Research › Search › Judgment

Jharkhand High Court · body

2015 DIGILAW 666 (JHR)

Binod Kumar Ravi v. State of Jharkhand

2015-05-21

PRAMATH PATNAIK

body2015
JUDGMENT : Per Pramath Patnaik, J.: 1. In the aforesaid writ application, the petitioner has inter alia prayed for quashing/setting aside the order as contained in Memo no.2992 (S) dated 02.05.2008 (Annexure-14) passed by the respondent no.4 whereby the petitioner has been dismissed from his services with direction to recover a sum of Rs.45,686/- from him and for a direction upon the respondents to reinstate the petitioner in service with consequential service benefits. 2. The factual exposition as delineated and disclosed in the writ application in a nut shell is that being selected by Bihar Public Service Commission Examination, the petitioner was appointed as a Junior Engineer vide notification issued from the office of the respondent no.4 as contained in Memo No.2208(S) WE dated 30.03.1999. Due to some omissions and commissions resulting in irregularities of Government work, the petitioner has been placed under suspension vide order dated 24.06.2005 (Annexure-1 to the writ application). Pursuant the said order, a departmental proceeding was initiated against the petitioner under Rule 55 of Bihar and Orissa (Discipline and Appeal) Rule, as per annexure-2 to the writ application. In the said order the Inquiry Officer was also appointed. The petitioner filed his written statement of defence on 28.09.2005 explaining his stance, as per annexure-3 to the writ application. While the petitioner was continuing under suspension, the subsistence allowance as per Rule 96 of Jharkhand Service Code was not paid. The Inquiry Officer submitted his report finding the petitioner guilty by opining a sum of Rs.2,91,371.23 to be recovered from the erring officers, including the petitioner as evident from annexure-4 to the writ application on conclusion of the enquiry, the Deputy Secretary, Road Construction Department, Government of Jharkhand vide letter no.2017(S) WE dated 20.05.2006 issued show cause notice to the petitioner as to why his services shall not be dismissed and for recovery of a sum of Rs.45,686/-from the petitioner, vide annexure-6 to the writ application. In pursuance to the second show cause notice of proposed punishment the petitioner submitted his reply through registered post on 12.06.2006, vide annexure-7 to the writ petition. Thereafter, the petitioner was dismissed from services by Office Order No.189 dated 05.09.2006 issued by the Deputy Secretary, Road Construction Department, Ranchi, vide annexure-8 to the writ application. Left with no option, the petitioner filed a departmental appeal dated 06.11.2006, as per annexure-9 to the writ application and vide letter no. Thereafter, the petitioner was dismissed from services by Office Order No.189 dated 05.09.2006 issued by the Deputy Secretary, Road Construction Department, Ranchi, vide annexure-8 to the writ application. Left with no option, the petitioner filed a departmental appeal dated 06.11.2006, as per annexure-9 to the writ application and vide letter no. 6979(S) dated 05.11.2007 the petitioner has been intimated by the Deputy Secretary, Road Construction Department, as per annexure-10 regarding dismissal of his appeal. Again, vide office order No.263 dated 07.12.2006 (Annexure-11) order has been passed for treating the suspension not on duty. Being aggrieved by the order dated 05.09.2006 and after affirmation by the appellate authority, the petitioner approached this Court in W.P. (S) No.382 of 2008 which has been disposed of on 04.03.2008 setting aside the order of dismissal and the order of the appellate authority, as evident from annexure-12 to the writ petition and it was brought to the notice of respondent no.2 through representation submitted by the petitioner, vide annexure-13 to the writ petition. Thereafter, the respondent no.4 passed the impugned order and dismissed the petitioner, vide Memo No.2992(S) dated 02.05.2008 (Annexure-14). 3. Being aggrieved by the impugned order (Annexure-14), the petitioner has approached this Court invoking extraordinary jurisdiction under Article 226 of the Constitution of India for redressal of his grievance. 4. Per contra, learned counsel for the respondents has filed counter affidavit repelling the averments made in the writ application. It has been stated in the counter affidavit that the petitioner himself has confessed in the departmental proceeding that he had not physically verified the work site. He has also confessed that he has made entries in the measurement book and prepared bill for payment on the basis of contractor’s false assurance and pressure. The act of the petitioner is a clear violation of Rule 243 and 231(d) of the Public Account Code. The action of the petitioner was also raised on 23.06.2005 in the Jharkhand Assembly through a call attention motion and adequate opportunity has been given to the petitioner before imposition of punishment. It is further submitted that punishment imposed is proper and in accordance with law. 5. Heard Mr. Manoj Tandon, learned counsel for the petitioner and Mr. Manoj Kumar Choubey (J.C. to S.C.-III), appearing for the respondents. 6. It is further submitted that punishment imposed is proper and in accordance with law. 5. Heard Mr. Manoj Tandon, learned counsel for the petitioner and Mr. Manoj Kumar Choubey (J.C. to S.C.-III), appearing for the respondents. 6. Learned counsel for the petitioner has drawn my attention to the rejoinder filed to the counter affidavit wherein it has been submitted: (a) That the petitioner being a Junior Engineer is neither a Drawing and Disbursing Officer nor authorized to make payment to the contractor and, therefore, the petitioner has not made any payment to the contractor and as such, the petitioner cannot be made responsible for the excess payment, if any, made to the contractor. (b) The payment made to the contractor was on the basis of running account and the final bill and final payment was yet to be made. Rule 247(b) of the Public Works Account Code envisages that all payments made on running account should be treated as interim subject to adjustment in the final bill. Therefore, the finding of excess payment is not in accordance with the provision under Rule 247(b) of the Public Works Account Code. (c) Entry made in the measurement book and the bill prepared thereof is firstly verified by the Assistant Engineer and thereafter approved by the Executive Engineer and then only the payment to the contractor is made by the Drawing and Disbursing Officer, i.e. the Executive Engineer. (d) As per Rule 16(A) read with Rule 223 of the Public Works Account Code, only the Executive Engineer is the Drawing and Disbursing Officer and not the Junior Engineer, the petitioner. 7. Learned counsel for the respondents during his course of argument has referred to the supplementary counter affidavit which has been filed in pursuance to order dated 10.11.2014, where in paragraph-8, as per punishment order of amounts recovered has been mentioned, vide Annexure-B series to the said affidavit. 8. Learned counsel for the petitioner during his course of argument has confessed the following points, assailing the impugned order of dismissal (Annexure-14 to the writ petition): (i) That the impugned order of dismissal dated 02.05.2008 passed vide annexure-14 with retrospective effect, which is not legally permissible. (ii) The impugned order of punishment i.e. dismissal is so called disproportionate charges leveled against the petitioner and the said order is hit by doctrine of proportionality so far the quantum of punishment is concerned. (ii) The impugned order of punishment i.e. dismissal is so called disproportionate charges leveled against the petitioner and the said order is hit by doctrine of proportionality so far the quantum of punishment is concerned. (iii) In the absence of any pecuniary loss caused to the Government, the extreme punishment of dismissal from service is uncalled for, unwarranted and legally unsustainable being violative of Article 311(2) of the Constitution of India. (iv) The petitioner assailing the alleged charges proved against the petitioner, the petitioner ought to be extended with a lesser punishment on the question of parity. Since, this Court in case of Executive Engineer has quashed and set aside the order of demotion in W.P. (S) no.7213 of 2006 which has been affirmed by the L.P.A. No.340 of 2012, therefore, the petitioner is to be treated at par with the Executive Engineer, Mr. Binod Kumar Rana. 9. After giving my anxious consideration to the documents on record and rivalized submissions of the respective parties, the impugned order vide Annexure-14 is liable to be set aside due to following facts, reasons and judicial pronouncements: (I) That the impugned order, vide annexure-14, which has been passed by the respondents with retrospective effect is not legally permissible. Apart from that the observation made in the impugned order appears to have been made beyond the scope of charges, findings arrived at by the disciplinary authority, under annexure-14, basing on the enquiry report do not fashion guilts. So far as the pecuniary loss caused to the Government nor there has been any allegation of embezzlement, huge financial loss against the petitioner to justify the extreme imposition punishment like dismissal. (II) On perusal of the charge if any excess payment has been made to the contractor during the running bill, the same could have been accounted and adjusted at the time of passing of the final bill of the contractor. (II) On perusal of the charge if any excess payment has been made to the contractor during the running bill, the same could have been accounted and adjusted at the time of passing of the final bill of the contractor. Rule 234 of the Bihar Public Works Account Code, Appendix VI envisages that the Executive Engineer has to check measurement recorded in the measurement books on the spot by checking at least 10% of the work before approving final bill and the spot checking was to be done once in a year and the alleged payment which has been made is in respect of second running bill when the work was in progress and, therefore, the petitioner could not be faulted for making the second running bill. Therefore, the charges are not so grave in nature to approve imposition of major punishment like dismissal from services. (III) The petitioner has been inflicted with major punishment like dismissal from service but the Executive Engineer who was ordered demotion from services and the said demotion has been quashed by this Court on 22.06.2012 in W.P.(S) No.7213 of 2006, which has been affirmed in L.P.A No.340 of 2012. Therefore, by virtue of order of this Court the Executive Engineer is continuing in service whereas the services of the petitioner has been terminated, therefore, the petitioner is entitled to be extended with parity of treatment like that of Executive Engineer. (IV) The impugned order of punishment, vide annexure-14 appears to be grossly disproportionate to the alleged charges and the punishment is not commensurate with the charges leveled against the petitioner and, therefore, the impugned order appears to be disproportionate to the charges. So far as parity in quantum of punishment among the delinquents is concerned, it would be profitable to refer to a decision rendered by the Hon’ble Apex Court in the case of Rajendra Yadav Vs. State of Madhya Pradesh and Others as reported in (2013) 3 SCC 73 , in particular paragraph 9, which is quoted herein below: “9. The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The disciplinary authority cannot impose punishment which is disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences.” Applying the same principle, as laid down by the Hon’ble Apex Court in the above-referred case, the petitioner deserves the same benefit as has been given in W.P. (S) No. 7213 of 2006 and affirmed in L.P.A No.340 of 2012. 10. On cumulative effect of the facts and reasons, I am of the considered view that the impugned order of punishment dated 02.05.2008 (Annexure14) is not legally sustainable, which is accordingly quashed and the matter is remitted to the disciplinary authority solely on the question of quantum of punishment and the respondents are directed to pass an appropriate punishment taking into consideration the alleged charges, findings of the Inquiry Officer, strictly in accordance with law within a period of two months from the date of receipt of a copy of this order. 11. With the aforesaid direction, this writ petition is allowed and disposed of.