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2021 DIGILAW 103 (JHR)

Anugrah Narayan Prasad v. State of Jharkhand

2021-01-21

DEEPAK ROSHAN

body2021
JUDGMENT : Heard Mr. Saurabh Shekhar, learned counsel for the petitioner and Mr. Rahul Kamlesh, learned counsel for the respondents through V.C. 2. The instant writ application has been preferred by the petitioner praying for quashing and setting aside the Notification No.2850 dated 13.11.2013 issued under the signature of Special Secretary to the Government, Rural Works Department, Government of Jharkhand, whereby the punishment of censure has been imposed upon the petitioner and a decision has been taken with respect to payment of salary for the period of suspension to the effect that the same will be decided after disposal of the criminal case pending against the petitioner. The petitioner has further prayed for a direction upon the respondent authorities to release the entire arrears of difference of salary for the suspended period. 3. Mr. Saurabh Shekhar, learned counsel for the petitioner submits that the charge against this petitioner was in two parts. Firstly; negligence in construction of pier of the bridge and secondly; lack of due supervision during construction of the bridge. 4. Learned counsel submits that from the enquiry report it is clear that the petitioner was not posted at the time of construction of pier of the bridge, however, looking to the concluding part of the enquiry report it transpires that since the petitioner had paid major portion of amount to the contractor; as such in the eye of Inquiry Officer the charge has been proved. He contended that admittedly; the petitioner was not posted at the time of construction of pier of the bridge and he was posted on site almost after a year which is also been mentioned in the enquiry report, however, since the major payment was made by this petitioner to the contractor, the charges has been shown to be proved. He further contended that by going through the conclusion it can be said that the Inquiry Officer has gone beyond the charge, inasmuch as, there was no charge with respect to payment of any amount rather it was only for bad construction of the pier of the bridge and lack of supervision and since the petitioner was not at all posted during construction of the pier of the bridge; as such the enquiry report itself is bad in law and consequently the impugned order which has been passed on the basis of enquiry report is also non-est in the eye of law. 5. 5. He further referred to a judgment passed by the Hon’ble Apex Court in the case of State of Jharkhand and Anr. vs. Amresh Narayan Sinha (Civil Appeal No.5737 of 2019) arising out of SLP (C) No.16928 of 2018 and submits that the Hon’ble Apex Court has dealt Rule 97 of Jharkhand Service Code that after conclusion of the departmental enquiry the competent authority will have to decide in terms of Rule 97. He further submits that Rule 97 (2) deals with the circumstances when the Government servant shall be given full pay and allowance of the suspension period and according to that either the Government servant is exonerated from the charges or the suspension was totally unjustified. Referring to the aforesaid provisions of law he submits that the suspension of the petitioner was done in view of the same charge as stated hereinabove and by going through the enquiry report it would transpire that in the eye of Inquiry Officer since the petitioner has paid major amount, as such, he has been held guilty and the charge has been proved whereas, the payment part was not within the charge; as such, the Inquiry Officer has gone beyond the charge which is impermissible in the eye of law. He further referred to a judgment passed by this Court in the case of one Ram Pukar Ram, wherein this Court has quashed the order of punishment on the ground that it was beyond the charge. Further, the case of another co-charged employee-Ashok Kumar was also decided in his favour and necessary order was passed for payment of consequential benefits. 6. Relying upon the aforesaid contention learned counsel for the petitioner submits that the enquiry report itself is non-est in the eye of law and as such, the order of punishment dated 13.11.2013 deserves to be quashed and set aside. 7. Mr. Rahul Kamlesh, learned counsel for the respondent opposes the prayer of the petitioner and submits that the charge was basically for two things. Firstly, negligence in construction of pier of the bridge and secondly, lack of supervision. Admittedly, the petitioner was not posted at the time of construction of pier of the bridge but certainly he was present during later part of the construction of bridge and as such, he has been held guilty for other charge i.e. lack of supervision. Firstly, negligence in construction of pier of the bridge and secondly, lack of supervision. Admittedly, the petitioner was not posted at the time of construction of pier of the bridge but certainly he was present during later part of the construction of bridge and as such, he has been held guilty for other charge i.e. lack of supervision. However, learned counsel cannot demonstrate from the charge sheet that there is any charge, whatsoever, with respect to payment to the contractors; whereas the Inquiry Officer has categorically held in its enquiry report that the petitioner was not involved in construction of pier of the bridge or its supervision. In order to buttress his argument learned counsel for the respondent-State relied upon the judgment delivered in the case of Devendra Pratap Narain Rai Sharma vs. State of Uttar Pradesh & Ors. reported in AIR 1962 SC 1334 . 8. Having heard learned counsel for the parties and after going through the documents available on record and averments made in the respective affidavits it appears that the charge against this petitioner is with respect to negligence in the construction of pier of the bridge and lack of supervision. However, from enquiry report itself it clearly transpires that the Inquiry Officer has categorically held that the petitioner was not involved in construction of pier of the bridge or its supervision. It has been categorically stated by the petitioner that he was posted after one year from construction of pier of the bridge, as such; he could not have supervised the construction of the pier which has not been denied by the respondents. 9. It further transpires by going through the concluding part of the enquiry report that the Inquiry Officer came to the conclusion in proving the charge against the petitioner that he had made around 76.82 percent payment of the total amount to the contractor. So the main ground which has been taken by the Inquiry Officer is with respect to payment of amount to the contractor, whereas, the Inquiry Officer himself has admitted in his report that the petitioner was not involved in the construction of pier of the bridge or its supervision. Though, in concluding portion, he has given one line that the charge of lack of supervision of the bridge has been proved against this petitioner. Though, in concluding portion, he has given one line that the charge of lack of supervision of the bridge has been proved against this petitioner. In this view of the matter this Court is having no hesitation in holding that the Inquiry Officer has gone beyond the charge. 10. At this stage, it is pertinent to mention here that the bridge was also collapsed as per the Inquiry Officer due to the heavy rain. Further, the basis of collapse of the bridge was negligence in construction of pier of the bridge and its supervision and when the petitioner himself was not posted and/or present at the time of construction of pier of the bridge or in its supervision at that time then merely for lack of supervision of the construction of other part of the bridge and for payment of huge amount to the contractor; impugned charges cannot be sustained in the eye of law. 11. Now coming to the impugned order of punishment it appears that it consists in two parts. First part is with respect to censure which is having now no relevance as the period of censure has already lapsed and the petitioner has already retired from service. The second part is with regard to taking of decision regarding pay and allowances to the petitioner during the period of suspension. Rule 97 (2) clearly stipulates that a Government servant is entitled for full pay and allowance provided he is exonerated from the charges or his suspension was wholly unjustified. In foregoing paragraphs the charges has been declared to be unjustified; as such, the petitioner is entitled for full pay and allowance during the period of suspension. 12. In view of the aforesaid findings the impugned order as contained in Notification No. 2850 dated 13.11.2013 (Annexure-4) is hereby quashed and set aside. The respondent authorities are directed to take a decision with regard to payment of salary and other allowances during the suspension period within a period of 3 months from the date of receipt of copy of this order and entire legitimate amount shall be paid to the petitioner within a further period of 8 weeks. 13. With the aforesaid terms, the instant writ application stands allowed and disposed of.