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2010 DIGILAW 652 (JHR)

Harinandan Singh v. State Of Jharkhand

2010-06-22

R.R.PRASAD

body2010
Judgment The petitioner while was posted as Executive Engineer, N.R.E.P, Hazaribagh, was put under suspension, vide notification no.4987(5) dated 13.11.2002 for committing some irregularities. Subsequently, a memorandum of charges relating to said irregularities causing State exchequer to the loss to the extent of Rs.28,79,904.10 was served and the petitioner was called upon to submit his reply. Thereupon, a detailed reply was submitted before the Chief Engineer, Central Design Organization, Road Construction Department, Ranchi, who had been appointed as Enquiry Officer. Meanwhile, the petitioner superannuated from service on 31.12.2002. Thereafter the said departmental proceeding initiated earlier was converted into a proceeding under Section 43(B) of the Bihar Pension Rule. After holding enquiry, the Enquiry Officer submitted its report before the respondent no.3, Deputy Secretary, Road Construction Department, Government of Jharkhand on 29.4.2003 whereby the Enquiry Officer did not find the petitioner guilty of any of the charges. However, the disciplinary authority, vide its order as contained in notification no.5081(5) dated 15.10.2003 (Annexure 6) inflicted punishment whereby the order was passed to recover 20% of the total defalcated amount of Rs.28,79,904.10 from the pension of the petitioner. That order was challenged before this Court by the petitioner in W.P.(S) No.4391 of 2004. This Court after hearing the parties set aside the aforesaid order and allowed the writ application on the ground which reads as follows: " I have considered the pleadings and the rival contentions and the law in this regard is well settled. The cardinal principles of natural justice mandates that there should be an application of mind and reasons has to be assigned, more so, when the disciplinary authority differs from the report/finding of the enquiry officer which is in favour of the delinquent officer. It is also well settled that a fresh notice should also be given which is termed as second show cause notice in case of any difference of opinion by the disciplinary authority. In the instant case the impugned order dated 15.10.2003 is strangely based on enquiry report which exonerates the petitioner. It does not even assign any reason for the difference of opinion and the grounds thereto as to why the disciplinary authority did not agree with the findings of the enquiry officer and its report. The impugned order is clearly against the well settled principles of natural justice, illegal, arbitration and thus, violative of Article 14 of the Constitution of India. The impugned order is clearly against the well settled principles of natural justice, illegal, arbitration and thus, violative of Article 14 of the Constitution of India. This writ petition is accordingly allowed and the impugned order dated 15.3.2003 is quashed." Pursuant to that order, the Secretary, Road Construction Department, vide order no.107 dated 23.5.2009 (Annexure 7) cancelled the earlier notification under which punishment had been inflicted but at the same time, directed the authority to issue a second show cause notice to the petitioner. Pursuant to that, respondent no.3, Deputy Secretary, Road Construction Department vide its letter dated 25.5.2009 (Annexure 8) issued notice to the petitioner to show cause as to why not punishment be inflicted for recovery of 20% of the total defalcated amount. Being aggrieved with the said order as contained in Annexure 7 and the notice to show cause as contained in Annexure 8, the petitioner has preferred this writ application. Mr. Sujit Narayan Prasad, learned counsel appearing for the petitioner submits that once the order, under which punishment was inflicted, has been quashed by this Court, the authority had no jurisdiction to issue notice calling upon the petitioner to show cause as to why not he be inflicted with the punishment. That too without assigning any reason or grounds for differing from the conclusion arrived at by the Enquiry Officer and as such, the aforesaid order as contained in Annexure 7 and the second show cause notice as contained in Annexure 8 are fit to be set aside. Learned counsel in this respect did point out that the respondent no.3 while issuing second show cause has recorded the reason for differing from the opinion formed by the Enquiry Officer but that difference of opinion is based on an enquiry report which was never part of the departmental proceeding, rather the said report is an outcome of the preliminary enquiry which was never placed in course of departmental proceeding and as such, opinion formed by the respondent no.3 can easily be said to have been based on extraneous consideration and on this ground also second show cause notice is fit to be set aside. In the counter affidavit, same and similar stand as is there in Annexure 8 has been taken wherein it has been stated that opinion arrived at by the Enquiry Officer is contrary to the report submitted by the High Level Committee. In the counter affidavit, same and similar stand as is there in Annexure 8 has been taken wherein it has been stated that opinion arrived at by the Enquiry Officer is contrary to the report submitted by the High Level Committee. Having heard learned counsel appearing for the parties and on perusal of the record, it does appear that earlier the petitioner was inflicted with punishment, though the Enquiry Officer had exonerated the petitioner from the charges levelled against him. The said order on being challenged was quashed by this Court after holding that order inflicting punishment does not contain any reason for the difference of opinion and the ground thereto as to why disciplinary authority did not agree with the finding of the Enquiry Officer. Pursuant to that, the Secretary, Road Construction Department, cancelled the said order under which punishment had been inflicted against the petitioner but passed an order to issue second show cause notice. Pursuant to that, second show cause notice (Annexure 8) was issued wherein ground for differing from the opinion of the Enquiry Officer is there but that ground can be said to be extraneous as the report of the High Level Committee, according to the petitioner, was never placed in course of departmental proceeding which assertion has never been denied on behalf of the State. Under this circumstance, the ground taken by the authority for differing from the opinion arrived at by the Enquiry Officer can not be said to be legal, just and proper. Thus, the impugned order as contained in Order no.107 dated 23.5.2009 (Annexure 7) and also the second show cause notice as contained in Annexure 8 are hereby quashed. In the result, this application is allowed.