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2019 DIGILAW 1911 (JHR)

Ashok Kumar v. State of Jharkhand

2019-11-26

S.N.PATHAK

body2019
JUDGMENT : S.N. PATHAK, J. 1. Heard the parties. 2. Petitioner has approached this Court with a prayer for quashing the notification dated 18.12.2018 (Annexure-13), whereby the petitioner has been awarded a minor punishment of withholding of one annual increment with non-cumulative effect. 3. The factual exposition as has been delineated in the writ petition is that petitioner was appointed to the post of Assistant Engineer on 04.04.1989, in Water Resources Department in the erstwhile State of Bihar and subsequently, promoted to the post of Executive Engineer on 04.04.1997. At present, petitioner is working as Chief Engineer, Water Resources Department, Hazaribagh. It is the case of the petitioner that a complaint was lodged on 01.08.2017 before the Public Grievance Cell of Hon’ble the Chief Minister, regarding non-compliance of work relating to construction of stadium at G.L.A. College, Daltonganj. Based on the said compliant, a letter dated 04.08.2017 was forwarded by Deputy Commissioner, Palamau regarding non-completion of the said work. Thereafter, though the charge was framed against the petitioner on 07.02.2018 but the same was not served upon him. Subsequently, a copy of the charge memo was received by the petitioner along with second show-cause notice. It is the further case of the petitioner that the Rural Development Department, Govt. of Jharkhand awarded a minor punishment to the petitioner as charges were said to be proved only because the petitioner failed to appear in the departmental proceeding. A letter dated 09.02.2018 was issued by the Deputy Secretary, Water Resources Department, Govt. of Jharkhand, Ranchi to the petitioner regarding non-compliance of the assigned work and the petitioner was asked to submit his explanation by 28.02.2018, in response to which, petitioner submitted his reply. Surprisingly, the conducting officer by memo No. 27.03.2018, asked the petitioner to be physically present on 16.04.2018 at 11:30 a.m. along with explanation. In the said letter, a reference was made regarding the fact that petitioner did not appear on 26.03.2018. The petitioner replied to the letter dated 27.03.2018 bringing to the notice the fact that parent/ administrative department of the petitioner is Water Resources Department and the said Department has already asked the explanation from the petitioner, to which the petitioner had already replied but the same is pending before the Water Resources Department. The petitioner replied to the letter dated 27.03.2018 bringing to the notice the fact that parent/ administrative department of the petitioner is Water Resources Department and the said Department has already asked the explanation from the petitioner, to which the petitioner had already replied but the same is pending before the Water Resources Department. Subsequently, one similarly situated person, Shri Ramji Prasad was exonerated from the charges levelled against him and hence, the petitioner also requested for similar treatment. However, on 07.09.2018, Rural Works Department issued a second show-cause notice asking reply from the petitioner and a copy of memo of charges was also supplied to him. The petitioner replied to the second show-cause notice on 07.09.2018, reiterating the same fact which was replied earlier. However, no action is taken by the respondents till date. Aggrieved by the same, the petitioner has knocked the door of this Hon’ble Court for redressal of his grievances. 4. Mr. Indrajit Sinha, learned counsel appearing for the petitioner strenuously urges that impugned order is not tenable in the eyes of law as in absence of any enquiry report, the punishment order could not have been passed. Learned counsel further argues that the issuance of second show-cause notice is a mere formality. There was no inquiry neither any finding of the enquiry officer. Further, it has been argued that parent department has the jurisdiction to conduct the enquiry as the petitioner was on deputation, the present department had no authority to conduct an enquiry against him. It is also argued that persons having identical charges have been exonerated, which is apparent from Annexure-14, Page-60 of the writ petition. Further, it has been argued that the punishment order amounts to double jeopardy, as the promotion of the petitioner has also been snatched. To buttress his arguments, Mr. Sinha places heavy reliance of the judgment passed by the Hon’ble Apex Court in case of State of Uttar Pradesh and Others vs. Saroj Kumar Sinha, (2010) 2 SCC 772 . 5. Per contra, counter-affidavit has been filed. Mr. To buttress his arguments, Mr. Sinha places heavy reliance of the judgment passed by the Hon’ble Apex Court in case of State of Uttar Pradesh and Others vs. Saroj Kumar Sinha, (2010) 2 SCC 772 . 5. Per contra, counter-affidavit has been filed. Mr. Anoop Kumar Agarwal, learned counsel appearing for the respondent-State vehemently opposes the contention of the learned counsel for the petitioner and submits that the authority had the full jurisdiction to conduct an enquiry against the petitioner, which is in consonance with the Jharkhand Government Servants (Classification, Control and Appeal), Rules, 2016 (for short “CCA Rules 2016”) and also letter dated 25.05.2018, Annexure-F to the counter-affidavit dated 19.07.2019. Mr. Agarwal places heavy reliance on Rule-17(18) of the CCA Rules, 2016 and submits that in view of the said Rule, the department has proceeded against the petitioner and there is no illegality or infirmity in the impugned order. Justifying the impugned order, Mr. Agarwal further argues that petitioner has rightly been punished. So far as parity is concerned, the case of the present petitioner is not identical to the persons detailed at page-60 of the writ petition, since the said person had appeared in the departmental proceeding but the petitioner failed to do so and as such, no parity can be claimed. 6. Be that as it may, on a consideration of the facts and circumstances of the case as also the submissions made across the bar, this Court is of the view that the case of petitioner needs consideration. Admittedly, a proceeding was initiated against the petitioner for the charges levelled against him but the same was never concluded inasmuch as the Enquiry Officer never submitted its report after issuance of a show-cause notice, the order of punishment, though minor, was inflicted against the petitioner. From the impugned order it appears that second show-cause was a mere formality. It was incumbent upon the Inquiry Officer to conclude the enquiry and submit its report, even though it was an ex-parte proceeding. The said issue fell for consideration before the Hon’ble Apex Court in case of State of Uttar Pradesh and Others vs. Saroj Kumar Sinha (supra). Para-28 of the said judgment reads as under: “28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/ disciplinary authority/Government. Para-28 of the said judgment reads as under: “28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/ disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the un-rebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.” From perusal of the aforesaid judgment, it can comfortably be said that merely, by issuance of second show-cause notice, it cannot be inferred that the charges against the petitioner have been proved. In absence of any cogent material on record, no punishment could have been awarded to the petitioner. 7. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the impugned notification dated 18.12.2018 (Annexure-13) is quashed and set aside. The matter is remitted back to the disciplinary authority to conduct a fresh enquiry, within a period of eight weeks. The petitioner is also directed to co-operate and participate in the departmental proceeding. If the petitioner fails to do so, the enquiry officer is free to come to a conclusion in an ex-parte enquiry and submit its report to the disciplinary authority. 8. With the aforesaid observations and directions, writ petition stands disposed of.