Jharkhand High Court
Yogeshwar Paswan vs Water Resources Department on 23 August, 2016
Author: Pramath Patnaik
Bench: Pramath Patnaik
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (S) No. 7568 of 2013
...
Yogeshwar Paswan son of Late Prayag Paswan resident of beside Parwati
Apartment, Harmu Housing Colony, PO Harmu, PS Argora, Dist. Ranchi
... Petitioner
-V e r s u s-
1.The State of Jharkhand
2.The Secretary, Water Resources Department, Govt. of Jharkhand, Project
Building, PO & PS Dhurwa Ranchi - 4
3.The Joint Secretary, Water Resources Department, Govt. of Jharkhand,
Project Building, PO & PS Dhurwa, Ranchi - 4
4.The Engineer-in-Chief II, Secretary, Water Resources Department, Govt. of
Jharkhand, Project Building, PO & PS Dhurwa, Ranchi - 4
5.The Chief Engineer, Minor Irrigation Department, Ranchi, Abhiyanta
Bhawan, PO & PS Kotwali, Ranchi
6.The Superintending Engineer, Minor Irrigation Department, Ranchi,
Abhiyanta Bhawan, PO & PS Kotwali, Ranchi
7.The Executive Engineer, Minor Irrigation Department, Ranchi, Abhiyanta
Bhawan, PO & PS Kotwali, Ranchi ... Respondents
with
W. P. (S) No. 2984 of 2014
with
W. P. (S) No. 3073 of 2014
...
Makar Choudhary son of Late Sabhakant Choudhary resident of Sri Ganesh
Apartment Block-B/301, Ashok Vihar, Ranchi, P.O. & P.S. - Argora, Dist.-
Ranchi. ... ... Petitioner (W. P. (S) No. 2984 of 2014)
Sachchida Nand Singh son of Late Ram Bhadhur Singh resident of Kunwar
Singh Colony, Hinoo, Ranchi, P.O. & P.S. - Doranda, Dist.-Ranchi.
... ... Petitioner (W. P. (S) No. 3073 of 2014)
-V e r s u s-
1. The State of Jharkhand through its Chief Secretary, Government of
Jharkhand, having its office at Project Building, P.O. PS Dhurwa, Dist. Ranchi.
2. The Secretary, Water Resources Department, having its office at Nepal
House P.O. & P.S.- Doranda Dist Ranchi.
3. Engineer-in-Chief, Water Resource Department, Government of Jharkhand,
having its office at Nepal House P.O. & P.S.- Doranda Dist Ranchi.
... Respondents(in W. P. (S) Nos. 2984 and 3073 of 2014)
...
CORAM: - HON'BLE MR. JUSTICE PRAMATH PATNAIK.
...
For the Petitioner : - Mr. Anil Kumar, Sr. Advocate.
(in W. P. (S) No. 7568 of 2013)
For the Petitioners : - Mr. Rajiv Ranjan, Sr. Advocate
and Mr.Shresth Gautam, Advocate. (in W. P. (S) Nos. 2984 and 3073 of 2014)
For the Respondent-State :- Mr. D. K. Dubey, Sr. SC I and M. K. Dubey.
....
15/23.08.2016All these aforesaid writ applications have been heard 2 together since the facts delineated and emanated therein and the reliefs sought for are more or less similar, with the consent of the respective counsels, the matters have been heard analogously and are being disposed of by this common judgment.
W. P. (S) No. 7568 of 20132. The captioned writ application has been filed, praying, inter alia, for issuance of an appropriate writ/direction for quashing the Order No.
-3/P.M.C/Janch/L.C 207-2011-6430 dated 30.10.2013, issued by the Joint Secretary (Respondent No. 3) contained in Annexure-4 to the writ application, whereby respondent no. 3 has directed to recover an amount of Rs.54,62,132 from the petitioner without initiating any departmental proceeding against the petitioner and this order was issued after retirement of the petitioner.
3. Sans details, the facts, as disclosed and delineated in the writ petition in brief are that the petitioner has joined as the Executive Engineer in the department of Minor Irrigation at Lohardaga on 28.02.2009 and relieved from Lohardaga on 15.07.2011, then joined as A.C. at tourism department Ranchi on 16.07.2011 and thereafter joined at Medni Nagar and has retired on 30.06.2013. It has been stated that a project of the Govt. for construction of a Check Dam No. 1 and 2 on Kisko River near village Hondega Kisko Block of Lohardaga was launched. It has been submitted that a proposal was prepared and the place was also selected and thereafter the proposal was sent to the Superintending Engineer (Respondent No. 6) for approval and thereafter the said proposal was sent to the Chief Engineer (Respondent No.
5) and the proposal was sanctioned/approved and then estimate being made was sent for funds. It has been averred that finally proposal was sanctioned by the Chief Engineer after verifying and rectifying the technical fault. It has been further stated that the petitioner received a show-cause notice dated 22.05.2013, issued by the Special Secretary of the Govt. of Jharkhand, alleging therein that a flying squared inspected the Check Dam Nos. 1 and 2 and given finding that the places are not proper and also pointed out that the height of the guard wall is not sufficient as such the Check Dam is not useful. It has been further averred that the petitioner has submitted his show 3 cause reply on 31.05.2012, explaining the fact that in proposal, the height of the guard wall was given 2 x 50 = 100 meter but at the time of approval, it was modified by the Chief Engineer to 2 x 20 meter. It has been further averred that Order No. -3/P.M.C./Janch/L.C 207-2011-6430 dated 30.10.2013 issued by the Joint Secretary (Respondent No. 3) and served to the petitioner on 25.11.2013, whereby the Respondent No. 3 has given order to recover an amount of Rs.54,62,132/- from the petitioner without initiating any departmental proceeding after retirement of the petitioner.
4. A supplementary affidavit dated 07.01.2014 has been filed on behalf of the petitioner, wherein, it has been stated that letter No. 7495 dated 12.12.2013 was issued by the Deputy Secretary (Adm.) Water resources Department, Govt. of Jharkhand, received on 20.12.2012 by the petitioner, in which direction has been given to the petitioner to deposit a sum of Rs.10,20,000/- (Ten Lakh Twenty Thousand) to the treasury and thereafter rest amount will be deducted from the gratuity and Leave Encashment of the petitioner and thereafter other retirement benefit of the petitioner will be sanctioned.
Left with no other efficacious, alternative and speedy remedy, the petitioner has been constrained to approach this Court invoking the extraordinary jurisdiction of this Court under article 226 of the Constitution of India for redressal of his grievances.
5. Counter affidavit has been filed on behalf of the respondent nos. 2 and 3, repelling the contentions made in the writ application. It has been inter alia, submitted in the counter affidavit, that the impugned order (Annexure-4) has been passed in view of the fact that the petitioner having been found guilty of constructing two unuseful check dams, which are not constructed in suitable time. It has been averred that the Executive Engineer, Minor Irrigation Division, Lohardaga reported that the sites selected for construction of two check dams are not suitable vide letter no. 939 dated 09.11.2011. It has been further stated that the Water Resources Department directed the Flying Squad Wing to enquire into the matter and thereafter, the Flying Squad Wing enquired the site of Check Dams and submitted the enquiry report vide letter no. 524 dated 28.11.2011, wherein, the Flying 4 Squad has mentioned that site selection of two check dams are not correct. It has been further stated that the department examined the enquiry report and held that the petitioner alongwith other Engineers caused huge financial loss to the State Government by making wasteful expenditure. It has been further submitted that the Department decided to recover the wasteful expenditure amount from the petitioner as well as from other engineers and it was decided to recover Rs.27,31,066/- from the petitioner. It has been further submitted that before passing the order of recovery, the competent authority has gone through the explanation of the petitioner, submitted in pursuance to the departmental memo dated 22.05.2012 and has found it to be unsatisfactory and held that by wrong selection of check dam area over Kisku Nala has not been found satisfactory and is of no use and thereby due to petitioner, Government money has wrongly been spent and as such the order of recovery has been issued for recovery of the amount as contained in Annexure-4. It has been further stated that the terms and conditions for construction of the check dams has been embedded in letter dated 13.02.2010, for construction of dam, the total amount of Rs.18,63,243/- was sanctioned by the Government but the same has not been followed by the petitioner and others (Annexure-5). It has been further stated that in reply to Annexure-6, the report of the Chief Engineer, Minor Irrigation, Ranchi, serious lapses has been found in regard to construction by the petitioner and others but the same has not been seriously taken into account nor any corrective measures has been taken by the petitioner and other engineers. It has been further averred that the order as contained in Annexure-7 relates to selection of site plans of the two check dams and when the details inspection was made, the Flying Squad and other technical wing of the department has submitted a detail enquiry report which has been started on the basis of report that the water is flowing through flaking of the check dam and thereafter the Special Secretary, Water Resources Department vide letter dated 17.11.2011 directed on site verification report to be submitted by the Superintending Engineer (Planning and Monitoring Division) (Flying Squad), Ranchi and there by investigation were made by the high level ranking engineers who have submitted their report and it was found serious 5 lapses on the part of the petitioner and other engineers (Annexure-2/1). It has been further stated that the department in the circumstances has decided to recover Rs.27,31,066/- from the petitioner for proved charges of causing financial loss to the State Government.
W. P. (S) No. 2984 of 20146. In the instant writ application, the petitioner has, inter alia, prayed for issuance of an appropriate writ in the nature of certiorari for quashing the resolution No. 766 dated 11.11.2011, issued by the Water Resource Department, Govt. of Jharkhand, whereby the cost of construction of Check dam no. 1 and 2 under Kisko River Series of Check Dams has been directed to be recovered from the present petitioner who is working on the post of the Assistant Engineer and further for issuance of an appropriate writ in the nature of certiorari for quashing of order No. 6430 dated 30.10.2013 whereby the 30 % of the total cost of construction of the two Check dams is to be recovered from the present petitioner.
7. The facts, as disclosed in the instant writ application, is that the petitioner was posted as an Assistant Engineer, M.I. Division, Lohardaga Water Resource Department, Jharkhand in the year 2010-11. It has been averred that during the tenure of posting under the order of the Executive Engineer MI Division, two check dams were to be built. It has been submitted that as an Assistant Engineer, the present petitioner was duty bound to assist the Engineer-in-charge i.e. the Executive Engineer in the preparation of estimates, proposal and execution of the said check dams in question. It has been averred that approval of the said check dams were administered by the administrative authority and vide letter issued by the principal Secretary, WRD, Jharkhand dated 13.02.2010 a direction was issued to submit the estimates for construction of the Check Dam. It has been further submitted that the estimates alongwith other details of the proposed construction was sent for approval before the Chief Engineer. It has been further averred that the estimates so sent after due inspection and alteration as and where required, were approved by the Chief Engineer vide letter dated 27.04.2010. The approval so granted was by the controlling officer of the present petitioner after due diligence. It has been further 6 submitted that the estimates were duly examined with respect to the site condition at higher level and was accorded technical sanction by the Chief Engineer after being fully satisfied with regards to usefulness of the project. It has been further averred that once the estimates for construction of the said check dams was sanctioned the Executive Engineer in terms of the same issued a NIT for construction of two check dams work. It has been further averred that after due tender process the work was allotted to the successful bidder vide letter dated 19.06.2010. It has been further stated that in the work order as well as agreement entered by the executive engineer it was categorically provided that the construction has to be done in terms of the approval given by the Chief Engineer. It has been further submitted that the work so allotted was carried out by the successful tenderer in terms of the allotment. It has been further averred that out of the blue an inspection was carried behind the back of the present petitioner in which it was opined that the check dams which were being built were being built at such place that the same would become non useful. It has been further averred that as such in terms of the same a letter dated 22.5.2012 was issued to the present petitioner providing a copy of the enquiry report wherein it was mentioned that the check dams were built at such a place that the same would make the check dams un-useful and as such why not recovery be done from the petitioner and that the enquiry report was also furnished alongwith the same. It has been further submitted that prior to the issuance of notice and prior to receiving of the reply the respondent authorities issued a garnishing order vide resolution dated 11.11.2011 whereby the cost of the construction of two check dams under the Kisko River Series of Check Dams by the Water Resource Department, Govt. of Jharkhand had to be recovered from the Executive Engineer, Junior Engineer and the Assistant Engineer on the ground that the said check dams were un-useful without ascertaining as to who was at fault and without considering the fact that the Chief Engineer had already approved the construction and the construction was done in terms of the approval. It has been further submitted that in terms of the same vide order dated 30.10.2013 the present petitioner had been directed to pay the 30 % of the total cost of construction of the two check dams in question 7 which comes to Rs.16,38,640/- on the grounds that the said dams were termed non useful.
Being aggrieved by the impugned order dated 30.10.2013 whereby 30 % of the total cost of construction of the two Check dams is to be recovered, the petitioner has filed the instant writ application for redressal of his grievances.
W. P. (S) No. 3073 of 20148. In the instant writ application, the petitioner has, inter alia, prayed for issuance of an appropriate writ in the nature of certiorari for quashing the resolution No. 766 dated 11.11.2011, issued by the Water Resource Department, Govt. of Jharkhand, whereby the cost of construction of Check dam no. 1 and 2 under Kisko River Series of Check Dams has been directed to be recovered from the present petitioner who is working on the post of the Assistant Engineer and further for issuance of an appropriate writ in the nature of certiorari for quashing of order No. 6430 dated 30.10.2013 whereby the 20 % of the total cost of construction of the two Check dams is to be recovered from the present petitioner.
9. Sans details, the facts, as disclosed and delineated in the instant writ application, is that the petitioner was posted as a Junior Engineer, M.I. Division, Lohardaga Water Resource Department, Jharkhand in the year 2010-11. It has been averred that during the tenure of posting under the order of the Executive Engineer MI Division, two check dams were to be built. It has been submitted that as an Junior Engineer, the present petitioner was duty bound to assist the Engineer-in-charge i.e. the Executive Engineer in the preparation of estimates, proposal and execution of the said check dams in question. It has been averred that approval of the said check dams were administered by the administrative authority and vide letter issued by the principal Secretary, WRD, Jharkhand dated 13.02.2010 a direction was issued to submit the estimates for construction of the Check Dam. It has been further submitted that the estimates alongwith other details of the proposed construction was sent for approval before the Chief Engineer. It has been further averred that the estimates so sent after due inspection and alteration as and where required, were approved by the Chief Engineer vide 8 letter dated 27.04.2010. The approval so granted was by the controlling officer of the present petitioner after due diligence. It has been further submitted that the estimates were duly examined with respect to the site condition at higher level and was accorded technical sanction by the Chief Engineer after being fully satisfied with regards to usefulness of the project. It has been further averred that once the estimates for construction of the said check dams was sanctioned the Executive Engineer in terms of the same issued a NIT for construction of two check dams work. It has been further averred that after due tender process the work was allotted to the successful bidder vide letter dated 19.06.2010. It has been further stated that in the work order as well as agreement entered by the executive engineer it was categorically provided that the construction has to be done in terms of the approval given by the Chief Engineer. It has been further submitted that the work so allotted was carried out by the successful tenderer in terms of the allotment. It has been further averred that out of the blue an inspection was carried behind the back of the present petitioner in which it was opined that the check dams which were being built, were situated at such place that the same would become non-useful. It has been further averred that as such in terms of the same a letter dated 22.5.2012 was issued to the present petitioner providing a copy of the enquiry report wherein it was mentioned that the check dams were built at such a place that the same would make the check dams un-useful and as such why not recovery be done from the petitioner and that the enquiry report was also furnished alongwith the same. It has been further submitted that in reply to the same the petitioner filed a detailed representation dated 12.06.2012 whereby the petitioner categorically mentioned that the construction was done in terms of the approved specification as approved by the department after due verification and the petitioner being a junior officer was just obeying the orders of superiors and as such he cannot be held accountable for choosing the site of construction as the same was duly approved. It has been further submitted that prior to the issuance of notice and prior to receiving of the reply the respondent authorities issued a garnishing order vide resolution dated 11.11.2011 whereby the cost of the construction of two check dams under 9 the Kisko River Series of Check Dams by the Water Resource Department, Govt. of Jharkhand had to be recovered from the Executive Engineer, Junior Engineer and the Assistant Engineer on the ground that the said check dams were un-useful without ascertaining as to who was at fault and without considering the fact that the Chief Engineer had already approved the construction and the construction was done in terms of the approval. It has been further submitted that in terms of the same vide order dated 30.10.2013 the present petitioner had been directed to pay the 20 % of the total cost of construction of the two check dams in question which comes to Rs.2,73,106/- on the grounds that the said dams were termed non useful.
It has been further averred that the order dated 30.10.2013 had been passed by prejudging the issue which is apparent from the fact that the order contained in the resolution dated 11.11.2011, the respondent had pre-decided the quantum of punishment against the present petitioner. It has been further submitted that the aforesaid impugned orders were passed without there being a full fledged departmental proceeding in the present case and without adhering to the principles of natural justice. It has been further averred that the present petitioner made a detailed representation before the Secretary, Water Resource Department, Govt. of Jharkhand vide letter dated 07.12.2013 whereby the petitioner had specifically prayed to revise the order as against the petitioner and had also categorically mentioned that a detailed technical aspects of the construction was already furnished vide letter dated 09.08.2012 but the aforesaid representation was also given a deaf ear to. It has been further averred that admittedly the check dams were constructed in terms of the approval so granted by the Chief Engineer even then the petitioner alongwith other junior officials have been fastened with the liability. It has been further submitted that the impugned orders of recovery should have been passed after a full fledged departmental proceeding in order to ascertain the liability but in the present case no charge sheet was ever issued to the present petitioner neither a detailed departmental proceeding was carried out by the respondents.
Being aggrieved by the impugned order dated 30.10.2013 whereby 20 % of the total cost of construction of the two Check dams is to 10 be recovered, the petitioner has filed the instant writ application for redressal of his grievances.
10. Heard learned senior counsel for the petitioner in W.P. (S) No. 7568 of 2013 and learned senior counsel for the petitioners in W. P. (S) No. 2984 of 2014 and W. P. (S) No. 3073 of 2014 and learned Sr. SC I for the respondent-State.
11. Counter affidavit has been filed on behalf of the respondent no. 3, repelling the contentions made in the writ application.
12. Learned senior counsel for the petitioner in W.P. (S) No. 7568 of 2013 has vehemently submitted that without initiating any departmental proceeding, impugned order dated 30.10.2013 (Annexure-4) was issued and also without giving any opportunity to the petitioner, the impugned order of recovery has been passed. Learned senior counsel for the petitioner has submitted that the Chief Engineer (Respondent No. 5) is the final sanctioning authority so far as the selection of place and technical aspects as per paragraph K and Kh of the letter no. 3/P.M.C/Adm.-140/09, issued by the Principal Secretary is concerned. Learned senior counsel for the petitioner has submitted that the during construction of the Check Dam inspection was done by the competent officers on regular basis and also submitted the progress report. Learned senior counsel has submitted that the respondents without considering the show cause reply dated 31.05.2013 of the petitioner, has passed the order of recovery without giving any opportunity of hearing to the petitioner. Learned senior counsel has further submitted that in a similar situation a writ petitioner vide W.P. (S) No. 3157 of 2012 was filed and this Court has quashed the recovery order vide order dated 27.08.2012. Learned senior counsel has further submitted that the petitioner has retired on 30.06.2013 and he has already submitted required documents for pension on 02.08.2013, but till date he is not getting pension or provisional pension and also not received Gratuity, Leave encashment. Learned senior counsel has further submitted that the petitioner cannot be made to suffer due to the act done on the part of the respondents, when admittedly the plan of the Check Dam was duly sanctioned and approved the place of construction by inspecting the site by the Chief Engineer 11 (Respondent No. 5). Learned senior counsel has further submitted that no departmental proceeding was ever initiated against the petitioner.
13. Learned senior counsel for the petitioners in W. P. (S) No. 2984 of 2014 and W. P. (S) No. 3073 of 2014 has assiduously submitted that the impugned order dated 30.10.2013 had been passed by prejudging the issue which is apparent from the fact that the order contained in the resolution dated 11.11.2011, the respondent had pre-decided the quantum of punishment against the present petitioner. Learned senior counsel for the petitioner has submitted that the aforesaid impugned orders were passed without there being a full fledged departmental proceeding in the present case and without adhering to the principles of natural justice. Learned senior counsel has further submitted that the present petitioner made a detailed representation before the Secretary, Water Resource Department, Govt. of Jharkhand vide letter dated 07.12.2013 whereby the petitioner had specifically prayed to revise the order as against the petitioner and had also categorically mentioned that a detailed technical aspects of the construction was already furnished vide letter dated 09.08.2012 but the aforesaid representation was also given a deaf ear. Learned senior counsel has further submitted that admittedly the check dams were constructed in terms of the approval so granted by the Chief Engineer even then the petitioner alongwith other junior officials have been fastened with the liability. Learned senior counsel has further submitted that the impugned orders of recovery should have been passed after a full fledged departmental proceeding in order to ascertain the liability but in the present case neither a charge sheet was ever issued to the present petitioner not a detailed departmental proceeding was carried out by the respondents.
14. Per contra, learned Sr. SC I for the respondent-State has vociferously submitted that the impugned order of recovery has been passed against proved charges of causing financial loss to the State Government. Learned counsel for the respondent-State has submitted that the Flying Squad found that construction of two check dams have been done in wrong sites. Learned counsel for State has submitted that the impugned order of recovery has been issued against proved charges of causing financial loss to the State 12 Government and the petitioner has been given opportunity of hearing prior to issuance of the impugned order. Learned counsel for State has further submitted that the petitioner and other Engineers are responsible for selection of wrong sites for construction of check dams and the allegation made by the petitioner has been denied. Learned counsel has further submitted that the petitioner should file representation before the concerned officials for sanctioning of retiral benefits. Learned counsel for State has further submitted that in a catena of decisions of the Hon'ble Apex Court, such recovery as contained in Annexure-4 of the writ application have been made permissible and the same can be recovered. In support of his contentions, learned counsel has referred to and relied upon the decision of the Hon'ble Apex Court in the case of Chandi Prasad Uniyal and others- versus-State of Uttarakhand reported in 2012 (5) SUPREME 418, wherein the Hon'ble Supreme Court has been pleased to, inter alia, hold that if any amount is taken on the basis of misrepresentation or fraud on the part of the recipients of the money in getting the excess pay the amount paid due to irregular/wrong fixation of pay be recovered. In para-16 of the Judgment, the Hon'ble Apex Court has been pleased to further hold as under: -
"16. We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers, may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment."13
In the light of the above stated decisions of the Hon'ble Apex Court, learned counsel for the Respondent-State has submitted that the instant writ petition in the matter of recovery order is fit to be dismissed being devoid of any merit.
15. After hearing the learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the petitioner has been able to demonstrate foundational facts and law to make out a case for interference due to the reasons stated hereinbelow : -
(i) The impugned orders have been passed without there being a full fledged departmental proceeding in the present case and without adhering to the principles of natural justice. The view of this Court is further fortified by the judgment of the Hon'ble Apex Court rendered in the case of Roop Singh Negi-versus-Punjab National Bank and Ors.
reported in (2009) 2 SCC 570, wherein, in para 14, 15 and 23 of the judgment, the Hon'ble Apex Court has been pleased to, inter alia, hold as under : -
"14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The enquiry officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigating by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.
15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank 14 draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.
23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based o merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."
(ii) Since, this Court, while exercising the writ jurisdiction under Article 226 of the Constitution of India, is not supposed to enter into the complicated question of fact, as to whether, the petitioner along with the Assistant Engineer and the Junior Engineer has constructed the Dams, without getting the approval, or the approval was granted by the appropriate authority, without verifying the utility and location of the Check Dams, therefore, it would be appropriate to quash the impugned order.
(iii) The impugned order of punishment is not commensurate with the proved misconduct or proved charges and the punishment is excessive and grossly disproportionate to the alleged charges.
The Hon'ble Apex Court in the case of Lucknow 15 Kshetriya Gramin Bank & Anr. Vs. Rajendra Singh as reported in (2013) 12 SCC 372 in the placitum held as under:
"However, the judicial review of the quantum of punishment is available with a very limited scope. The court would frown upon only when the penalty imposed appears to be so disproportionate to the nature of misconduct that it is shocking to the conscience of the court. Even in such a case when the punishment is set aside as shockingly disproportionate, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case."
16. On cumulative effect of the facts, reasons and judicial pronouncements, the impugned order dated 30.10.2013 passed by Joint Secretary, Water Resources Department, Govt. of Jharkhand (Respondent No. 3) (Annexure-4 in W. P. (S) No. 7568 of 2013) (Annexure-6 in W. P. (S) No. 2984 of 2014 and W. P. (S) No. 3073 of 2014) being not legally sustainable is hereby quashed and set aside. The Joint Secretary, Water Resources Department, Govt. of Jharkhand (Respondent No. 3) is directed to take decision for payment of the post retirement benefits within a period of eight weeks from the date of receipt/communication of the order to the petitioners in W.P. (S) No. 7568 of 2013.
17. Disposal of the writ application shall not preclude the respondents to initiate departmental proceeding against the petitioners.
18. With the aforesaid observations and directions, all these writ petitions (W. P. (S) No. 7568 of 2013, W. P. (S) No. 2984 of 2014 and W. P. (S) No. 3073 of 2014) stand disposed of.
(Pramath Patnaik, J.) APK