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2017 DIGILAW 1356 (GAU)

Ranjeet Kumar Das v. State of Assam

2017-10-24

NELSON SAILO

body2017
JUDGMENT AND ORDER : Heard Mr. U.K. Nair, the learned Senior Counsel appearing for the writ petitioners. Also heard Mr. M.R. Adhikari, the learned Government Advocate appearing for the learned respondent No. 1 and Ms. R. Deka, the learned Standing Counsel, Public Works Department (PWD) appearing for the respondent Nos. 2 and 3. 2. These writ petitions involved a common question and therefore, they are taken up together for final disposal. Brief facts may be noticed at the very outset. The writ petitioners are Assistant Engineers (AE), Assistant Executive Engineers (AEE), Executive Engineers (EE) under the State PWD. In case of the petitioner in WP(C) No. 4755/2012, he is an Additional Chief Engineer (Additional CE). 3. By these writ petitions, the petitioners have assailed Notifications which are all dated 16.08.2012 issued to them individually and imposing upon them the penalty of Censure with withholding of 1 (one) increment without cumulative effect except for the petitioner in WP(C) No. 4755/2012 in whose case is with cumulative effect. 4. The aforesaid penalty has been assailed by the petitioners on ground amongst others that the decision to impose the penalty upon them was based upon the findings arrived at in the preliminary enquiry report submitted by Shri. K.N. Choudhury, a retired Secretary PWD prior to the issuance of the Show Cause to them. The author of the preliminary enquiry report not even being examined in the enquiry proceedings, and as such the unproved findings cannot be the ground or basis to establish the charges) against them warranting the imposition of penalty. 5. A show cause notice was issued to the petitioners on different dates i.e., 05.04.2010, 14.06.2010 and 27.01.2011 to the effect that as serving as Junior Engineers (later on AE), AEE, EE and Additional CE in the PWD, Guwahati City Division-I they were responsible for preparing Plan and Estimate for construction of Bhangagarh Flyover at the cost of Rs. 38,91,89,084/-. Although the State Government in the PWD accorded administrative approval on 19.08.2005 but due to preparation of incorrect Detailed Project Report (DPR) without any sub-soil exploration, the designing and structure of the foundation part or assume safe bearing capacity required modification and consequently, a revision of the estimates, based on actual soil parameters and sanction thereof necessitated addition of additional 107/142 Nos. of piles of length 2194/3588 Rm was added with the design of pile cap which caused an additional expenditure of Rs. 575.68/799.67 lakhs. Therefore, they were charged with gross negligence to duty and lack of proper technical knowledge. 6. As for the petitioner in WP(C) No. 5483/2012, the charge was only against the revised plan and estimate prepared for construction of Bhangagarh Flyover at the cost of Rs. 56,90,52,000/- lakhs since he had joined the said project midway after the foundation and major portion of the sub-structure of the said Flyover was completed. As for the other petitioners, there were 3 (three) other additional charges (4 (four) charges in all) which included lack of transparency, inefficiency, financial indiscipline and an attempt to misappropriate Government money. 7. The petitioners against the show cause notice issued to them under Rule 9 of the Assam Services (Discipline & Appeal) Rules, 1964 (Rules of 1964) R/w Article 311 of the Constitution of India submitted their reply denying the charges leveled against them and pursuant to the enquiry made by the appointed Enquiry Officer, the Enquiry Officer did not find the petitioners to be responsible for causing the revised estimates. In short, the charges levelled against petitioners were found to be not proved. However, the respondent authorities through the respondent No. 3, contrary to the findings of the Enquiry Officer upon coming to the conclusion that the petitioners cannot be absolved from the charges on the facts and circumstances imposed upon them the penalty of Censure with withholding of one increment with cumulative effect in respect of the petitioner in WP(C) No. 4755/2012 and without cumulative effect in respect of the others. 8. Appearing for the petitioner, the learned Senior Counsel Mr. U.K. Nair submits that the respondent No. 2 vide his note dated 10.05.2012 solely relying upon the reports submitted in the matter by Shri. K.N. Choudhury retired Secretary, PWD proceeded to opine that the officers involved with the construction of Flyover at Bhangagarh and Six Mile were guilty of negligence, financial indiscipline and impropriety and non-observance of prescribed administrative procedure for approvals. On the basis of the said observation, the respondent No. 2 further opined that the penalty of Censure was inadequate and recommended for severe penalties. Mr. On the basis of the said observation, the respondent No. 2 further opined that the penalty of Censure was inadequate and recommended for severe penalties. Mr. U.K. Nair submits that the respondent No. 2 being the Additional Chief Secretary (Works) is in no way connected with the departmental proceedings initiated against the officers of the department and therefore, he could not have been involved in the process since the responsibilities entrusted to him do not involve processing the matter relating to departmental proceedings drawn up against officers like the petitioners. He submits that the opinion of the respondent No. 2 is clearly not sustainable inasmuch as the opinion is based on the report submitted by Shri. K.N. Choudhury, retired Secretary, PWD whose findings were not even proved in the enquiry held against the petitioners after the Show Cause Notice was issued to them. He further submits that materials enclosed amongst the list of documents in the memorandum of charge unless proved in the enquiry proceedings cannot be the basis for establishing the charges and for imposing penalty upon the delinquent officers such as the petitioners. That as a result of the illegal and arbitrary action of the respondent authorities, he submits that the petitioners have been deprived of their legitimate turn for promotion to the next higher rank. As such, the impugned action of the respondent authorities being arbitrary, illegal and misconceived, this Court may interfered by passing suitable direction. 9. In support of his submission, the learned Senior Counsel Mr. U.K. Nair relies upon the decision of the Apex Court rendered in the case of Roop Singh Negi Vs- Punjab National Bank & Ors. (2009) 2 SCC 570 . Referring to the said decision Mr. U.K. Nair submits that a departmental proceeding is a quasi-judicial proceeding and therefore, the Enquiry Officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved so as to impose a penalty. The enquiry officer has the duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officers against all the accused by itself cannot be treated to be evidence in the disciplinary proceedings. Merely the tendering of documents without examining witnesses to prove such documents cannot be considered as an evidence to prove the charge. The purported evidence collected during investigation by the Investigating Officers against all the accused by itself cannot be treated to be evidence in the disciplinary proceedings. Merely the tendering of documents without examining witnesses to prove such documents cannot be considered as an evidence to prove the charge. Similarly, in the instant case Shri. K.N. Choudhury, the retired Secretary, PWD was not even examined during the departmental proceedings and therefore, his opinion by itself could not have been accepted as an evidence to prove the charges against the petitioners and the consequent imposition of penalty upon them. He thus submits that the impugned penalty of Censure and withholding of one increment and without cumulative effect upon the petitioners should be set aside and quashed. 10. Appearing for the PWD, Ms. R. Deka the learned Standing Counsel by relying upon the affidavit-in-opposition filed by the respondent No. 3 submits that though the DPR was prepared by a consultancy firm, the petitioners being responsible officers failed to conduct field test which was mandatory prior to constructions. No proper sub-soil exploration and investigation was conducted prior to the constructions. The petitioners neither asked the consultant to undertake such exercise as well. At any rate, it was the duty of the petitioners as responsible officers of the department to verify and see the correctness of the estimates and design and thereafter to return the same to the consultant for necessary rectification. The petitioners having failed to undertake such process for preparing the estimates are only responsible for excess over estimates due to their negligence, financial indiscipline and lack of proper technical knowledge. She further submits that prior to imposition of penalty upon the petitioners show cause notices were issued to them which they accordingly replied. Enquiry was also conducted prior to the issuance of show cause notice to the petitioner through Shri. K.N. Choudhury retired Secretary PWD. She therefore submits that in a departmental proceedings, the disciplinary authority has to examined all aspects and documents relating to the departmental proceedings right from the initiation of such proceedings and till conclusion of the same. It is also not always necessary to rely upon the enquiry report fully while concluding the departmental proceeding. She therefore submits that the respondent authorities have not committed any illegality in imposing the petitioners the impugned penalty. 11. The learned Government Advocate Mr. It is also not always necessary to rely upon the enquiry report fully while concluding the departmental proceeding. She therefore submits that the respondent authorities have not committed any illegality in imposing the petitioners the impugned penalty. 11. The learned Government Advocate Mr. M.R. Adhikari appearing for the respondent No. 1 also adopts to the submission made by Ms. R. Deka, the learned Standing Counsel, PWD and submits that no illegality has been committed in the imposition of the impugned penalty upon the petitioners. 12. I have heard the learned counsels appearing for the rival parties and have perused the materials available on record. Rule 9 of the Rules of 1964 provides for the procedure for imposition of penalty upon a delinquent employee as specified in Rule 7 of the same Rules. Rule 9 (6) of the Rules provide that the Enquiry Authority shall in the course of the enquiry considered such documentary evidence and take such oral evidence as may be relevant or materials in regard to the charges. The Government servant shall entitled to cross-examine witnesses examined in support of the charges and to give evidence in persons and to adduce documentary and oral evidence in his defence. The person presenting the case in support of the charges shall be entitled to cross-examine the Government servant and the witnesses examined in his defence. If the enquiring authority declines to examine any witness or to admit any document in evidence or such document is not relevant or material, it shall record its reasons in writing. 13. As can be seen, for the present purpose the respondent authorities refused to accept the findings of the enquiry officer and instead relied upon the enquiry report submitted by Shri. K.N. Choudhury, retired Secretary, PWD which was made prior to the issuance of show cause notice to the petitioners. The said enquiry report without being proved during the enquiry proceedings was otherwise the basis for imposing the impugned penalty upon the petitioners. Therefore, Rule 9 of the Rules of 1964 has clearly not been adhered to. That apart, the decision of the Apex Court in the case of Roop Singh Negi (supra) has also clearly enunciated the settled principle that a departmental proceeding is a quasi judicial proceeding and therefore, the standard of evidence in such proceedings should be available for judicial scrutiny. That apart, the decision of the Apex Court in the case of Roop Singh Negi (supra) has also clearly enunciated the settled principle that a departmental proceeding is a quasi judicial proceeding and therefore, the standard of evidence in such proceedings should be available for judicial scrutiny. Even with the standard of test being that of preponderance of probability, the evidence put up against the delinquent officer cannot be short of proof after observing the Principles of Natural Justice. The same in my considered opinion is not to be found in the present cases. Therefore without examining any other aspect of the matter, I find that the impugned penalty imposed upon the petitioners is vitiated. 14. In that view of the matter, the impugned penalty imposed upon the petitioners separately vide Notifications all dated 16.08.2012 are hereby set aside and quashed. 15. Upon setting aside the impugned penalty, it is needless to observe herein that the petitioners will be entitled to all consequential benefits. With the above observations and directions, the writ petitions are allowed. No cost.