Jharkhand High Court
Mathura Prasad vs The State Of Jharkhand Through Its Chief ... on 30 June, 2022
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 1883 of 2014
Mathura Prasad, son of late Munshi Singh, resident of Mira Niketan,
Dutta Villa Compound, New Area, Morabadi, P.O.: Morabadi, P.S.
Bariatu, District Ranchi ... ... Petitioner
Versus
1. The State of Jharkhand through its Chief Secretary, Project
Building, P.O. & P.S. - Dhurwa, District - Ranchi
2. Principal Secretary, Road Construction Department, Government
of Jharkhand, Project Building, P.O. & P.S. - Dhurwa, District -
Ranchi ... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. A.K. Sahani, Advocate
For the Respondents : Mrs. Darshana Poddar Mishra, A.A.G I
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16/30.06.2022 Heard Mr. A.K. Sahani, learned counsel appearing on behalf of
the petitioner.
2. Heard Mrs. Darshana Poddar Mishra, learned counsel appearing on behalf respondents.
3. This writ petition has been filed for the following relief:
"For quashing the Notification issued under Memo No:7784 dated 29.08.2013 (Annexure - 10) whereby and whereunder punishment of withholding of 25% of Pension and Salary for the suspension period has been imposed upon the petitioner, and for a direction upon the respondents to pay all retiral benefits including the amount towards GPF, Gratuity, Full Pension, Leave Salary, arrears of salary from the date of suspension till retirement and consequential benefits of Modified Assured Career Progression and other admissible dues with interest @ 10% per annum from the date of such dues till the actual date of payment and within a specified period."
Arguments of the petitioner
4. The learned counsel for the petitioner, during the course of argument, has submitted that the petitioner at the relevant point of time was Class I Officer and was Executive Engineer and accordingly the Hon'ble Chief Minister is the appointing authority. He submits that arising out of some order passed in Public Interest Litigation, preliminary inquiry was initiated by C.B.I and a criminal case was also instituted. He submits that arising out of such preliminary inquiry, disciplinary proceeding was also instituted against the petitioner and the petitioner was placed under suspension vide order dated 07.12.2009 under the provisions of Rule 49 (A) of Civil Services (Classification, Control and Appeal) Rules, 1930. He further submits 2 that a proposal seeking approval of charge sheet was approved by the Minister-in-charge with a liberty to the Secretary to appoint Enquiry Officer at his level, but the petitioner being Executive Engineer of Class I post, the proposal of disciplinary inquiry was required to be approved by Hon'ble the Chief Minister, but no such approval having been taken , the entire disciplinary proceedings initiated on the basis of charge sheet issued to the petitioner without prior approval of the Hon'ble Chief Minister, is vitiated. He submits that this is pure question of law which arises for consideration in these particular proceedings and for this, he has relied upon a judgment passed by Hon'ble Supreme Court in the case of Union of India and Ors. Vs. B.V. Gopinath and Ors. reported in (2014) 1 SCC 351 para 55 and he submits that it has been held by the Hon'ble Supreme Court that charge sheet / charge memo having not been approved by the disciplinary authority was non est in the eyes of law. The learned counsel submits that in view of the aforesaid judgment, the entire proceeding including the order of punishment is vitiated and is fit to be set aside.
5. On merit of the case, the learned counsel submits that the petitioner had demanded a large number of documents vide representation dated 25.01.2012 pursuant to the charge sheet issued to the petitioner. He submits that the enquiry officer was appointed only in the year 2012 vide Memo No.32 dated 16.01.2012 and thereafter, the petitioner on 25.01.2012 asked for a number of documents as per list. The learned counsel submits that in spite of demand of copies of the documents, the material documents which were not provided to the petitioner was measurement book and the so-called fake bills which was the bone of contention in the departmental proceedings.
6. The learned counsel submits that the objection regarding non- supply of documents was raised before the Enquiry Officer and the same was not properly considered by the Enquiry Officer and also by the authority who has imposed the punishment. The learned counsel submits that on account of non-supply of the documents, the entire disciplinary proceedings is vitiated due to non-compliance of principles of natural justice.
37. The learned counsel has relied upon a judgment passed by Hon'ble Supreme Court in the cases of State of Uttar Pradesh and Others Vs. Saroj Kumar Sinha reported in (2010) 2 SCC 772 and Chairman, Life Insurance Corporation of India and Ors. Vs. A. Masilamani reported in (2013) 6 SCC 530.
8. The third point which has been raised by the learned counsel for the petitioner is that the charge was required to be substantiated by the department by adducing evidence and the documents are required to be formerly proved by oral evidence. He submits that no such oral evidence was adduced from the side of the department during the departmental proceedings and accordingly, the present case is a case of no evidence. In order to substantiate his argument on the point of production of oral evidence in the departmental proceedings, the learned counsel has relied upon a judgment passed by the Hon'ble Supreme Court in the case of Roop Singh Negi Vs. Punjab National Bank and Others reported in (2009) 2 SCC 570 para 14, 15 and 23.
9. The learned counsel for the petitioner has also submitted that huge recovery has been directed from the petitioner by virtue of the order of punishment by curtailing 25% pension and the petitioner having already retired, no order under Section 43 (b) of the Bihar Pension Rules has been passed to enable the respondents to pass an order of recovery from the pensionary benefits of the petitioner.
10. At the end of the arguments advanced on behalf of the petitioner, a specific query was raised by this Court as to whether the charge sheet is on record or not. Upon this, the learned counsel for the petitioner after going through the records of this case has submitted that the charge sheet is not on record, but the covering letter by which the charge sheet was issued to the petitioner which is dated 07.12.2011 is on record as contained in Annexure - 3. It was further pointed out to the learned counsel for the petitioner that the charge sheet becomes relevant on account of the fact that the charge sheet included the list of documents as enclosure which is apparent from Annexure - 3 itself, but the learned counsel has fairly submitted that the charge sheet is not on record and accordingly, he is not in a position to say about the enclosures to the charge sheet.
411. Upon another query by this Court regarding the reply to second show cause to the petitioner, the learned counsel for the petitioner has fairly submitted that the second show cause filed by the petitioner is also not on record. However, it is not in dispute from the side of the petitioner that the second show cause was duly issued to the petitioner.
12. It further transpires from the records of this case that the petitioner did not file the copy of the enquiry report along with the writ petition although the same has been brought on record by the respondents by filing the counter-affidavit.
Arguments of the Respondents
13. The learned counsel for the respondents, on the other hand, has vehemently opposed the prayer of the petitioner and has submitted that the scope of interference in the departmental proceedings is very limited and there is neither any perversity nor any illegality in the matter of departmental proceedings against the petitioner. The learned counsel has further submitted that so far as violation of principles of natural justice is concerned, the enquiry report clearly mentions that the documents were duly provided to the petitioner. She also submits that although the charge sheet is not on record, but along with the written submissions, she has furnished the copy of the charge sheet and the charge sheet mentions about the various documents which were enclosed with the charge sheet which included the 7 invoices and also the measurement book which has been specifically referred to by the learned counsel for the petitioner during the course of argument. The learned counsel for the respondents has also submitted that a copy of the written notes of argument which has been filed by the respondents has been handed over to the learned counsel for the petitioner which is not disputed by the learned counsel appearing on behalf of the petitioner.
14. The learned counsel while addressing the point of the charge sheet having been issued by the approval of Minister-in-Charge and not by the Hon'ble Chief Minister, has submitted that the petitioner was never promoted to the post of Executive Engineer, rather he was only Executive Engineer (In-charge) and the petitioner continued to be in the Class 2 post and accordingly, the charge sheet was rightly issued. The learned counsel has referred to para 6 and 7 of the writ 5 petition wherein the petitioner has himself stated that the petitioner was initially appointed on the post of Assistant Engineer in Public Works Department and subsequently, he was given officiating charge of higher post of Executive Engineer since the month of July, 2002. The learned counsel submits that merely because the petitioner was officiating in the post of Executive Engineer, the same by itself is not sufficient to hold that the petitioner was a Class I officer and the Hon'ble Chief Minister was the appointing authority.
15. The learned counsel while answering the arguments regarding requirement to substantiate the charge by oral evidence before the Enquiry Officer has referred to Rule 55 of Civil Services (Classification, Control and Appeal) Rules, 1930. She submits that the procedure prescribed therein does not require that the oral evidence is to be necessarily adduced in the departmental proceedings. She submits that as per Rule 55 of Civil Service (Classification, Control and Appeal) Rules, 1930, the grounds on which it is proposed to take action is required to be reduced in the form of a definite charge and communicated to the person concerned along with statement of allegation on which charge is based and of any circumstances which is proposed to be taken into consideration; the charge sheeted employee is required within a reasonable time, to put in the written statement of his defence as to state whether he desires to be heard in person and if he so desires or if the authority concerned so directs an oral inquiry shall be held. At such inquiry oral evidence shall be heard so as to such of the allegations as are not admitted, and the persons charged shall be entitled to cross examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided the officer, conducting the inquiry, on special and sufficient reason to be recorded in writing, may refuse to call such a witness. The learned counsel submits that the entire disciplinary proceeding has been held in terms of Rule 55 of the aforesaid Rules of 1930 and there has been no violation of the same. She submits that during the department proceeding a memo of evidence was produced from the side of the department and it is neither the case of the petitioner that the petitioner demanded any oral inquiry nor it is the case of the petitioner that the Enquiry Officer asked for an oral inquiry. She submits that the 6 petitioner had filed his written statement and the enquiry proceedings were concluded in terms of Rule 55 thereof. She has also submitted that essentially the entire enquiry is based on documentary evidences which are part of the records of the department or authority itself.
16. The learned counsel has referred to the counter-affidavit filed in the present case and has drawn the attention of this Court to the proceeding sheet which records filing of memo of evidence before the authority and also making of the documents available to the petitioner pursuant to the representation. She submits that at the stage of accepting the documents, no objection was ever raised. The learned counsel while referring to the enquiry report submits that the enquiry report is a detailed report dealing with each and every materials brought on record and the contention of the petitioner with regard to each and every material and the findings of the Enquiry Officer is a well-reasoned findings. She further submits that the second show cause reply filed by the petitioner having not been brought on record, it is not known as to what points were taken by the petitioner in the second show cause reply.
17. The learned counsel while answering the argument of the petitioner with regard to Rule 43 (b) of Bihar Pension Rules submits that the argument of the petitioner is contrary to the judgment passed by Hon'ble Patna High Court in Shambhu Saran Vs. State of Bihar reported in 1991 SCC Online Patna 341 para 13 equivalent (2000) 1 PLJR 665 and also the judgment passed by Jharkhand High Court in the case of Jag Narain Singh Vs. State of Jharkhand reported in 2015 SCC OnlineJhar 3296 para 5. The learned counsel submits that there has been no direction for recovery from pension but order has been passed deducting pension to the extent of 25%.
18. The learned counsel has further submitted that there has been huge financial loss to the exchequer on account of the acts and omissions of the petitioner which is running to the tune of Rs.21,58,805/- as the payment was made to the contractor on the basis of forged bitumen invoices. The learned counsel submits that the involvement of the petitioner in connection with the payment against forged bitumen invoices has been fully dealt with in the enquiry report and the charges which primarily revolves around the payment of such 7 invoices stood fully proved in the department proceeding and therefore, no interference is called for under Article 226 of the Constitution of India.
19. The learned counsel for the State while distinguishing the judgment passed by Hon'ble Supreme Court reported in (2009) 2 SCC 570 (supra) has submitted that in the said proceedings, the solitary evidence against the appellant before the Hon'ble Supreme Court was his confessional statement in the criminal proceedings and in that background, the Hon'ble Supreme Court was of the view that the Enquiry Officer performs the quasi judicial function and the charges levelled against the delinquent officer must be found to have been proved and it was held that the evidence collected during investigation of the case against the accused by itself could not be treated to be evidence in the disciplinary proceedings and no witness was examined to prove the said documents and the management witnesses merely tendered the document and did not prove the content thereof and consequently it was held that reliance by the Enquiry Officer on the F.I.R. which could not have been treated as evidence was bad in law. The learned counsel submits that the said judgment is not an authority on the point as to how a departmental proceeding is to be conducted under the provisions of Rule 55 of Civil Services (Classification, Control and Appeal) Rules, 1930.
20. The learned counsel has further relied on the following judgments:
(i) AIR 1963 SC 1723 (State of Andhra Pradesh Vs. S. Sree Rama Rao) to submit that it has been held by the Hon'ble Supreme Court that the departmental authorities are the sole judge of the facts and the findings in the inquiry proceedings being based on materials on record, the adequacy of material cannot be scrutinized by this Court under Article 226 of the Constitution of India. On the same point, the learned counsel has relied upon the judgment of the Hon'ble Supreme Court in the case reported in 2020 SCC Online SC 954 (Director General of Police, Railway Protection Force Vs. Rajendra Kr. Dubey) para 33 to
38. 8
(ii) On the point of scope of judicial review, the learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court in the case of Deputy General Manager Vs. Ajai Kr. Srivastava reported in 2021 SCC Online SC 4 and she refers to para 23 to
29. Rejoinder arguments of the petitioner.
21. In response, the learned counsel for the petitioner submits that the matter regarding promotion of the petitioner to the post of Executive Engineer was pending in the sealed cover and he has submitted that the petitioner was not provided with the 7 th, 8th, 9th, 10th, 11th and 12th on account bill which is at Sl. No.13 in Annexure 5 by which the petitioner had demanded documents.
Findings of this Court
22. Before proceeding, it would be important to keep in mind the scope of interference in the matter of disciplinary enquiry in writ proceedings. The scope of interference in the matter of disciplinary proceedings has been summarized in the judgment passed by the Hon'ble Supreme Court reported in (2020) 9 SCC 471 (Pravin Kumar vs. Union of India) para-25 to 30, which is quoted as under: -
"I. Scope of judicial review in service matters
25. The learned counsel for the appellant spent considerable time taking us through the various evidence on record with the intention of highlighting lacunae and contradictions. We feel that such an exercise was in vain, as the threshold of interference in the present proceedings is quite high. The power of judicial review discharged by constitutional courts under Article 226 or 32, or when sitting in appeal under Article 136, is distinct from the appellate power exercised by a departmental appellate authority. It would be gainsaid that judicial review is an evaluation of the decision-making process, and not the merits of the decision itself. Judicial review seeks to ensure fairness in treatment and not fairness of conclusion. It ought to be used to correct manifest errors of law or procedure, which might result in significant injustice; or in case of bias or gross unreasonableness of outcome.
26. These principles are succinctly elucidated by a three-Judge Bench of this Court in B.C. Chaturvedi v. Union of Indiain the following extract: (SCC pp. 759-60, paras 12-13) "12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a 9 public servant, the Court/Tribunal concerned is to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of the Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel this Court held at SCR pp. 728-29 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
27. These parameters have been consistently reiterated by this Court in a catena of decisions, including:
(i) State of T.N. v. S. Subramaniam.
(ii) Lalit Popli v. Canara Bank.
(iii) H.P. SEB v. Mahesh Dahiya.
28. It is thus well settled that the constitutional courts while exercising their powers of judicial review would not assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice. Put differently, judicial review is not analogous to venturing into the merits of a case like an appellate authority.
29. The High Court was thus rightly concerned more about the competence of the enquiry officer and adherence to natural justice, rather than verifying the appellant's guilt through documents and statements. It clearly noted that evidence was led, cross-examination was conducted and opportunities of 10 addressing arguments, raising objections, and filing appeal were granted. The conclusion obtained was based upon this very evidence and was detailed and well-reasoned. Furthermore, the High Court did not restrict the scope of judicial review, rather adopted a liberal approach, and delved further to come to its own independent conclusion of guilt. Similarly, we have no doubt in our minds that the appellate authority had carefully dealt with each plea raised by the appellant in his appeal and had given detailed responses to all the contentions to satisfy the appellant's mind. The disciplinary authority too was impeccable and no infirmity can be found in the report of the enquiry officer either.
30. Even in general parlance, where an appellate or reviewing court/authority comes to a different conclusion, ordinarily the decision under appeal ought not to be disturbed insofar as it remains plausible or is not found ailing with perversity. The present case is neither one where there is no evidence, nor is it one where we can arrive at a different conclusion than the disciplinary authority, especially for the reasons stated hereunder."
23. Similar view has been expressed by the Hon'ble Supreme Court in the case of Deputy General Manager Vs. Ajai Kr. Srivastava reported in 2021 SCC Online SC 4.
24. The foundational facts which emerge on the basis of materials on record and the arguments of the parties are that the petitioner was appointed as Assistant Engineer in public works department in the year 1981 and was given officiating charge of higher post of Executive engineer in rural works department. In the month of July 2009, the petitioner joined the road construction department and in the month of November, 2009 the petitioner joined as Executive Engineer (In -Charge) in Giridih Works Division.
25. In compliance of order passed by this court in public interest litigation being WP. PIL No. 803/2009, CBI had enquired into the matter of bitumen purchased for road works of the state by the concerned contractors on the basis of fake invoices of different oil companies and CBI lodges an FIR being case no. RC-23(A)/2009(R ) for investigation of fake bitumen bills. The sanction for prosecution against the petitioner was also granted.
26. The petitioner was put under suspension on 07.12.2009. Vide memo dated 07.12.2011, a charge-sheet was issued to the petitioner initiating departmental proceeding against the petitioner under Rule 55 of the Civil Services (classification, Control and Appeal) Rules, 1930.
11The chargesheet also included memo of evidence, although neither the charge-sheet nor memo of evidence enclosed with the chargesheet, is on record of the writ petition.
27. It is the specific case of the petitioner before this court that the charge-sheet having not been issued by the Hon'ble the Chief Minister-the competent authority, and having been issued by the secretary of the department, the entire departmental proceeding is vitiated.
28. Before proceeding further, it would be important to decide this issue as it may have a direct impact on the entire departmental proceedings. Thus, the point no.1 to be considered in the present case is-
Whether the charge-sheet was issued to the petitioner by the competent authority.
Findings on Point No.1
29. It is not in dispute that the petitioner was appointed as Assistant Engineer on 29.09.1981 and the petitioner was repatriated to Road Construction Department in the month of July, 2009. In the month of November 2009, the petitioner had joined as Executive Engineer in- charge in Giridih Works Division. It is further not in dispute that the petitioner was not promoted to the post of Executive Engineer, but was only discharging his duty as In-charge Executive Engineer.
30. It has been argued by the petitioner that the petitioner being Executive Engineer was a Class I officer and consequently, the Hon'ble Chief minister was his appointing authority and therefore, no charge sheet could have been issued to the petitioner without approval of Hon'ble the Chief Minister. For this, the learned counsel for the petitioner has referred to the materials on record. In the aforesaid background, the specific case of the petitioner is that the initiation of departmental proceedings against the petitioner by issuance of charge sheet, which was not approved by the hon'ble Chief minister, has rendered the entire disciplinary proceedings void ab initio.
31. On the other hand, the learned counsel for the respondents has submitted that the petitioner was never promoted to the post of Executive Engineer, but was only working as in-charge Executive Engineer and accordingly, the petitioner continued to be in Class II 12 post and therefore approval of charge-sheet by the hon'ble Chief minister, was not required.
32. It is not in dispute from the side of the petitioner during the course of arguments that if the petitioner is said to have been holding Class II post on the date of issuance of charge sheet, there was no illegality in issuance of charge sheet. The dispute on this point boils down to the fact as to whether the petitioner was holding Class I post or Class II post on the date of issuance of charge sheet. It is important to note that in response to the aforesaid submission made on behalf of the respondents, the counsel for the petitioner has submitted that the promotion of the petitioner to the post of Executive Engineer was pending in sealed cover. This submission itself indicates that the petitioner was not yet promoted to the post of Executive Engineer, but his promotion was pending in sealed cover. Apart from the aforesaid, the learned counsel for the respondents has rightly pointed out the statements made in para 6 and 7 of the writ petition where the petitioner has himself stated that the petitioner was initially appointed on the post of Assistant Engineer in Public Works Department and subsequently, he was given the officiating charge of higher post of Executive Engineer since the month of July, 2002.
33. This Court is of the considered view that merely because the petitioner was officiating on the post of Executive Engineer as in- charge, the same by itself does not confer the status of Class I post to the petitioner i.e., the post of Executive Engineer in absence of his actual promotion to the said post. In the aforesaid facts, this Court is of the considered view that the petitioner cannot be treated to be holding the post of Class I officer on the date of issuance of charge- sheet. Consequently, the argument of the petitioner that the charge sheet could not have been issued without the approval of Hon'ble the Chief Minister is devoid of any merit and accordingly, the 1st point is decided against the petitioner and in favour of the respondents.
34. After having decided the point regarding legality of issuance of charge-sheet to the petitioner, now the other points raised by the petitioner are to be decided.
35. Although the charge-sheet has not been brought on record by the either party but the other documents placed on record reveal that 13 following charges were levelled against the petitioner in the the chargesheet: -
(i) Petitioner upon conspiring with the Contractor firm M/s Iswar Construction, dishonestly passed the 12th and final bill of the contractor, which was paid to the contractor on 15.03.2008, even after the petitioner came to know that earlier the contractor firm had submitted 07 fake invoices bearing the same Assignment No. 20062345B025435. This discrepancy was pointed out during audit, even then, the petitioner dishonestly allowed the contractor to substitute fake invoices submitted earlier and further without ensuring as to whether the substituted invoices were genuine or not.
(ii) The petitioner passed the bills dishonestly and fraudulently, which included the bill for bituminous work, on the basis of doubtful entries made in measurement books, in order to extend undue benefit to the contractor as the quantity of bitumen shown utilised in the measurement books were never procured by the contractor. The petitioner committed misconduct while passing the bills for payment as the contractor, submitted fake bitumen invoices.
(iii) Even after knowing the fact that the contractor had submitted fake bitumen invoices, the petitioner in conspiracy with the contractor firm, did not enquire into the matter and by misusing his official position allowed to destroy the evidence in the form of fake bitumen invoices earlier submitted by the contractor.
(iv) Due to his aforesaid misconduct the petitioner did not ensure utilisation of proper amount of bitumen in the contractual work and rather facilitated illegal payment of the contractor on the basis of purported utilisation of bitumen shown to be procured through fake invoices.
(v) The petitioner overlooked the number of empty drums that should have been returned after use. To cover up the non-
utilisation of bitumen, the contractor did not return the empty bitumen drums to the department but, the petitioner did not make any enquiry in this regard.
36. With regards to the disciplinary proceedings, the grievance of the petitioner is that: -
i. The department failed to supply material documents as sought for by the petitioner, ii. the department failed to adduce any evidence, either oral or documentary to prove the charge and therefore it is a case of no evidence , iii. no opportunity was provided to the petitioner to cross examine any witness, iv. petitioner was not given opportunity to adduce evidence in support of his defence, 14 Thus, the enquiry was held in violation of principles of natural justice.
Further grievance is that the enquiry continued even after the retirement of the petitioner and no leave/sanction was granted by the government to convert the proceeding under Rule 43 (b) of Jharkhand Pension Rules and without considering the legal aspects of the matter, the disciplinary authority, in a routine matter and without applying his mind issued the impugned order of punishment.
37. Thus, further points to be considered are:-
a. Point no.2 -Whether the disciplinary proceedings is vitiated on account of alleged failure to supply material documents as sought for by the petitioner; allegedly denial of opportunity to cross examine any witness and alleged denial of opportunity to adduce evidence in support of his defence?
b. Point no.3- Whether the enquiry proceeding is vitiated being based on no evidence, as allegedly, the department failed to adduce any evidence, either oral or documentary? c. Point no.-4- Whether the enquiry could have continued even after the retirement of the petitioner without any leave/sanction granted by the government to convert the proceeding under Rule 43 (b) of Jharkhand Pension Rules?
Point no.2 -Whether the disciplinary proceedings is vitiated on account of alleged failure to supply material documents as sought for by the petitioner; allegedly denial of opportunity to cross examine any witness and alleged denial of opportunity to adduce evidence in support of his defence?
38. As per the case of the petitioner in the writ petition, the enquiry officer had directed the petitioner to appear and submit his defence statement but it was impossible to do so in absence of required documents and therefore the petitioner, vide letter dated 25.01.2012 (Annexure-5) demanded 17 documents as per list. It is further case of the petitioner that on 21.02.2012 the department supplied part documents, 8 in number, to the petitioner and rest of the documents were not supplied to him till the last date of hearing on 12.11.2012. It is further case of the petitioner that on 12.03.2012 (Annexure-8) the petitioner submitted his show cause reply stating that the copies of the 15 relevant documents as sought for could not be provided to the petitioner in entirety , as such he was not in a position to submit effective reply and was submitting his defence statement provisionally reserving his right to file an elaborate written statement of defence upon availability of copies of required documents.
39. It has been stated in paragraph 27 of the writ petition that the petitioner had submitted the supplementary defence statement dated 27.04.2012 and final defence statement dated 10.09.2012 but the petitioner has not brought on record the aforesaid two supplementary defence statement and final defence statement for perusal of this court and to find out surviving grievance of the petitioner with regard to supply of documents or with regard to any other matter including cross examination of any witness or with regards to leading any defence evidence. It is apparent from Annexure-8, which is the 1st written statement of the defence (said to be provisional written statement of defence) submitted by the petitioner, reserving his right to file an elaborate written statement of defence on availability of copies of the required documents and after the government substantiate the charges. The writ petition itself reveals that the petitioner filed his supplementary defence statement dated 24.04.2012 and final defence statement dated 10.09.2012 but the same have neither been filed by the petitioner for the reasons best known to him , nor the petitioner has given the circumstances under which supplementary defence statement dated 24.04.2012 and final defence statement dated 10.09.2012 were filed nor the petitioner has made any statement regarding the contents or the stand taken by the petitioner in the aforesaid two defence statements. Accordingly, merely on the basis of the 1st defence statement ( i.e provisional defence statement) as contained in Annexure-8 dated 12.03.2012, it cannot be said that the petitioner was not supplied with the documents which were required to be supplied for the just decision of the matter.
From the perusal of the defence statement filed by the petitioner at Annexure-8 it appears that the petitioner had categorically stated that the copies of documents enclosed with the charge sheet also do not suggest any sort of misconduct on his part and the charge sheet was 16 prepared upon misreading, misconstruction and misinterpretation of the documents enclosed to the charge sheet and also contradictory to his own inspection report vide memo dated 220 dated 04.03.2010. On the face of the aforesaid reply, it cannot be said from the side of the petitioner that he was not provided copy of the documents enclosed to the charge sheet.
It further appears from the show cause reply that the petitioner had himself referred to a large number of documents, including those relied upon by the department and also the terms and conditions of contract itself to justify his acts and omissions. This court finds from the enquiry report that during the departmental proceeding a memo of evidence was produced from the side of the department by the presenting officer which were duly considered by the enquiry officer after giving an opportunity to the petitioner to respond to the same. It was open to the petitioner to ask for oral evidence in the enquiry or ask for cross examination of the presenting officer who had filed the memo of evidence with regard to any of the documents or any other material, but no such steps were taken by the petitioner.
But the petitioner on the one hand never asked for cross examination of the presenting officer who filed the memo of evidence, rather he referred to the various documents produced during the course of enquiry and tried to justify his action. The enquiry officer had discussed the materials threadbare duly relied upon by the department and the petitioner. The enquiry officer has further discussed the specific stand of the petitioner. The stand of the petitioner regarding non supply of certain documents has also been rejected.
40. Though the petitioner has not brought on record the enquiry report submitted by the enquiry officer, but the same has been produced by the respondents through the counter affidavit which is dated 17.12.2012 wherein the enquiry officer has, interalia , recorded about filing of the final defence statement dated 10.09.2012 and has also recorded that the documents demanded by the petitioner was duly handed over to the petitioner and has also rejected the plea of the petitioner regarding non supply of the documents. The petitioner neither filed the enquiry report along with the writ petition nor 17 challenged any findings of the enquiry report in the writ petition alleging perversity in the findings of the enquiry report. This court also finds that admittedly the petitioner was served with 2nd show cause notice dated 12.04.2013 (Annexure-7) annexing a copy of the enquiry report but the petitioner has not annexed a copy of the reply to the 2nd show cause. The reply to the 2nd show cause notice could have thrown some light regarding the surviving grievance of the petitioner with regard to alleged non supply of certain documents, no opportunity to cross-examination of witnesses and no opportunity to lead defence evidence. The enquiry report has dealt with all the contentions and stand of the petitioner taken in the enquiry proceedings and is well speaking. In the aforesaid circumstances, the petitioner has failed to make out a case for interference in the departmental proceedings on account of violation of the principles of natural justice alleging non supply of certain documents, denial of opportunity to cross-examination of witnesses and denial of opportunity to lead defence evidence. Accordingly Point no.2 is decided against the petitioner.
41. It is important to note that the petitioner has argued that the enquiry proceeding is vitiated being based on no evidence as allegedly the department failed to adduce any evidence, either oral or documentary. This point is decided as a separate point no.3. Point no.3 Whether the enquiry proceeding is vitiated being based on no evidence as allegedly the department failed to adduce any evidence, either oral or documentary?
42. It is not in dispute that the proceedings were initiated under Rule -55 of THE CIVIL SERVICES (CLASSIFICATION, CONTROL AND APPEAL) RULES, 1930, which is quoted as under:
-
"Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, no order of dismissal, removal, compulsory retirement or reduction shall be passed on a member of a Service (other than an order based on facts which have led to his conviction in a Criminal Court or by a Court-Martial) unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person 18 charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so direct an oral inquiry shall be held. At that inquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer, conducting the inquiry may, for special and sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof.
This rule shall not apply where the person concerned has absconded or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may, in exceptional cases, for special and sufficient reasons to be recorded in writing be waived, where there is a difficulty in observing exactly the requirement of the rule and those requirements can be waived without injustice to the person charged.
The full procedure prescribed in this rule need not be followed in the case of a probationer discharged in the circumstances described in Explanation II to rule 49. In such cases, it will be sufficient if the probationer is given an opportunity to show cause in writing against the discharge after being apprised of the grounds on which it is proposed to discharge him and his reply duly considered before orders are passed."
43. In the judgment passed by the Hon'ble Supreme Court reported in (1965) 3 SCR : AIR 1966 SC 269 (State of Bombay (Now Maharashtra) versus Narul Latif Khan) the Hon'ble Supreme Court has , interalia, interpreted the provisions of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 and held that Rule 55 lays down that if the charge-sheeted officer so desires or if the authority concerned so directs, an oral enquiry shall be held. It has been held that the requirement that an oral enquiry shall be held if the authority concerned so directs or if the charge-sheeted officer so desires is mandatory. So the condition precedent for holding oral enquiry is the charge-sheeted officer so desires or if the authority concerned so directs .
44. There is no legal impediment in resting the departmental proceeding merely on documents produced by the department in the shape of memo of evidence without formally exhibiting the same through oral evidence of any witness.
1945. The Hon'ble Supreme Court held in paragraph nos. 11, 12 and 13 which reads as under: -
11. The requirements of Article 311(2) have been considered by this Court on several occasions. At the relevant time, Article 311(2) provided that no person to whom Article 311 applies shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. It is common ground that the impugned order of compulsory retirement attracts the provisions of Article 311(2). If it appears that the relevant statutory rule regulating the departmental enquiry which was held against the respondent made it obligatory on the enquiry officer to hold an oral enquiry if the respondent so demanded, then there would be no doubt that the failure of the enquiry officer to hold such an oral enquiry would introduce a serious infirmity in the enquiry and would plainly amount to the failure of the appellant to give a reasonable opportunity to the respondent. This position is not disputed by the learned Attorney-General and is indeed well-
settled. So, the narrow question to which we must address ourselves is whether it was obligatory on Mr Mehta to hold an oral enquiry and give a reasonable opportunity to the respondent to lead oral evidence and examine his doctors. We will assume for the purpose of this appeal that in a given case, Government would be justified in placing its case against the charge-sheeted officer only on documents and may be under no obligation to examine any witnesses, though we may incidentally observe that even in such cases, if the officer desires that the persons whose reports or orders are being relied upon against him should be offered for cross- examination, it may have to be considered whether such an opportunity ought not to be given to the officer; but that aspect of the matter we will not consider in the present appeal. Therefore, even if it is assumed that Government could dispense with the examination of witnesses in support of the charges framed against the respondent, does the relevant rule make it obligatory on the enquiry officer to hold an oral enquiry and give the respondent a chance to examine his witnesses or not?
12. This question falls to be considered on the construction of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. This rule reads thus:
"Without prejudice to the provisions of the Public Servants Inquiries Act, 1850, no order of dismissal, removal or reduction shall be passed on a member of a service (other than an order based on facts which have led to the conviction in a criminal court or by a court martial) unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required within a reasonable time, to put in a written statement of his defence and to 20 state whether he desires to be heard in person. If he so desires or if the authority concerned so direct, an oral enquiry shall be held. At that enquiry oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the enquiry may, for special and sufficient reason to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof."
It appears that the Government of Madhya Pradesh had issued a Circular explaining this Rule. The Circular contained Rule 8 which is relevant. It provides that "particular attention is invited to the provisions regarding oral enquiry. In case the person charged desires that an oral enquiry should be held, the authority holding the departmental enquiry has no option to refuse it". The High Court seems to have based its conclusion substantially, if not entirely, on this rule. We do not propose to adopt that course. The rule may be no more than a circular issued by Government and we do not propose to examine the question as to whether it has the force of a statutory rule. Our decision would, therefore, be based on the construction of Rule 55 of the Civil Services Rules which admittedly applied and which admittedly is a statutory rule.
13. The relevant clause in this Rule provides that the officer charge-sheeted shall be required within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person. This clause has been complied with in the present proceedings. Mr Mehta gave notice to the respondent to appear before him in person on the 20th November, 1951 and the respondent did not appear on that date. It is the next clause on which the decision of the present appeal depends. This clause lays down that if he, that is to say the charge-sheeted officer, so desires or if the authority concerned so directs, an oral enquiry shall be held. In our opinion, it is plain that the requirement that an oral enquiry shall be held if the authority concerned so directs or if the charge-sheeted officer so desires is mandatory. Indeed this requirement is plainly based upon considerations of natural justice and fairplay. If the charge-sheeted officer wants to lead his own evidence in support of his plea, it is obviously essential that he should be given an opportunity to lead such evidence. Therefore, we feel no hesitation in holding that once the respondent expressed his desire to Mr Mehta that he wanted to lead evidence in support of his plea that his alleged disobedience of the Government Orders was not deliberate, it was obligatory on Mr Mehta to have fixed a date for recording such oral evidence and give due intimation to the respondent in that behalf.
46. In the present case, neither the petitioner has produced any material to show that the petitioner even asked for any oral enquiry or even asked for cross examination of the presenting officer who had produced the memo of evidence in the form of documentary evidence or cross examination of any person connected with the documents produced by the department through memo of evidence or ever 21 expressed his desire to adduce any defence evidence either oral or documentary. Although the petitioner has made a vague statement at para 23 of the writ petition that he had requested for oral enquiry but the enquiry officer insisted the petitioner to file has defence statement but none of the materials of the enquiry proceedings which have been brought on record as well as the enquiry report indicates that the petitioner ever made any such request before the enquiry officer. The statement made in the writ petition was required to be supported by some material of the enquiry proceedings or the enquiry report which is totally absent in the present case. During the course of arguments, the learned counsel for the petitioner has not pointed out any such material from the writ records.
47. In the writ petition, the petitioner neither raised any grievance in connection with the enquiry report nor filed his response to the second show cause nor the enquiry report reflects any request from the side of the petitioner to cross examine the presenting officer who had filed the memo of evidence or to examine any person whose documents were being relied upon by the department by filing documentary evidences in the enquiry proceedings or any request to adduce defence evidence, either oral or documentary. The entire records of this case does not indicate that any such aforesaid step was ever taken from the side of the petitioner.
48. This court is of the considered view that adducing oral evidence is not mandatory for the departmental proceeding governed by Rule 55 of the Civil Services (Classification, Control and Appeal) Rules unless the charge-sheeted officer, so desires or if the authority concerned so directs. It is open to the authority to rest its case on documentary evidence. Strict rule of evidence is not applicable to the departmental proceedings. What is relevant that the proceeding should be conducted in tune with principles of natural justice and fair play. Therefore, argument of the petitioner that the present case is a case of no evidence, as no oral evidence has been adduced by the department to formally prove the charge or prove the documents relied in the departmental proceedings by filing memo of evidence, is devoid of any merits and hence rejected.
2249. In the instant case , no material has been produced by the petitioner before this court and there is no such material reflecting from the enquiry report produced by the Respondents even to remotely suggest that the petitioner ever demanded oral enquiry or the authorities decided to hold oral enquiry or the petitioner ever demanded any opportunity to cross examine any person who was the author or otherwise connected with the documentary evidences produced by the department through the memo of evidence produced by the presenting officer in the departmental proceedings or to examine any defence witness or to lead any defence evidence. Rather, the petitioner in his defence statement (Annexure-8) had relied upon some documents including the contract itself to justify his acts/omissions which were subject matter of enquiry and subsequently filed supplementary defence statement and final defence statement which are not on record. Admittedly, the petitioner had filed his defence statement (Annexure-8) after filing of the memo of evidence by the presenting officer and raised grievance regarding non supply of certain documents reserving his right to file further defence statement upon receipt of the documents as demanded. The petitioner subsequently filed supplementary defence statement and final defence statement which are not on record for the reasons best known to the petitioner. Admittedly, the 2nd show cause was served upon the petitioner but the reply to the second show-cause is also not in the writ record for perusal and consideration. The reason for non-filing of reply to 2nd show cause in the writ records is also best known to the petitioner.
50. So far as the judgment relied upon by the petitioner reported in (2009) 2 SCC 570 (Roop Singh Negi Vs. Punjab National Bank and Others) is concerned, the same was in peculiar facts of the case where the solitary evidence against the delinquent was his confessional statement in the criminal proceedings .In that background, the Hon'ble Supreme Court was of the view that the Enquiry Officer performs the quasi-judicial function and the charges levelled against the delinquent officer must be found to have been proved and it was held that the evidence collected during investigation of the case against the accused by itself could not be treated to be evidence in the disciplinary 23 proceedings and no witness was examined to prove the said documents and the management witnesses merely tendered the document and did not prove the content thereof and consequently it was held that reliance by the Enquiry Officer on the F.I.R. which could not have been treated as evidence was bad in law. The said judgment is not an authority on the point as to whether a disciplinary enquiry can rest only on documents tendered through memo of evidence without being formally exhibited by leading oral evidence. In the instant case, the enquiry proceeding was essentially based on documents of the parties tendered and relied upon in the enquiry proceeding and therefore the aforesaid judgment reported in (2009) 2 SCC 570 does not apply to the facts and circumstances of this case.
51. This court is also of the considered view that in a case where the case of the department is based on documentary evidence, there is no bar in filing memo of evidence through the presenting officer and the fact that the presenting officer had presented the memo of evidence does not vitiate the proceeding in any manner. The enquiry report and the records of the case suggests that the petitioner had referred to the documentary evidences on record and has also relied upon his own documents also to justify his acts and omissions without formally leading any oral or documentary defence evidence.
52. In view of the aforesaid findings, it cannot be said that the enquiry proceeding was based on no evidence. Accordingly, point no.3 is decided against the petitioner and in favour of the respondents.
53. Point no.-4- Whether the enquiry could have continued even after the retirement of the petitioner without any leave/sanction granted by the government to convert the proceeding under Rule 43
(b) of Jharkhand Pension Rules?
54. This court finds that the specific case of the petitioner is that the order of punishment of curtailing pension to the extent of 25% has been passed without any order by the Government under Rule 43(b) of the Jharkhand Pension Rules. This court finds that admittedly the enquiry proceeding was initiated prior to retirement of the petitioner and explanation (a) to Rule 43 clearly provides that departmental proceeding is deemed to have been initiated, inter alia, when the charge is issued to him. Rule 43(b) clearly provides that the state 24 government have reserved to themselves, the right of withholding or withdrawing pension or its part and also have the right to recover pecuniary loss caused to the government if the pensioner is found guilty in departmental proceeding on account of misconduct or negligence during his service. The proviso (a) stipulates that such departmental proceedings, if not initiated while the government servant was on duty, shall not be instituted save with the sanction of the state government.
55. As the departmental proceeding had already commened by issuance of charge sheet against the petitioner prior to his retirement, no separate order was required, to continue the departmental proceedings. This court also finds that at the time of issuance of 2nd show cause, petitioner had retired and Rule 43 of the Jharkhand Pension Rules was clearly referred to and invoked by the respondents, before passing the punishment order of curtailing pension to the extent of 25%. However, a copy of the 2nd show cause reply has not been placed in the writ records. The charge proved against the petitioner, inter alia, involved payment against fake invoices. The disciplinary authority has been in full agreement with the enquiry officer and passed the order of punishment by a speaking order considering the materials and the reply of the petitioner.
56. The learned counsel for the respondents has rightly relied upon the judgements passed by the Full Bench Hon'ble Patna High Court in Shambhu Saran Vs. State of Bihar reported in 1991 SCC Online Patna 341: (2000) 1 PLJR 665 and also the judgment passed by this Court in the case of Jag Narain Singh Vs. State of Jharkhand reported in 2015 SCC OnlineJhar 3296.
57. Upon perusal of the judgment passed by Hon'ble Patna High court in the case of Shambhu Saran Vs. State of Bihar (Supra), the short question which fell for consideration was whether , the earlier decision passed in the case of Singheshwari Sahay Vs. State of Bihar reported in 1979 BBCJ 735 wherein it was held that in case where a departmental proceeding was started while in service, but person retires before it came to an end, in absence of any specific order of the Government, the departmental proceeding could not be continued and it will be deemed to have been dropped against him. A contrary 25 view was taken by a subsequent bench. The Hon'ble Full Bench while deciding the reference clearly held in para 13 of the judgment as follows:
"13. "In that view of the matter, we answer the reference by holding as follows:
(i) In a case where a disciplinary proceeding has already been started, even if the person concerned attains the age of superannuation, the enquiry may be continued under Rule 43 of the Bihar Pension Rules, 1950 for the limited purpose of taking such action as provided under the said Rule even after such superannuation and for that purpose, no specific or express order of the Government is necessary.
(ii) The decision of division bench in case of Singeshwari Sahay vs. State of Bihar reported in 1979 BBCJ 735 and the law laid down therein were not correctly decided."
58. In the subsequent judgment passed by this court in the case of Jag Narain Singh Vs. State of Jharkhand (supra), it has been held in para 5 as follows:
"5. It however appears from considering the submissions of the parties that apprehension of the petitioner for continuance of the Departmental Proceeding on that ground is misplaced. Pension Rules do not lay down a procedure for conduct of Departmental Proceeding. If an employee has retired during the pendency of a Departmental Proceeding, the only difference that could result is in the nature of punishment which in that case, would be governed by the provisions of Jharkhand Pension Rules. Therefore, when the proceedings initiated at the time of his service did not end up finally before his retirement, they would be deemed to have continued after retirement of the petitioner. This proposition is also well settled by the Full Bench judgement rendered by the Patna High Court in the case of Shri Krishna Singh v. Union of India [2001 (1) PLJR 665]. Counsel for the parties are not able to apprise the Court as to whether Departmental Proceeding has been concluded or whether Inquiry Officer has finally submitted his report."
59. Considering the aforesaid judgements passed by this Court this court is of the considered view that no specific or express order of the Government is necessary to proceed against the petitioner in the pending departmental proceeding and pass appropriate order in terms of rule 43 of the Pension Rules of deduction of 25% pension The point no.4 is also accordingly decided against the petitioner and in favour of the respondents.
60. While considering the present case in the light of the aforesaid judgement this court finds no error, much less any manifest error of 26 law and procedure leading to any injustice to the petitioner. It is well settled that judicial review is an evaluation of the decision-making process, and not the merits of the decision itself. Judicial review seeks to ensure fairness in treatment and not fairness of conclusion. There is no allegation of any bias and no case has been made out alleging gross unreasonableness of outcome. There is no scope for reconsidering the materials produced before the enquiry officer and coming to a different finding. All the issues framed based on the arguments of the parties having been decided in favour of the Respondents as aforesaid, there is no scope for any interference in the impugned order and proceedings under Article 226 of the Constitution of India. Accordingly, the present writ petition is dismissed.
(Anubha Rawat Choudhary, J.) Binit