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2019 DIGILAW 1509 (JHR)

Shivajee Sharma v. State of Jharkhand

2019-08-29

SANJAY KUMAR DWIVEDI

body2019
ORDER : 1. Heard Mr. Saurabh Shekhar, learned counsel for the petitioner, Mr. R.K. Shahi, learned A.C. to A.A.G. for the respondent State and Mr. Sudarshan Shrivastava, learned counsel appearing for the respondent no. 4. 2. The petitioner has preferred this writ petition for quashing the memo no. 870 dated 16.04.2007 whereby the punishment against the petitioner has been inflicted. 3. The petitioner joined his service in the Water Resources Department as Assistant Engineer and in due course of time he was promoted to the post of Superintending Engineer in the Minor Irrigation Department. While the petitioner was posted as Chief Engineer in the Minor Irrigation Department, a notice inviting tender was published for construction of a Dam commonly known as Kodai Bandh falling under Minor Irrigation Division, Giridih. It was under the constituency of the then Chief Minister of State of Jharkhand. The time for completion of that dam was fixed for one year. According to the petitioner all of a sudden the time schedule has been changed, as the construction, in question, was within the constituency of the then Chief Minister of State of Jharkhand. The authorities were directed to complete the work of that dam within a period of 2½ months. In this regard, the petitioner made certain correspondence with the authorities concerned and raised the concern about quality of construction in view of the time schedule which has been brought back to 2½ months. While the work was in progress mis-happening has happened and the said canal has breached and thereafter, enquiry was directed to be conducted upon the officials who had related to the said construction. The direction was also issued to the officials to institute F.I.R. against the concerned contractor. Thereafter, the petitioner was put under suspension and the departmental proceeding was asked to be initiated against the petitioner. The decision to initiate departmental proceeding was taken vide memo no. 2839 dated 05.09.2002 under the power conferred under Rule 55 of Civil Services (Classification, Control and Appeal) Rule, 1930 and accordingly the petitioner was directed to appear before the Enquiry Officer who happened to be an I.A.S Officer. The Enquiry officer was directed to submit his report by 30th September, 2002. The petitioner was served with the charge sheet along with the proposal of appointment of the Enquiry Officer. After receiving charge sheet, the petitioner demanded certain documents related with the charge. The Enquiry officer was directed to submit his report by 30th September, 2002. The petitioner was served with the charge sheet along with the proposal of appointment of the Enquiry Officer. After receiving charge sheet, the petitioner demanded certain documents related with the charge. According to the petitioner no such documents have been supplied to him. However the petitioner was provided with enquiry report of a flying squad team constituted by the Government. 4. Learned counsel appearing for petitioner submits that the charge was based upon the enquiry of flying squad team. The petitioner participated in the enquiry proceeding and the enquiry report has been submitted in which the charges against the petitioner has found to be true. It is thereafter the second show cause was issued against the petitioner and the petitioner replied to the second show cause. But the authority concerned has not accepted the second show cause reply of the petitioner and passed the impugned order dated 16.04.2007 whereby the punishment of 50% pension directed to be deducted in pursuance to the provision of Rule 43-b of the Pension Rules. It was also directed that the petitioner will not be entitled for anything further apart from the subsistence allowance during the period of suspension. Aggrieved with this the petitioner has preferred this writ petition. 5. Learned counsel appearing for the petitioner submits that there were two sets of inquiry proceedings. In second set of inquiry proceeding 5 persons were being examined by the Enquiry Officer and they were Assistant Engineer and one Binod Shrivastava Executive Engineer and in second set of enquiry report all the five persons have been exonerated by the Enquiry Officer. The Government has not proceeded further so far as the five persons in the second set of enquiry proceeding is concerned. This statement has been made in paragraph 21 of the writ petition. That the persons who were exonerated they have been left out and this has also not been controverted in the counter affidavit filed by the State of Jharkhand. Thus, learned counsel for the petitioner makes out a case of discrimination in punishing the petitioner alone whereas in the execution of the project others persons were also involved. That the persons who were exonerated they have been left out and this has also not been controverted in the counter affidavit filed by the State of Jharkhand. Thus, learned counsel for the petitioner makes out a case of discrimination in punishing the petitioner alone whereas in the execution of the project others persons were also involved. By referring the Jharkhand Public Works Department Code-2012 he submits that so far as the petitioner is concerned who was working as in charge Chief Engineer, his role in executing the work of that canal was very dismal. Further he referred the clauses 15(C) , 23, 24 and 30 of the Jharkhand Public Works Department Code 2012 for correct appreciation of the said clause they are being quoted herein-below:- “15(C). The Chief Engineer is the administrative and professional head of the wing of the Public Works Department of which he is in charge and is responsible to the Government for the proper and efficient working of the wing. 23. The administrative unit of the department is the circle, in charge of a Superintending Engineer, who is responsible to the Chief Engineer for the administration and general professional control of Public Works in charge of officers of the department within his circle. 24. It will be the duty of the Superintending Engineer to inspect the state of various works within his circle and to satisfy himself that the system of management prevailing is efficient and economical. He is required to ascertain and report on the efficiency of the subordinate offices and petty establishments and see that staff employed in each division is actually necessary and adequate for its management. He should see that Divisional Officers submit their accounts to the Accountant-General punctually. He should examine the register of works, so as to keep a vigilant watch over the rate of work, and if he considers it necessary, he may require the Executive Engineer to report to him monthly or at longer intervals, on a worship, the total expenditure to date under each sub-head of work in contrast with the sanctioned estimate and ensure that the revised estimate for any work, if required, is submitted in due time to the sanctioning authority. He should also: (i) see that different articles in stock are duly verified according to the rules laid down and that there is no accumulation of stock in any division beyond its requirements. He should also: (i) see that different articles in stock are duly verified according to the rules laid down and that there is no accumulation of stock in any division beyond its requirements. (ii) see that no delay is allowed to occur in the submission of completion reports. (iii) inspect each divisional office once every six months, each sub-divisional office once every year, and each sectional office once every two years, and forward for information of the Chief Engineer reports of his inspection detailing therein the result of examination of initial accounts, accounts of stock, tools and plant, registers of works and other divisional books, mode of preparation of estimates, contract agreements, contractors accounts, system of recording plans and papers and office work generally. Note - When ever inspection prescribed above could not be completed, a report stating reasons thereof should be submitted to the Chief Engineer by the 7th January of the year following the year in which the inspection was due. (iv) see that the authorized system of accounts is maintained throughout his circle. (v) examine the condition of surveying and mathematical instruments at the headquarters of divisions. (vi) ensure that for every work in progress there is a proper administrative approval and an estimate sanctioned by the competent authority and allotment of fund. (vii) examine the books of Divisional Officers and their sub-ordinates and see that matters relating to primary accounts are attended to personally by the Divisional and Sub- divisional Officers, and that the accounts fairly represent the progress of each work. 30. The Executive unit of the department is the division, in charge of an Executive Engineer (Divisional Officer), who is responsible to the Superintending Engineer for execution and management of all works in his division. 6. Referring para 15(C) he submits that the petitioner is only administrative and professional head of that wing of the Public Works Department of which he is in charge and responsible for the Government for the proper and efficient working of that wing or department. So far as the Superintending Engineer is concerned he referred the clauses 23 and 24 of the Code. By referring the clause 24 of the Code he submits that the Superintending Engineer has to inspect the state of various works within his circle. So far as the Superintending Engineer is concerned he referred the clauses 23 and 24 of the Code. By referring the clause 24 of the Code he submits that the Superintending Engineer has to inspect the state of various works within his circle. Referring to clause 30 of the Code he submits that the Executive unit of the department is the division, in charge of an Executive Engineer (Divisional Officer), who is responsible to the Superintending Engineer for execution and management of all works in his division. On the basis of this clause, he submits that the executive engineer is the person who is looking after the execution of the work. The Superintending Engineer supervise and inspect and the Chief Engineer is meant for the administration and general professional control of Public Works. He further submits that the Chief Engineer is not the person who monitor the execution of the work. He further submits that in view of the Code the Executive Engineer is responsible persons for execution of the work and he has been exonerated by the Enquiry Officer and the Government has chosen not to proceed against him and the petitioner being the Chief Engineer has been made scapegoat. He further submits that in spite of the correspondence made by the petitioner raising the concern about reducing the time period of work, the office concerned has not paid attention. In spite of that the petitioner has been punished with the aforesaid punishment order. He further submits that due to act of the petitioner no loss has been caused to the Government exchequer, in spite of that, order of 50% deduction in the pension has been awarded. He further submits that in spite of the order of the Government to institute a F.I.R. against the contractor, the contractor has been left out and no F.I.R. has been lodged against the contractor. He further submits that the canal has been further completed by the same contractor. He further assailed the impugned order on the ground that rule 43-b of the Pension Rule has not been taken into consideration by the authorities concerned in right perspective. He further submits that the punishment only to pay subsistence allowance is not prescribed in the Pension Rules, particularly, in Rule 43-b on the extent of which the impugned order has been passed and accordingly, the impugned order is bad in law. He further submits that the punishment only to pay subsistence allowance is not prescribed in the Pension Rules, particularly, in Rule 43-b on the extent of which the impugned order has been passed and accordingly, the impugned order is bad in law. He further submits that there is no analysis as to what loss to Government has been caused due to this petitioner and in spite of that deduction of 50% from the pension has been ordered. Under Rule 43-b of Pension Rule the public service commission need to be consulted before passing final order. In this case without consulting the public service commission, the impugned order has been passed. He further submits that the impugned order is illegal as it has been passed without approval from the cabinet as in rule 43-b of Pension Rules it is the State only who has power to pass any order. He further submits that this point raised by the petitioner has not been controverted in the counter affidavit filed by the State of Jharkhand. Learned counsel appearing for the petitioner further submits that one Baldeo Ram, who was Superintending Engineer on that time was also punished with the same punishment and he was moved before this court in W.P. (S) No. 4885 of 2004 which was allowed vide order dated 02.03.2017. Against that order the State preferred a L.P.A. being L.P.A. No. 491 of 2017 and which was admitted on 09.05.2018 and the order passed by the Hon’ble Single Judge has been stayed taking into account that prima facie there is no need to get any permission for the public service commission or State Government. 7. On the other hand, Mr. Shahi, learned counsel for the State submits that according to the State in view of the clause 22 of the Code Chief Engineer/Chief Engineer (Design) is responsible for all structural designs. He is the professional head of that wing in respect of approval of designs drawing and specification of all structures. However, looking to the clause 22 of the Code this Court finds that so far as the clause 22 of the Code is concerned it is with respect to Chief Engineer (Design), he also relied on 15(C) and 16 of the Code. 8. However, looking to the clause 22 of the Code this Court finds that so far as the clause 22 of the Code is concerned it is with respect to Chief Engineer (Design), he also relied on 15(C) and 16 of the Code. 8. At this stage, learned counsel for the petitioner submits that the Chief Engineer (Design) has not been charge sheeted in the said work whereas the petitioner is the regular Chief Engineer. According to him the clause 22 of the Code is not in favour of the State. 9. Mr. Shahi, learned counsel appearing for the respondent State submits that since the L.P.A. No. 491 of 2017 is pending before the Division Bench arising out of the same construction the writ petition may be taken up after the final disposal of that L.P.A. so far as other law points argues on behalf of the petitioner there is no reply by the State of Jharkhand. So far as the law points have been concerned it has been argued on behalf of the State of Jharkhand that the approval of cabinet is there and to substantiate his argument Mr. Shahi by referring impugned order particularly paragraph 3 of that order submits that it was examined at the Government level. The other points argues by the petitioner has not been replied by the State of Jharkhand. 10. Mr. Sudarshan Shrivastava, learned counsel representing the A.G. of the State of Jharkhand fairly submits that only law point in this matter is that so far as the impugned order is concerned it is not in accordance with rule. 11. So far as the contention of Mr. Shahi with regard to L.P.A. is concerned it was admitted on the prima facie by the Division Bench that the consultation from the public service commission was not necessary for passing of the impugned order. The rest of the law points raised in this writ petition are open and therefore, this Court finds that the writ petition can be disposed of. 12. In view of the rival submission of the parties and looking into the facts and the arguments, this Court finds that writ petition is fit to be allowed on the following reasons:- (i) The other five persons who were also charge sheeted for the same construction have been exonerated. 12. In view of the rival submission of the parties and looking into the facts and the arguments, this Court finds that writ petition is fit to be allowed on the following reasons:- (i) The other five persons who were also charge sheeted for the same construction have been exonerated. In view of the Code, the Executive Engineer is the person who execute the work at the sight he has been exonerated. (ii) The role of the Chief engineer is very dismal in view of the Code. (iii) This Court also took note the fact that the petitioner has made correspondence with regard to the reduction of time so far as construction work has been concerned. (iv) The punishment order is passed in view of Rule 43-b of the Pension Rules and the procedure prescribed in Rule 43-b has not been followed. (v) There is no assessment and analysis of the pecuniary loss as to what extent the Government exchequer has lost the amount due to conduct of the petitioner. On that ground, there is need to notice on the petitioner which has not been done. (vi) The charge sheet was on the basis of the enquiry report of the flying squad in which the petitioner was not participated. (vii) In view of the clause 15(C) of the Code the role of the Chief Engineer is only administrative and professional. (viii) In view of the clause 30 of the Code the Executive Engineer is the person who executes the work, has been left out. (ix) This Court has not considered the arguments made by the learned counsel for the petitioner with regard to the Rule 43-(c) of the Pension Rules which stipulates the consultation of Public Service Commission is necessary and prima facie on this ground the Hon’ble Division Bench of this Court has admitted the L.P.A. No. 491 of 2017. 13. As a cumulative effect of the arguments of the parties, looking into the records and the law points, this writ petition is allowed and the impugned order dated 16.04.2007 is quashed. In view of the above, the petitioner shall be entitled for all consequential benefits. 14. In view of the above directions and observations, the writ petition stands allowed and disposed of.