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2010 DIGILAW 506 (JHR)

State of Jharkhand v. Nand Kishore Sinha

2010-04-20

GYAN SUDHA MISRA, R.R.PRASAD

body2010
JUDGMENT This appeal has been preferred by the appellant-State of Jharkhand against the judgment and order dated 13.5.2008 passed by the learned Single Judge in W.P.(S) No. 3177 of 2007, by which the writ petition filed by the petitioner-respondent no. 1 herein was allowed and the impugned order dated 10.8.2007 passed by the appellant-State against the respondent no.1 dismissing him from service, was quashed and set aside. Consequently the petitioner was held to be entitled to all consequential benefits and hence this appeal has been filed by the appellant-State of Jharkhand. 2. The relevant details giving rise to this appeal at the instance of the State indicate that the petitioner-respondent no.1 was posted in the State of Bihar as Executive Engineer, Irrigation Division and while he was posted as Executive Engineer, he was entrusted with the work to supervise the supply of bitumen for which an order was placed with the Indian Oil Corporation. The work order was issued by the competent authority for the supply of bitumen and a bank draft of Rs. 34.23 lacs was issued to be handed over to the Indian Oil Corporation (IOC in short) for supply of bitumen. Since the respondent no. 1 was the overall incharge as Executive Engineer for supply of bitumen, the demand draft was to be handed over to the IOC through the respondent no. 1. 3. Admittedly the respondent no. 1 deposited the demand draft with the IOC but in spite of this, supply of the product, so ordered, was not made by the IOC for over a period of two months. However in the month of June, 1999, IOC wrote to the respondent no.1 indicating that the supply of bitumen would not be possible as factory at Haldia from where the supply was to be made by the IOC was closed and hence it was not possible to make the supply. Although, this letter was addressed to the Respondent No.1, he, in the meantime, had been divested of the charge/responsibility to supervise and ensure supply of bitumen by the IOC and hence the letter which was written to the respondent no.1 by the IOC, was referred to the Chief Engineer of the Irrigation Department, who by this time had been entrusted with the charge and duty to take care of the supply of bitumen. The petitioner-respondent no.1, therefore, had ceased to be the Incharge to supervise and ensure supply of bitumen by the IOC to the State. 4. However, a serious controversy arose in regard to the non-supply of bitumen due to which a departmental proceeding was initiated against the respondent no. 1 alleging that he had been negligent in regard to supervision of the supply for which the order admittedly had been placed by the competent authority with the IOC. Thereafter, a departmental proceeding was initiated against the respondent no.1 alleging that it was his duty to ensure supply of bitumen within time, which order was not complied in spite of the order to that effect. 5. After issuance of show cause notice, the enquiry initiated against the respondent no.1 proceeded in which he duly participated. As per his defence version, the respondent no.1 had initially been entrusted only with the duty to deliver the bank draft to the IOC for supply of bitumen and the bank draft was duly handed over to the IOC on 17th April, 1999, but he had subsequently been absolved of the responsibility to supervise this work since the duty to supervise this work had been categorically withdrawn by order of the State which was issued on 14.6.1999. 6. To put the long story shortly, the enquiry proceeding substantially went in favour of the respondent no. 1 as a finding was recorded that there was no dishonest intention on the part of the respondent no. 1 in regard to the delay/non supply of the bitumen by the IOC, but a finding was recorded to the effect that he had been merely negligent in supervising the supply and on account of this negligence, which was held to have been proved by the inquiring authority, the order of maximum penalty of dismissal from service was passed against the respondent no. 1. 7. In the meantime, the State of Bihar with whom, the respondent no. 1 had been discharging duty at the relevant time, also filed a Money Suit being no.4 of 2001 against the Indian Oil Corporation with whom the order for supply of bitumen had been placed but the IOC had failed to deliver the goods i.e. bitumen ordered by the State. 1 had been discharging duty at the relevant time, also filed a Money Suit being no.4 of 2001 against the Indian Oil Corporation with whom the order for supply of bitumen had been placed but the IOC had failed to deliver the goods i.e. bitumen ordered by the State. In the said matter, the respondent no.1 had not even been impleaded as a party to the suit, obviously for the reason that the State Authorities also did not consider it appropriate to implead him as party as apparently he had neither any role nor responsibility to supply bitumen but it was the IOC which had to supply the product ordered for which it had received the payment by way of a demand draft. The suit was finally decided in favour of the State of Bihar and finally a money decree for a sum of Rs. 35.00 lacs alongwith 12% interest was also held payable to the State of Bihar by the IOC as the Company/IOC was held liable to refund the payment on account of the non-supply. Thus, the aggrieved State of Bihar was indemnified for the entire amount by virtue of the Court decree which had been passed in its favour. However, as already stated, the appellant-State of Bihar simultaneously had also initiated a departmental proceeding against the respondent no. 1, which was subsequently transferred to the State of Jharkhand since the respondent no.1 had opted the State of Jharkhand for his posting and hence was posted in the State of Jharkhand after the allocation. This is how the departmental proceeding continued against the respondent no.1 in the State of Jharkhand in which the respondent no.1 although was not found guilty for misappropriation of any amount, he was held guilty of dereliction of duty by not supervising the work diligently, due to which an order of punishment of dismissal from service was imposed on the respondent no.1. 8. The respondent no.1 feeling seriously aggrieved with the order of dismissal, filed a writ petition in the High Court of Jharkhand, assailing the order of dismissal before the learned Single Judge and the learned Single Judge on a scrutiny of the facts and on perusal of the enquiry report as also in the light of the authority on the point involved, was pleased to allow the writ petition and quashed the order of dismissal against the respondent no. 1. 1. Consequently, the respondent no. 1 was ordered to be reinstated with all consequential benefits. 9. The State of Jharkhand however felt aggrieved with the order passed by the learned Single Judge and has filed this Letters Patent Appeal, on which we have heard the counsel for the parties. 10. Mr. DK Dubey, learned Standing Counsel (Mines), assailing the order passed by the learned Single Judge submitted that although a finding has been recorded by the Inquiry Officer in favour of the respondent no. 1 that he had not been found guilty of any conspiracy or defalcation of the amount as he had duly handed over the demand draft to the lac for supply of bitumen, nevertheless he was negligent in pursuing the execution of the order for supply and, therefore, if an order of dismissal had been passed against him, the same was not fit to be quashed by the learned Single Judge. This is the only relevant aspect of the matter that is required to be dealt with by this Court as there is no other charge levelled against the respondent no. 1, except dereliction of duty in pursuing the supply of bitumen. 11. Confronting the aforesaid submission, it was submitted by learned counsel for the respondent no. 1, that the enquiry report in so far as dereliction of duty for not supervising and ensuring the supply of bitumen is concerned, the same is without any material on record since the responsibility to supervise and ensure the supply of bitumen had already been withdrawn from him by order of the State of Bihar, which was the competent authority and for this purpose a specific order had been issued on 14.6.1999 divesting the respondent no. 1 from supervising the supply and in view of this order, the respondent no. 1 had no role or responsibility for supervising the work. However, when the lac, which perhaps was not aware of the fact that the respondent no. 1 had already been removed from the charge to supervise the supply of bitumen, had written to the respondent no. 1 that it would not be in a position to supply since there were problems in its factory at Haldia and this letter was duly referred by the respondent no. 1 had already been removed from the charge to supervise the supply of bitumen, had written to the respondent no. 1 that it would not be in a position to supply since there were problems in its factory at Haldia and this letter was duly referred by the respondent no. 1 to the Chief Engineer indicating the information furnished by the lac that it was the responsibility of the Chief Engineer to ensure and ascertained why the supply was not made, once the respondent no. 1 was removed and divested of the power to supervise and ensure supply, it was not his duty to supervise the work and, therefore, the finding of the Enquiry Officer even on this count was not fit to be sustained and therefore the order of dismissal was not fit to be upheld due to which the same was rightly quashed by the learned Single Judge and hence requires no interference. 12. On a careful analysis of the submission and counter submission advanced by learned counsel for the parties, we have noticed that in the whole process it is, in fact, the Indian Oil Corporation, which had the role and legal responsibility to make the supply of bitumen and as it had failed to make supply, the State of Bihar filed a Money Suit against the Indian Oil Corporation and also succeeded in securing a decree in its favour alongwith interest. Thus, the State of Bihar, which, in fact, was aggrieved on account of non supply, has already been indemnified for the loss, if any, suffered by the State of Bihar and the respondent no. 1 who was held guilty of the charge of supervisory negligence ensuring supply, had already been removed from the charge to ensure supply and it may be noted even by way of repetition that this supervisory duty had been later transferred and entrusted to the Chief Engineer of the department. Thus, the respondent no. 1 had no further role in supervising the supply of bitumen and in spite of this, if he was held -guilty of supervisory negligence, obviously the same will have to be treated as perverse. Consequently the order of dismissal passed against the petitioner-respondent no. 1, obviously requires interference and the same has rightly not been sustained by the learned Single Judge. 13. Consequently the order of dismissal passed against the petitioner-respondent no. 1, obviously requires interference and the same has rightly not been sustained by the learned Single Judge. 13. In view of the aforesaid discussion and analysis of the facts related hereinbefore, we concur with the finding arrived at by the learned Single Judge due to which the order of dismissal of the respondent no. 1 had been quashed and set aside and the challenge of the State of Jharkhand to the same do not appear to be weighty or of any substance, so as to interfere with the same. 14. The question however still remains as to whether the respondent no. 1 would be entitled for reinstatement with all consequential benefits. 15. On this aspect also,• we have heard the counsel for the parties and found that once the order of dismissal is held to be bad on account of fact that the respondent no. 1, had ceased to have any role in ensuring the supply of bitumen and at the most it was the Chief Engineer or the IOC which could have ensured supply and the respondent no. 1 had already been removed from the charge as Executive Engineer to supervise or ensure supply, he unnecessarily could not have been saddled with any punishment whatsoever specifically when the affected State of Bihar has already secured a money decree in its favour for the entire amount alongwith interest. Therefore, we agree with the view taken by the learned Single Judge that the respondent no. 1 is entitled to all consequential benefits in the event of his reinstatement. 16. The appeal thus has no substance. Consequently, it is dismissed but without any order as to costs. Consequently, the interim order of stay granted earlier by this Court in favour of the appellant-State, shall stand vacated.