Research › Search › Judgment

Jharkhand High Court · body

2015 DIGILAW 1508 (JHR)

Sarda Devi v. State of Bihar

2015-12-04

PRAMATH PATNAIK

body2015
ORDER : 1. In the accompanied writ application, the petitioner-Madneshwar Prasad Singh (deceased) has inter alia prayed for quashing of the order dated 31.05.1997 pertaining to dismissal from Government services and for direction to the respondent for grant of all consequential service benefits. During pendency of the writ application the petitioner died, as such, an interlocutory application bearing I.A. No. 3558 of 2015 was filed on behalf of the legal heirs and accordingly, the name of present petitioner being the leqal heirs has been inserted in the cause title. 2. The factual matrix, as disclosed in the writ application, in a nutshell is that the petitioner Late Madneshwar Prasad Singh joined as Junior Engineer in the Subarn-rekha Multipurpose Project on 10.07.1987 and continued to work till his transfer to the department of Minor Irrigation. In the year 1983-84 one S.S. Kalsi was allotted the work of earth cutting by the project. Since the work of the contract was found out unsatisfactory, his contract was cancelled sometimes in the year 1985. In the year 1986-87 the left over work was allotted to M/s Kalsi and sons by the Subarn-rekha Multipurpose Project. However, on the ground of unsatisfactory work, the left over work was allotted to one Alok Agency in the year 1989. In the year 1990 the Executive Engineer, Subarnrekha Canal Division asked the petitioner to file his explanation with respect to excess payment to S.S. Kalsi & Company and M/s S.S. Kalsi & Sons. Pursuant thereto the petitioner filed his explanation vide his letter dated 05.05.1990 denying any irregularity committed with respect to payment to the earlier contractor. Again the petitioner received a letter dated 05.10.1990 issued by the Deputy Secretary, Department of Water Resources seeking explanation from the petitioner as he was found to have guilty of making excess payment to the contractor causing wrongful gain to such persons and financial loss to - the Government. After receipt of the said letter the petitioner submitted his explanation. Thereafter, the petitioner was placed under suspension vide order dated 31.10.1991 by the Department of Water Resources (Irrigation) on the ground that he in collusion with the contractors, made excess payment to the contractors and further that he was found prima facie guilty of these allegations. Thereafter, a departmental proceeding was initiated and in the charge sheet, the petitioner was alleged to have committed irregularities. Thereafter, a departmental proceeding was initiated and in the charge sheet, the petitioner was alleged to have committed irregularities. The petitioner submitted his show cause in the departmental proceeding before the enquiry officer. The Superintending Engineer, Subarnrekha Canal Division, Jamshedpur asked the Executive Engineers to take measurement after desilting and removing water from the pit. Thereafter, the petitioner was asked to appear before the enquiry officer in the departmental proceeding. In the enquiry no list of prosecution witness was given to the petitioner nor any witness was examined. Thereafter, the petitioner to his utter surprise received second show cause in the year 1994 along with the copy of the enquiry officer. In the enquiry report there was no specific finding against the petitioner of misconduct arising out of any specific commission or omission on the part of the petitioner. In pursuance to the second show cause, the petitioner filed his reply denying the allegation of any kind of irregularity committed by him. Thereafter, the petitioner was dismissed from services vide order dated 31.05.1997. Being aggrieved by the impugned order of dismissal dated 31.05.1997, left with no alternative, efficacious and speedy remedy, the petitioner has approached this Court under Article 226 of the Constitution of India, invoking extraordinary jurisdiction of this Court for redressal of his grievance. 3. Per contra, a counter affidavit has been filed on behalf of the respondent-Executive Engineer, Swarnrekha Canal Division, Jamshedpur stating inter alia that the present writ petition is frivolous, misconceived and not maintainable. Learned counsel has further submitted that the enquiry as well as the departmental proceeding has been initiated and concluded by the Water Resources Department, Government of Bihar. No files or any records with the referred departmental proceeding was available at Water Resources Department, Government of Jharkhand nor had been sent by the Department of Water Resources, Government of Bihar Patna. In that view of the fact, the detailed reply has not been made by the respondents-State of Jharkhand. 4. Heard Mr. A.K. Sahni, learned counsel appearing for the petitioner as well as J.C. to G.P. III appearing for the respondents. 5. Learned counsel for the petitioner during course of argument has referred to the supplementary affidavit, wherein it has been submitted that one Sri Arjun Kumar, Assistant Engineer who was posted along with husband of petitioner no. 4. Heard Mr. A.K. Sahni, learned counsel appearing for the petitioner as well as J.C. to G.P. III appearing for the respondents. 5. Learned counsel for the petitioner during course of argument has referred to the supplementary affidavit, wherein it has been submitted that one Sri Arjun Kumar, Assistant Engineer who was posted along with husband of petitioner no. 1 at the relevant period, was also served with a charge sheet on the similar allegation by resolution dated 25.11.1991. By order dated 25.01.2000, the said Arjun Kumar was dismissed from service. Accordingly, the said Arjun Kumar challenged the order of dismissal in C.W.J.C. No. 70 of 2000 before the Hon'ble Ranchi Bench of the Patna High Court. This Hon'ble Court vide order dated 24.08.2001 was pleased to allow the said writ application by quashing the order of punishment holding that he is entitled for consequential benefits of salary of the period of suspension, and the present case stands on the same footing like that of Arjun Kumar. A copy of the judgment dated 24.8.2001 passed by this Hon'ble Court in C.W.J.C. No. 70 of 2000 has been annexed herewith and marked as Annexure-15 to the supplementary affidavit. Learned counsel for the petitioner has strenuously urged that the enquiry report is based purely on guess work and assumption and the petitioner could not have been found guilty conclusively. Moreover, the enquiry officer has travelled beyond the charge. Learned counsel further submits that the charge of causing financial loss to the Government as has been alleged in the charge sheet is too vague and not sustainable in the eye of law. Learned counsel for the petitioner further submits that there is absolutely no finding in the enquiry report that any excess payment has been made by the petitioner to the M/s S.S. Kalsi as alleged in the charge. Learned counsel for the petitioner further submits that none of the points taken in the reply in the second show cause has been considered by the disciplinary authority before inflicting him the punishment of dismissal from services. 6. Learned counsel for the respondents has vehemently objected to the contentions of the learned counsel appearing for the petitioner. It has been submitted that in view of the seriousness of the allegations for the alleged commissions and omissions, the matter has been enquired into and the petitioner has been found guilty of the charges. 6. Learned counsel for the respondents has vehemently objected to the contentions of the learned counsel appearing for the petitioner. It has been submitted that in view of the seriousness of the allegations for the alleged commissions and omissions, the matter has been enquired into and the petitioner has been found guilty of the charges. Accordingly, the just punishment of dismissal from services has been inflicted upon the petitioner. 7. After hearing learned counsel for the respective parties and on perusal of the records, I am of the considered view that the petitioner has been able to make out a case for interference due to the following facts and reasons: (I) In the case in hand, at the relevant point of time the petitioner was Junior Engineer in the State of Bihar and was suspended in contemplation of departmental proceeding. Subsequently, he was charge sheeted and the charge was levelled against him in respect of certain work allotted to M/ s S.S. Kalsi and sons in the year 1983-84, reallotted to the said firm in the year 1986-87 and later on allotted to another firm M/ s Alok Agency in the year 1989-90. It was alleged that before final measurement in spite of repeated correspondence, the firm did not turn up for final measurement and the Executive Engineer had to take measurement and later on, it was detected that the earlier contractor M/s Kalsi and Sons has been paid in excess in respect to 34,682 Cubic Meter earth work and rupees ten lacs in excess was paid to the contractor for which the petitioner seems to be responsible along with others. The petitioner submitted his show cause and after enquiry second show cause was given. The petitioner replied, however, the petitioner was dismissed from services vide impugned order dated 31.05.1997. But the respondents had no list of witnesses to bring home the charge against the petitioner. The documents cited and relied by the enquiry report was extraneous having not referred as prosecution evidence or defence evidence. (II) On perusal of the factual aspects, it is quite evident that the enquiry was conducted without following the minimum requirement of supplying the copies of the list of witnesses to the charged employee or the enquiry officer and the enquiry report is based on extraneous materials which has never cited either as prosecution as well as defence witness. (II) On perusal of the factual aspects, it is quite evident that the enquiry was conducted without following the minimum requirement of supplying the copies of the list of witnesses to the charged employee or the enquiry officer and the enquiry report is based on extraneous materials which has never cited either as prosecution as well as defence witness. Therefore, the impugned order of dismissal dated 31.05.1997 is legally unsustainable. (III) On perusal of the Annexure-15 to the supplementary affidavit i.e. the judgment dated 24.08.2001 passed in C.W.J.C. No. 70 of 2000 (Arjun Kumar vs. State of Bihar & Others), it appears that the said Arjun Kumar was Assistant Engineer while the petitioner was Junior Engineer. Similar charge was framed against the petitioner like that of petitioner in C.W.J.C. No. 70 of 2000 and the case of the petitioner squarely covered by the aforesaid decisions and therefore, the petitioner is entitled to get the benefits as has been extended to said Mr. Arjun Kumar. 8. On cumulative effect of the facts, reasons and as a logical sequitur to the reasons stated in the foregoing paragraphs, impugned order of dismissal dated 31.05.1997 is quashed and the respondents are directed to pay consequential financial benefits as due and admissible to the legal heirs of the deceased-Madneshwar Prasad Singh, who has now been substituted as petitioner within a period of six months from the date of receipt of a copy of this order. 9. With the aforesaid direction, the writ petition stands allowed. 10. In view of the disposal of the writ petition, I.A. No. 5954 of 2015 also stands disposed of.