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2016 DIGILAW 1073 (JHR)

Kamleshwar Prasad son of Shri Shiweshwar Prasad v. State of Jharkhand

2016-07-19

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. In the accompanied writ application, the petitioner has sought for a writ in the nature of certiorari for quashing the Notification dated 11.09.2014 (Annexure-9), pertaining to imposition of multiple and major punishment of censure and withholding of two annual increments with cumulative effect under Rule 55 of the Civil Services (Classification, Control & Appeal) Rules, 1930 and for quashing the charge-sheet dated 08.08.2013 (Annexure-3) and has further prayed for issuance of a writ of mandamus commanding upon the respondents to consider the case of the petitioner for promotion to the rank of Superintending Engineer with all consequential benefits from the date, the junior to the petitioner has been given promotion. 2. The brief facts, as disclosed in the writ application, are that in the year 1980, the petitioner was initially appointed on the post of Assistant Engineer. Thereafter, in due course of time, the petitioner was promoted to the post of the Executive Engineer on a Class-I post in Class-I Service. On the bifurcation of the State of Bihar, the petitioner has been allocated to the cadre of Jharkhand and in pursuance to the cadre allocation, the petitioner has submitted his joining in the Road Construction Department of the Government of Jharkhand on 31.10.2004. In the month of December, 2004, the petitioner was posted as Executive Engineer, Monitoring, Road Circle, Road Construction Department, Ranchi. Thereafter, he was posted at Gumla. Again, he was posted to Ranchi. Thereafter, petitioner's services were placed at the disposal of the Building Construction Department, where he was posted as Executive Engineer, in August, 2011. In the month of January, 2013, promotion cases for the post of the Superintending Engineer was taken up in the Road Construction Department, wherein, a request was sent to the Jharkhand Public Service Commission (J.P.S.C.) for convening a meeting of the Departmental Promotion Committee (D.P.C.). In response to the letter of the DPC, a date was fixed for 20.04.2013 and a consideration (master) chart containing list of the prospective candidates was prepared, in which the name of the petitioner also figured, as disclosed from Annexure-1 to the writ application. In the month of March, 2013, all of a sudden, an explanation was sought from the petitioner by the Building Construction Department on 20.03.2013, relating to some defects in the construction of the State Data Centre Building. In the month of March, 2013, all of a sudden, an explanation was sought from the petitioner by the Building Construction Department on 20.03.2013, relating to some defects in the construction of the State Data Centre Building. In response thereto, the petitioner submitted his reply denying any perturbation therein, since all the defects were removed by the contractor himself at his own cost as per the terms and conditions of the contract and a third party test was also conducted with the consent of both the executing (B.C.D.) department and the user (I.T) department bearing absolutely successful test results and the said fact has also been concurred by the Engineer-in-Chief, Building Construction Department and it has been recorded therein, that no loss to the Government exchequer has incurred. In August, 2013, vide resolution dated 08.08.2013, a departmental proceeding was initiated against the petitioner by the Road Construction Department and Mrs. Shila Kisku Rapaz, I.A.S. (Retd.) was appointed as the Conducting (enquiry) Officer in the proceeding. During the continuance of the departmental proceeding, fresh date was fixed by the J.P.S.C. for consideration of the cases of the promotion of Executive Engineers to the rank of the Superintending Engineer on 20.08.2013 but the name of the petitioner was dropped from the list on account of the pendency of the departmental proceedings. In the enquiry, the petitioner submitted his defence notwithstanding the non-supply of the relevant documents to the petitioner. The Presenting Officer was asked by the Enquiry Officer to file a rejoinder/opinion on the said defence statement submitted by the petitioner. The Enquiry Officer submitted enquiry report but the copy of the enquiry report was not supplied to the petitioner. Meanwhile, a meeting of the Departmental Promotion Committee for promotion to the rank of the Superintending Engineer was convened on 06.03.2014 and for which again a consideration (master) chart was prepared in which the name of the petitioner got dropped from the recommended (fit list) on account of the pendency of the departmental proceeding. On 11.09.2014, the Road Construction Department, Government of Jharkhand, Ranchi came out with a Notification in exercise of powers under Rule 55 of the Civil Services (Classification, Control & Appeal) Rules, 1930 purported to have inflicted the multiple and major punishment of censure and withholding of two annual increments with cumulative effect as per Anneuxre-9 to the writ application. On 11.09.2014, the Road Construction Department, Government of Jharkhand, Ranchi came out with a Notification in exercise of powers under Rule 55 of the Civil Services (Classification, Control & Appeal) Rules, 1930 purported to have inflicted the multiple and major punishment of censure and withholding of two annual increments with cumulative effect as per Anneuxre-9 to the writ application. Being aggrieved and dissatisfied with the impugned order of punishment, dated 11.09.2014, the petitioner left with no other efficacious, alternative and speedy remedy, has been constrained to approach this Court invoking the extraordinary jurisdiction under article 226 of the Constitution of India for redressal of his grievances. 3. Mr. A. K. Sinha, learned senior counsel for the petitioner has assailed the impugned order of punishment on the ground that the enquiry report has not been supplied to the petitioner, thereby causing serious prejudice, which has ultimately effected and vitiated the entire proceedings. Learned senior counsel further submits that non-issuance of second show cause notice is another infirmity, which has materially effected the departmental proceedings being infraction of Rule 55 of the Civil Services (Classification, Control & Appeal) Rules, 1930. Moreover, the impugned order of punishment has been imposed in derogation of Rule 49 of the Civil Services (Classification, Control & Appeal) Rules, 1930, which prescribes for only one punishment out of the list of punishments prescribed for an act of misconduct, out of which anyone is supposed to be inflicted depending upon the gravity of the misconduct but the disciplinary authority has inflicted a multiple punishment by imposing a combination of two of the listed punishments, which is not permissible and is beyond its jurisdiction. Learned senior counsel for the petitioner has further submitted that in the instant departmental proceedings, Mrs. Shila Kisku Rapaz, I.A.S. (Retd.) has been appointed as the Conducting (enquiry) Officer but as per Annexure-D to the counter affidavit it stipulates that in the disposal of the matters pertaining to the Works Departments, the departmental enquiry shall be done by one of the said five Departmental Enquiry Officers, who will be the retired officers of not below the senior scale of the State Engineering Service. Therefore, as per his contention, Annexure-3 of the writ application, is in contravention of Annexure-D to the counter affidavit. Therefore, as per his contention, Annexure-3 of the writ application, is in contravention of Annexure-D to the counter affidavit. Therefore, the appointment of the enquiry officer, in the teeth of Annexure-D, appears to be wrong and resultant punishment is liable to be interfered with. 4. Per contra, a counter affidavit has been filed by the respondents controverting the contentions made in the writ application. Mr. Deepak Kumar Dubey, learned J.C. to S.C. I. appearing for the respondent-State has reiterated the submissions made in the counter affidavit. Mr. Dubey has submitted that the departmental proceedings has been initiated in the light of the charges framed in Form 'Ka' vide Resolution dated 08.08.2013 and the conducting officer submitted an enquiry report and the disciplinary authority after examining the enquiry report, decided to impose punishment of censure and withholding of two annual increments with cumulative effect. It has been further submitted that since the punishment inflicted, is a minor punishment, it was not mandatory to ask second show cause. Moreover, there has been no violation of the principles of natural justice. 5. Learned senior counsel for the petitioner during course of hearing, has referred to the averments made in the rejoinder by submitting that in the instant case, the respondent-authority has taken all steps including imposition of penalty ignoring the reasoned opinion of the Engineer-in-Chief with respect to the fact that no irregularity or misconduct has been committed on the part of the petitioner and therefore, the very order of initiation of departmental proceeding and subsequently imposition of major punishment on the petitioner is illegal, void and arbitrary. 6. After hearing the learned counsel for the respective parties at length and on perusal of the materials on record, the petitioner has been able to demonstrate that the impugned order is liable to be interfered with due to the facts, as stated hereinbelow: - (i) The nature of penalty i.e. censure and withholding of two annual increments with cumulative effect are two major punishments, therefore, it is mandatory on the part of the respondents to issue a second show cause to the petitioner, which has not been adhered to. If the enquiry officer proposes to inflict the punishment upon the delinquent employee in his report, the delinquent employee is entitled for a further show cause as to why the punishment may not be imposed on him. If the enquiry officer proposes to inflict the punishment upon the delinquent employee in his report, the delinquent employee is entitled for a further show cause as to why the punishment may not be imposed on him. Moreover, non-supply of the enquiry report with the second show cause notice prejudices the departmental enquiry. (ii) That the enquiry report is based on no evidence, save and except personal opinion of the Enquiry Officer and in absence of any evidence much less cogent evidence, such enquiry report is replete with infirmities and inconsistencies. Moreover, the enquiry report runs contrary to the opinion of the report submitted by the Engineer-in-Chief, who has opined that no loss to the public exchequer has been caused. Apart from that a letter was issued by the Sun Tech to the Executive Engineer, Building Construction Department, wherein, it has been informed that a test was taken by it and report has been submitted that “no water percolation” was observed, as is evident from Annexure-10. (iii) On perusal of the impugned order of punishment, it is quite apparent that the same is not a reasoned order, due to lack of cogent reasons. 7. In view of the reasons stated hereinabove and as a logical sequitor, the impugned order dated 11.09.2014 (Annexure-9), pertaining to imposition of multiple and major punishment of censure and withholding of two annual increments with cumulative effect, is quashed and set aside and the respondents are directed to consider the case of the petitioner for promotion to the rank of the Superintending Engineer from the date, his junior has been given promotion in accordance with law within a period of 12 weeks from the date of communication of the order. However, disposal of the writ application shall not preclude the respondents to start the proceedings from the stage of issuance of second show cause notice, if so legally advised after affording reasonable opportunity to the petitioner and in that event conclude the proceedings, as expeditiously as possible, preferably within a period of six months. 8. With the aforesaid direction, the writ petition stands disposed of.