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2008 DIGILAW 660 (PAT)

Vishwanand Singh v. State Of Bihar

2008-05-01

NAVIN SINHA

body2008
Judgment 1. Heard learned counsel for the petitioner and learned counsel for the State. 2. The petitioner, who is an Assistant Engineer, is aggrieved by his order of punishment in a departmental proceeding dated 29.10.1999 at Annexure-12. It visits with the punishment of reduction to the lowest time scale of pay and recovery of Rs. 85,000/- from him. 3. The petitioner was served with a memo of charges dated 6.11.1996. Though there were two charges, since the petitioner has been exonerated of the second charge, it is not necessary to discuss the same. The surviving charge no. 1 in question stated that the petitioner has caused financial loss to the Government in the construction of the Sakri Canal Branch in between RD 62.5 to 67 by carrying out excavation only to the extent of 4.30 lacs cubic feet when the records were made that earth work of 17.50 lacs cubic feet had been done and on basis of which excess payment came to be released. The petitioner filed his show cause and the matter proceeded leading to the enquiry report of indictment. 4. Learned counsel for the petitioner submitted that the Junior Engineer, who was working with the petitioner under the project was issued memo of charges on 12.8.1992. Charge No. 1 thereof stated that in between RD 62.5 to 67 of the-Sakri Canal Branch, with regard to the earthwork instead of 4.30 lacs cubic feet of earth work done, 17.50 lacs cubic feet earth work was recorded in the measurement book, wrong bills prepared and failure on the part of the Junior Engineer to deposit the measurement book no. 483. The enquiry report after proceedings came to be submitted on 29.1.1993 at Annexure-9/1. From the enquiry report, it is submitted that for reasons 1 to 8 enumerated in the enquiry report with regard to the aforesaid charge, inter alia, on the ground that the Committee constituted to examine the same and on whose report the matter progressed was not authorized in law to do so. The second enquiry was done after a period of six months, in between two monsoon had lapsed which necessarily had to have its effect on earth work. The delinquent was not noticed to be present and no measurements were taken in his presence etc. As a result, the Inquiry Officer returned a finding of exoneration with regard to charge no. 1. The delinquent was not noticed to be present and no measurements were taken in his presence etc. As a result, the Inquiry Officer returned a finding of exoneration with regard to charge no. 1. It is a separate matter that he was exonerated of other charges also with which the petitioner is not presently concerned. 5. It is submitted that in the departmental enquiry of the petitioner, as will be apparent from the enquiry report at Annexure-9, the only material on which the Inquiry Officer has relied upon to indict the petitioner is the enquiry report dated 29.1.1993 submitted in respect of the Junior Engineer, who has been exonerated. Apart from that, no other material had been brought on record for the indictment of the petitioner. The fact that the charges in both the proceedings were common in between RD 62.5 to 67 for same area of earth work is emphasized. On that basis it is urged that there was no justification for the order of punishment of the petitioner. Additionally the second ground urged is that the observation of the Inquiry Officer for suspicion against the petitioner for missing of the measurement book no. 483 is vitiated on the simple ground that it did not form part of the-memo of charges. 6. Counsel for the State urged that in the departmental proceeding the petitioner had been given full opportunity and even was permitted to file his reply to the second show cause and only thereafter the order of punishment has been passed. 7. To this Court, the controversy surviving for adjudication now is very limited. Once it is found that memo of charges against the petitioner and the Junior Engineer was common and the materials on basis of which the Junior Engineer was sought to be indicted was disbelieved and he was exonerated, to rely upon the same enquiry report of exoneration to indict the petitioner without any discussion or materials as to how the guilt of the petitioner stood established from the materials of exoneration of the Junior Engineer to this Court, shall be a travesty of justice on which the punishment of the petitioner cannot be sustained. Had the prosecution laid independent material to establish the guilt on its own steam against the petitioner, the matter may have been different. 8. There has been no departmental enquiry against the petitioner in law. Had the prosecution laid independent material to establish the guilt on its own steam against the petitioner, the matter may have been different. 8. There has been no departmental enquiry against the petitioner in law. In the nature ot the allegations no evidence has been led and no witnesses have been examined by the prosecution to bring home the charges. The reasoning for exoneration of the Junior Engineer would apply with equal force to the petitioner. It then becomes a case of no evidence. 9. The prosecution has chosen only to rely upon the enquiry report in the case of Junior Engineer, when in that enquiry report based on the irregularity pointed out in the enquiry report, the delinquent was exonerated, there would be no justification to indict the petitioner on the same materials. To that extent, this Court finds it difficult to sustain the order of punishment. 10. This Court further upholds the submission on behalf of the petitioner that the second findings against him of suspicion for having misplaced the measurement book no. 483 is not sustainable for the simple reason that it did not form part of the memo of charges. 11. In the result, the writ application is allowed. The order of punishment dated 29.10.1999 is quashed. If any deduction has been effected from the petitioner, he shall be entitled to be reimbursed for the same. He shall also be entitled to difference of arrears of salary in consequence of reduction to the lower time scale of pay. Let both the benefits be made available to the petitioner within a maximum period of three months from the date of receipt and/or production of a copy of this order.