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2012 DIGILAW 1077 (PAT)

Umesh Chandra Chaudhary v. State of Bihar

2012-08-03

CHAKRADHARI SHARAN SINGH

body2012
CHAKRADHARI SHARAN SINGH, J.:–Heard Mr. Durgesh Nandan, learned counsel for the petitioner and Mr. Jainendra Kumar Sinha, learned counsel appearing on behalf of the State of Bihar and its official respondents. 2. The petitioner is aggrieved by the notification issued vide memo no. 1490 dated 04.12.2002 (Annexure-18) whereby the punishment of dismissal from service has been imposed on the petitioner. On the date of issuance of the impugned order of punishment, the petitioner was a Junior Engineer (under suspension) Flood Control Division, Darbhanga. 3. While posted as Junior Engineer under the Flood Control Division, Darbhanga, some irregularities were detected in course of an enquiry, conducted by a Technical Team with regard to repair work of left Khirohi embankment (37.00 km to 44.00 km) under the direction of the Chief Engineer, Water Resources Department, Samastipur. The Technical Team submitted its report. This led to an order putting the petitioner under suspension vide order dated 08.04.1999. Almost simultaneously a disciplinary proceeding was initiated against him with the framing of charges and appointment of Conducting Officer vide memo no. 22 dated 16.04.1999 (Annexure-2). 4. There were two charges against the petitioner, the substance of which are as follows:— Charge No. 1: Repair work was got executed between the period 01.04.1997 to 12.07.1997 after receiving a sum of Rs. 33.66 lakh from the Administration without obtaining valid departmental sanction on basis of wrong / imaginary figures / measurement; out of which 19.96 lakh was paid through the petitioner. Charge No. 2: The petitioner certified, on the basis of entries in the Measurement Book and Ledger, execution of earth work wroth Rs. 36.16 lakh (162515 m3) whereas, the Inspecting Team has found the actual earth work measuring 84191 m3 only worth Rs. 16.63 lakh. The petitioner, thus misappropriated the public money, with the connivance of concerned officials to the tune of Rs. (33.66-16.63)=17.03 and made unsuccessful attempt to misappropriate a sum of Rs. 2.50 lakh (36.16-33.66). 5. The petitioner thereafter is said to have filed his tentative reply on 16.08.1999. The Conducting Officer, namely, B.P. Parihast, vide his letter No. 33 dated 25.04.2000 (Annexure-3) asked the petitioner to submit his written statement of defence / explanation as according to him, in spite of repeated reminders the petitioner had failed to file his written statement of defence. 5. The petitioner thereafter is said to have filed his tentative reply on 16.08.1999. The Conducting Officer, namely, B.P. Parihast, vide his letter No. 33 dated 25.04.2000 (Annexure-3) asked the petitioner to submit his written statement of defence / explanation as according to him, in spite of repeated reminders the petitioner had failed to file his written statement of defence. It was mentioned in the letter dated 25.04.2000 (Annexure-3) that the delinquent must submit his explanation / evidence by 27.04.2000 failing which the disciplinary enquiry would be conducted ex-parte. The petitioner in reply to the said letter dated 25.04.2000 stated in his representation dated 27.04.2000 (Annexure-4) before the Conducting Officer that he had already filed his tentative reply on 16.08.1999 which was duly received and further that on 18.09.1999 also he had submitted his reply which was received in the office of the Conducting Officer. The petitioner vide his letter dated 27.04.2000 (Annexure-4) requested for fixing another date of hearing in the departmental enquiry. In his representation dated 27.04.2000 (Annexure-4), he made it clear that he had been provided neither with the copy of the documents on the basis of which the department proposed to prove the charges nor the list of the prosecution witnesses who were required to prove the charges framed against him. The next date appears to have been fixed on 08.05.2000. In the meanwhile, the Conducting Officer stood transferred to some other place. Subsequently, Shri Murli Manohar Prasad, the Joint Secretary, under the Water Resources Department was appointed as Conducting Officer in place of Shri Parihast. 6. Thereafter, the petitioner’s case is, that absolutely nothing was done in the name of enquiry except for the fact that on 18.09.2000, which was the date fixed for conducting the enquiry, a questionnaire was given to the petitioner by the Conducting Officer. It is to be added here that the petitioner had filed his written statement of defence on 28.06.2000 which is Annexure-8 to the writ application. The petitioner’s case is that he replied to the questionnaire pointwise vide his reply dated 24.11.2000 (Annexure- 9/1). The questionnaire supplied to the petitioner by the Conducting Officer has been annexed as Annexure-9 to the writ application. The specific case of the petitioner as contained in paragraphs 14 & 15 of the writ application is that no oral evidence was adduced by the prosecution witnesses. The questionnaire supplied to the petitioner by the Conducting Officer has been annexed as Annexure-9 to the writ application. The specific case of the petitioner as contained in paragraphs 14 & 15 of the writ application is that no oral evidence was adduced by the prosecution witnesses. There was none to prove any document before the Conducting Officer. Based on the petitioner’s written statement of defence and the reply to the questionnaire, the Conducting Officer submitted his report to the Chief Engineer, Water Resources Department, Samastipur, vide letter No. 1, Camp Patna, dated 23.12.1997 (Annexure-10). 7. The Conducting Officer, dealing with charge No. 1 accepted the petitioner’s plea and held that the charge of receiving a sum of Rs. 33.66 lakhs from the District Administration on the basis of wrong/ imaginary figures/measurement without valid departmental sanction was not proved against him as he did not prepare any paper before work had started. The Conducting Officer however held the charge stood partially proved recording that though the petitioner did n’t receive the advance directly from the district administration he had received it from the Sub-Divisional Officer and made payment to the labours. 8. As regards charge No. 2, the Conducting Officer held it to be proved to the effect there was petitioner’s participation in wrongful payment to the tune of Rs. 17.03 lakhs and there was intention to make wrongful payment to the tune of Rs. 2.50 lakh. 9. Referring to the report of the Conducting Officer, learned counsel for the petitioner submits that the Conducting Officer relied upon three enquiry reports as mentioned in paragraph 4 of the report of the Conducting Officer. He firstly submits that the enquiries as referred to in paragraph 4 of the report of the Conducting Officer were not held in petitioner’s presence. He further submits, with reference to paragraph 4.1 (III) of the report of the Conducting Officer, that the petitioner in fact was not noticed with regard to the enquiry which the flying squad was going to conduct, in addition to the fact that there was no witness before the Conducting Officer to prove the charge against the petitioner. It is contended that the Conducting Officer placed reliance on such documents which were not supplied to the petitioner as also relied upon report of such enquiries which were conducted behind his back. It is contended that the Conducting Officer placed reliance on such documents which were not supplied to the petitioner as also relied upon report of such enquiries which were conducted behind his back. The learned counsel for the petitioner, therefore, submits that the Conducting Officer submitted his report in breach of Rule 55 of Civil Services (Classification, Control and Appeal) Rule, 1930 and the procedure adopted by him is also violative of the principles of natural justice. 10. Thereafter, vide letter dated 23.07.2002 (Annexure-16) second show-cause notice was issued to the petitioner as contained in Annexure-16 to the writ application to which the petitioner replied on 10.09.2002. In his reply to the second show-cause notice, the petitioner specifically contended that the reports referred to in the report of the Conducting Officer in paragraph 4 were prepared behind his back and without giving him any notice. He specifically contended in his reply that besides, the reports mentioned in Paragraph 3, there was no other evidence before the Conducting Officer to hold charge no. 2 proved against the petitioner. The petitioner further specifically took the plea in his reply that no further date was fixed for his personal hearing nor any notice was issued to him regarding the enquiry after the petitioner submitted his reply to the questionnaire. 11. Learned counsel for the State defending the impugned action submits that the order of dismissal is commensurate with the gravity of the charge levelled against the petitioner. He would further submit that sufficient opportunity was given to the petitioner in course of the disciplinary enquiry. He blamed the petitioner of not having participated in course of the enquiry conducted by the flying squad intentionally. He submits that report of the flying squad is also the basis for the Conducting Officer to reach to a conclusion that charge no. 2 stood proved against him. Referring to the counter affidavit, learned counsel for the respondents submits that there were sufficient material available before the Conducting Officer on the basis of which he rightly reached to the conclusion that charge no. 2 against the petitioner stood proved. 12. After having heard learned counsel for the petitioner and learned counsel appearing on behalf of the State and the records available it is apparent that in course of the enquiry before the Conducting Officer there was no witness to support the charge levelled against him. 2 against the petitioner stood proved. 12. After having heard learned counsel for the petitioner and learned counsel appearing on behalf of the State and the records available it is apparent that in course of the enquiry before the Conducting Officer there was no witness to support the charge levelled against him. Enquiry report is based on a questionnaire prepared by the Conducting Officer himself and reply submitted by the petitioner thereto. There is no denial by the State respondents to the facts alleged in the writ petition that on the date fixed for hearing before the Conducting Officer only the questionnaire were supplied to him and neither evidence was recorded nor any witness was examined. There was thus, no question of cross-examination of the witness / witnesses by the petitioner. 13. The procedure adopted by the Conducting Officer for holding departmental enquiry initiated for imposition of major punishment is unheard of. Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 provides the manner in which the domestic enquiry against Government servant is required to be held. The said provision is being quoted hereinbelow:– 55. “Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, no order of dismissal, removal, compulsory retirement [or reduction] shall be passed on a member of a Service (other than an order based on facts which have led to his conviction in a criminal court or by a Court-Martial) unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and on any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so direct an oral inquiry shall be held. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so direct an oral inquiry shall be held. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer, conducting the inquiry may, for special and sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. This rule shall not apply where the person concerned has absconded or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may, in exceptional cases, for special and sufficient reasons to be recorded in writing be waived, where there is a difficulty in observing exactly the requirement of the rule and those requirements can be waived without injustice to the person charged. The full procedure prescribed in this rule need not be followed in the case of a probationer discharged in the circumstances described in Explanation II to rule 49. In such cases, it will be sufficient if the probationer is given an opportunity to show cause in writing against the discharge after being apprised of the grounds on which it is proposed to discharge him and his reply duly considered before orders are passed.” 14. In the present case, on the basis of the report of the Conducting Officer, it appears that no material worth evidence was brought on record on behalf of the department to prove the charge and the Conducting Officer himself acted as a prosecutor. I have no hesitation, in the facts and circumstances, in holding that the entire departmental proceeding was conducted in complete breach of principles of natural justice and, accordingly, the enquiry report is set aside. All actions taken on the basis of such enquiry are declared illegal. The order of dismissal dated 04.12.2002 as contained in Annexure-18 is quashed. 15. I have no hesitation, in the facts and circumstances, in holding that the entire departmental proceeding was conducted in complete breach of principles of natural justice and, accordingly, the enquiry report is set aside. All actions taken on the basis of such enquiry are declared illegal. The order of dismissal dated 04.12.2002 as contained in Annexure-18 is quashed. 15. The petitioner will be entitled for all consequential benefits treating the period during which he was out of service by virtue of the order dated 04.12.2002 to be continuous service for the purpose of fixation of his pension and other retiral benefits. 16. In view of the fact, this writ application is allowed. In view of the procedural irregularities found in course of the disciplinary proceeding, without going into the merits of the allegations it will be open to the State respondents to proceed in accordance with law.