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Jharkhand High Court · body

2002 DIGILAW 161 (JHR)

Er. Kailash Prasad Singh v. State Of Jharkhand

2002-02-13

TAPEN SEN

body2002
ORDER Tapan Sen, J. 1. Heard Mr. Sohail Anwar, learned Counsel appearing for the petitioner and Mr. Pankaj Kumar, learned J.C. to Mr. A. Allam appearing for the State of Bihar. Dr. Nisha Thakur represents the State of Jharkhand. 2. Feeling aggrieved by an order of punishment (Annexure-8) issued on 31.08.1998 under the signature of the Respondent No. 7 (The Deputy Secretary, Water Resources Department, Government of Bihar, Sichai Bhawan, Patna) imposing the punishment recorded therein, the petitioner has opted to invoke Article 226 through the instant writ Application. 3. Upon perusal of the Writ Petition and also of the counter-affidavit filed by the Respondent Nos. 4 to 7, it appears that the petitioner received a jolt when he read a news paper publication on 10.01.1997 calling him and three other officers of the concerned Department to file an explanation in relation to a charge relating to the Ajay Barrage Project, Sikatia. In the said news paper it was intimated that the officers posted during the period 1979-80 would have to file their explanations. The Notice indicated that the petitioner was also required to file such an explanation. 4. Having come to learn of the contents of the aforesaid notice in the news paper as contained at Annexure-1 to the Writ Petition, the petitioner immediately filed his reply on 20.01.1997 (a copy of which has been annexed and marked as Annexure-2 to the Writ Petition). It also appears on perusal thereof that the petitioner specifically mentioned that he had nothing to do with the subject matter of the allegations as he had joined the Sikalia Division only on 30.12.1988. 5. The petitioner has drawn my attention to Annexure-3 which appears to be a letter issued by the Joint Secretary of the concerned Department whereby and whereunder it was specifically indicated that the petitioner was required to file his explanation in relation to the irregularities indicated therein and said to have been committed during in period 1984-86. According to the learned counsel for the petitioner this letter was issued with a complete non- application of mind and without taking into consideration that during the period when the irregularities are alleged to have taken place (i.e. 1984-86), the petitioner was not even posted at Sikatia. 6. The petitioner has further drawn the attention of this Court to Annexure-4, which is action and explanation sought to be given pursuant to Annexure-3. 6. The petitioner has further drawn the attention of this Court to Annexure-4, which is action and explanation sought to be given pursuant to Annexure-3. In this explanation the petitioner once again specifically drew the attention of the Joint Secretary to the fart that the irregularities related to the period 1984-86 and, therefore, the question of his involvement did not arise. The learned counsel for the petitioner has also drawn my attention to Annexure-5 which is the joining report of the petitioner and which shows that the petitioner gave his joining at Sikatia Division on 30.12.1988. At paragraph-9 of the counter- affidavit of the Respondent Nos. 4 to 7, it has been also admitted that the Petitioner, Shri Kailash Prasad Singh assumed the charge of Executive Engineer. Irrigation Division, Sikatia on 30.12.1988. In the same paragraph the respondents have said that the work of excavation of foundation for the construction of Ajay Barrage was going on in the Division as per Agreement No. 87 F2 of 83-84. On a complaint petition referred by the Cabinet (Vigilance Department) the department flying squad was directed to inquire the irregularities in the work. The Flying Squad Circle No. 2, Patna submitted the inquiry report vide its letter No. 92 dated 05.04.1990 and the same was examined at Government level. Prima facie charges of irregularities, in the excavation of foundation in soft rock with blasting and in hard rock also were found proved against a number of officials. 7. Learned counsel for the petitioner has also drawn my attention to Annexure-12 which, according to him is the Vigilance report submitted by the flying squad. According to him this report nowhere contains the name of the petitioner in the list of guilty or erring officers. This report contains, inter alia, the names of such officers whose name have been mentioned at pages 52 and 63, but not of the petitioner. This statement was made by the petitioner specifically at paragraph-19 of the Writ Petition, which reads as follows : "...That it is further submitted that although the department has not supplied the copy of letter No. 976 dated 26.06.1990 as published in the newspaper publication (Annexure-1 the petitioner has obtained the copy of the enquiry report which is part of letter No. 976 dated 26.06.1990. The enquiry report reveals that the petitioners name is not in the list of guilty or erring officers and as such the paper publication dated 10.01.1997 {Annexure-1) is factually wrong and the name of the petitioner has wrongly been mentioned on the basis of said letter dated 26.06.1990." 8. In reply to the aforementioned Paragraph-19 of the Writ Petition, the Respondent Nos. 4 to 7 have replied in the following manner : "...That so far the statements made in Paragraphs 19 to 27 of the Writ Application, it is stated that it is wrong to say that the appellate authority has not taken any action on the appeal petition and reminder on it. The authorities wants its earlier disposal but petitioners insistence contrary to the facts became the main reason for the delay if any. To arrive at the decision further inquiry became necessary. Naturally, it is time taking, which is only with the purpose for the sake of natural justice that the innocent cannot be held responsible and the person who has committed irregularity may not escape by making hue and cry." 9. In other words the respondents have nowhere been able to counter the specific stand of the petitioner to the effect that he had joined at Sikatia on 30.12.1988 and his name nowhere figured in the report of the flying squad as contained to Annexure-12 of the writ petition, On the contrary at paragraph-9 of their counter-affidavit the Respondent Nos. 4 to 7 have said that some irregularities/prima facie charge of irregularities were proved against a number of officers. Thus, respondents have not said in that paragraph that these number of officers included the petitioner also. In fact on a plain reading of Annexure-12, it is also apparent as has already been recorded above that the name of the petitioner is not contained in the list of either guilty or/erring/accused officers. 10. Apart from the aforesaid. Mr. S. Anwar, learned counsel appearing for the petitioner has also drawn my attention to the fact that upon perusal of Annexure-8, it would be evident that allegation was made for two periods namely period 1984-85 to 1989-90. The explanation to show-cause which has been annexed as Annexure-3 and which is specifically addressed to the petitioner shows that the alleged charge-relating to the petitioner was for the period 1984-86. The explanation to show-cause which has been annexed as Annexure-3 and which is specifically addressed to the petitioner shows that the alleged charge-relating to the petitioner was for the period 1984-86. In other words for the period 1989-90 the respondents have not even issued either any charge-sheet nor any notice to show-cause. Finally Mr. S. Anwar, learned Counsel for the petitioner has also argued on the point that the impugned order of punishment is a non-speaking order and it seeks to firstly merely narrate the charges and then it goes on to say that the State Government had at its level looked into the cause filed by the petitioner and it had found that the charges levelled against him was proved and, therefore, they proceeded to inflict the punishment recorded therein. 11. In view of what has been stated above this Court is inclined to agree with the submissions of Mr. S. Anwar. Firstly the State respondents have not been able to counter his arguments to the effect that the petitioner was not even posted at Sikatia Division during the period 1984-86. The Notice asking the petitioner to show-cause for a period during which he was not even present must, therefore, held to be a totally mechanical and is, accordingly set-aside. The order of punishment on the other hand is also an order which proceeds to inflict punishment upon the petitioners for the period 1984-85 to 1989-90. Since I have already set-aside the Notice as contained Annexure-3 which relates to period 1984-85, that period of the impugned order is also quashed. 12. Similarly, in the absence of any notice to explain or show-cause and also in the absence of any charge-sheet for the other period i.e. 1989-90, it must be held that the order of punishment is totally without jurisdiction, mechanical and irregular, the same having been issued without there being any material on record. This finding is supported further by a report of the flying squad which is Annexure-12 and which has not been countered by any of the respondents. 13. The impugned order also suffers on account of the fact that it is also a non-speaking order because it nowhere spells out as to why and under what circumstances the State Governments came to the conclusion that the charges were proved. 13. The impugned order also suffers on account of the fact that it is also a non-speaking order because it nowhere spells out as to why and under what circumstances the State Governments came to the conclusion that the charges were proved. Sufficient opportunity was given to the State to explain it but they have not been able to do so. 14. The counter-affidavit of the State of Jharkhand merely says that the order of punishments dated 31.07.1998 was passed by the Deputy Secretary, Water Resources Department, Government of Bihar, Patna and that it was passed prior to the bifurcation of the State and, therefore, they were not in a position to make any comments with regard to the orders passed by the State of Bihar. They have also said that against the order 31.07.1998, the petitioner had filed an appeal. 15. The petitioner has stated at paragraph-3 of the Writ Petition that he is presently working as Deputy Director (Scientific) Quality Control Division (Irrigation & Water Resources), Dhurwa Dam Site, Ranchi. According to the Petitioner his cause of action arose as per Annexure-3 which is the letter dated 07.02.1997 issued by the Joint Secretary. Water Resources (Department, Government of Bihar and addressed to the Petitioner. At the time when the aforesaid letter was issued and as would be apparent on reading the same, the petitioner was working as Executive Engineer, Irrigation Division; P.S. Bhindi: Mahangama at Godda. When the impugned order (Annexure-8) was passed, the Petitioner was also working as Executive Engineer, Quality Control Division, Ranchi. 16. Mr. S. Anwar, during the course of hearing, has stated that the appeal that was filed was also dismissed on 25.09.2001 by a non-speaking order and during the pendency of the Writ Petition. According to Mr. S. Anwar he had filed this order by an application for amendment of the prayer portion wherein he also sought for quashing of the order dated 25.09.2001, dismissing the appeal without any reasons. However, Mr. Anwar said that due to inadvertence he had wrongly mentioned "W.P.(5) 3070 of 2001" and, therefore, that amendment application could not be tagged with this Writ Petition. However, Mr. Anwar said that due to inadvertence he had wrongly mentioned "W.P.(5) 3070 of 2001" and, therefore, that amendment application could not be tagged with this Writ Petition. However, he has produced before me a photo copy of the said order dated 25.09.2001 which, inter alia, stated that "as directed, the appeal filed by the petitioner on 10.02.2001 had been looked into and it was found that there was no cogent reason to interfere and, therefore, the same was being rejected and the punishment inflicted were being maintained". 17. A photo copy of the order dated 25.09.2001 which was produced in the Court during the course of argument is being kept on record. The office is directed to trace out the application for amendment said to have been filed by the petitioner and which, according to him has been wrongly tagged with W.P. (C) No. 3070 of 2001. After tracing out the same, the office shall keep the same on record in this Writ Application. 18. In view of what have been stated above and in view of the fact that this order does not assign any reasons as to why the Government found the appeal of the petitioner not proper, this order is also set-aside. 19. In the result, the Writ Petition is allowed. The impugned orders are set- aside. However, there will be no order as to costs. 20. However, it will be open for the State of Jharkhand to pass any order, in accordance with law, it if so chooses. The petitioner shall being this order to the notice of the Secretary of his department concerned.