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2009 DIGILAW 586 (JHR)

Om Prakash Sinha v. State of Jharkhand

2009-04-20

D.G.R.PATNAIK

body2009
JUDGMENT : Since the pleadings in this case are complete, with consent of the learned counsel for the parties, this application is taken up for disposal at the stage of admission itself. Heard the learned counsel for the parties. 3. The petitioner in this writ petition has challenged the order dated 31.7.2008 ( annexure 3) issued under the signature of the Under Secretary, Water Resources Development, Government of Jharkhand, Ranchi, whereby three fold punishments, i.e. recovery of a sum of Rs. 1,09,153/-, stoppage of three increments with cumulative effect and censure, has been awarded to the petitioner. The challenge to the impugned order is on the ground : (i) that despite the fact that the petitioner was found not guilty of the charge in the departmental proceeding, the disciplinary authority has proceeded to award punishment without serving mandatory show cause notice to the petitioner informing the reasons for differing with the findings of the Enquiry Officer and without assigning reasons; (ii) that the award of three fold punishment is illegal, arbitrary and highly disproportionate to the charges; (iii) that no pecuniary loss having been caused to the Government exchequer and the only charge being that the amount of advance has not been shown to have been adjusted in the books of account, the punishment awarded for recovery of the amount is totally illegal, arbitrary and not sustainable in law; 4 Counter affidavit has been filed on behalf of the respondents. 5 Facts of the case, in brief, are as follows : The petitioner was posted as an Assistant Engineering, Irrigation Department at Birpur, in the district of Supaul (Bihar). After bifurcation of the erstwhile State of Bihar, the petitioner was allotted Jharkhand Cadre under the Water Resources Development Department. Earlier, while the petitioner was posted as the Assistant Engineer, Irrigation Division, at Birpur, he was served with a show cause notice/charge sheet on 26.6.2003 under Rule 55 of the Central Civil Services ( Control & Appeal) Rules, alleging irregularities and misconduct on the accusation that during his tenure as Asstt Engineer in the Irrigation Division, Birpur, he obtained a temporary advance of Rs. 2,18,305/80 in the year 1996-97 for carrying out a departmental work in the Koshi Chief Canal, and the amount was not adjusted in the books of accounts. 2,18,305/80 in the year 1996-97 for carrying out a departmental work in the Koshi Chief Canal, and the amount was not adjusted in the books of accounts. Show cause reply was submitted by the petitioner explaining that though the amount was received by him by way of advance, but since the work was to be carried out by the Junior Engineer, Sri Dineshwar Thakur, the entire amount was entrusted to Sri Thakur against a hand receipt. The work was carried out through Sri Thakur under direct supervision of the Superintending Engineer. On completion of the work in October, 1996, Sri Thakur had failed to make entries in the Measurement Books. Since the Measurement Books were not forwarded to the petitioner, as such the same could not be submitted before 31.3.1997 in the Division. It was also explained that considering the urgency of the work which was be carried out, advance amount was taken in anticipation of sanction of a realistic estimate and the execution of the work was undertaken on oral instructions of the Chief Engineer that realistic estimate would be prepared after completion of the work. The sanction was ultimately made by the Executive Engineer on 28.1.1998 after completion of the work, and the measurement was entered into the Measurement Books by Sri Dineshwar Thakur, Junior Engineer and on being forwarded, the petitioner had submitted Books and other documents to the Accounts Clerk on 11.4.1998. However, show cause reply was not found satisfactory by the concerned authorities of the Department whereupon a departmental enquiry was conducted against the petitioner on the aforesaid charges. After the enquiry was concluded, the Enquiry Officer submitted his report. A copy of the report was also forwarded to the petitioner on 27.9.2000 asking him to submit his show cause reply in respect of the enquiry report. 6. On perusal of the enquiry report, the petitioner found that the Enquiry Officer had exonerated him by recording his finding that the amount which was although obtained by the petitioner as advance, was handed over to the Junior Engineer, Sri Thakur and this fact was confirmed by the Executive Engineer as also from the Ledger of accounts. As such, the amount of advance shown as outstanding against the petitioner should have been shown only against the Junior Engineer Sri Dineshwar Thakur and not against the petitioner. As such, the amount of advance shown as outstanding against the petitioner should have been shown only against the Junior Engineer Sri Dineshwar Thakur and not against the petitioner. 7 The petitioner submitted his show cause reply, but to his dismay, he was served with the impugned order dated 31.7.2008 informing him that the disciplinary authority had found him guilty of the charge and had imposed the punishment, as mentioned above. 8 Sri Rajiv Ranjan, learned counsel for the petitioner has assailed the impugned order on the following grounds : (i) that the punishment given in the impugned order could not have been awarded to the petitioner without issuing him a mandatory show cause notice and without assigning reasons as to why the disciplinary had differed from the findings of the Enquiry Officer. Learned counsel would also argue that in view of the specific finding of the Enquiry Officer that the amount of advance having been entrusted to Sri Thakur, Junior Engineer and failure of the junior engineer to make relevant entries in the MBs promptly after completing the work could not be attributed to the petitioner, there could not be reasons for disciplinary authority to differ from the findings of the Enquiry Officer and to hold the petitioner guilty of the charges. It is further submitted that the punishment of recovery of the amount from the petitioner is totally illegal and arbitrary although it is not supposed to remain outstanding against the petitioner. No recovery of any amount can possibly be made in absence of a finding that any loss to the Government exchequer has been caused by the petitioner. 9 Mr. M.K.Laik, Sr. SC I, by referring to the counter affidavit filed on behalf of the State respondents, argues on the other hand, that there is no illegality in the impugned order in view of the fact that the punishment awarded to the petitioner is in consonance with the findings of the Enquiry Officer in the disciplinary proceedings held against the petitioner. Learned counsel adds that admittedly, a copy of the enquiry report was served upon the petitioner asking him to submit his reply and it was only after being dissatisfied with the causes shown by the petitioner, that the disciplinary authority had made its own assessment and found reasons to award punishment against the petitioner. Learned counsel adds that admittedly, a copy of the enquiry report was served upon the petitioner asking him to submit his reply and it was only after being dissatisfied with the causes shown by the petitioner, that the disciplinary authority had made its own assessment and found reasons to award punishment against the petitioner. 10 From perusal of the enquiry report (annexure 2) it appears that the Enquiry Officer had considered the evidence adduced in the proceedings and recorded his finding that though the amount was obtained by the petitioner as advance for execution of the urgent work, but since the execution of the work was entrusted to the Junior Engineer Sri Thakur, the entire amount was entrusted to Sri Thakur by the petitioner against a hand receipt and this fact was confirmed not only by the Executive Engineer but also by the books of account. The report also records a finding that the work was executed by Sri Thakur, Junior Engineer, under the supervision of the Superintending Engineer and it was also completed. The report also records a finding that the delay in submitting the Measurement Books was due to the lapse on the part of Sri Thakur, Junior Engineer. The enquiry officer had therefore recorded his finding that the amount cannot be shown as outstanding only against two persons simultaneously and that such amount could be shown outstanding against the Junior Engineer and not against the present petitioner. The only observation made by the Enquiry Officer was that the petitioner should assist the Department in the adjustment of the amount outstanding. Yet, the disciplinary authority appears to have drawn an inference that the Enquiry Officer had found the petitioner guilty of the charge. It is not understood how the disciplinary authority could arrive at such an inference and hold the petitioner guilty of the charge when the Enquiry Officer himself had exonerated the petitioner of the charge. Apparently, the disciplinary authority has differed from the findings of the Enquiry Officer and has straightway proceeded to award punishment upon the petitioner. Admittedly, before awarding punishment, the disciplinary authority did not serve the mandatory second show cause notice to the petitioner giving him an opportunity to explain the reasons as to why it differed from the findings of the Enquiry Officer and without affording him an opportunity of being heard before awarding the punishment. Admittedly, before awarding punishment, the disciplinary authority did not serve the mandatory second show cause notice to the petitioner giving him an opportunity to explain the reasons as to why it differed from the findings of the Enquiry Officer and without affording him an opportunity of being heard before awarding the punishment. Such act on the part of the respondent is totally arbitrary, illegal and against the principles of natural justice and against the procedures laid down by law and therefore cannot be sustained. For the foregoing reasons, I find merit in this writ application. Accordingly, this application is allowed. The impugned order dated 31.7.2008 (annexure 3) is hereby quashed.