IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No.1957 of 2016 ---- Ram Kumar Singh S/o Late Rajendra Prasad Singh, Resident of Flat No.401, Shyam Kunj Kali Mandir Road, P.O. & P.S. Lalpur, District-Ranchi ……Petitioner Versus 1.State of Jharkhand through principal Secretary, Water Resources Department, Nepal House, P.O. & P.S.Doranda, Ranchi 2.Joint Secretary, Water Resources Department, Govt. of Jharkhand, Nepal House, P.O. & P.S. Doranda, Ranchi, Jharkhand ……Respondents --------- CORAM: HON'BLE MR. JUSTICE PRAMATH PATNAIK For the Petitioner : M/s. R. Krishna & S. Ranjan, Advocates For the Respondents : Mr. Ajit Kumar, J.C. To S.C.(L & C) ----- Reserved on 24.08.2016 Delivered on 30/11/2016 In the accompanied writ petition, the petitioner has, inter alia, prayed for quashing the Memorandum issued vide memo dated 05.01.2016 along with the alleged charge in 'Prapatra K' of the said memorandum(Annexure-5) whereby a departmental proceeding has been initiated against the petitioner for an allegation of committing irregularity in passing the building plan by giving benefit to a builder in Building Plan Case no.1103/2008. The petitioner has further prayed for issuance of writ in nature of mandamus directing the respondents to revoke the impugned Memorandum dated 05.01.2016(Annexure-5) and for direction on the respondents to restrain them to proceed with the departmental enquiry on the alleged charge of committing irregularities by the petitioner in sanctioning the building plan.
2. The facts, as delineated and described in the writ petition in a nutshell is that the petitioner is an Assistant Engineer, Water Resources Department. The services of the petitioner was placed with the Urban Development Department and he was given charge of the Town Planner in the Regional Development Authority, Ranchi. In pursuance of direction given by this Court in W.P.(PIL) no.1531 of 2011, an FIR was registered by CBI vide RC-03(A)/2011-R on 30.03.2011 against unknown .2. officers/officials of Ranchi Regional Development Authority including the petitioner. In the aforesaid CBI case, the petitioner was arrested and remanded to judicial custody by the Special Judge, CBI. and the petitioner was suspended vide Notification dated 29.07.2011 by the department of Water Resources, Government of Jharkhand. Thereafter, the petitioner was enlarged on bail and after more than two years of suspension of the petitioner, the same was revoked and he was posted in Minor Irrigation Quality Control Division, Ranchi vide Notification dated 02.11.2013. Thereafter, the services of petitioner was repatriated to department of Panchayati Raj and he was posted as Incharge District Engineer Zila Parishad, Chatra with additional charge of Koderma vide Notification dated 31.12.2013. M/s. Ashlesha Corporation and Binay Kumar, who are supposed to be beneficiary of the Building Plan of the Hotel Le Lac for which the Building Plan No.1103/2008 and Building Plan No.706/2004 was sanctioned, moved before this Court in W.P.(Cr.) no.319 of 2011 and order taking cognizance has been quashed by this Court vide order dated 27.11.2015 as evident from Annexure-1 to this writ petition. In the said order, this Court held that Building Plan no.1103/2008 has been passed in accordance with the specification and there is no illegality and irregularity committed therein. Though the order of this Court dated 27.11.2015 was brought to the notice of the respondents by filing a representation, the petitioner was again placed on suspension under Rule 49(A) of the Civil Services(Classification, Control and Appeal)Rules vide Memo dated 05.01.2016(Annexure-3 to the writ petition) and the said order was challenged by the petitioner in W.P.(S) NO.116 of 2016 and this Court has been pleased to quash the same by judgment dated 16.03.2016(Annexure-4). Thereafter, a Memorandum dated 05.01.2016 (Annexure-5) has been served under the signature of Joint Secretary, Water Resources Department, Govt. of Jharkhand initiating the .3. departmental proceeding against the petitioner. It has been averred in the writ petition that since the plans of the building including the Plan No.1103/2008 has been held to be in accordance with law by this Court in W.P.(Cr.) no.319 of 2011, no prima facie case is made out for conducting a departmental proceeding against the petitioner. Therefore, the impugned memorandum is illegal, without jurisdiction and the same is liable to be quashed. It has further been averred in the writ petition that the charge sheet issued vide 'Prapatra K' is not sustainable in view of findings of this Court in W.P.(Cr.) No.319/2011. Since the alleged charge(Annexure-5) contrary to Annexure-1[W.P.(Cr.)319/2011], the petitioner left with no other alternative and efficacious remedy, has been constrained to approach this Court for challenging the same under Article 226 of the Constitution of India for redressal of his grievances.
3. Learned counsel for the petitioner, during course of hearing, has vociferously submitted that impugned Memorandum(Annexure-5) of initiating departmental proceeding against the petitioner is an arbitrary exercise of power, since basis on which the charges have been framed has already been settled by the decision of this Court as is reflected in Annexure-1 to the writ petition. It has been submitted that continuation of the departmental proceeding by virtue of impugned memorandum would be in the teeth of the judgment passed by this Court vide Annexure-1 and would cause great prejudice to the petitioner. Learned counsel for the petitioner further submits that the petitioner has been subjected to put under suspension for a long period and the continuation of the proceeding on the very same issue has already been given quietus by this Court as reflected in Annexure-1 and therefore, the instant impugned proceeding would amount to double jeopardy.
4. During course of hearing, learned counsel for the petitioner has referred to Supplementary Affidavit dated 29.04.2016, wherein it has .4. been submitted that approval to initiate the departmental proceeding against the petitioner is taken from the Principal Secretary/Departmental Minister, but the Principal Secretary is not the disciplinary authority. Similarly, the charge Memo i.e. 'Prapatra K' has been issued under the signature of the Under Secretary and the said charge Memo was not approved by the disciplinary authority and any approval of the charge memo cannot be made by the Principal Secretary, who is not the disciplinary authority of the petitioner. It has further been submitted that it is the settled position of law that the charge sheet shall also separately be approved by the disciplinary authority and in absence of such approval, there is a violation of the provisions of Article 311 of the Constitution of India. In order to buttress his argument, learned counsel for the petitioner has referred to the decision of the Apex Court in the case of 'Union of India and others vrs. B.V.Gopinath' reported in (2014)1 SCC351 wherein it has been, inter alia, held that the competent authority to approve charge memo is the disciplinary authority i.e. Finance Minister. In absence of approval of disciplinary authority, charge memo/charge sheet becomes nonest and hence liable to be quashed. Therefore, it has been held that the disciplinary authority alone is required to exercise that power, otherwise, it would go against established maxim delegatus non potest delegare.
5. Controverting the averment made in the writ petition, a counter affidavit has been filed on behalf of the respondents, wherein it has been submitted that the acts of omission or commission of the petitioner being a Government servant need to be addressed in the light of para-07 of circular memo dated 23.08.1963 issued by Appointment Department, Government of Bihar under Appendix-J Rule-166/167 of Board's Miscellaneous Rule,1958. The circular stands for the Government servant involved in criminal misconduct, departmental proceeding and .5. prosecution. Since the petitioner has not yet been acquitted in the criminal case pending in the court of Special Judge, CBI, Ranchi, the impugned departmental proceeding has been initiated for the alleged irregularities committed by the petitioner in sanction of the building plan.
6. Reply to the supplementary affidavit filed on behalf of respondent nos. 1 & 2, wherein it has been submitted that the petitioner being an Assistant Engineer is being governed by the rules/regularization applicable for the Assistant Engineer in accordance with Jharkhand Rules of Executive Business,2000. In the present case, the resolution of departmental proceeding as contained in Memo no.21 dated 05.01.2016 has been notified after duly approval of proposal of departmental proceeding by Hon'ble Minister Incharge as proposed by the Principal Secretary, Water Resources Department, Government of Jharkhand and para-04 of resolution itself explains the endorsement. Therefore, the contention of the petitioner has been vehemently denied by the respondents.
7. A supplementary counter affidavit dated 05.08.2016 has been filed on behalf of respondents, wherein the extract of approval of memo of charges towards the petitioner by the Hon'ble Minister Incharge on the note sheet of relevant file of the matter has been annexed as Annexure-F to this supplementary counter affidavit. Therefore, on getting the approval of memo of charges towards the petitioner by the Hon'ble Minister Incharge, it has been notified vide Memo dated 05.01.2016.
8. 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 on the following facts and reasons: In the instant case, admittedly an F.I.R. was lodged by CBI, Ranchi pursuant to direction given by this Court in W.P.(PIL) NO.1531 of 2011 .6. pertaining to sanction building plan. Thereafter, the petitioner was placed under suspension vide Notification dated 29.07.2011. After more than two years of the said suspension order, it was revoked vide Notification dated 02.11.2013. After repatriation of the petitioner to Panchayti Raj Department and after more than two years of revocation, again the petitioner was put under suspension under Rule 49A of the Civil Services(Classification, Control and Appeal) Rules, by order dated 05.01.2016. The departmental proceeding as evident from Annexure-5 is based on the charge, which was subject matter of dispute in W.P.(Cr.) no.319 of 2011 and the issue has been decided giving quietus to the controversy pertaining to sanction of the building plan. Since the observation of this Court is that the building plan has been approved as per the specification and there is neither any irregularity nor any deviation made therein, the cognizance taken against the beneficiary of the building plan has been quashed. The very same issue has been incorporated in the impugned charge as Annexure-5 to the writ petition. Therefore, the charge appears to be nonest and cannot be sustained in the eye of law. This Court is conscious of the fact that the power of judicial review under Article 226 of the Constitution of India is very very limited so far as interference in the initiation/continuation of departmental proceeding is concerned and normally, this Court does not interfere at the threshold of initiation of charge, but the instant case, unfold a gloomy picture where the charge, which is replica of the criminal proceeding on which the cognizance taken against the beneficiary of the building plan has been quashed vide Annexure-1 to the writ petition. Further continuance of the proceeding on the very same charge would not subserve the ends of justice rather it would amount to miscarriage of justice. Further on self same charge, the petitioner has been suspended for petty long period and he has undergone rigors of the suspension and .7. the petitioner if again is to undergo the departmental proceeding, the same would amount to double jeopardy.
9. In view of the reasons and submissions stated in the forgoing paragraphs, the impugned Memorandum dated 05.01.2016(Annexure-5) along with the alleged charge mentioned in 'Prapatra K' in the said Memorandum being not legally sustainable is, hereby, quashed and set aside.
10. In this result, this writ petition stands allowed. (Pramath Patnaik, J.) N. A. F. R./s.b.