1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 3453 of 2014 Ram Bilash Sahu, S/o Late Shiv Sahu, R/o village-Godamtol, P.O. + P.S- Ladania, District-Madhubani (Bihar) at present Executive Engineer, Road Construction Department, Road Division, Dumka, P.O. + P.S. + Dist-Dumka (Jharkhand) ….. ….. Petitioner Versus 1. The State of Jharkhand.
2. The Principal Secretary, Road Construction Department, Govt. of Jharkhand, Project Bhawan, Sector-3, Dhurwa, PO + PS-Dhurwa, District- Ranchi.
3. The Deputy Secretary, Road Construction Department, Govt. of Jharkhand, Project Bhawan, Sector-3, Dhurwa, PO + PS-Dhurwa, District- Ranchi.
4. The Under Secretary, Road Construction Department, Govt. of Jharkhand, Project Bhawan, Sector-3, Dhurwa, PO + PS-Dhurwa, District-Ranchi.
5. Smt. Shila Kisku Rapaz, Departmental Enquiry Officer, Govt. of Jharkhand, Town Administration Building, HEC Golchakkar, Dhurwa,PO + PS-Dhurwa, District-Ranchi. ….. …. Respondents --------- CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ---------- For the Petitioner : M/s Abhay Kr. Singh, Sr. Adv. & Krishna Murari. For the Respondents : Ms. Shivani Verma, J.C. to AAG. CAV on:18th May, 2016 Pronounced on 06/10/2016 Per Pramath Patnaik, J.:
1. In the instant writ application, the petitioner has inter alia prayed for quashing the purported enquiry report/order dated 24.02.2014 passed by the second departmental enquiry officer (respondent no.5) in connection with departmental enquiry initiated against the petitioner dated 08.11.2010 by the respondent, Road Construction Department and for quashing of follow-up second show cause notice bearing letter dated 24.06.2014 issued under the signature of respondent no.4 and for quashing of follow up impugned order of punishment bearing notification dated 03.12.2015 (Annexure-14) issued under the signature of respondent no.3 pertaining to punishment inflicted to the petitioner.
2. The brief facts, as emanated from the writ application, in a nutshell is that earlier two writ applications bearing W.P.(S) No.7493 of 2013 challenging the very initiation of the departmental proceeding on the same set of charges, facts and materials to that of the parallel criminal proceeding and W.P.(S) No.2640 of 2014 has been also filed by the petitioner 2 challenging the appointment of the second enquiry officer (respondent no.5) and both the writ petitions stated to be pending for disposal. The petitioner after being selected in the cadre of Bihar Engineering Service, Class II post on 16.06.1987 joined the service and as such after bifurcation of the erstwhile State of Bihar into State of Jharkhand, the petitioner was allocated State of Jharkhand and accordingly, he reported his joining to the Road Construction Department. The petitioner while continuing his services as Executive Engineer, Engineering Cell, Health Division, Dumka, one F.I.R being R.C. 20(A)/2009R was instituted by CBI for alleged wrongs in the matter of procurement and utilization of bitumen under Chaibasa Road Division. Although, petitioner was not named in the F.I.R but he was roped therein on the ground that he was posted as Assistant Engineer at the relevant time and for his failure to provide assistance to the Executive Engineer, bills of the contractor prepared by the Junior Engineer was passed even without proof regarding purchase of bitumen i.e. without details of invoices. Accordingly, C.B.I asked for sanction of prosecution on 10.09.2010 against all concern including the petitioner and whereupon he was incidentally put under suspension vide notification dated 04.11.2010 by RCD, Government of Jharkhand. Thereafter, vide Sankalp dated 08.11.2010 departmental proceeding was instituted against the petitioner, appointing Sri Binay Kumar Choubey, IAS as enquiry/conducting officer. It is pertinent to mention that along with the memo dated 08.11.2010, Article of Charges (Prapatra-‘K’) together with requisition for sanction of prosecution sent by C.B.I vide dated 10.09.2010 was enclosed by way of evidence. On receipt of the Article of charges, the petitioner asked for supply of documents and statement as referred to in the calendar of evidences vide letter dated 04.12.2010, 21.10.2013 and 01.11.2013, but the same was not supplied to the petitioner. During pendency of the departmental proceeding vide office order dated 24.11.2011 enquiry was entrusted to respondent no.5. Thereafter, the petitioner was noticed to appear on 23.09.2013 which was belatedly served. However, being again noticed to appear on 23.09.2013 by respondent no.5 i.e. the second E.O, petitioner appeared on 21.10.2013 and filed detailed representation before them to ensure supply of the complete documents required for filing effective statement of defence vide Annexure- 7 to the writ application. On 10.12.2013 the presenting officer supplied only few selective documents. Thus, the petitioner filed another objection in 3 tabular form on 06.01.2014 for supply of complete documents to enable him to defend himself as per Annexure-9 to the writ application. The petitioner also made specific request to allow him to avail the assistance of lawyer as per Rule 166 (iv) of the Board Miscellaneous Rules but the same was not acceded to. The petitioner filed protest cum interim statement of defence vide letter dated 21.01.2014 narrating the prejudice caused to him on account of non supply of all requisite documents. The respondent no.5 vide order dated 06.02.2014 concluded the proceeding and finally vide order 24.02.2014 held the petitioner guilty of alleged charges. The second show cause notice dated 24.06.2014 has been issued in the teeth of Rule 55 of the CCA Rules and the petitioner having no option vide letter dated 03.07.2014 against the second show cause notice containing purported enquiry report dated 24.02.2014 passed by second departmental enquiry officer, respondent no.5 narrating the prejudice caused to him on account of non supply of all requisite documents. During pendency of the writ application, respondent passed impugned order dated 03.12.2015 imposing the punishment vide Annexure-14 to the writ application. Being aggrieved by and dissatisfied with the enquiry report/order dated 24.04.2014 by respondent no.5 and the follow up second show show cause notice dated 24.06.2014 and the impugned order of punishment bearing notification dated 03.12.2015 (Annexure-14), the petitioner having no efficacious and alternative remedy, approached this Court invoking extraordinary jurisdiction under Article 226 of the Constitution of India for redressal of his grievance.
3. Learned senior counsel for the petitioner, during course of hearing has vehemently submitted that the enquiry report is absolutely illegal, arbitrary and unconstitutional and violative of Article 311(2) of the Constitution of India. Learned senior counsel for the petitioner has alleged that the enquiry report has been prepared without exhibiting the documents and examination of witnesses in support of charge, and therefore, the same is vitiated in law and thereby based on no evidence. Learned senior counsel further submits that the entire proceeding is perverse since no documentary evidence has been adduced nor any witnesses have been examined thereby vitiating the entire proceeding. Learned senior counsel further submits that non supply of the relevant documents despite representation of the petitioner has caused gross prejudice to the petitioner. Learned senior counsel for the petitioner further submits that the petitioner has not been afforded opportunity of 4 defence and the impugned order of punishment has been passed in undue prejudice de hors the merit of the case, therefore, the impugned order of punishment cannot be sustained on any canons of law.
4. During course of hearing, learned senior counsel has referred to the judgment reported in (2009) 2 SCC570(Roop Singh Negi vs. Punjab National Bank and Ors.) wherein at paragraph 14, it has been held as under:
“14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The enquiry officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigating by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence. On the same line, learned senior counsel for the petitioner has referred to the judgments reported in (2010) 2 SCC772(State of Uttar Pradesh and Ors. vs. Saroj Kumar Sinha) more particular at paragraph 28 and 33 and (2009) 12 SCC78(Union of India and Ors. Vs. Gyan Chand Chattar) and [2014 (2) JCR76(Jhr)] (The State of Jharkhand & Ors. Vs. Jaishree Jha).
5. Controverting the averments made in the writ application, counter affidavit has been filed on behalf of respondent nos.2 to 4. Ms. Shivani Verma, J.C. to A.A.G appearing for the State has reiterated the submissions made in the counter affidavit. During course of hearing, learned counsel for the respondent-State has referred to the charges levelled against the petitioner. According to learned counsel for the State, the first charge relates to bitumen not supported by invoices or challan, second charge pertains to lack of devotion of duty and third charge relates to not doing physical inspection and the fourth charge is breach of Rule 3 of the Government Servant Conduct Rules. Learned counsel for the State by referring to the counter affidavit has submitted that in compliance to order of the Hon’ble Jharkhand High Court passed in W.P (PIL) No.803/2009, the C.B.I has conducted an enquiry into the large scale irregularities committed by the Contractors, Engineer and other persons in the matter of purported 5 procurement of bitumen for various road construction works of the State. In this regard, a criminal case was lodged by the C.B.I under case no.RC- 20(A)/2009 (R) for utilization of fake bitumen invoices in the special repair work in K.M.61, 62, 63 and 64 (736M) of Seraikella- Chaibasa Road and K.M.1 (150M), 2(800MO, 3(800M), 4(800M) and 5(150M) of Chaibasa Bye-pass Road the Agreement no.5Fw/2006-07 of the Road Division, Chaibasa. The C.B.I has sought sanction of prosecution against the petitioner for the above lodged criminal case along with its detailed report, wherein the irregularities committed by the petitioner was reported to the department. Thereafter, petitioner was suspended in this connection vide notification contained in memo dated 04.11.2010. After review of the above report of the C.B.I, it was decided to initiate a departmental proceeding against the petitioner for proper enquiry of his involvement in the alleged irregularities vide resolution contained in memo dated 08.11.2010 along with memo of charges and the relevant evidences and Shri Binay Kumar Choubey, I.A.S was appointed as the conducting officer in the departmental proceeding initiated against the petitioner. Learned counsel for the State further submitted that the enquiry officer has found the petitioner guilty of the charges. Moreover, the entire proceeding has been conducted in a fair manner and there has been no violation of principles of natural justice. In the light of the enquiry report of the conducting officer, a second show cause has been asked from the petitioner and the petitioner submitted application to hold the second show cause notice till the decision of the Hon’ble Court in W.P.(S) No.7493/2013 and W.P.(S) No.2460/2014.
6. After hearing learned counsels for the respective parties at length and on perusal of the records, I find no justifiable grounds to interfere in the enquiry report dated 24.02.2014 and second show cause notice dated 24.06.2014 and the impugned order of punishment dated 03.12.2015 vide Annexure-14, for the reasons stated herein below: (I) Admittedly, an F.I.R being RC-20(A)/2009 (R) was instituted by the CBI for the alleged wrongs in the matter of procurement and utilization of bitumen for the period when petitioner was posted as Assistant Engineer. Thereafter, C.B.I asked for sanction of prosecution against all concern including the petitioner and petitioner was placed under suspension. Thereafter, departmental proceeding was instituted and article of charges (Prapatra-‘Ka’) together with requisition for sanction of prosecution sent by 6 C.B.I was enclosed by way of evidence. Initially, Mr. Vinay Kumar Choubey, I.A.S was appointed as conducting officer and the matter was remitted to the respondent no.5 for conducting enquiry and after conclusion of the enquiry, the enquiry officer submitted his report wherein the charges levelled against the petitioner has been reported proved. In the light of the enquiry report, second show cause notice has been asked from the petitioner vide memo dated 24.06.2014 and the disciplinary authority decided to impose the punishment on the basis of proved charges reported against the petitioner vide notification dated 03.12.2015. So from the aforesaid facts, it is quite clear that there has been no procedural irregularity from the initiation of proceeding till its culmination. So far as contention of the petitioner that the relevant document sought by the respondents was not supplied but some selective documents were supplied to him which has caused prejudice to the petitioner. In that regard, it would be pertinent to mention that the enquiry officer is the proper authority to ascertain as to whether relevant documents basing on which charges have been framed have been supplied to the petitioner or not but in a departmental proceeding, a delinquent is entitled to the documents basing on which the charges are framed. In the guise of asking for documents, sometime dilly dallying tactics is being adopted. Apart from the bald statement of documents not being supplied, no specific averment has been made as to whether a documents basing on which charges have been framed, have not been supplied to the petitioner. In the absence of specific averment to that effect, this Court would not be in a position to come to a conclusion as to whether by virtue of non supply of documents, the petitioner has been subjected to prejudice, thereby the proceeding has been vitiated. (II) In a full dressed departmental proceeding, the scope of interference by this Court under Article 226 is limited to the extent that this Court can exercise judicial review, if the entire proceeding is based on no evidence or there has been procedural irregularity in the conduction of the departmental proceeding. So far as the first aspect is concerned, on perusal of the enquiry report, it is quite apparent that the charges levelled against the petitioner has been proved during course of enquiry and so far as second aspect is concerned, there appears to have been no procedural irregularity from the initiation of departmental proceeding till its conclusion. Therefore, challenge to the purported enquiry report/order dated 24.02.2014, second show cause 7 notice bearing letter dated 24.06.2014 and the impugned order of punishment vide notification dated 03.12.2015 (Annexure-14) do not warrant interference by this Court.
7. Accordingly, the writ application sans merit is dismissed. (Pramath Patnaik, J.) Saket/-