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2012 DIGILAW 1047 (PAT)

Choudhary Vijay Kumar Sharma v. State of Bihar

2012-07-31

NAVANITI PRASAD SINGH

body2012
ORDER The facts of both the cases are similar. Counter affidavit and rejoinder are there, with consent of parties, both the writ petitions have been heard for final disposal at this stage itself. The facts of the first writ petition are referred in detail. 2. The petitioner challenges the order of punishment as imposed against him in a departmental proceeding (Annexure-5) reverting him to the minimum scale of pay, as affirmed by the order of the appellate order, as contained in Annexure-7. 3. Learned counsel for the petitioner states that the petitioner at the relevant time was a Junior Engineer supervising the construction of Swarn Rekha Canal Irrigation Project. He along with several other Junior Engineers and other Engineers have been proceeded against. The basic charge against them is that they did not properly supervise the work of the private contractor and certified the work to be completed. The work was not done according to the specifications. Specifically, it has been asserted that the thickness of concrete work was grossly deficient causing loss of about Rs.7.5 crores to the State. This deficiency in work was based upon finding recorded by a flying squad who measured the work done and found that the concrete thickness was less than that what was prescribed as per the contract. Petitioner and other Engineers were, accordingly, suspended and departmental proceedings initiated. 4. A show cause having been issued and charges framed petitioner responded. Petitioner clearly asserted that the report of the flying squad, which is being made the basis for initiating the departmental proceeding, was incorrect. Petitioner pointed out various deficiencies and inaccuracy in the said report. He also mentioned that at several places, as mentioned in the report of the flying squad, he himself re-measured and found that the report was wrong. Apart from filing the show cause, petitioner specifically prayed that in view of the series of objections raised and in view of the fact that the report of the flying squad was obtained behind their back and without notice to them, in interest of justice a re-measurement should be ordered. It may be noticed that the petitioner was to supervise the work while he was posted there up to 1993. The flying squad took measurement in February 1999 and the proceedings have been started against the petitioner in the year 2000. 5. It may be noticed that the petitioner was to supervise the work while he was posted there up to 1993. The flying squad took measurement in February 1999 and the proceedings have been started against the petitioner in the year 2000. 5. It appears from the punishment order that a fresh enquiry team was duly constituted but the enquiry team refused to reinvestigate the matter inasmuch as one of the members thereof was also a member of the flying squad. State has not shown any reason why there was no further action taken. No fresh enquiry team was constituted and, as such, this part remained unverified and un-inspected. Considering the show cause filed by the petitioner and other engineers, the Inquiry Officer submitted his report. The report is Annexure-2 to the supplementary affidavit filed by the petitioner. The enquiry report being adverse to the petitioner, petitioner was issued to a show cause as to why the enquiry report be not accepted and punishment awarded. Petitioner filed his show cause raising various objections. But, rejecting the same the order of punishment, as contained in Annexure-5, has been passed, whereby major penalties have been imposed on the petitioner. Petitioner thereafter filed a detailed memo of appeal before the Secretary, Water Resources Department, Government of Bihar. By Annexure-7 petitioner has been informed that his appeal has been dismissed. No separate order in appeal has been disclosed. 6. On basis of the aforesaid facts, learned counsel for the petitioner submits that the departmental authorities were not right in accepting the report of the flying squad obtained ex parte or for that matter the award of the arbitrator as the final word or gospel truth. In fact, when petitioner challenged the same a fresh enquiry team was set up realizing the validity of challenge but then as its members refused to participate, being the member of the earlier flying squad enquiry, the matter was not persued. This, according to the learned counsel for the petitioner, has caused prejudice to the petitioner. It is further submitted that apart from the report of the flying squad or for that matter a arbitral award between the contractor and the State there is no material against the petitioner. Both these reports were drawn up in absence of the petitioner and without notice to them. Even these two reports are at great variance. It is further submitted that apart from the report of the flying squad or for that matter a arbitral award between the contractor and the State there is no material against the petitioner. Both these reports were drawn up in absence of the petitioner and without notice to them. Even these two reports are at great variance. A show cause notice initiating departmental proceeding was issued. As per the report of the flying squad, the loss due to faulty concrete work allegedly amounted to Rs.7.50 crores, whereas arbitral award scales down this amount to a mere Rs.31 lacs. This itself shows that in large scale work the reports are only guess estimates (guesstiamte). On these reports to find petitioner guilty is not legal or proper. 7. Learned counsel for the State is not able to reconcile the two reports nor after any explanation why an independent enquiry committee having been formed was not persuaded into conducting a re-inspection after notice to the petitioner and their like and in their presence and why that was abandoned midway. Petitioner has drawn attention of the Court to the show cause as filed and the memorandum of appeal filed. 8. Having considered these aspects of the matter, in my view, learned counsel for the petitioner is correct. The report of the flying squad and the findings of the arbitrator are all based on facts found behind the back of the petitioner and without notice to the petitioner. They would not thus bind the petitioner. Petitioner sought for a re-verification, which was accepted and a fresh committee was constituted but not persued for reasons best known to the State. The challenge to the correctness of the report is writ large from the fact that the loss as assessed by the State was at Rs.7.50 crores whereas the maximum loss as estimated by the arbitrator in the arbitral award was about Rs.31 lacs only. The total scope of work of course being much larger. The challenge to the correctness of the report is writ large from the fact that the loss as assessed by the State was at Rs.7.50 crores whereas the maximum loss as estimated by the arbitrator in the arbitral award was about Rs.31 lacs only. The total scope of work of course being much larger. In my view, in a departmental proceedings when the parties are at issue and the party proceeded against the challenges the correctness of any report obtained behind his back then either it is incumbent upon the authorities to show that notwithstanding the fact that the report was obtained behind the back of the petitioner and without notice to him the report is correct and reliable or to show that the objections raised by the persons proceeded against are frivolous but it does not lie in the mouth of the State to say that whatever report it has obtained is the final word or the sacrosanct truth because the very requirement of holding a departmental enquiry is to test the veracity of the allegations. In these facts, if we look to the proceeding we would find that upon the report being challenged the authorities themselves decided to reconstitute a team to carry out fresh verification in presence of the petitioner and their like. The team was constituted. But, unfortunately the members of the flying squad whose report was under challenge was included in this team which was obviously wrong. They protested and the team was never reconstituted and no fresh measurements were done. There is no warrant for the finding that the report of the flying squad is the gospel truth. If the report of the flying squad was the ultimate truth or the gospel truth then the whole proceedings were a farce because if that were so then what was being sought to be decided in the departmental proceeding. That report was already against the petitioner and their like. This itself, in my view, vitiates the proceedings. It is rightly further pointed out that so far the arbitral award is concerned, here again the petitioners were not a party at all. It was between the contractor and the State. In any event as between the report of the flying squad and the findings in the arbitral proceedings itself there was major differences which could not be reconciled. They were in conflict themselves. It was between the contractor and the State. In any event as between the report of the flying squad and the findings in the arbitral proceedings itself there was major differences which could not be reconciled. They were in conflict themselves. How could they form the basis for petitioners delinquency. This is a fundamental flaw in the enquiry and the punishment order based thereon. 9. It is further submitted that notwithstanding the order of punishment, when the petitioner then preferred appeal with a very detailed memo, the least that was accepted was that the appellate authority should have considered the grounds raised and decided the same. What we have here is the order as contained in Annexure-7 which merely states that the memo of appeal was considered by the State in detail and it was not found worthy of consideration persuading the Government to reconsider the order of punishment. The appeal was, thus, dismissed. This is an apology for a quasi judicial order passed in a departmental proceeding. Let it be not forgotten that these orders are amenable to judicial review in the writ jurisdiction of this Court. How from the order of the appellate authority this Court would find whether the appellate authority had applied its mind or not? How would the party assail the appellate order when it contains no reason? Not a single line of the contention, as raised by the petitioner, has been noticed much less considered. Petitioner had attacked not only the report of the flying squad but also the enquiry report and the order of punishment. Nothing has been said in the appellate order regarding those. No consideration at all of any of the grounds taken in appeal memo is evident from the appellate order. State has not even ventured to show that there was, in fact, any other order, much less a detailed order of the appellate authority anywhere else. 10. Thus, the appellate order, being a totally non-speaking order, cannot be sustained. 11. The result is that both the writ petitions are allowed and the impugned orders of punishment and appellate orders affirming the same are set aside.