1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 7980 of 2012 Jai Prakash, son of Late Keshav Prasad, Resident of-House No.378A, Road No.4 C, P.O-Argora, P.S. Argora, Town-Ranchi, District-Ranchi, Jharkhand ….. Petitioner Versus 1. The State of Jharkhand through the Chief Secretary, Government of Jharkhand, Project Bhawan, P.O. and P.S-Dhurwa, District Ranchi.
2. Principal Secretary, Road Construction Department, Government of Jharkhand, Project Bhawan, P.O. and P.S-Dhurwa, District Ranchi.
3. Deputy Secretary, Road Construction Department, Government of Jharkhand, Project Bhawan, P.O. and P.S-Dhurwa, District Ranchi.
4. Engineer-in-Chief, Rural Works Department, Government of Jharkhand, Project Bhawan, P.O. and P.S-Dhurwa, District Ranchi. …… Respondents --------- CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ---------- For the Petitioner : M/s Diwakar Upadhyay, K.K. Bhatt, R.K. Roy, Adv. For the Respondents : Ms. Nitika Agrawal, J.C. to A.G. 8/Dated:20th September, 2016 Per Pramath Patnaik, J.:
1. In the instant writ application, the petitioner has inter alia prayed for quashing the order dated 10.10.2012 passed by the Deputy Secretary, Road Construction Department, Government of Jharkhand, Ranchi vide Annexure-10 to the writ application, and for direction to the respondents to reinstate the petitioner with all consequential benefits after setting aside the order of dismissal.
2. Bereft of unnecessary details, the facts, as disclosed in the writ application, in a nutshell is that the petitioner while continuing in services on the post of Engineer-in-Chief, Rural Works Department, charge sheet was served by the Deputy Secretary on 16.01.2008 and the departmental proceeding was initiated. The petitioner filed his show cause reply on 05.04.2010. In the departmental enquiry, the presenting officer submitted his report after detailed enquiry to the enquiry officer. In the report of the presenting officer, petitioner has been exonerated from all the charges. Vide Annexure-5 to the writ application, the enquiry officer submitted his enquiry report finding the petitioner guilty of the charges. In pursuance to the second show cause notice the petitioner filed his reply on 23.11.2011 denying all the charges against him, while the petitioner was serving as an Engineer in- 2 Chief in the Rural Works Department another charge was also levelled against him for the acts done while he was serving as an in-charge Superintending Engineer in the Road Construction Department, Government of Jharkhand, Ranchi and the charge sheet was served by the Deputy Secretary on 01.03.2008 vide memo no.1576(S) dated 01.03.2008. In the departmental proceeding, the petitioner filed show cause reply on 14.05.2008. In the said enquiry, the enquiry officer filed his report holding the petitioner guilty of the charges. The petitioner submitted his second show cause reply on 23.11.2011 denying all the charges levelled against him. The disciplinary authority by amalgamating all the charges dated 18.01.2008 under memo no.400(s) and the charges dated 01.03.2008 vide memo no.1576(s) passed the order of punishment dismissing the petitioner from the services. Being aggrieved and dissatisfied by the impugned order of punishment vide Annexure-10, the petitioner being constrained has approached this Court under Article 226 of the Constitution of India, invoking extraordinary jurisdiction of this Court for redressal of his grievance.
3. Learned counsel for the petitioner while assailing the impugned order vide Annexure-10 to the writ application, has strenuously urged before this Court that the impugned order has been passed by the respondents without taking into consideration 30 years of unblemished service career. Moreover, the work of the petitioner has been wholly appreciated by this Court as per Annexure-1 of the rejoinder, which has been filed in reply to the counter affidavit. Learned counsel for the petitioner further submits that the presenting officer after going through the records has clearly exonerated the petitioner but the enquiry officer without delving into the report of the presenting officer in a very cursory manner has found the petitioner guilty of the charges, therefore, the report of the enquiry officer is perverse one so as to call for any such extreme punishment like dismissal from services. Learned counsel for the petitioner submits that on perusal of the charges it would appear that the charges are not so grave and serious so as to entail extreme punishment of dismissal from services. Moreover, there has no allegation of any pecuniary loss, alleged to have been committed by the petitioner as found place in the charge. Therefore, in the fact and circumstances of the case the impugned order of punishment appears to be harsh, disproportionate so as to prick the conscience of this Hon’ble Court. 3 4. Learned counsel for the petitioner in order to buttress his submission has referred to the judgment of the Hon’ble Apex Court reported in (2011) 8 SCC536(Surendra Prasad Shukla vs. State of Jharkhand and Ors.) wherein the Hon’ble Apex Court has modified the punishment of dismissal from service to compulsory retirement, preserving retiral rights acquired by the appellant. He has further referred to the judgment of the Hon’ble Apex Court reported in (1983) 2 SCC442(Bhagat Ram vs. State of Himachal Pradesh and Ors.) wherein the Hon’ble Apex Court has been pleased to inter alia hold that the punishment must be proportionate to the gravity of misconduct. Dismissal on a trivial charge of negligence which resulted in no loss to the Department, held to be disproportionate and excessive.
5. As against the submission of the learned counsel for the petitioner, learned counsel for the State, Ms. Nitika Agrawal has reiterated the submissions made in the counter affidavit. During course of hearing, learned counsel for the State has brought attention of the Court to the finding of the enquiry officer, wherein the enquiry officer has found the petitioner guilty of charges and basing on the charges, the disciplinary authority has imposed just and proportionate punishment to the petitioner. Learned counsel for the State during course of argument, referring to paragraph 15 of the supplementary counter affidavit filed on behalf of respondent nos.2 and 3 submitted that the petitioner was a Superintending Engineer during the period for which charges are framed against him. The Superintending Engineer being a higher authority had more accountability and responsibility for the works executed by his subordinates and juniors, as works were being executed under his supervision and the said punishment has been inflicted on the petitioner. Therefore, the impugned order vide Annexure-10 to the writ application does not warrant any interference and this Court cannot reappreciate the evidence adduced during course of enquiry.
6. After hearing learned counsel for the respective parties at length and upon bestowing my anxious consideration to the documents on record, I am of the considered view that the petitioner has been able to make out a case for interference, due to the following facts reasons and judicial pronouncements: (I) In the instant case, it appears that the petitioner was holding the post of Engineer-in-Chief and the charges famed against the petitioner pertains to non reporting of case does not relate to any pecuniary loss and the omissions 4 and commissions made by the petitioner is not so grave so as to entail major punishment. On that score, on the point of quantum of punishment, this Court vide order dated 26.11.2015 directed the State counsel to obtain instruction as to how other similar co-delinquents, who were Assistant Engineers at the relevant time, namely Rajeev Kumar Singh and Ram Vilash Ranjan have been inflicted stoppage of three increments with cumulative effect, whereas Jitendra Kumar has been exonerated from the charges and one Ram Naresh Kumar Singh, the then Executive Engineer was served show cause notice as to why 10% deduction in pension be not deducted from him and the petitioner, who was the Superintending Engineer, was doing only supervisory work, has been awarded maximum punishment i.e dismissal from service. (II) In pursuance to order dated 25.06.2015, a supplementary counter affidavit has been filed by the State on 12.01.2016 apprising that manipulation have been done on the part of the Superintending Engineer and such kind of punishment has been inflicted to the petitioner after going through the report of the presenting officer. It appears that the charges which has been alleged against the petitioner have not been proved nor the enquiry officer has discussed the findings of the presenting officer, therefore, the enquiry officer in a very cavalier fashion has submitted the report, which has been blindly relied by the disciplinary authority to inflict such kind of punishment which in the facts and circumstances appears to be harsh and excessive. Keeping in view lesser punishment has been awarded to the other co-delinquents, in the fitness of things petitioner ought to be given benefit of parity of treatment. (III) In this regard, it would be profitable to refer to a decision rendered by the Hon’ble Apex Court in the case of Rajendra Yadav Vs. State of Madhya Pradesh and Others as reported in (2013) 3 SCC73 in particular paragraph 9, which is quoted herein below:
“9. The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction 5 or incident. The disciplinary authority cannot impose punishment which is disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences.”
7. In view of the reasons stated in the foregoing paragraphs, the impugned order of punishment dated 10.10.2012, vide Annexure-10 to the writ application, is quashed and set aside and the matter is remitted to the respondents to pass appropriate order on the quantum of punishment, keeping in view the long unblemished service record of the petitioner strictly in accordance with law within a period of three months from the date of receipt of a copy of the order.
8. With the aforesaid direction, the writ application stands allowed. (Pramath Patnaik, J.) Saket/-