Patna High Court
Bachu Lal Chaudhary vs The State Of Bihar & Ors on 5 March, 2012
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
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In the matter of an application under Article 226 of the Constitution of
India.
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Civil Writ Jurisdiction Case No.10237 of 1997
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Bachu Lal Chaudhary, son of late Ganesh Chaudhary, resident of Mohalla Shivpuri,
Police Station-Shashtrinagar, District- Patna.
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Sri Jagta Nand Singh, son of name not known, Minister-in-charge, Water
Resources (Irrigation) Department, Government of Bihar, Patna.
3. The Secretary, Water Resources (Irrigation) Department, Government of Bihar,
Patna.
4. Special Secretary, water Resources (Irrigation) Department, Government of
Bihar, Patna.
5. The Deputy Secretary, Water Resources (Irrigation) Department, Government of
Bihar, Patna.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. A.K. Singh, Sr. Advocate.
Mr. Bhupendra Narayan Singh, Advocate.
For the Respondent/s :
Mr. J. P. Karn (AAG4)
Mr. Ranjan Kumar, AC to AAG4.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL JUDGMENT
Date: 05-03-2012
Heard learned counsel for the petitioner and learned
counsel for the State.
2. The petitioner has challenged the order no.661 dated
20.6.1997communicated to him vide memo no.2059 dated 30.6.1997 issued under the signature of the Deputy Secretary, Water Resources Department, Government of Bihar, Patna (Respondent nop.5) whereby punishment of stoppage of 2 Patna High Court CWJC No.10237 of 1997 dt.05-03-2012 2/9 promotion for five years as well as recovery of Rs.6,00,000/- from the retirement benefits has been awarded in a proceeding under Rule 55A of the Civil Services (Classification Control and Appeal) Rules, 1930.
3. Brief statements of essential facts for the disposal of this writ petition are as follows. The petitioner was appointed as Assistant Engineer in the Irrigation Department on 1.8.1962. On 10.5.1978 he was promoted to the post of Executive Engineer. He was further promoted to the post of Superintending Engineer on 17.1.1989. The petitioner has claimed that vide notification no. 1840 dated 26.12.1996, he was made in-charge to the post of Chief Engineer and posted in the Minor Irrigation Department. The petitioner was posted as an Executive Engineer from 4.10.1985 to 30.5.1989 at Batane Head Works Division, Hariharganj, Daltanganj and later on at the end of tenure he handed over charge of the division to one Ram Dutt Sharma next Executive Engineer. It has been averred in the writ petition that for a longer period he was not communicated with regard to any shortage of materials. In the middle of 1995 the Minister Incharge, Water Resources Department, respondent no.2 visited the site and directed the Superintending Engineer, Flying Squad, Circle No.2 to make thorough enquiry into the conditions of the 3 Patna High Court CWJC No.10237 of 1997 dt.05-03-2012 3/9 gates and cranes at Batane head work division.
4. It appears from the record that the team visited the site and submitted its report. The petitioner has claimed that just before three months of his superannuation on 11.3.1997 a charge sheet was served upon him making altogether six charges.
5. Primarily the charges were related to for not making proper arrangement for the safety of materials, payments were made to the contractor for the wastage of steel and allegation was also made with regard to another payment was made. It has been alleged that 75% of security money was wrongly returned to him. In charge no.4 it has been alleged that there was estimate of Rs.5,00,000/- for the construction of crane and an advertisement dated 14.6.1984 was published for construction of a crane but when the agreement was made between the parties the amount was enhanced to Rs.13,00,000/-. Meaning thereby cost was inflated to 160% excess over the original estimated cost within 19 months. In charge no.5 the allegation has been made that there was enhancement of 47% in the estimated cost within 19 months. In charge no.6 the payments were made to the contractor without completion of the work, when there was stipulation with the agreement for payment of 80%. In the said charge it has been further stated that two gates were erected 4 Patna High Court CWJC No.10237 of 1997 dt.05-03-2012 4/9 whereas payment has been made for three gates which is completely illegal act. Though averments were made in the writ petition for filing of explanation but no such explanation has been attached to the writ petition. But his explanation is mentioned in Annexure 2 to the writ petition which shows that the same has been considered by the authorities concerned.
6. From Annexure-2 of the writ petition it appears that explanation of the petitioner along with file was placed before the Secretary. It appears from the writ petition that the petitioner has taken the defence that the tender was finalized by a superior authority i.e. Superintending Engineer and Chief Engineer and also payment to contractor was made after the approval of higher authority and as such the allegation against the petitioner for agreement at higher rate and of excess payment does not arise. With regard to maintenance of materials it has been stated that proper accounts were regularly maintained as per P.W.D. Code and the process of maintenance of account for the material received at the site was properly recorded. It has been further averred that contract on turnkey basis was started during his tenure and the materials delivered to the contractor for fitting and fixing job was on proper hand receipt. There was proper arrangement for safety of materials as sufficient guards were 5 Patna High Court CWJC No.10237 of 1997 dt.05-03-2012 5/9 posted at each and every places and proper lightening arrangements were made at main works site for the safety of the materials. It has been further stated that the crane was erected at the dam site where the gates and cranes were installed. It has been further averred that there was an incident due to laches of the workers which cause fall of the crane which was salvaged. With regard to counter weight on crane, the petitioner has claimed that there was no any specification in the sketch map itself so counter weight was not provided in the crane and as such the petitioner can not be blamed for not having counter weight.
7. The matter was placed before the Deputy Secretary level who after due consideration and through examination came to the conclusion that none of the charges have been proved against the petitioner and recommended for his exoneration. The matter was again placed before the Special Secretary who considered the report of the Deputy Secretary but proposed to pass an order of censure against the petitioner for the period 1986-87 for the deficiency in accounting of supply material. Thereafter the record was placed before the Secretary along with the findings of the Deputy Secretary and Special Secretary who agreed with the recommendation of Special Secretary. As it has 6 Patna High Court CWJC No.10237 of 1997 dt.05-03-2012 6/9 been recorded that the team had visited Delhi and where it was found that crane was manufactured as per the specification and as such quality of crane can not be doubted. The finding was given that there was sufficient security staff posted but punishment was given as he has not maintained the proper accounts of parts of material as per the rule. The matter was placed before the then Hon'ble Minister, Irrigation Department on whose direction flying squad was constituted who had recorded his finding separately and had said that it was a loss of State exchequer and recommended that for stern action against persons concerned and they should be punished and also recorded the proposal of recovery from the persons involved in the erection of crane. On return of the file back to the Secretary and Deputy Secretary they have further reconsidered the matter and took somersault and has found the charges proved and accordingly, in pursuance thereof the petitioner was punished for his misconduct. He was awarded punishment of stoppage of promotion for five years and recovery of Rs.6,00,000/- from his retirement benefits.
8. Learned counsel for the petitioner submits that at the first instance every authority has found that charges were not proved and when the Hon'ble Minister has given notings then 7 Patna High Court CWJC No.10237 of 1997 dt.05-03-2012 7/9 every authority has taken U turn and every thing was reversed. The authority has taken the decision on the basis of direction of the Minister concerned and they did not apply their independent mind. It has further been submitted that notings of Hon'ble Minister is completely perverse as the same is not based on any material facts nor in accordance with law but on his own imagination he has recorded his noting in the file. So much so that the order of punishment does not disclose, any of the submissions of the petitioner were considered by the authority concerned. He further submits that under the minor penalty proceeding it is not required in law for full-fledged departmental proceeding but at least it was required that authority must discloses reasons which may show that he has applied his mind. He further submits that on the day of his superannuation the file moved in rocket speed from office to office and ultimately punishment order was passed and as such whole action is actuated with malafide in law.
9. In contra the counsel for the State has submitted that the charges were very serious and the procedure of departmental proceeding adopted by Respondent Authorities was not against the rule, as charge sheet was served upon the petitioner and he was given an opportunity to file explanation 8 Patna High Court CWJC No.10237 of 1997 dt.05-03-2012 8/9 which was done by the petitioner and only thereafter the order of punishment has been passed. In support of his contention the counsel for the State has relied on the judgment in the case of Satyadeo Choudhary Vs. The State of Bihar & Ors., reported in 2002(3) PLJR 604 on the proposition that when there is no error in decision making process the court should refuse to interfere in the matter but in this case the court in paragraph 9 the Court has held that when representation is filed the employer is obliged to consider contents of show cause before any order is passed. It appears from the record that at the first instance the charges were not proved and only the charges were proved for not maintaining the accounts of materials properly but on return on that very basis the order of punishment was passed and order of punishment does not disclose that explanation filed by the petitioner was considered by Disciplinary Authority.
10. It is well settled principle of law that recording of reason is not merely a formality but it is solemn duty of the employer to consider the explanation of the petitioner and pass a reasoned order. It has been held by the Hon'ble Supreme Court in the case of Chairman and Managing Director, United Commercial bank and others V. P.C. Kakkar, reported in (2003) 4 SCC 364 that giving of reasons is one of the fundamentals of 9 Patna High Court CWJC No.10237 of 1997 dt.05-03-2012 9/9 good administration. Failure to give reasons amounts to denial of justice. The court has held that reasons are live links between the mind of the decision maker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The Court has further held that recording of reason is an indispensable part of a sound judicial system and it is primary duty of judicial or quasi-judicial authority to record reasons while passing the order.
11. This Court without going to merit of the case for the present the order of punishment (Annexure-3) is quashed and the matter is remitted back to the authority concerned to consider the explanation of the petitioner and pass order in accordance with law.
12. With the aforesaid observation and direction this writ petition is disposed of.
(Shivaji Pandey, J) Vinay/-