event had already lapsed. The Court held that though penalty of censure, amongst others mentioned at Item nos. (i) (ii) and (iv) of Rule 49 of the CCA Rules, can be imposed after giving the employee concerned an opportunity of making representation and no full-fledged departmental proceeding is required to be initiated but even for awarding minor penalty it is necessary that the charge should be formally framed and then opportunity be given to the person to make representation. In the present case as noted above, charges were formally framed against the petitioner and he was given due opportunity to make representation. He therefore cannot complain of violation of the provisions of the CCA Rules or the rules of natural justice. 15. Lastly it was submitted that charges relate to events which took place nine years ago and punishment for stale charges cannot be sustained. In this regard reliance was placed on State of Madhya Pradesh V/s. Bani Singh & anr., AIR 1990 Supreme Court 1308. 16. From the supplementary counter affidavit it appears that upon consideration of the show cause etc. decision had already been taken with the approval of the Minister In-charge to award punishment but as fresh charges had come to light it was considered proper to give him opportunity to explain those charges and that is how another show cause notice was issued on 11.5.99. decision had already been taken with the approval of the Minister In-charge to award punishment but as fresh charges had come to light it was considered proper to give him opportunity to explain those charges and that is how another show cause notice was issued on 11.5.99. As indicated above, the said show cause notice related to fresh charges. Finally the petitioner was held guilty of two charges- one mentioned in the first show cause notice and the other mentioned in the second one, and exonerated from other charges. The ratio of the decision in Bani Singhs case also therefore is of no help to the petitioner. 17. So far as the validity of the order, Annexure-8, by which petitioner has been posted as Executive Engineer from the post of Superintending Engineer, it may simply be observed that he was neve promoted to the post of Superintending Engineer, he was merely holding current charge of that post. He cannot therefore, be heard of saying that he has been reverted or reduced in rank by virtue of such posting. Having been held guilty of the charges and punished (including the punishment of withholding of promotion), if the department did not permit him to continue on the post of Superintending Engineer, the post to which he was never promoted, no error can be found in the said impugned order. 18. In the result, contentions of the counsel having thus been rejected this writ petition must fail which is accordingly dismissed but without any order as to costs.