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2022 DIGILAW 1181 (JHR)

Ramashish Roy v. State of Jharkhand

2022-09-20

ANANDA SEN

body2022
JUDGMENT : Heard learned counsel appearing for the petitioner and learned counsel appearing for the respondents. 2. The petitioner, in this writ application, has challenged the order dated 27.11.2015, as contained in Notification No. Nig/Sara (Path)-02-Vi.Ka.-05-157/2014-7991 (S), whereby the major penalty has been inflicted upon him reverting him to the lowest stage in a time stage. Further prayer has been made to quash the appellate order dated 19.07.2016, whereby the Appellate Authority dismissed the departmental appeal, preferred by the petitioner. 3. The petitioner was the Executive Engineer, Road Construction Department, Road Division, Simdega. Some construction work was undertaken under his regime. Thereafter, some defects were found in the construction work. Some action was proposed to be taken against the Contractor. It was found that the Bank Guarantees, which was furnished by the Contractor, got lapsed. The Department alleged that due to inaction on the part of the petitioner, the Bank Guarantees lapsed. A preliminary inquiry was held and, thereafter, it was decided to proceed against the petitioner departmentally. Charge sheet was issued against the petitioner, wherein it was alleged that the petitioner was responsible for lapse of the Bank Guarantees, amounting to Rs.2,09,11,000/-. The charge sheet is marked as Annexure-4 at page-37 to 39 of this petition. 4. Departmental proceeding was initiated and Inquiry Officer was appointed. Before the Inquiry Officer no oral evidence was adduced by either of the parties. Documents were produced and was relied upon by the employer, which is the preliminary inquiry report of the Chief Engineer, Road Construction Division, Government of Jharkhand, Ranchi being letter No. 2115 dated 19.08.2013. The Inquiry Officer found the petitioner guilty. Thereafter, a second show cause notice was issued to the petitioner, to which he replied. The Disciplinary Authority thereafter, punished the petitioner by the impugned order dated 27.11.2015, reverting the petitioner to the lowest stage in a time stage. 5. The sole question, which has been raised by the learned counsel appearing on behalf of the petitioner is that the entire departmental inquiry and the finding against the petitioner, is based on the preliminary inquiry report, which led to issuance of the charge sheet against the petitioner. The preliminary inquiry report cannot be taken as an evidence in departmental inquiry. Thus, the entire proceeding is vitiated and it violates the principle of natural justice. 6. The preliminary inquiry report cannot be taken as an evidence in departmental inquiry. Thus, the entire proceeding is vitiated and it violates the principle of natural justice. 6. Learned counsel appearing on behalf of the respondents submits that the preliminary inquiry report contains all the documents and other material, which the petitioner had due knowledge. Full opportunity was given to the petitioner to defend his case. As he availed the opportunity, now he cannot take the plea of violation of principle of natural justice. As per the counsel for the respondents, preliminary inquiry report is in details, which deals with all the aspects and the same can be taken as evidence and has been correctly relied upon by the Inquiry Officer in the departmental proceeding. 7. After hearing the parties, I find that the main question falls for consideration before this Court is as to whether in a departmental proceeding the Inquiry Officer can hold the delinquent guilty solely on the basis of the preliminary inquiry report. 8. In this case, it is admitted that except the preliminary inquiry report, there is no other document, which has been produced, nor there are any oral evidence. This fact is evident from charge sheet itself. Column No. 5 of charge sheet mentioned the evidence, which has been relied upon by the department, which suggests that it is the preliminary inquiry report. Column No. 5 of charge sheet reads as follows:- ^^5- lk{; eq[; vfHk;ark ¼;k0½] iFk fuekZ.k foHkkx] >kj[k.M] jk¡ph dk tk¡p izfrosnu i=kad & 2115 vuq0 fnuka d&19-08-2013^^ 8. When I go through the inquiry report, submitted by the Departmental Inquiry Officer, I find at page-10 of the inquiry report that nature of the evidence has been mentioned. It only mentioned about the report of the Chief Engineer, Road Construction Department dated 19.08.2013, which is admittedly, the preliminary inquiry report. Thus, it is clear that the Inquiry Officer solely relied upon the preliminary inquiry report. 9. This issue is now well settled by the Hon’ble Supreme Court in the case of “Nirmala J. Jhala-versus-State of Gujarat and Another, reported in (2013) 4 SCC 301 .” While dealing with the situation, the Hon’ble Supreme Court, in Para-45, has held as follows:- “45. 9. This issue is now well settled by the Hon’ble Supreme Court in the case of “Nirmala J. Jhala-versus-State of Gujarat and Another, reported in (2013) 4 SCC 301 .” While dealing with the situation, the Hon’ble Supreme Court, in Para-45, has held as follows:- “45. In view of the above, it is evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross-examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of natural justice”. 10. The conclusion, which has been arrived at by the Hon’ble Supreme Court in the aforesaid case, which can be related to facts of this case, is at Para-52.2, which is quoted herein below:- “52.2. The enquiry officer, the High Court on administrative side as well as on judicial side, committed a grave error in placing reliance on the statement of the complainant as well as of Shri C.B. Gujjar, Advocate, recorded in preliminary enquiry. The preliminary enquiry and its report loses significance/importance, once the regular enquiry is initiated by issuing charge-sheet to the delinquent. Thus, it was all in violation of the principles of natural justice.” 11. Thus, from the aforesaid judgment of the Hon’ble Supreme Court, it is clear that the preliminary inquiry report loses its significance and importance, once the regular enquiry is initiated by issuing charge-sheet to the delinquent. In the departmental enquiry than fresh evidence has to be led to prove the guilt of the delinquent. In this case, no fresh evidence was led. Only the preliminary enquiry report was relied upon by the Inquiry Officer and the enquiry report was submitted. Thus, the departmental inquiry is violative of the principles of natural justice. Even if, the preliminary inquiry report is relied upon some documents should have been brought before the Inquiry Officer during inquiry proceeding to prove the guilt of the petitioner, which was not done in the instant case. This issue is thus, squarely covered by the judgment of the Hon’ble Supreme Court in the case of “Nirmala J. Jhala” (supra). 12. Considering the aforesaid judgment, I hold that the departmental inquiry, which was initiated against the petitioner and the enquiry report, which was submitted, is in violation of the principles of natural justice. This issue is thus, squarely covered by the judgment of the Hon’ble Supreme Court in the case of “Nirmala J. Jhala” (supra). 12. Considering the aforesaid judgment, I hold that the departmental inquiry, which was initiated against the petitioner and the enquiry report, which was submitted, is in violation of the principles of natural justice. Thus, the enquiry report is hereby set aside and quashed. Consequently, the punishment order as contained in Notification No. Nig/Sara (Path)-02-Vi.Ka.-05-157/2014-7991 (S), whereby the major penalty has been inflicted upon the petitioner reverting him to the lowest stage in a time stage and the appellate order dated 19.07.2016, are also quashed and set aside. 13. Thus, this writ application is allowed.