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2014 DIGILAW 529 (PAT)

Rajesh Kumar Gupta v. State Of Bihar

2014-04-29

AJAY KUMAR TRIPATHI

body2014
ORDER : Petitioner, an Assistant Engineer, has been inflicted punishment after the so called departmental enquiry held against him. The punishment order is rather harsh and has serious consequences because the petitioner has been reduced to the minimum pay scale of Assistant Engineer which is as good as reversion since he has been made to start his career at the first ladder of that post or cadre. 2. The basic question for consideration is whether the enquiry and the order of punishment passed by the disciplinary authority satisfies the requirements of the rules as laid down in the Bihar Government Servant (Classification, Control and Appeal) Rules, 2005 (hereinafter referred to as the C.C.A. Rules). 3. The origin of the present dispute is in preparation of the Bill of Quantity for strengthening what is known as Loriya-Shikarpur-Thori Road which was prepared by the petitioner as an Estimating Officer-cum-Assistant Engineer at the relevant time. On the basis of preparation of Bill of Quantity on 15.12.2001 which was approved by the petitioner on 22.12.2001 tenders were invited. Allegation is that initially the contractors had given their quotation at 15% higher rate than the Bill of Quantity. However, in connivance with the officials of the said office, the Contractors managed to replace the page and requote their price which led to un-due advantage and award of contract, obviously having financial consequences for the government in execution of the work. 4. On the basis of the inputs which were considered to be a serious omission, an in-house enquiry was conducted by the Superintending Engineer, North Bihar Circle, Muzaffarpur who tendered a report on 25.12.2002. Nothing happened on that report for many-many years till all of a sudden the issue was revived again and the superior authorities decided to initiate a departmental proceeding against the petitioner and also the Executive Engineer and other persons involved. We are concerned with the role played by the petitioner and the culpability which arose from his conduct/misconduct, if any. 5. Submission of the learned Senior Counsel for the petitioner is that the responsibility and role of the petitioner was limited. He had only approved the estimation on 22.12.2001. Thereafter the papers passed on to the hands of the Executive Engineer and sold to the would be tenderers. 5. Submission of the learned Senior Counsel for the petitioner is that the responsibility and role of the petitioner was limited. He had only approved the estimation on 22.12.2001. Thereafter the papers passed on to the hands of the Executive Engineer and sold to the would be tenderers. As it is widely known that tender boxes are duly sealed and remains in the custody of the nodal authority, who happened to be the Executive Engineer, if after opening of the tenders, the irregularities or complaint of suspicious replacement in certain pages of the tender papers were found, then there has to be evidence to link the petitioner with the said wrong doing before he could be punished in such a severe fashion. 6. Many abrasions have been pointed out in the manner the disciplinary authority decided to impose punishment upon the petitioner. Learned counsel for the petitioner points out that the in-house enquiry was conducted behind the back of the petitioner. He was never given an opportunity to explain his role or conduct. That in-house enquiry also, on a reading thereof, only creates suspicion about all such persons who were posted in the office at that relevant point of time but there is nothing more than suspicion with regard to the petitioner and the responsibility which he was required to shoulder. 7. No doubt, a regular departmental proceeding was initiated, charge-sheet along with the so called evidence or documents based on which the domestic enquiry was expected to proceed was tendered to the petitioner but when it came down to actual enquiry, nothing more than reliance on the in-house enquiry report dated 25.10.2002 was pressed into service on behalf of the Presenting Officer to establish the guilt of the petitioner. 8. Initially, the Court was not willing to bite the bate or the contention of the learned Senior Counsel for the reason that it was un-believable that in a domestic enquiry, one old inhouse enquiry report would be the only evidence and that too not even proved or established by the author. No opportunity of examination and cross examination had been given in that enquiry. How it would form the basis for arriving at a finding is the stand of the petitioner. The Enquiry Officer rightly did not find the petitioner guilty of any omission at least at his level. 9. No opportunity of examination and cross examination had been given in that enquiry. How it would form the basis for arriving at a finding is the stand of the petitioner. The Enquiry Officer rightly did not find the petitioner guilty of any omission at least at his level. 9. It was in this background that the Court directed production of the original records relating to the departmental enquiry. The same has been gone through by the Additional Advocate General No. VII. He is not in a position to dispute what was urged on behalf of the petitioner by the learned Senior Counsel. What has been asserted is what is found in the records of the domestic enquiry. The learned Additional Advocate General very fairly does accept the position that from the records of the domestic enquiry it is evident that except for the 2002 report, no other evidence was presented, no oral evidence of any kind was taken and how this 2002 in-house enquiry report was proved is also not available. 10. In other words, there is no material or evidence legally tenable which can be utilized for punishing the petitioner. As a natural corollary to that would be that despite the finding having been given by the enquiry officer in favour of the petitioner exonerating him, there is no evidence to hold the petitioner guilty by exercising the right of disagreement which the disciplinary authority has. 11. The Court’s attention has been drawn to annexure-5 which is said to be a notice of disagreement dated 30.03.2009. This was issued to the petitioner under the signature of the Deputy Secretary (Vigilance), Road Construction Department, Government of Bihar, Patna. The Court did go through the notice of disagreement. Unfortunately for the respondents, notice of disagreement is based on the 2002 in-house enquiry report and nothing else. The other reason given for disagreement is said to be because the petitioner was custodian of the document as the Estimating Officer and, therefore, despite the explanation offered by the petitioner with regard to his role, the kind of evidence or no evidence which was produced during the course of enquiry was still visited with order of punishment relegating him to the lowest pay scale as an Assistant Engineer. 12. There is serious omission in the manner in which the enquiry has been conducted. 12. There is serious omission in the manner in which the enquiry has been conducted. To say the least, it is a slip-shod kind of exercise which was conducted by the Enquiry Officer. But then the Enquiry Officer cannot make things any better. It is not the duty of the Enquiry Officer to generate evidence on behalf of the disciplinary authority. 13. The stand of the state that after all 2002 in-house enquiry report was part of the documents which were supplied to the petitioner. He has filed his response thereto and nothing more was required to be done other than to reach a conclusion on what was done by the petitioner and the manner in which such a vital fraud was allowed to be perpetrated by the officials. 14. If the stand of the State is accepted on the face value, then entire process and the manner in which the domestic enquiry is expected to be conducted will be required to be given a new dimension. The Court will also have to over look and give a go-bye to the procedure which is prescribed under the C.C.A. Rules, 2005 and the detailed steps by steps procedure prescribed in Rule 17(i) to (xxiii). 15. If the State authorities do not know how to conduct an enquiry of domestic kind, then the Court cannot bail them out merely because there were serious charges. If it was so there should have been serious effort to establish so. 16. The Court, therefore, is left with no option but to decisively conclude that there is no material or evidence which emerged in the enquiry which could pin point the omission on the part of the petitioner or his participation in facilitating the change in papers to help a particular contractor or set of contractors. 17. Further if there was a report of the Enquiry Officer exonerating the petitioner from his culpability, then notice of disagreement must always emerge from the set of evidence which was tendered in the enquiry. The disagreement cannot be beyond the material which was furnished during the course of enquiry and we have seen in the earlier part of the order that no material except 2002 in-house enquiry report was put in service which was not even proved either by the author of the same or by any authority. The disagreement cannot be beyond the material which was furnished during the course of enquiry and we have seen in the earlier part of the order that no material except 2002 in-house enquiry report was put in service which was not even proved either by the author of the same or by any authority. Since the notice of disagreement was not based on any legal evidence, therefore, the order of punishment suffers from illegality. 18. Learned Additional Advocate General draws the attention of this Court to an order passed in L.P.A. No. 428 of 2013. This was an order passed on 13.08.2013 on an appeal filed by the State of Bihar in relation to an order passed in favour of one Surendra Prasad, who happened to be the Executive Engineer then. The Division Bench set aside the order of the learned Single Judge on the ground that the whole procedure or the decision of the disciplinary authority cannot be set to naught if certain infirmity in the notice of disagreement was noticed by the learned Single Judge. The matter, therefore, was remanded back to the disciplinary authority to proceed in terms of the procedure prescribed in Rule 18 of C.C.A. Rules. Learned Additional Advocate General wants similar kind of order to be passed in the present writ application as well. 19. The detail of the case relating to the Executive Engineer is not before this Court. Nothing of that kind has been even annexed with the counter affidavit to show that similar kind of procedure or evidence or material had emerged even in the case of the Executive Engineer. His attack was at the stage of the second show cause notice and the notice of disagreement. Therefore, the limited interference was made by the Division Bench in that case. 20. In the present case the issue goes to the root of the matter in the sense that there is utter failure on the part of the Presenting Officer or the State authorities to bring any evidence against the petitioner. Whatever evidence that has come is in the form of 2002 in-house enquiry report which is no evidence in the eye of law and cannot form the basis for award of punishment against the petitioner. The whole thing, therefore, is vitiated. Whatever evidence that has come is in the form of 2002 in-house enquiry report which is no evidence in the eye of law and cannot form the basis for award of punishment against the petitioner. The whole thing, therefore, is vitiated. There is abrasion committed at every stage and more so the Court gets a feeling that there was some pre-determined mind of the disciplinary authority to visit the petitioner with some punishment; whatever be the outcome of the enquiry report or else he would not have been innovative. 21. The petitioner has made out a case for interference with the impugned order contained in annexure-7 dated 05.12.2011 and the order passed in Review contained in annexure-9 dated 09.08.2012. Both of them are quashed. This writ application is allowed. 22. Before parting with this decision, the Court offers a free piece of advice to the State authorities that they have to put a mechanism and hold regular work shop to enlighten the Presenting Officer and the Enquiry Officer as to how departmental enquiry is required to be held. Even the disciplinary authority and the superior authority will be well advised to read and re-read C.C.A. Rules which has very precisely laid down the procedure keeping in mind all the past decisions which have been rendered by the different High Courts as also the Apex Court as to what is required to be done and what is not required to be done in domestic enquiry. This will help the system in future but the past is past and it cannot be redeemed.