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Jharkhand High Court · body

2008 DIGILAW 147 (JHR)

Sambhoo Singh v. State of Jharkhand

2008-02-12

N.N.TIWARI

body2008
Order On 21.11.2007 when the case was taken up for hearing under the heading 'For Admission', the petitioner Informed the Court that in spite of earlier order for payment of subsistence allowance to the petitioner which was not paid since the month of December, 2006, one Samrendra Klshore Shnvastava, Executive Engineer, Road Construction Division, Dhanbad did not pay anything to the petitioner. 2. The petitioner was allowed to Implead the said Executive Engineer by name. A notice to show cause was also issued to him. When the case was again taken up on 17 12.2007, it was informed that In spite of service of notice, the said Executive Engineer neither appeared nor filed any reply to the show cause. He was given further opportunity to file reply and was also asked to appear in person on the next date. 3. Today, Samrendra Kishore Shnvastava, Executive Engineer, Road Construction Division, Dhanbad is present before thiS Court. Show cause reply has also been filed explaining the delay in making payment of the subsistence allowance to the petitioner in compliance of the order of this Court. It has been stated that though the order was passed on 5.7.07, the petitioner did not produce a copy of the said order. Neither the said order was sent departmentally nor from the Office of the Advocate General, before the same was communicated by the Secretary of the Department on 4.12.07. On receipt of the order, letter was immediately sent to the concerned Superintending Engineer requesting him to release the subsistence allowance to the petitioner as directed by this Court. Without any delay thereafter, bill was prepared and the amounts of all the arrears as well as the current subsistence allowance were paid to the petitioner. 4. Learned counsel appearing on behalf of the petitioner has admitted the payment of the arrears/current subsistence allowance made to the petitioner. 5. In view of the said explanation made in the show cause reply and payment of arrear/current subsistence allowance made to the petitioner this Court does not wish to proceed against the concerned Executive Engineer any further. His personal appearance is dispensed with. 6. Heard the parties on merit of the writ petition. 7. 5. In view of the said explanation made in the show cause reply and payment of arrear/current subsistence allowance made to the petitioner this Court does not wish to proceed against the concerned Executive Engineer any further. His personal appearance is dispensed with. 6. Heard the parties on merit of the writ petition. 7. In this writ petition the petitioner has prayed for quashing the letter dated 9.3.07 (Annexure-15) issued under the signature of the Deputy Secretary, Road Construction Department, Government of Jharkhand, Ranchi whereby the Enquiry Officer has been directed to conduct the enquiry against the petitioner afresh, though the enquiry of the charges was once made and completed and enquiry report was already submitted. The petitioner has also prayed for quashing the letter dated 19.3.07 (Annexure-16) issued by the Enquiry Officer directing him to appear for fresh enquiry pursuant to the said order (Annexure-15). 8. It has been stated that the petitioner was proceeded against on the charges which was served on him on 2.1.12.06. The Enquiry Officer was appointed. He conducted the enquiry and on conclusion of enquiry, he submitted his enquiry report on 5.2.07, holding that no charge could be proved against the petitioner. 9. After submission of the enquiry report, the Deputy Secretary, Road Construction Department, Government of Jharkhand, who is said to be the disciplinary authority, neither accepted the enquiry report nor differed with the finding of the Enquiry Officer rather by the impugned letter dated 9.3.07 (Annexure-15) directed the Enquiry Officer to inquire into the charges against the petitioner afresh. According to him, the enquiry report is incomplete, unilateral and the Presenting Officer was not properly heard. 10. The petitioner contended that the Presenting Officer had never made any complain that he was not heard or was not given opportunity of his examination. Without any material on record, the disciplinary authority has observed that the Presenting Officer was not given proper opportunity of his examination and adduce evidence to support the charges. It has been submitted that the said observation was wholly unfounded and arbitrary, inasmuch as even on such ground the petitioner cannot be subjected to face fresh enquiry and suffer multiple jeopardy. 11. The respondents have contested the writ petition. In their counter affidavit it has been stated, inter alia, that though an enquiry report was submitted by the Enquiry Officer, it was not found complete. 11. The respondents have contested the writ petition. In their counter affidavit it has been stated, inter alia, that though an enquiry report was submitted by the Enquiry Officer, it was not found complete. The enquiry report supported the pleas taken in defence by the delinquent officer without considering the facts to be submitted by the Presenting Officer. In view of the said lacuna in the enquiry, decision for fresh enquiry was rightly taken in ardor to ensure participation of the Presenting Officer in the enquiry. The said order directing fresh enquiry is, thus, proper and legal and there is no arbitrariness on the part of the respondents directing the fresh enquiry. 12. Mr. S.N. Prasad, learned counsel appearing on behalf of the petitioner submitted that there is clear procedure for conducting the departmental proceeding and under the said procedure, once the enquiry report is submitted by the Enquiry Officer, the disciplinary authority/appointing authority may either accept the enquiry report or may differ with the same. If the disciplinary authority differs from the findings recorded by the Enquiry Officer, notice is required to be issued to the delinquent on the point of difference. 13. On the ground of such lacuna, the disciplinary authority cannot direct for a fresh enquiry. Learned counsel submitted that if there was any point of difference, the same must have been communicated to the petitioner before passing any further order by the disciplinary authority. By not doing so, the State-respondents have violated the settled principles of natural Justice. 14. Mr. S.K. Verma, learned S.C. (Mines), on the other hand submitted that on going through the enquiry report the disciplinary authority found that the enquiry was lopsided and that no opportunity was given to the Presenting Officer to properly present the case and in that view fresh enquiry has been ordered in which the petitioner has also been given an opportunity of full participation and there is no question of any prejudice or harassment to the petitioner. 15. I have heard learned counsel for the parties and considered the submissions as well as the facts and materials on record. On perusal of the impugned letter Annexure-15 it is evident that a fresh enquiry has been ordered by the Deputy Secretary on submission of the final report by the Enquiry Officer. 15. I have heard learned counsel for the parties and considered the submissions as well as the facts and materials on record. On perusal of the impugned letter Annexure-15 it is evident that a fresh enquiry has been ordered by the Deputy Secretary on submission of the final report by the Enquiry Officer. The ground of the fresh enquiry is that the enquiry report appears to be incomplete and unilateral and that the Presenting Officer was not properly heard. The said letter does not disclose the point of difference. There is nothing on record to show that the Presenting. Officer had ever complained about denial of proper opportunity by the Enquiry Officer. The impugned letter also does not disclose the reason on the basis of which it has been concluded that the Presenting Officer was not given proper opportunity. In view of the above, the impugned order dated 9.3.07 contained in Annexure-15 appears to have been passed on mere conjecture and assumption only because the charges against the petitioner could not be proved by any evidence. Fresh enquiry, on such ground, cannot be held to be justified and permissible, No such legal provision, rule or circular permitting fresh enquiry on such ground has been placed before this Court. Fresh enquiry cannot be imposed in the delinquent only for the purpose of filling up lacuna. The proceeding is at the stage where, on the basis of facts, material and evidence on record, the disciplinary/appointing authority can record the point of difference and take its own decision after giving proper notice and opportunity of hearing to the petitioner. 16. For the reasons aforementioned, the impugned letters dated 9.3.07 (Annexure15) and dated 19.3.07 (Annexure-16) cannot sustain and the same are, hereby, quashed. This writ petition is allowed. 17. Nevertheless, the respondents are at liberty to proceed in accordance with the procedure established by law.