Patna High Court - Orders
The State Of Bihar & Ors vs Choudhary Vijay Kumar Sharma on 28 June, 2013
Author: Navin Sinha
Bench: Navin Sinha, Vikash Jain
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.374 of 2013
In
Civil Writ Jurisdiction Case No. 6358 of 2006
======================================================
1. The State Of Bihar
2. The Deputy Secretary Water Resources Department, Government Of
Bihar, Patna
3. The Engineer-In-Chief Water Resources Department, Government Of
Bihar, Patna
4. The Superintending Engineer Irrigation Building, Patna
.... .... Appellant/s
Versus
1. Choudhary Vijay Kumar Sharma S/O Late Jagdish Sharma R/O Village-
Jhakhra, P.S.- Piprakothi, District- East Champaran
.... .... Respondent/s
======================================================
with
Letters Patent Appeal No.398 of 2013
IN
Civil Writ Jurisdiction Case No. 1520 of 2006
======================================================
1. The State Of Bihar Through The Chief Secretary Government Of Bihar,
Patna
2. The Secretary-Cum-Commissioner Department Of Water Resources,
Sinchai Bhawan, Patna
3. The Deputy Secretary Water Resources Department, Sinchai Bhawan,
Patna
4. The Engineer-In-Chief Water Resources Department, Sinchai Bhawan,
Patna
5. The Executive Engineer Irrigation Division Ii, Jhajha, District- Jamui
.... .... Appellant/s
Versus
1. Gauri Shankar Pandey S/O Late Suryadeo Pandey R/O Bhawanipur, P.S.-
Sangrampur, P.S.- Thikhan Bhawanipur, District- East Champaran,
Presently R/O Rajiv Nagar, Road No. 18, Near Murgi Farm, P.S.- Digha,
P.O.- Keshrinagar, Patna-24
.... .... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. D.K.Sinha, Sr. Adv.
Mr. Swapril Kr. Singh, Adv.
For the Respondent/s : Mr. Mr. Rajeev Kumar Verma, Sr. Adv.
Mr. Pramod Kumar Pandey, Adv.
======================================================
2 Patna High Court LPA No.374 of 2013 (5) dt.28-06-2013
2/5
CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA
and
HONOURABLE MR. JUSTICE VIKASH JAIN
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE NAVIN SINHA)
5 28-06-2013I.A. No. 2224 of 2013 has been filed for condoning the delay of 166 days. I.A. No. 2225 of 2013 has been filed for stay of the operation of the judgment under Appeal.
Having considered the submissions on behalf of the parties and the explanation offered, we condone the delay. Since, we are taking up the Memo of Appeal itself for consideration, no orders need be passed separately on the application for stay.
The present Appeal arises from order dated 31.7.2012 allowing C.W.J.C. No. 6358 of 2006, setting aside the order of punishment dated 17.6.2005 and the appellate order dated 15.12.2005 confirming the same.
The petitioners were charge sheeted with regard to construction of Swarn Rekha Canal Irrigation Project. The allegation was that the thickness of the concrete work was grossly deficient causing loss of about Rs. 7.5 crores to the State. The learned Single Judge arrived at the conclusion that the departmental proceeding was procedurally flawed. There was variance in the financial amount between the findings in the departmental proceeding and the arbitral award, between the contractor and the State Government. The latter alleged 3 Patna High Court LPA No.374 of 2013 (5) dt.28-06-2013 3/5 financial loss to the State of Rs. 7.50 crores, the arbitral award was for Rs. 31 lacs only.
Counsel for the State submitted that if there were procedural infirmities in the conduct of the departmental proceeding, the learned Single Judge should have set aside the impugned orders and remanded the matter back to the enquiry officer/disciplinary authority to proceed afresh from the stage of irregularity. Considering the gravity of the charge having financial implications for the State, the proceedings should not have been closed after setting aside the orders. The order is therefore not sustainable as even the appellate authority had applied its mind to it.
Counsel for the respondent opposed the application submitting that the order of the learned Single Judge is based on the conclusion that the punishment was not sustainable on facts and that the appellate order was non- speaking in nature. It does not call for interference.
Though arguments in extenso has been made before us from both sides, we have deliberately noticed the submissions only briefly in view of the nature of the order proposed to be passed by us. We have gone through the appellate order dated 15.12.2005. It states that the grounds of Appeal have been considered and after consideration, no fresh material has been found requiring re-examination. The learned Single Judge has held that it being in the nature of a 4 Patna High Court LPA No.374 of 2013 (5) dt.28-06-2013 4/5 quasi judicial order amenable to judicial review must disclose application of mind by the appellate authority and in absence of which the aggrieved cannot even assail it. There was nothing to show consideration of the grounds taken in the Appeal. The order being totally non speaking in nature, was unsustainable. We fully endorse the view of the learned Single Judge.
In (2006)4 SCC 713 (Narinder Mohan Arya v.
United India Insurance Co. Ltd ) it has been observed that even if the appellate order was by way of affirmance, the appellate authority is not required to pass a detailed order but there has to be a basic minimum evidence that he applied his mind to the issues before him and a tentative expression of opinion why he was satisfied that the order under Appeal required no interference holding at Paragraph-33 as follows:-
"33. An appellate order if it is in agreement with that of the disciplinary authority may not be a speaking order but the authority passing the same must show that there had been proper application of mind on his part as regards the compliance with the requirements of law while exercising his jurisdiction under Rule 37 of the Rules."
In (2010) 13 SCC 427 (Oryx Fisheries (P) Ltd. v. Union of India ), it was observed the principle that justice must not only be done but it must eminently appear to be done as well is equally applicable to quasi-judicial proceeding. Noticing that the appellate order did not contain any 5 Patna High Court LPA No.374 of 2013 (5) dt.28-06-2013 5/5 application of mind by consideration of the explanation furnished except saying that it was not satisfactory holding it to be totally non speaking in nature, the matter was quashed granting liberty to proceed afresh in accordance with law.
Reasons have been held to be the heart and soul of an order ensuring that the decision making authority remains within the bounds of his authority considering relevant materials only eschewing irrelevant materials. What would happen if an authority is not able to meet the explanation or the defence furnished. If there are no compulsion for giving of reasons it would be very convenient for him to reject it in a single line by saying "not satisfactory"
"not acceptable".
The appellate order dated 15.12.2005 is set aside and the matter is remanded to the appellate authority for passing a fresh, reasoned and speaking order in accordance with law.
The Appeal is allowed.
(Navin Sinha, J) (Vikash Jain, J) P. Kumar/-