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2017 DIGILAW 886 (JHR)

Murari Bhagat son of Shri Chunyun Bhagat v. State of Jharkhand through the Chief Secretary

2017-06-07

ANANDA SEN, PRADIP KUMAR MOHANTY

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JUDGMENT : Ananda Sen, J. The appellant-writ petitioner (hereinafter to be referred as ‘the appellant’) being aggrieved by the judgment dated 1.12.2016 passed in WP(S) No. 2636 of 2016 has preferred this Letters Patent Appeal. 2. For the purpose of deciding the instant Letters Patent Appeal, it is not necessary to narrate the entire facts. Only relevant fact, which relates to the dispute in question is being narrated here-in-below; (a) The writ-petitioner was appointed on the post of Assistant Engineer on 16.06.1987 and he was promoted to the post of Executive Engineer (Civil) with effect from 15.06.1995. The Road Construction Department, Government of Jharkhand, transferred the services of the petitioner in the Building Construction Department and he assumed the charge of Superintending Engineer in the said Department. A Notification was issued on 17.7.2007 by which, the additional charge of Chief Engineer in Building Construction Department was given to the petitioner. Vide Notification dated 31.12.2008, the Road Construction Department, Government of Jharkhand, Ranchi took back the services of the petitioner and thereafter the petitioner was posted as Chief Engineer, In-charge, National Highway Wing, Jharkhand, Ranchi, independently under the Road Construction Department. The petitioner was granted regular promotion to the post of Superintending Engineer (Civil) in the Road Construction Department, Jharkhand, Ranchi. A tender was invited for the Construction of Bridge over Dhamni Nala for the year 2012-13 bearing Job No. 075-JHR-2012-13-222 in which, four bidders participated in the tender process. The rate of each bidder was same and was of the lowest permissible rate. (b) A complaint was filed by one of the unsuccessful bidders in relation to the said tender. A Memo bearing No. 7156(S) dated 8.8.2013 was issued to the petitioner seeking explanation. The petitioner furnished his reply on 06.09.2013. Nothing happened thereafter rather the petitioner was granted regular promotion to the post of Superintending Engineer vide Notification dated 8th July, 2014. (c) Suddenly, vide Notification No. 2650(S) dated 26.04.2016, the Road Construction Department, Government of Jharkhand, Ranchi imposed a punishment of “Censure” upon the petitioner. (d) Being aggrieved by the said action, the petitioner preferred a writ petition being WP(S) No. 2636 of 2016, wherein, he prayed to quash Notification No. 2650(S) dated 26.4.2016 and further Notification No. 2651(S) dated 26.4.2016 (by which, the punishment order of “Censure” was communicated to the petitioner). (d) Being aggrieved by the said action, the petitioner preferred a writ petition being WP(S) No. 2636 of 2016, wherein, he prayed to quash Notification No. 2650(S) dated 26.4.2016 and further Notification No. 2651(S) dated 26.4.2016 (by which, the punishment order of “Censure” was communicated to the petitioner). (e) After hearing the parties, the learned Single Judge dismissed the writ application, hence, this appeal. 3. The senior counsel appearing for the appellant submits that the order of punishment is absolutely bad. He further submits that the punishment of “Censure” could not have been passed against the appellant-writ petitioner as the show-cause dated 8.8.2013 itself is absolutely vague. He also submits that nowhere in the said show cause it has been mentioned that the State contemplates to punish the petitioner. He also submits that the tender, which was complained of, later on was cancelled as such, there was no loss to the State exchequer. He further submits that the petitioner had taken into consideration different circulars issued by the State Government and it cannot be said that the petitioner had flouted any of the Rules and thus, he could not be punished by the Department. Senior counsel for the petitioner lastly submits that the impugned order of punishment is also bad as the same is un-reasoned one and this fact has not been taken into consideration by the learned Single Judge. 4. The counsel for the respondents-State, on the other hand, supports the impugned order of punishment and submits that the petitioner has committed grave illegality and has violated the rules of seniority and thus, the punishment order of 'Censure' has rightly been passed against the petitioner. 5. After hearing the parties, we find that a show cause notice dated 8.8.2013 was issued to the petitioner by the Department. The said show cause notice only mentions that the tender in question has been awarded on the basis of seniority as per registration of the Contractors, but as per Notification No. 4815(S) dated 10.7.2012, the basis of seniority has been redefined. It is further mentioned in the said notice that the petitioner, without following the directions, has awarded the tender and therefore why an appropriate action be not taken against him. 6. It is further mentioned in the said notice that the petitioner, without following the directions, has awarded the tender and therefore why an appropriate action be not taken against him. 6. From perusal of the said show cause notice, it is apparent that the same does not suggest as to which provision of the regulation or Circular etc., the petitioner has violated. The said show cause notice also does not remotely suggest as to what are the directions, which the petitioner has not followed while deciding the said tender nor it mentions the proposed action, which the Department intends to take against the petitioner, if the reply of the petitioner is unsatisfactory. 7. The purpose behind serving of show cause notice is to make the noticee understand the exact case set up against him, which he has to meet in his reply and the proposed action which is intended to be taken against him, if reply is un-satisfactory. The purpose of show cause notice is to enable the noticee to meet the grounds on which, the action is proposed against him. Both these conditions must be fulfilled and must be reflected in the notice itself. If the notice is vague and is incomplete, it violates the principle of natural justice. The Hon’ble Supreme Court in the case of Gorkha Security Services Vs. Government (NCT of Delhi) and Others reported in (2014) 9 SCC 105 has held that in order to fulfill the requirements of principles of natural justice, a show cause notice should meet the following two requirements viz.: (i) The material/grounds to be stated which according to the department necessitates an action; and (ii) Particular penalty/action which is proposed to be taken. 8. From the aforementioned judgment of the Hon’ble Supreme Court, it is clear that both these points must be reflected in the show cause notice. Absence of anyone of them would render a show cause notice invalid and any action taken pursuant to the said notice will be in violation of the principle of natural justice. 9. In the facts of this case, as mentioned earlier, the show cause notice only mentions that though there is a rule for registration yet, the petitioner awarded the tender in terms of seniority. This is too a vague allegation. 9. In the facts of this case, as mentioned earlier, the show cause notice only mentions that though there is a rule for registration yet, the petitioner awarded the tender in terms of seniority. This is too a vague allegation. The rules of registration, which has been referred to in the impugned notice (which has been brought on record) does not whisper how the work is to be allotted when the price of all the bidders are equal. The said rule confines only to the procedure of registration. The notice also does not suggest as to which direction and rule, the petitioner has violated. However, the notice only mentions that the petitioner has violated the directions. This is also too vague an allegation as because, which direction the petitioner has not followed, has not been mentioned. 10. Secondly, the notice do not reflect the proposed action, intended to be taken against the petitioner, if the reply to the show cause notice is unsatisfactory. It only mentions that an appropriate action would be taken. In the present case, from bare reading of the show cause notice, it appears that the notice does not meet the said two requirements, as envisaged by the Hon’ble Supreme Court in the case of Gorkha Security Services (Supra). 11. Thus relying upon the judgment reported in the case of Gorkha Security Services (Supra) and the ratio laid down herein, this Court finds that the notice is absolutely vague and the punishment order pursuant to the said notice is in complete violation of principle of natural justice. 12. However, after going through the impugned order, we also find that the said order is also bereft of any reason. The one page order mentions the facts of the case but it fails to justify as to why the petitioner is being punished and what is the misconduct, the petitioner has committed. The impugned order shows that the petitioner has committed illegality but what is the nature of illegality, has not been mentioned in the punishment order impugned. The order of imposing the punishment of 'Censure' upon the petitioner was not proposed in the show cause notice also. We also find that no departmental proceeding was initiated against the petitioner which would be evident from the fact that the petitioner was only show caused to which, he replied and thereafter, the impugned order of Censure was passed. The order of imposing the punishment of 'Censure' upon the petitioner was not proposed in the show cause notice also. We also find that no departmental proceeding was initiated against the petitioner which would be evident from the fact that the petitioner was only show caused to which, he replied and thereafter, the impugned order of Censure was passed. This fact was not taken into consideration by the learned Single Judge while passing the judgment dated 1.12.2016 in WP(S) No. 2636 of 2016. Therefore, the impugned order dated 01.12.2016 passed by the learned Single Judge is liable to be set aside. Consequently, the order of punishment of 'Censure' imposed against the petitioner vide Notification No. 2650(S) dated 26.4.2016 is also quashed and set aside. 13. With these observations and directions, this appeal stands allowed.