Research › Search › Judgment

Jharkhand High Court · body

2013 DIGILAW 1295 (JHR)

Swami Bibhu Deo v. State of Jharkhand

2013-11-29

SHREE CHANDRASHEKHAR

body2013
ORDER Aggrieved by order dated 06.10.2012 appointing an inquiry officer for conducting a fresh inquiry into the allegations contained in memo dated 17.02.2012, the petitioner has approached this Court. 2. Heard learned counsel appearing for the parties and perused the documents on record. 3. The petitioner who was working as Executive Engineer, was served the charge-memo dated 17.02.2012. An inquiry was conducted and inquiry report dated 29.07.2012 was submitted finding the charges levelled against the petitioner, not proved. Thereafter, by the impugned order dated 06.10.2012 another inquiry officer has been appointed for conducting a fresh inquiry into the allegations contained in charge-memo dated 17.02.2012. 4. A counter-affidavit has been filed stating as under :- 6. “That petitioner is an Executive Engineer under the administrative control of the Road Construction Department, Jharkhand. The petitioner was earlier posted as Executive Engineer in National Highway Division, Dhanbad. An F.I.R. has been lodged by the C.B.I. pertaining to the bitumen scam in N.H. Division, Dhanbad under case no. RC 10(A)/2010 (R) in pursuant to direction of the Hon'ble Jharkhand High Court given in a Public Interest Litigation and it relates to the period when the petitioner was posted there. Although the petitioner has not been made a named accused in the above criminal case, but the C.B.I. has recommended a regular departmental proceeding for major punishment against him in its report related with the above criminal case. After review of the above C.B.I.'s report the Government has decided to initiate a departmental proceeding against the petitioner, which has been instituted vide resolution contained in memo no. 1201 (S) dated 17.07.2012, whereby Mr. N.K. Mishra, IAS, Civil Defense Commissioner, Jharkhand, Ranchi and the Executive Engineer, N.H.Division, Dhanbad were appointed as Conducting Officer and Presenting Officer respectively. 7. That the Conducting Officer of the aforesaid Departmental Proceeding Mr. N.K. Mishra has completed the departmental proceeding and submitted his inquiry report to this department. All the four charges framed against the petitioner for the above departmental proceeding have not been reported to be proved in the inquiry report of the Conducting Officer, Mr. N. K. Mishra. 8. That since the C.B.I. has reported the clear involvement of the petitioner in the process of payment to the concerned contractor of the road construction on the basis of fake bitumen invoices submitted by him (Contractor), therefore, the inquiry report of the Conducting Officer, Mr. N. K. Mishra. 8. That since the C.B.I. has reported the clear involvement of the petitioner in the process of payment to the concerned contractor of the road construction on the basis of fake bitumen invoices submitted by him (Contractor), therefore, the inquiry report of the Conducting Officer, Mr. N.K.Mishra was not found reliable agreeable in its review. 9. That thus in the light of above review of the Government has decided to change the above Conducting Officer and Presenting Officer of the aforesaid departmental proceeding for fresh further inquiry and that has been notified by the order contained in Memo no. 7224 (S) dated 06.10.2012 of the Road Construction Department, Jharkhand, Ranchi. Since the disciplinary authority is not intended to take any further action on the basis of the above inquiry report of the Conducting Officer Mr. N.K. Mishra, therefore, it has not been found necessary to convey the reason of disagreement to the charged Government Servant.” 5. The learned counsel appearing for the petitioner has submitted that once the inquiry officer found the charges against the petitioner not proved, it was open to the respondent-authority to issue show-cause notice to the petitioner indicating the ground on which the disciplinary authority decided to disagree with the findings recorded in the departmental proceeding however, it was not open to the respondents to conduct a fresh inquiry into the allegations contained in charge-memo dated 17.02.2012. It was open to the disciplinary authority to pass order of punishment after complying with the requirements of the principle of natural justice however, it was not open to the respondent-authority to conduct a fresh inquiry into the matter. Relying on the decision in “K.R. Deb v. the Collector of Central Excise, Shillong”, reported in (1971) 2 SCC 102 and “Nand Kumar Verma v. State of Jharkhand and Others”, reported in (2012) 3 SCC 580 , the learned counsel appearing for the petitioner has submitted that in the present case the impugned order dated 06.10.2012 is liable to be quashed. 6. As against the above, Mr. Anshuman Kumar, the learned counsel appearing for the respondents has submitted that, since the Government decided to disagree with the findings recorded by the inquiry officer, by order dated 06.10.2012 another inquiry officer was appointed for conducting a fresh inquiry into the allegations contained in charge-memo dated 17.02.2012. 6. As against the above, Mr. Anshuman Kumar, the learned counsel appearing for the respondents has submitted that, since the Government decided to disagree with the findings recorded by the inquiry officer, by order dated 06.10.2012 another inquiry officer was appointed for conducting a fresh inquiry into the allegations contained in charge-memo dated 17.02.2012. He has further submitted that since the inquiry officer did not consider some important material facts, a fresh inquiry into the matter was ordered. 7. A perusal of the impugned order dated 06.10.2012 indicates that the Government decided to disagree with the inquiry report and therefore, another inquiry officer was appointed for conducting a fresh inquiry. No reason except that, the Government decided to disagree with the finding recorded by the inquiry officer, has been indicated in the impugned order. I donot find any force in the contention raised by the learned counsel appearing for the respondents that, since the inquiry officer failed to consider material facts, the Government decided to institute a fresh inquiry. The law on this issue is settled by a catena of judgments of the Hon'ble Supreme Court. It has been categorically held that only in cases, where the inquiry report suffers from some technical lacuna, a denovo inquiry can be instituted. In all other cases, only a further inquiry can be conducted into the matter and not a fresh inquiry altogether. 8. In “K.R. Deb v. the Collector of Central Excise Shilling”, reported in (1971) 2 SCC 102 , the Hon'ble Supreme Court has held as under :- 12. “It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.” 9. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.” 9. In “Nand Kumar Verma v. State of Jharkhand and Others”, reported in (2012) 3 SCC 580 , the Hon'ble Supreme Court has held as under :- 26. “................ On general principles, there can be only one enquiry in respect of a charge for a particular misconduct and that is also what the rules usually provide. If, for some technical or other good ground, procedural or otherwise, the first enquiry or punishment or exoneration is found bad in law, there is no principle that a second enquiry cannot be initiated. Therefore, when a completed enquiry proceedings is set aside by a competent forum on a technical or on the ground of procedural infirmity, fresh proceedings on the same charges is permissible.” 10. I further find that the contention raised by the respondents in the counter-affidavit cannot be considered in the present proceeding. In view of judgment of the Hon'ble Supreme Court in “Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others”, reported in AIR 1978 SC 851 , it is not open to the respondents to support the impugned order by supplementing reasons through counter-affidavit filed in the present proceeding. 11. In view of the aforesaid, this writ petition is allowed. The impugned order dated 06.10.2012 is hereby quashed. It would be open to the respondents to pass fresh order in the matter, in accordance with law.