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2023 DIGILAW 1476 (JHR)

Shiv Chandra Prasad v. State of Jharkhand

2023-12-15

S.N.PATHAK

body2023
JUDGMENT : Heard the parties. 2. The petitioner has challenged the decision contained in letter dated 12.2.2015 (Annexure-16) by which punishment of stoppage of two increment with cumulative effect and censure has been passed against the petitioner. The petitioner has also challenged the appellate order contained in letter dated 17.8.2015 by which the appeal preferred by him has been rejected. Factual Matrix 3. The petitioner was appointed in the year 1981 as Assistant Engineer in P.W.D. Department under the administrative control of Road Construction Department, Ranchi. While the petitioner was posted as Sub-Divisional Officer, Building Division No.1, Ranchi, a first information report, being Vigilance Case No. 29 of 1999 was lodged against eight accused persons including the petitioner on the basis of written report of Additional Secretary dated 28.9.1999, Building Construction Department, Bihar, Patna regarding grave irregularities in construction work of Mines and Geology Office Building, Doranda, Ranchi. The allegations are that on 14.3.1988, the Joint Secretary, Mines & Geology Department of the then Government of Bihar, Patna sanctioned Rs.29,85,800/- for construction of the Combined Office Building. Pursuant to tender, an offer was received for a sum of Rs.20,31,519/- but the said work was allotted to the contractor for a sum of Rs.19,70,573/- in the year 1988-89. Though the work was started, but the contractor failed to complete the work and he abandoned the same at an incomplete stage in the year 1993. Taking advantage of such situation, unknown persons committed theft of bricks, fixtures, steel rods etc., as a result of which, the building collapsed. The involvement of all the Engineers who had worked at the relevant period were there. In Vigilance Case, the petitioner was ultimately charge sheeted, but thereafter he was discharged from the charge by the competent Criminal Court of law. For the same set of charge, the Department accorded sanction of prosecution, which led to initiation of departmental proceeding. Memo of charge in Prapatra-‘Ka’ dated 7.1.2011 was served to the petitioner. After a full dressed departmental proceeding and considering the reply of the petitioner, the enquiry officer exonerated the petitioner from all the charges levelled against him vide enquiry report dated 28.7.2012. However, the Department having found the enquiry report not satisfactory, appointed another Enquiry Officer to enquire into the charge afresh by order dated 4.3.2013. Aggrieved thereby, the petitioner challenged the said order dated 4.3.2013 in W.P.(S)No. 1935 of 2013. However, the Department having found the enquiry report not satisfactory, appointed another Enquiry Officer to enquire into the charge afresh by order dated 4.3.2013. Aggrieved thereby, the petitioner challenged the said order dated 4.3.2013 in W.P.(S)No. 1935 of 2013. This Court vide order dated 17.1.2014 has been pleased to quash and set aside the order dated 4.3.2013 with liberty to the respondents to pass fresh order. Thereafter, second show cause notice was issued to the petitioner on 4.6.2014. The petitioner submitted his reply on 11.11.2014 denying the charges levelled against him. Finally, the impugned punishment order dated 12.2.2015 was passed whereby stoppage of two increments with cumulative effect has been imposed against the petitioner. The appeal preferred by the petitioner on 15.6.2015 also came to be rejected by the appellate authority on 17.8.2015. Challenging the said orders, the petitioner has preferred this writ petition. Arguments advanced by learned counsel for Petitioner 4. Learned counsel appearing for the petitioner assiduously argues that the impugned punishment order passed by the disciplinary authority is not sustainable in view of the well settled principle of law laid down by the Hon’ble Apex Court in the case of Punjab National Bank and Ors. v. Kunj Behari Mishra, reported in 1998 (6) Supreme 486 : (1998) 7 SCC 84 , inasmuch as, the Hon’ble Apex Court held that whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, an opportunity of hearing to the delinquent is a sina qua non. Learned counsel submits that in the present case, the petitioner was fully exonerated by the enquiry officer and the disciplinary authority contrary to the settled principle of law without recording its tentative reasons for differing with the findings arrived at by the enquiry officer has awarded the punishment against the petitioner. Learned counsel further submits that even the charge which has been mentioned in the second show cause notice is different to what has been mentioned in the memo of charge. Learned counsel further submits that in the memo of charge, there is no definite or particular charge against the petitioner, whereas in the second show cause, the disciplinary authority has recorded that the petitioner is responsible for such irregularity in collapsing the building. Learned counsel further submits that in the memo of charge, there is no definite or particular charge against the petitioner, whereas in the second show cause, the disciplinary authority has recorded that the petitioner is responsible for such irregularity in collapsing the building. Learned counsel also points out that no witness was examined in the entire departmental proceeding and hence, it can be said that it is a case of no evidence. Assailing the impugned order, learned counsel catches a point that after a delay of almost 10 years from the date of occurrence, the petitioner was proceeded departmentally, which seriously affects the case of the petitioner to prove his innocence. 5. Lastly, learned counsel placing heavy reliance upon the decision of the Hon’ble Apex Court in the case of Kunj Bihari Mishra (supra) and in the cases of Kuldeep Singh Vs. The Commissioner of Police & Ors., reported in 1998 (9) Supreme 452 : (1999) 2 SCC 10 , as also in the case of Vijay Singh Vs. State of U.P. & Ors., reported in 2012 (3) Supreme 20 : (2012) 5 SCC 242 , submits that the impugned order is contrary to what has been held in these judgments. Arguments advanced by learned counsel for Respondents. 6. On the other hand, learned counsel appearing for the respondents has firstly taken a preliminary objection that this Court sitting under Article 226 of the Constituting of India cannot sit as an appellate authority over the findings of the disciplinary authority and the appellate authority. The impugned order dated 11.2.2016 was passed by the disciplinary authority on the proved charges of huge loss caused to the State Exchequer in accordance with the service rules and in consonance with the principles of natural justice. Further, learned counsel submits that the petitioner was charge-sheeted for grave irregularities in construction work of office building. The petitioner being the Sub-Division Officer, Building Division, Ranchi and other officials posted there like Engineers were responsible for such irregularities in construction work which caused the huge loss to the Government Exchequer. Further, learned counsel submits that the petitioner was charge-sheeted for grave irregularities in construction work of office building. The petitioner being the Sub-Division Officer, Building Division, Ranchi and other officials posted there like Engineers were responsible for such irregularities in construction work which caused the huge loss to the Government Exchequer. Learned counsel submits that though the enquiry officer has found the charges not proved against the petitioner, but the Disciplinary Authority exercising his jurisdiction considering the evidence and the record of the inquiry, coupled with the fact that the enquiry officer himself was thereafter charge-sheeted in the present case, disagreed with the findings of Inquiring Authority and tentatively came to the conclusion of establishing of charges in the departmental inquiry. Thereafter, by the show cause dated 4.6.2014, the tentative conclusions of the Disciplinary Authority were forwarded to the delinquent employee for making a representation / reply thereon, in consonance with the spirit of the law laid down in Punjab National Bank and Ors. v. Kunj Behari Mishra (supra). Learned counsel submits that the petitioner submitted a detailed representation thereon which was duly considered by the Disciplinary Authority, and by the final order dated 11.2.2016, the Disciplinary Authority concluded that charge of grave irregularity in construction of office building is to be proved. Hence, no prejudice has been occasioned to the petitioner whilst passing the final order dated 11.2.2016 by the Disciplinary Authority. The action of the respondents is in consonance with the principles of natural justice and hence the writ petition is therefore liable to be dismissed. Findings of the Court 7. Having heard the learned counsel for the parties and upon perusal of the record, it becomes necessary to delineate the following facts and reasons on the basis of which the final outcome of the instant writ petition would depend:- (i) The main and moot grounds for assailing the impugned punishment order, as argued by learned counsel for the petitioner are that before imposing penalty, the disciplinary authority ought to have given its tentative reasons for difference of opinion, but this procedure is totally absent in the present case, which vitiates the entire departmental proceeding. The second limb of argument is that the moments it is conceded that the disciplinary authority has recorded its own findings; the same are totally different from the charges levelled against the petitioner. The second limb of argument is that the moments it is conceded that the disciplinary authority has recorded its own findings; the same are totally different from the charges levelled against the petitioner. Argument of huge delay in initiation of departmental proceeding has also been taken by the learned counsel for the petitioner to assail the impugned order. (ii) In order to meet out the aforesaid contentions, I would like to refer the charge, which is reflected in Prapatra-Ka at page-82 of the writ petition. There are altogether three charges, which read in English translation as under:- Charge No. 1: In the construction of the joint office building of the Mines and Geology Department located in Ranchi, with the help of the contractor, the petitioner, the then Sub Divisional Officer, Doranda, Ranchi violated the terms of the agreement and did not use the material of the prescribed standards for the construction work of the building, causing financial loss to the Government by aiding in fraud and faulty construction work. Charge No. 2 : There was negligence in the work. Abuse of position, scams and work not being done as per the prescribed specifications. Charge No. 3 : The allegation under review is a matter of violation of the instructions prescribed in the Chief Secretary’s circular order no. 462 dated 30.3.1982 and Rule 49 of the PWD Code and Rule 3 of the Government Servant Conduct Rules, 1976 are guilty. (iii) Thereafter, the enquiry proceeding was initiated. The fullest opportunity was given to the petitioner to defend his case and finally, the enquiry officer found the charges not proved. The disciplinary authority disagreed with the findings recorded by the enquiry and recorded its own tentative reasons for difference of opinion, the relevant contents in English translation read as under:- “As per the instructions, it is said that in the departmental proceedings conducted against the petitioner vide Departmental Resolution No. 252 (S) dated 12.01.2011 for the irregularities in the construction work of the Joint Office Building of the Mines and Geology Department located at Doranda, the quality control investigation report will be submitted by the Presenting Officer. The allegations made against the petitioner on this basis have been reported as unproven, while the concerned officer has been made an accused in the FIR in Vigilance Police Station Case No. 29/99 dated 11.10.1999 for issuing a wrong quality control investigation report. The allegations made against the petitioner on this basis have been reported as unproven, while the concerned officer has been made an accused in the FIR in Vigilance Police Station Case No. 29/99 dated 11.10.1999 for issuing a wrong quality control investigation report. Also, in the investigation report submitted by Shri Chidanand Prasad Technical Advisor, Building Zone No. 01 Ranchi, it has been stated that from the observation of the work, it is clear that the workmanship in the construction work was of very poor quality. The way the bricks are being removed by the local people, it appears that the joining of bricks is not proper. Lack of curing is clearly visible. The work was not done as per the prescribed quality. The portion that has collapsed was built in 1991-92, 1992-93. He was also the first to collapse completely with both the bottoms intact. Therefore, while enclosing a copy of the investigation report submitted by the Presenting Officer and a copy of the investigation report of Shri Chidanand Prasad, Technical Advisor, Building Real Estate No. 01, Ranchi, it is said that due to the above reasons, we disagree with the findings reported in the investigation report of the Operations Officer.” (iv) Thus, from bare perusal of the memo of charge as well as difference of opinion given by the disciplinary authority on the charged proved, it appears that both are same and identical. Hence, the contention of learned counsel that the charges levelled by the disciplinary authority while recordings its own finding as well as in the memo of charge are different, is totally misconceived and is not sustainable to assail the impugned punishment order. (v) Law is well settled that the Disciplinary Authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence or record is sufficient for the purpose. In this context, it becomes necessary to a landmark decision of the Hon'ble Supreme Court of India in Yoginath D. Bagde v. State of Maharashtra, AIR 1999 SC 3734 , wherein their lordships of the Supreme Court were confronted with a similar situation, i.e., the Disciplinary Authority had disagreed with the findings of the Inquiry Authority. It is relevant to cite certain paragraphs from this judgment:- "28.... It is relevant to cite certain paragraphs from this judgment:- "28.... If it does not agree with the findings of the Inquiring Authority, it may record its own findings. Where the Inquiring Authority has found the delinquent officer guilty of the charges framed against him and the Disciplinary Authority agrees with those findings, there would arise no difficulty. So also, if the Inquiring Authority has held the charges proved, but the Disciplinary Authority disagrees and records a finding that the charges were not established, there would arise no difficulty. Difficulties have arisen in all those cases in which the Inquiring Authority has recorded a positive finding that the charges were not established and the delinquent officer was recommended to be exonerated, but the Disciplinary Authority disagreed with those findings and recorded its own findings that the charges were established and the delinquent officer was liable to be punished. This difficulty relates to the question of giving an opportunity of hearing to the delinquent officer at that stage.” (vi) In Punjab National Bank and Ors. v. Kunj Behari Mishra, the Hon'ble Supreme Court propounded the law on the subject as follows: "20. ....It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be over-turned by the disciplinary authority then no opportunity should be granted. The first stage of the inquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the inquiring officer holds the charges to be proved then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial to the delinquent officer. When, like in the present case, the inquiry report is in favour of the delinquent officer, but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings what is of ultimate importance is the finding of the disciplinary authority. 21.........When the inquiry is conducted by the inquiry officer his report is not final or conclusive and the disciplinary proceedings do not stand concluded. In departmental proceedings what is of ultimate importance is the finding of the disciplinary authority. 21.........When the inquiry is conducted by the inquiry officer his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the inquiry officer. Where the disciplinary authority itself holds an inquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the inquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation the charged officer must have an opportunity to represent before the Disciplinary Authority before final findings on the charges are recorded and punishment imposed." (vii) Now, the only point remains to be decided whether the disciplinary authority has recorded its tentative findings or not while differing with the findings recorded by the enquiry officer? It appears from the second show cause notice dated 4.6.2014 (Annexure-13 to the writ petition) that the disciplinary authority has examined the findings of the enquiry authority and finally come to the conclusion that the report of the enquiry officer was a wrong investigation report. The disciplinary authority further recorded that for submission of wrong investigation report, the concerned authority has also been made an accused in the Vigilance Case. The disciplinary authority further recorded its own findings differing with the findings of the enquiry officer that on the basis of investigation report submitted by Shri Chidanand Prasad Technical Advisor, Building Zone No. 01 Ranchi, it has been stated that it is clear that the workmanship in the construction work was of very poor quality. The way the bricks are being removed by the local people, it appears that the joining of bricks is not proper. Lack of curing is clearly visible. The work was not done as per the prescribed quality, which resulted into collapse of the building. The way the bricks are being removed by the local people, it appears that the joining of bricks is not proper. Lack of curing is clearly visible. The work was not done as per the prescribed quality, which resulted into collapse of the building. The disciplinary authority while differing with the findings of the enquiry officer has afforded opportunity to the petitioner to submit his reply / representation within fifteen days. The petitioner also availed this opportunity and submitted a detailed reply explaining the circumstances. It further appears that disagreement note of the disciplinary authority was not conclusive and only tentative, which is the requirement under the law. (viii) So far as the delay in initiation of departmental proceeding is concerned, law is very much clear that no hard and fast rule can be laid down for initiation of departmental proceeding against a working employee. Of course, there is a delay in initiation of departmental proceeding in the present case, but that does not vitiate the entire proceeding, unless it can be shown that the delinquent employee causes serious prejudice due to such delay. Each case must be determined on its on facts. Considering the effect of delay in the conclusion of a disciplinary proceeding, Their Lordships in the case of State of Madhya Pradesh & Anr. vs. Akhilesh Jha & Anr., Civil Appeal No. 5153 of 2021 decided on 6th September 2021, held as follows:- "13.....Every delay in conducting a disciplinary enquiry does not, ipso facto, lead to the enquiry being vitiated. Whether prejudice is caused to the officer who is being enquired into is a matter which has to be decided on the basis of the circumstances of each case. Prejudice must be demonstrated to have been caused and cannot be a matter of surmise. Apart from submitting that the first respondent was unable to proceed on deputation or to seek promotion, there is no basis on which it could be concluded that his right to defend himself stands prejudicially affected by a delay of two years in concluding the enquiry. The High Court, therefore, in our view, has clearly failed to properly exercise the jurisdiction vested in it by simply affirming the judgment of the Tribunal. The High Court, therefore, in our view, has clearly failed to properly exercise the jurisdiction vested in it by simply affirming the judgment of the Tribunal. The judgment of the Tribunal suffered from basic errors which go to the root of the matter and which have been ignored both by the Tribunal as well as by the High Court." (ix) In Government of Andhra Pradesh & Ors. v. V. Appala Swamy, (2007) 14 SCC 49 , the Hon'ble Supreme Court held as under: "12. So far as the question of delay in concluding the departmental proceedings as against a delinquent officer is concerned, in our opinion, no hard and fast rule can be laid down therefore. Each case must be determined on its on facts. The principles upon which a proceeding can be directed to be quashed on the ground of delay are: (1) Where by reason of the delay, the employer condoned the lapses on the part of the employee; (2) where the delay caused prejudice to the employee. Such a case of prejudice, however, is to be made out by the employee before the Inquiry officer." (x) In Anant R. Kulkarni v. Y.P. Education Society, (2013) 6 SCC 515 , the Hon'ble Supreme Court held as under: "14. The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings; as such a power is de hors the limitation of judicial review. In the event that the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, must be carefully examined, taking into consideration the gravity/magnitude of charges involved therein. The Court has to consider the seriousness and magnitude of the charges and while doing so the Court must weigh all the facts, both for and against the delinquent officers and come to the conclusion, which is just and proper considering the circumstances involved. The Court has to consider the seriousness and magnitude of the charges and while doing so the Court must weigh all the facts, both for and against the delinquent officers and come to the conclusion, which is just and proper considering the circumstances involved. The essence of the matter is that the court must take into consideration all relevant facts, and balance and weigh the same, so as to determine, if it is in fact in the interest of clean and honest administration, that the said proceedings are allowed to be terminated, only on the ground of a delay in their conclusion." (xi) In the instant case, the petitioner has not shown as to how the delay in initiation / conclusion of the disciplinary proceedings has prejudiced the petitioner in his defence before the Disciplinary Authority as well as the Appellate Authority. Even the delay has not caused the future career of the petitioner, as the petitioner was promoted to the post of Executive Engineer. No ground whatsoever as to the prejudice caused to the petitioner has been demonstrated by the learned counsel for the petitioner even in his written submission before the Disciplinary Authority. Therefore, it can comfortably be said that no prejudice has been caused to the petitioner because of the delay in the initiation or conclusion of the disciplinary proceedings. (xii) The involvement of the petitioner in the present case is grave in nature. There is huge loses to Government Exchequer. The negligence of the petitioner along with others in collapsing the building cannot be ruled out. For such grave misconduct, the petitioner was punishment with stoppages of two increments with cumulative effect, which is fully commensurate with the allegation. In cases where serious financial irregularities like siphoning of funds are established against the Government servants, the Department is fully justified in taking disciplinary action and punishing them. (xiii) It is also very much essential to look at the powers of this Court under Article 226 of the Constitution of India to interfere in the findings of a Disciplinary Authority which on appeal have been upheld by the Appellate Authority. Recently, the Hon'ble Supreme Court in State Bank of India & Anr. v. K.S. Vishwanath, (2022) SCC OnLine SC 667, had an opportunity to re-iterate the literature on the subject and it was held as follows: "27. Recently, the Hon'ble Supreme Court in State Bank of India & Anr. v. K.S. Vishwanath, (2022) SCC OnLine SC 667, had an opportunity to re-iterate the literature on the subject and it was held as follows: "27. Recently in the case of Nand Kishore Prasad (Supra) after considering other decisions of this Court on judicial review and the power of the High Court in a departmental enquiry and interference with the findings recorded in the departmental enquiry, it is observed and held that the High Court is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is further observed and held that the High Court is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. It is further observed that if there is some evidence, that the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition under Article 226 of the Constitution of India to review/reappreciate the evidence and to arrive at an independent finding on the evidence....." 8. As a sequitur to the aforesaid rules, regulations, guidelines and judicial pronouncements, this Court finds that no interference is warranted in the impugned orders and the petitioner has been rightly punished with the impugned order. 9. This writ petition is accordingly, dismissed.