Research › Search › Judgment

Patna High Court · body

2004 DIGILAW 1263 (PAT)

Gopal Pd. v. State

2004-12-20

V.N.SINHA

body2004
Judgment 1. The petitioner, who is a junior engineer in Water Resources Department, has filed this writ application questioning the order bearing No. 116 dated 3.3.2003, annexure-7, whereunder he has been dismissed from service as also the other order bearing letter No. 700 dated 9.9.2004, annexure-9, whereunder his appeal against the said dismissal order has been rejected. Petitioner was initially placed under suspension in contemplation of a departmental proceeding and thereafter departmental proceeding was initiated against him under Rule 55 of the Civil Services (Classification Control and Appeal) Rules, 1930, vide Resolution of the State Govt. bearing memo No. 287 dated 25.1.1994, annexure-3. The charges relate to irregularities committed in the execution of the works contract in regard to development works undertaken at the Chalgu Rehabilitation Camp, as would appear from the memo of charge contained along with the resolution initiating departmental proceeding dated 25.1.1994. Petitioner filed his show cause reply dated 20.2.1994, annexure-4, whereunder he categorically submitted that as regards irregularities made in the plaster and other works he is not responsible as he was made incharge of the execution of the works under order dated 20.2.1991 and relieved on 14.7.1991 during which period the aforesaid work was neither executed nor supervised by him. He further submitted that the allegation in regard to the other two works included in the memo of charge also does not concern him as he was never associated with them. The enquiry officer having considered the show cause reply filed by the petitioner dated 20.2.1994 as also having examined the relevant material produced by the department submitted his enquiry report dated 2.4.1996, annexure-5, whereunder petitioner was exonerated of all the charges levelled against him. The State Govt. having received the enquiry report considered the same and thereafter served on the petitioner a composite show cause notice dated 11.3.2002, annexure-6, indicating the reasons which, persuaded the Govt. to differ with the findings recorded by the enquiry officer as also the second show cause notice against the proposed punishment of dismissal. Petitioner having received the composite second show cause notice filed his second show cause reply dated 3.7.2002, annexure-11, in which also he clarified that he was not concerned with the charges levelled against him as it was Shri Arvind Kumar Singh who was entrusted with the execution of the job until lintel level. State Govt. Petitioner having received the composite second show cause notice filed his second show cause reply dated 3.7.2002, annexure-11, in which also he clarified that he was not concerned with the charges levelled against him as it was Shri Arvind Kumar Singh who was entrusted with the execution of the job until lintel level. State Govt. having considered the second show cause reply passed the impugned order No. 116 dated 3.3.2003, annexure-7, dismissing the petitioner from service and the order has been communicated under the signature of the Deputy Secretary. Petitioner questioned the aforesaid order by filing a writ application bearing C.W.J.C. No. 4066/2003 which was disposed of on 2.5.2003 permitting him to withdraw the writ application and to move the departmental authorities in appeal. Petitioner having withdrawn the writ application filed the appeal and the appellate order is dated 9.9.2004 as contained in annexure-9, whereunder Dismissal order has been affirmed and the appeal has been dismissed. 2. Petitioner has questioned both the original order dated 3.3.2003 as also the appellate order dated 9.9.2004, as contained in annexures-7 & 9, by filing this writ application. 3. Shri Devendra Kumar Sinha, Sr. advocate, appearing for the petitioner at the first instance submitted that the entire exercise has been taken by the Govt. without appreciating the fact that he was never entrusted with the execution of the works as he remained incharge of the works for a limited period between 22.2.1991 to 14.7.1991 during which period the works alleged to have been executed and completed by the petitioner were not at all executed and, as such, he should not be held responsible for the erroneous execution of those works. In this connection, he further asserted that the sample for testing the proportion of the sand/cement was taken on 14.3.1992 much after the petitioner was relieved of the charge of the works. He further contends that taking into account these facts the enquiry officer has exonerated the petitioner of all the allegations levelled against him. 4. In this connection, he further asserted that the sample for testing the proportion of the sand/cement was taken on 14.3.1992 much after the petitioner was relieved of the charge of the works. He further contends that taking into account these facts the enquiry officer has exonerated the petitioner of all the allegations levelled against him. 4. Besides, challenging the charges levelled against him on merits Shri Sinha has also assailed, the impugned order on technical ground as he submits that before serving the second show cause notice dated 11.3.2002, annexure-6, petitioner was not given any opportunity to justify the findings recorded by the enquiry officer in the enquiry report as the reasons of difference were never served on him separately with opportunity to justify those findings before issue of composite show cause notice containing both the reasons of difference as also the proposed punishment which is contrary to the Principles of Natural Justice enshrined in Subclause (2) of Article 311 of the Constitution. In support of the aforesaid submission Sri Sinha has relied on the judgement of the apex court in the case of Punjab National Bank V/s. Kunj Bihari Mishra [ 1998 (7) S.C.C. 84 ] in which Lordships of the Apex Court have categorically held that when the enquiry officer has exonerated the delinquent and the disciplinary authority proposes to differ with the findings recorded by the enquiry officer then it is incumbent upon the disciplinary authority to furnish the reasons of difference on the delinquent with opportunity to the delinquent to justify the findings reached by the enquiry officer. Second show cause notice proposing the punishment, according to him, should be issued after disciplinary authority has given the opportunity to the delinquent to justify the findings of the enquiry officer. 5. The third point raised by Shri Sinha against the impugned order is that perusal of the same would indicate that the same has been passed by the Deputy Secretary with the approval of the Govt. and thereby the same is illegal as Deputy Secretary is much inferior to the disciplinary authority of the petitioner, namely, Engineer-In-Chief and the petitioner had no opportunity to approach the disciplinary authority as also the appellate authority, namely, Secretary of the department as the impugned dismissal order had the approval of the Govt. whereafter disciplinary authority as also the appellate authority shall hardly take any contrary view of the matter. 6. whereafter disciplinary authority as also the appellate authority shall hardly take any contrary view of the matter. 6. On the other hand Shri Ranjit Sinha, learned junior counsel to Standing Counsel No. 3 has defended the impugned order dated 3.3. 2003 and the appellate order dated 9.9.2004 by submitting that the same has been passed after taking into account the written defence and second show cause reply of the petitioner contained in annexures-4 & 11 in which the petitioner has categorically admitted that Shri Arvind Kumar Singh was incharge of the works in question until lintel level and thereby indirectly he has admitted that the works undertaken beyond lintel level has been completed under his supervision. He further submitted that the original punishment order dated 3.3.2003 was passed with the approval of the State Govt., namely, the Minister of the Department and the appellate order was passed with the approval of the Hon ble The Chief Minister, as such, no illegality was committed in passing the two orders. So far issue and service of the composite second show cause notice is concerned, he has not been able to defend the same, in view of judgement of the Hon ble Apex Court rendered in the case of Kunj Bihari Mishra (supra). 7. Having heard the counsel for the parties and having taken into account their submissions, 1 am of the view that the petitioner who at the relevant time was junior engineer his appointing and disciplinary authority being the Engineer-In-Chief, the impugned dismissal order should have been passed by the Engineer-In-Chief without the approval of the State Govt. as Secretary of the Department is the appellate authority and in that view of the matter, the impugned dismissal order dated 3.3.2003 as also the appellate order dated 9.9.2003 having been issued by the Deputy Secretary with the approval of the State Govt. is quashed and the matter is remitted back to the Engineer-In-Chief to reconsider the entire matter in the light of the show cause reply submitted by the petitioner dated 20.2.1994, annexure-4 from the stage of receipt of enquiry report without being prejudiced by the fact that two earlier orders were passed with the approval of the State Government. is quashed and the matter is remitted back to the Engineer-In-Chief to reconsider the entire matter in the light of the show cause reply submitted by the petitioner dated 20.2.1994, annexure-4 from the stage of receipt of enquiry report without being prejudiced by the fact that two earlier orders were passed with the approval of the State Government. In the event disciplinary authority decides to proceed further in the matter then it shall be obliged to first serve reasons of difference with the findings reached by the enquiry officer with opportunity to the delinquent to justify the findings recorded by the enquiry officer and thereafter to proceed in accordance with law, i.e., to issue second show cause notice and to complete other formalities. Payment of arrears of salary to the petitioner shall be subject to the final orders passed by the Engineer-In-Chief in the proceeding. 8. This writ application is disposed of. No Cost.