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Jharkhand High Court · body

2008 DIGILAW 918 (JHR)

Ramashray Prasad Singh v. State of Jharkhand

2008-08-12

R.R.PRASAD

body2008
Order The petitioner while was posted as Executive Engineer In-charge, Minor Distribution Division No.7, Galudih under Chief Engineer, Swam Rekha Multi-Purpose Project, Chandil, the department in the year 1999-2000 entered into an agreement with one M/s Himachal Construction Company Private Limited for residual work of construction of open cut and open channel of Chandil Left Bank Canal. Under the agreement, disposal of excavated material was to be done by truck or tipper beyond 150 meter upto 1 kilometer. The payment of which was to be made only after get" ting lead plan approved by the Chief Engineer but the payment of Rs. 24 lacs was made without getting approval of Chief Engineer. When the matter was reported to the Government, the Government did find certain irregularities in the matter of payment of Rs. 24 lacs as the same was paid without approval of the lead plan and accordingly, it was decided to suspend all concerned officers including the petitioner in contemplation of the departmental proceeding and accordingly, the petitioner was put under suspension, vide departmental order as contained in memo no. 170 dated 22.6.2000 (Annexure-1). Subsequently, departmental proceeding was initiated whereby the petitioner was served with the charges given hereunder: (i) The petitioner made payment of a sum of Rs. 24,09,343/- without approval of the Chief Engineer; (ii) The petitioner did not take any effort to recover a sum of. Rs.15 lacs from the contractor, namely, M/s Himachal Construction Private Limited in respect of earth work from Chandil Main Canal; (iii) Prima facie, the petitioner was responsible for giving wrong information to the Chief Engineer. 2. Thereafter Enquiry Officer after holding enquiry extensively submitted report (Annexure-4) as contained in letter no. 184 dated 30.7.2001 and according to learned counsel appearing for the petitioner, Enquiry Officer did not find the petitioner guilty for any of the charges, still the disciplinary authority awarded punishments of censure for the year 1999-2000, stoppage of one increment and then disentitling the petitioner from getting subsistence allowance for the period of suspension and this was notified , vide Notification No. 22 N.C. Jay 12-1085/2000-616 dated 21.5.2003 (Annexure-5). 3. 3. Being aggrieved with that, the petitioner preferred an appeal before the competent authority but in the meantime, the petitioner on bifurcation of the State was allocated cadre of the State of Jharkhand and hence, appeal preferred was transferred to the State of Jharkhand and then the appellate authority rejected the appeal of the petitioner and consequently, affirmed the punishment awarded to the petitioner and the said order was communicated vide memo no. 990 dated 20.4.2006 (Annexure-9). 4. Being aggrieved with the order of the disciplinary authority as contained in Annexure-5 and also by the order of the appellate authority as contained in Annexure-9, the petitioner has preferred this writ application. 5. Learned counsel appearing for the petitioner submits that the enquiry report does indicate that the Enquiry Officer never found the charges proved and in that event, the disciplinary authority before awarding punishment should have recorded the tentative reason for such disagreement and should have given it to the delinquent for attending an opportunity to represent but it was never done by the disciplinary authority, though he was bound to issue second show cause notice to the delinquent employee communicating the grounds for such disagreement and seek his response and as such, the order passed by the disciplinary authority is illegal in view of the ratio laid down by the Hon'ble Apex Court in the case of Punjab National Bank and Others vs. Kunj Behari Misra [ (1998) 7 SCC 84 ]. 6. Learned counsel appearing for the petitioner further submits that though the Government did inflict punishment with respect to charge no. (i) but it does appear that the State of Jharkhand granted approval of the work in respect of excavation of the canal of Y2 kilometer lead under order as contained in memo no. 28 dated 23.1.2003 (Annexure-10) and in that view of the - matter also the orders as contained in Annexure-5 and Annexure-9 are fit to be set aside. 7. Learned counsel Shri Modi appearing for the State, however, submits that the Enquiry Officer after holding enquiry came to conclusion that charge no. 28 dated 23.1.2003 (Annexure-10) and in that view of the - matter also the orders as contained in Annexure-5 and Annexure-9 are fit to be set aside. 7. Learned counsel Shri Modi appearing for the State, however, submits that the Enquiry Officer after holding enquiry came to conclusion that charge no. (i) got proved as Enquiring Officer did find that the payment was made without approval of the lead plan but at the same time he also took into consideration certain other aspects of the matter under which payment was made which fact was also taken into consideration by the disciplinary authority and therefore, minor punishment was awarded and under this situation, disciplinary authority was not required to record its tentative reason for such disagreement as disciplinary authority had come to conclusion that payment was made without approval of the lead plan and therefore, there was no requirement to give any opportunity to the petitioner before recording the order of punishment and under this situation, this petition is fit to be dismissed. 8. Having heard learned counsel appearing for the parties, I may record that on one hand, petitioner's stand is that the disciplinary authority exonerated the petitioner of all the three charges whereas stand of the respondent is that the Enquiring Officer at least found the petitioner guilty for the charge no. (i) and therefore, it would be pertinent to note substance of charge no. (i) which reads as follows:- "The petitioner made payment of a sum of Rs. 24,09,343/- without approval of the Chief Engineer." 9. While dealing with the charge, the disciplinary authority took into consideration the materials brought on the record and came to conclusion that payment was made without approval of the lead plan but taking into consideration the materials brought in course of enquiry, he also came to finding that it was not possible to remove the earth and without resorting to that it would have created hurdle in the matter of progress of the project and under this situation, if the payment in anticipation of the approval of the lead plan has been made that does not appear to be unexpected and thus, it can be said that the disciplinary authority literally did not find the petitioner guilty for the aforesaid charges. However, the disciplinary authority is not bound to accept the enquiry report and has right to disagree with that after formulating its own opinion but the disciplinary authority under law is bound to issue second show cause notice to the delinquent employee communicating the grounds for such disagreement and seek his response. He is also required to record ground of disagreement while formulating its opinion. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Punjab National Bank and Others vs. Kunj Behari Misra (supra) wherein Apex Court has observed as under:- " The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, wherever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge; it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer." 10. Since the impugned order as contained in Annexure-5 does not seem to be in consonance with the ratio laid down by the Hon'ble Supreme Court in the case, as referred to above, as the order of punishment was passed without giving opportunity of persuading the disciplinary authority to accept the favourable conclusion of the Enquiring Officer, the impugned order as contained in Annexure-5 can be 'said to have been passed in gross violation of the principles of natural justice. 11. Accordingly, the impugned order (Annexure-5) passed by disciplinary authority as contained in notification no. 616 dated 21.5.2003 and also the order (Annexure-9) as contained in memo no. 990 dated 20.4.2006 passed by the appellate authority are hereby set aside. In the result, this application is allowed.