Full Judgment
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 5748 of 2015 Jitendra Kumar ….... Petitioner Vrs.
1. The State of Jharkhand 2. The Principal Secretary, Water Resources Dept, Govt. of Jharkhand 3. The Joint Secretary, Water Resources Dept., Govt. of Jharkhand 4. The Deputy Secretary, Water Resources Dept., Govt. of Jharkhand ..... Respondents ….... CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH For the Petitioners : M/s Delip Jerath, Rajesh Kumar, A. Kumar For the Respondents : M/s Chandra Prabha, S.C.IV, Vishal Kr. Rai & D.K.Maltiyar, J.C to S.C. IV0427.01.2016 Heard learned counsel for the parties.
2. The impugned resolution, Annexure-13 bearing memo no.5523 dated 30.10.2015 of the Water Resources Department has initiated de-novo inquiry against the petitioner in respect of the charges for which the petitioner was proceeded under resolution no. 4456 dated 14.12.2010(Annexure-6). A new Enquiry Officer and Presenting Officer have been appointed in the impugned enquiry. Petitioner has been asked to submit his defence to the Enquiry Officer, Shekhar Kumar Verma (retd. Jharkhand Administrative Service) within a period of 2 weeks from the date of receipt of the copy of the resolution. The impugned resolution records that on receipt of the enquiry report from the Enquiry Officer in respect of the enquiry conducted vide resolution dated 14.12.2010, exonerating the petitioner of all the charges, the opinion of the Departmental Flying Squad was obtained which showed irregularity to the tune of Rs. 4,22,104.35. On account of difference being noticed in the report of the Enquiry Officer and the opinion of the Departmental Flying Squad, a 3 men committee was constituted headed by Engineer-in-Chief-II, Water Resources Department, Ranchi vide order bearing memo no. 2306 dated 13.3.2014, which also did not find the charges levelled against the petitioner proved. Since the Departmental Flying Squad found commission of irregularity to the tune of Rs. 4,22,104.35, the Department while differing with the opinion of the Enquiry Officer has 2 chosen to initiate a de-novo enquiry under the provisions of Rule 55 of the Civil Services(Classification, Control and Appeal)Rules, 1930.
3. Learned counsel for the petitioner has assailed the same inter-alia on the following grounds :- i) There is no legal justification for initiation of the de-novo enquiry in the given set of facts when the full dress enquiry has resulted in his exoneration and even the 3 men committee headed by the Engineer-in-Chief has found the charges against the petitioner not proved. ii) No such serious infirmity in the conduct of the departmental enquiry has been pointed out by the Respondents warranting initiation of de-novo enquiry in respect of the same charges. iii) Petitioner would be unnecessarily subjected to a full fledged enquiry in respect of the same charges without any justification. iv) The initiation of de-novo enquiry is in teeth of the ratio laid down by the Hon'ble Apex Court in the case of K.R.Deb Vrs. The Collector of Central Excise, Shillong reported in 1971(2) SSC102as the facts of the present case do not come within the limited scope available to the Disciplinary authority to initiate a de- novo enquiry. v) The respondent- authorities were under the legal obligation to conclude the departmental proceeding pending against the petitioner in view of the specific directions passed in his case in the earlier writ petition being W.P.S. No. 2851 of 2014 vide order dated 15.4.2015 (Annexure-1) taking into account the stands of the respondents as well brought through their counter affidavit. 3 Lastly, it has been submitted that petitioner has been facing departmental enquiry for a period relating to 2005-06, now for almost 10 years, though the charges remained unsubstantiated after proper enquiry which took into account the report of Departmental Flying Squad also.
4. Respondents have through their counter affidavit have defended their action. Learned counsel for the respondent- State submits that the charges relate to construction work of Panchkhero Reservoir Scheme under the Water Ways Division, Barhi , where petitioner was posted as Assistant Engineer at the relevant point of time i.e. 2005-06. The department enquired into the matter by a Flying Squad on the public complaint made by the Member of Legislative Assembly. The Flying Squad submitted its report vide letter no. 106 dated 9.3.2007 issued under the signature of Superintending Engineer, Yojona Ayojan Circle(Flying Squad) Ranchi. On prima- facie being found guilty for irregularity in execution and misappropriation of Government Fund, a show cause was issued upon the petitioner vide letter no. 1393 dated 12.6.2007 by the respondent- Department to which he submitted his explanation. After consideration of his explanation, which was found to be unsatisfactory, a Departmental proceeding was initiated under Rule 55 of Civil Services(Classification, Control and Appeal)Rules, 1930 vide memo no. 4456 dated 14.12.2010. The Enquiry Officer was later on changed through corrigendum vide memo no. 1380 dated 16.5.2011. Enquiry Officer submitted his enquiry report through letter no.812 dated 9.6.2012. The report of the Enquiry Officer was scrutinized and it was observed that there is material difference between the enquiry report and the report of Departmental Flying Squad. The Departmental Flying Squad was entrusted to clarify the matter vide letter no. 2722 dated 4 16.5.2013. It submitted its report vide letter no. 258 dated 5.7.2013 stating there in that there is discrepancy in the said work and at the same time they also found an error in calculation of excess payment of an amount of Rs.7,95,165.42 in the previous report. They corrected the figure of excess payment to Rs. 4,22,104.35. On careful scrutiny and examination of the enquiry report, it was found that that the Conducting Officer had erred in making his observation as it was made without taking into account all the facts available on record. In these circumstance, the Department chose to reject the findings of the Enquiry Officer to appoint a new Conducting Officer to conduct the Departmental proceeding vide resolution dated 30.10.2015, impugned here in the writ petition. The relevant letters dated 9.3.2007, 9.6.2012, 16.5.2013 and 5.7.2013 have been enclosed as Annexure-A, B,C and D respectively.
5. Learned counsel for the respondent- State submitted that the impugned proceeding is not a second departmental proceeding. Only a new Conducting Officer has been appointed in respect of the same departmental proceeding after rejecting the findings of the previous conducting Officer. This has been done to maintain transparency in relation to the enquiry into the misconduct of the petitioner. Learned counsel for the respondent- State therefore, submitted that the impugned proceeding is proper in the eye of law and needs no interference by this Court in exercise of writ jurisdiction.
6. I have considered the submission of the parties in the light of material facts on record. The relevant material facts on record show that petitioner was proceeded against under the resolution dated 14.12.2010 for 4 charges in relation to construction work of Panchkhero Reservoir Scheme under the Water Ways Division, 5 Barhi for the period 2005-06 when he was posted as Assistant Engineer at the relevant place. Charge No.1 at Annexure-6 enumerates the shortcomings in the execution of 4 different nature of works of Sand filter(supply and Laying), Sand Filter(transportation), Metal Filter(supply and laying) and Metal Filter(transportation). Payments made in excess have been indicated against each of the said work. Charge No.2 alleges that in execution of the aforesaid work, payments to the tune of Rs.7,95,165.42 in excess have been found. Charge No.3 alleges that the report in relation to the remaining work of pre-levelling of the Panchkhero Reservoir Project were not furnished. Charge No.4 alleges that petitioner has committed serious financial irregularity and caused financial loss to the State Government in execution of the work to the tune of Rs. 7.95,165.42.
7. Petitioner submitted his reply as it appears from Annexure-10 dated 17.7.2011 against each of the charges, which also refers to the enquiry report of the Departmental Flying Squad. Petitioner sought to defend himself stating that none of the charges is substantiated on facts and are therefore non-est in the eye of law. The Enquiry Officer on conclusion of the enquiry submitted his report through letter dated 9.6.2012 bearing no 810 at Annexure-B. The report annexed to the letter shows consideration of the report of the Departmental Flying Squad also and the analysis of the material produced by the prosecution as well as the delinquent Officer. In respect of the charge no.1, the Enquiry Officer concluded that the same is not established. It opined that the Flying Squad should have recorded transverse measurement as it was a slope length, on the contrary it recorded the vertical measurement of the 6 section. The first charges was not found to be established. It contains a chart relating to measurement conducted by the Flying Squad and the measurement conducted on slope length to arrive at a conclusion that the charges were not established. The enquiry report exonerated the petitioner of other 3 charges as well, also based upon the findings recorded in charge no.1, as the charges were co-related. The respondent department appears to have obtained the report of the Flying Squad again through Annexure-C, letter dated 16.5.2013. It opined through its letter dated 5.7.2013 issued by the Superintending Engineer of the same Yojana Ayojan Circle, Ranchi, Annexure-D that irregularity to the extent of Rs.4,22,104.35 in making payments towards execution of work have been found in place of the earlier report of Rs.7,95,165.42. The Department perhaps not being satisfied again asked for report from the 3 men committee presided over by the Engineer-in-Chief of the Department, which again found the charges against the petitioner not proved. This fact is also evident from impugned resolution at Annexure-13 itself.
8. Material facts therefore indicate that in course of the departmental proceeding, the report of the Departmental Flying Squad was produced on behalf of the prosecution to which the petitioner also submitted his reply. In any case, if the disciplinary authority upon consideration of all the available materials on record adduced during the course of enquiry was of the opinion that the Enquiry Officer has erroneously exonerated the petitioner of the charges contrary to the material evidence adduced, it was always open to the disciplinary authority to differ with the findings of the Enquiry Officer. The disciplinary authority was well within its jurisdiction to indicate tentative reasons for its difference with the enquiry report while issuing the second show cause upon the 7 petitioner to respond. This course would have been in tune with the ratio laid down by the Apex Court in the case of Punjab National Bank and others Vrs. Kunj Behari Misra reported in 1998(7) SCC84 In such circumstance, the disciplinary authority could have accorded the opportunity of hearing to the petitioner while taking a decision on the question of his guilt as per the ratio laid down in the case of Kunj Behari Misra (supra) on the basis of all the materials adduced during the course of enquiry and the reply of the delinquent on the second show cause notice.
9. On the other hand, initiation of the de-novo enquiry on the part of the respondent- Department and the disciplinary authority does not appear to be justified within the parameters laid down by the Apex Court in the K.R.Deb (supra), para 12 and 13 of which are extracted herein below:- “Para 12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9. Para13. In our view the rule do not contemplate an action such as was taken by the Collector on February 13,1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant.”
10. The stand of the respondents as reflected in the counter affidavit, already noticed hereinabove also shows that after obtaining the opinion of the Departmental Flying Squad again in respect of the charges through letter dated 16.5.2013, it found that the Conducting Officer had erred in making his observations 8 without taking into account all the facts available on record. The respondents failed to show that enquiry suffered because of some serious defects or that some important witnesses were not available at the time of enquiry or not examined for some other reasons. As a matter of fact, it was the same findings of the Departmental Flying Squad, which was the basis for initiation of the Departmental enquiry under the resolution dated 14.12.2010 against the petitioner and which formed part of the enquiry on which the Enquiry Officer submitted its enquiry report. It cannot be said that the material evidence was not produced or examined before the enquiry Officer during the conduct of the enquiry, which led to such a serious infirmity requiring initiation of de-novo enquiry into the same charges.
11. Under such circumstance, the course adopted by the respondents in initiating the de-novo enquiry vide impugned resolution dated 30.10.2015, Annexure-13, cannot be sustained in the eye of law as well as on facts as the decision making process as suffered. It is rather in teeth of the well settled law on the subject as held in the case of K.R.Deb (supra).
12. In view of the aforesaid discussions made and the reasons recorded, the impugned resolution cannot be sustained in the eye of law. Accordingly, it is quashed. However, the Respondent-Department / Disciplinary authority is at liberty to issue second show cause upon the petitioner giving tentative reasons for differing with the enquiry report and take a decision in respect of the same in accordance with law after giving due opportunity to the petitioner.
13. The writ petition is allowed in the manner and to the extent indicated hereinabove. All the pending I.A.s are closed. (Aparesh Kumar Singh, J) A. Mohanty /Sudhir