IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No.3487 of 2010 Nandlal Prasad S/o Late Saryug Sah, R/o-Rani Bagan P.O. & P.S. Bariatu, District-Ranchi …… Petitioner Versus 1.The State of Jharkhand through the Secretary, Water Resources Department, Government of Jharkhand, Nepal House, Doranda,Ranchi. 2.The Special Secretary, Water Resources Department, Govt. of Jharkhand, Nepal House, Doranda, Ranchi 3.The Deputy Secretary, Water Resources Department, Govt. of Jharkhand, Nepal House, Doranda, Ranchi 4.The Under Secretary, Water Resources Department, Govt. of Jharkhand, Nepal House, Doranda, Ranchi 5.The Engineer-in-Chief, Water Resources Department, Govt. of Jharkhand, Nepal House, Doranda, Ranchi …… Respondents --------- CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK --------- For the Petitioner : Mr. P.P.Roy, Advocate For the Respondents : Mr. Anup Kr.Agrawal, J.C. To S.C.V1126.09.2016 In the accompanied writ petition, the petitioner has, inter alia, prayed for quashing/setting aside the order contained in Memo no.3492 dated 24.09.2009(Annexure-7) as well as the order issued vide Memo no.285 dated 08.02.2007(Annexure-5) pertaining to imposition of punishment. The petitioner has further prayed for a direction upon the respondents to release the entire arrears of salary and full salary for the period of suspension with consequential benefit including the interest.
2. The facts, as delineated and described in the writ petition in a nutshell, is that while the petitioner was posted as Junior Engineer in Minor Irrigation Sub Division, Chandwa, Latehar, the then Block Development Officer, Chandwa instructed him to prepare a rough estimate for construction of a dam, under the Food for work scheme of Rashtriya Samvikas Yojna. In pursuance of direction of the B.D.O., the petitioner had prepared a rough estimate and the same had also been forwarded to the Assistant Engineer & Executive Engineer for verification/correction/recommendation, if any, within three days. It has been submitted that on the basis of rough estimate, no work has been done. The then Deputy Commissioner, Latehar vide letter dated 11.04.2005, on receipt of some complaints, directed the Deputy Development Commissioner, Latehar to enquire into the irregularities, if any, in the said scheme, who vide letter dated 15.04.2005 constituted a Committee to enquire into the irregularities committed in the said scheme. The Committee opined that rough estimate was not upto the mark. However, on the basis of the report and suggestion of the aforesaid .2. Committee, the District Administration has completed the work as per new estimate and on the basis of allegation levelled, the petitioner was suspended vide Memo no.2039 dated 21.05.2005 under Rule-49(A) of the Civil Services (Classification, Control & Appeal) Rules, 1930(hereinafter referred as 'Rules, 1930) and the departmental proceeding was initiated vide resolution no.3466 dated 30.08.2005(Annexure-3). The memo of charge was framed and served to the petitioner and the conducting enquiry officer was appointed. On the basis of finding of the enquiry report, the departmental proceeding was culminated by the Disciplinary Authority by imposing punishment as Annexure-5 to the writ petition. Thereafter, the petitioner preferred appeal before the Appellate Authority and the Appellate Authority vide Annexure-7 has confirmed the order of punishment issued by the Disciplinary Authority.
3. Being aggrieved by and dissatisfied with the aforesaid order, the petitioner left with no alternative and efficacious remedy, has approached this Court invoking extraordinary jurisdiction under Article 226 of the Constitution of India for redressal of his grievance.
4. Mr. P.P.Roy, learned counsel for the petitioner has strenuously urged before this Court that admittedly no work has been done by the authorities on the rough estimate and therefore, no pecuniary loss to the Government was caused by the petitioner. Learned counsel further submitted that the impugned order of punishment passed by the Disciplinary Authority so far as Punishment no.3 is concerned, that is not envisaged under the aforesaid Rule and, therefore, the order of punishment is nonest in the eye of law. Learned counsel further submitted that the order passed by the appellate authority is very cryptic, non- reasoned and non-speaking, which cannot be sustained in the eye of law in view of decision passed in W.P.(S) no.6082 of 2006 dated 27.11.2015. Learned counsel has also referred to paragraph-11 of the decision of the Apex Court in the case of 'Vijay Singh Vrs. State of Uttar Pradesh and others' reported in (2012)5 SCC242 wherein Hon'ble Apex Court has been pleased to hold that it is a settled proposition of law that punishment not prescribed under the Rules as a result of disciplinary proceedings cannot be awarded. Learned counsel for the petitioner has strenuously urged that Rule-49 of Rules,1930 deals with the punishment to be imposed on the delinquent Government servant and though Rule-49(v) deals with suspension, but it does not specifically mention how the period of suspension is to be treated and, therefore, according to him, the punishment no.3 not envisaged under the aforesaid Rule could not have .3. been awarded to the petitioner. Learned counsel further submitted that on perusal of the office note, which has been obtained under Right to Information Act, it is crystal clear that Punishment no.3 has not been mentioned in the note sheet and the same has been subsequently added.
5. Per contra, learned counsel for the respondents has filed counter affidavit controverting the averments made in the writ petition. Learned counsel submitted that there is absolutely no procedural irregularities right from its initiation till its culmination, so this Court under Article 226 of the Constitution of India would not re-appreciate the evidence as has been laid down in the departmental proceeding. Learned counsel further submitted that in the departmental proceeding, the petitioner has been found guilty of the charges, so just punishment has been imposed on the petitioner. Learned counsel further submitted that the appellate authority after taking into consideration the relevant facts has passed a reasoned order, which does not warrant any interference by this Court.
6. Having heard learned counsel for the parties at length and on consideration of the documents available 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 and reasons and judicial pronouncement: In the instant case, though the petitioner submitted a rough estimate, which was found not upto the mark by the Inquiry Committee, but admittedly no construction work has been done basing on the said rough estimate. The said estimate has been placed at the disposal of the Assistant Engineer and Executive Engineer. They are also equally vicariously liable for the commission and omission, if any, as it appears that no action seems to have been taken by the Assistant Engineer and Executive Engineer, but the petitioner has been made scape-goat for the aforesaid commission and omission. Be that as it may, the impugned order of punishment nos. 1 & 2, which have been passed, are concerned, the same has been passed in just and fair manner, considering the misconduct, as has been found out in the enquiry and, therefore, no interference is called. So far as Punishment no.3 is concerned, that seems to have been passed under a mistaken notion. The authorities ought to have passed specific order under relevant Rule-97 of the Service Code. The same having not been done so far as Punishment no.3 is concerned, it is not sustainable in the eye of law. Moreover, the order passed by the appellate authority is very cryptic .4. because material points have not been dealt with by the appellate authority. View of this Court gets fortified by the decision of the Hon'ble Apex Court rendered in the case of 'Chairman, Life Insurance Corporation of India and others vrs. A. Masilamani' reported in (2013)6 SCC530 wherein the Hon'ble Apex Court in paragraph-19 has been pleased to inter alia hold as under: '19.The word “consider” is of great significance. The dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order.” On cumulative effect of the facts, reasons and judicial pronouncement, the impugned order of punishment made vide Annexure- 5 and the order of appellate authority vide Annexure-7 being not legally sustainable, so far as punishment no.3 is concerned, are set aside and the respondents authorities are directed to pass appropriate order in the interest of justice in accordance with law for payment of admissible salary for the period of suspension in question within a period of 12 weeks under Rule 97 of the Service Code. With this observation, this writ petition stands disposed of. (Pramath Patnaik, J.) s.b.