Jharkhand High Court
Shiv Shankar Choudhary vs State Of Jharkhand Through Chief ... on 5 February, 2025
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
WP(S) No.6395 of 2017
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Shiv Shankar Choudhary, son of late Kameshwar Choudhary,
resident of village Naya Sarai, PO Biharsharif, PS Biharsharif, District
Nalanda (Bihar), presently residing at near Aam Bagan, PWD
Campus, PO and PS Nala, District Jamtara (Jharkhand)
... Petitioner(s).
Versus
1.State of Jharkhand through Chief Secretary, Road Construction
Department, Government of Jharkhand, having its office at Jharkhand
Mantralaya, PO and PS Dhurwa, District Ranchi
2.Principal Secretary, Road Construction Department, Government of
Jharkhand, having its office at Jharkhand Mantralaya, PO and PS
Dhurwa, District Ranchi
3.Special Secretary, Road Construction Department, Government of
Jharkhand having its office at Jharkhand Mantralaya, PO and PS
Dhurwa, District Ranchi
4.Deputy Secretary, Road Construction Department, Government of
Jharkhand having its office at Jharkhand Mantralaya, PO and PS
Dhurwa, District Ranchi ... Respondents.
CORAM : SRI ANANDA SEN, J.
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For the Petitioner(s) : Mr. Indrajit Sinha, Advocate Mr. Arpan Mishra, Advocate For the State : Mr. Munna Lal Yadav, SC (L&C)-III Mr. Ashok Kumar Singh, AC to SC(L&C)-III .........
07 /05.02.2025: Heard learned counsel for the petitioner and learned counsel for the State.
2. The petitioner in this writ application has prayed for the following reliefs:
(a) For issuance of an appropriate writ, order or direction for quashing of the notification contained in memo no.
Nig./Sara(Path)-01-Vi.Ka.5-172/2014 2261(S) dated 30.03.2015 (Annexure-II) issued under the signature of Deputy Secretary, Road Construction Department, Government of Jharkhand, Ranchi, whereby and whereunder the petitioner has been awarded the following punishments:
(i) Reduction in the lowest pay scale
(ii) Recovery of an amount of Rs. 36,75,467/- from the salary of the petitioner towards the loss caused to the State Exchequer.1
(b) For further issuance of an appropriate writ/order/direction for quashing of the notification contained in memo no. Nig. Sara(Path)-01-Vi.Ka.-5-
172/2014 7648(S) dated 05.11.2015 (Annexure-13) issued under the signature of Deputy Secretary to the Government of Jharkhand, whereby and whereunder the appeal preferred by the petitioner against the order dated 30.03.2015 has been upheld.
And/or
(c) Any other appropriate writ/writs be
issued/order/order be passed/direction/directions be made as to this Hon'ble Court may deem fit and proper for doing conscionable justice to the petitioner.
3. The learned counsel for the petitioner, Mr. Indrajit Sinha raises a very short issue in this case. He submits that the petitioner has been found guilty in the departmental proceeding but without any evidence. It is his contention that the petitioner has been found guilty without any oral evidence. He submits that the petitioner has been found guilty on the basis of some documents but those documents were not proved by any oral evidence. He also states that one of the document which has been relied upon by the respondents is a verification report in relation to bitumen invoice. This verification report, as per Mr. Indrajit Sinha, the learned counsel for the petitioner is nothing but a preliminary inquiry report, which cannot be used in a departmental proceeding. On this ground he prays that the order dated 30.03.2015 and the appellate order dated 05.11.2015 needs to be quashed.
4. Learned counsel for the State submits that the CBI has submitted a report, as per the said report, after investigation CBI found invoices to be fake and the petitioner has counter-signed those fake documents which suggests that the petitioner is involved in the entire occurrence. He further submits that the entire departmental proceeding is based on documents. When 2 the documents suggests that the petitioner has committed misconduct, there is no necessity of any further proof. In this case, the reports and the documents clearly suggest that the petitioner has misused the invoice relating to bitumen and thus punishment has been inflicted. As per him this Court exercising jurisdiction under Article 226 cannot sit as an Appellate Authority to re-appreciate the evidence. The quantum of punishment commensurate with the proved charge thus this Court also should not interfere with the quantum and thus this writ application is liable to be dismissed.
5. The petitioner was working as Assistant Engineer, Road Construction Department at Jamtara. A First Information Report was registered and instituted by CBI being RC No.09(A) of 2010- R for allegedly committing offence punishable under Sections 120B, 420, 467, 468 and 471 of the Indian Penal Code and Section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act.
6. The aforesaid FIR was lodged on the basis of the order passed by this Hon'ble Court in W.P(PIL) No. 803 of 2009. After a preliminary inquiry wherein it has been alleged that large scale irregularities have been committed by the Engineers of Road Construction Department in connivance with the contractors in respect of procurement of bitumen for construction of roads. The petitioner was also charge-sheeted in the capacity of Assistant Engineer, Road Construction Department. The petitioner has also been charge-sheeted in a Criminal case.
7. During pendency of the Criminal case, Departmental charge-sheet was issued against the petitioner vide Resolution dated 30.08.2013. Inquiry officer was appointed so was the presenting officer. The inquiry officer submitted the inquiry report holding that the charges levelled against the petitioner are 3 proved. Thereafter following the procedure and after giving an opportunity of hearing to the petitioner, the petitioner was inflicted with the punishment of reduction in the lowest pay- scale and an order for recovery of an amount of Rs. 36,75,467/- was passed. The appeal preferred by the petitioner was also dismissed resulting in this writ petition.
8. As mentioned above, the petitioner has raised a question of law in support of this writ petition. He states that no oral evidence was adduced and only on the basis of documents the petitioner has been held guilty of misconduct but those documentary evidence have not been proved by any oral evidence which is against the law.
9. I am conscious of the law that in an application under Article 226 of the Constitution this Court cannot act as an Appellate Authority. The Hon'ble Supreme Court in the case of "West Bengal Central School Service Commission and Others v. Abdul Halim and Others" reported in (2019) 18 SCC 39 has dealt with the power of judicial review in the department proceeding and held that there is limited scope of interference by the High Court exercising jurisdiction under Article 226, in a departmental proceeding. Further the Hon'ble Supreme Court in the case of "Aureliano Fernandes v. State of Goa" reported in (2024) 1 SCC 632, at paragraph no. 63 has held as under:
"63. It may be clarified at the outset that to satisfy itself that no injustice has been meted out to the appellant, the High Court was required to examine the decision-making process and not just the final outcome. In other words, in exercise of powers of judicial review, the High Court does not sit as an appellate authority over the factual findings recorded in the departmental proceedings as long as those findings are reasonably supported by evidence and have been arrived at through proceedings that cannot be faulted on account of procedural illegalities or irregularities that may have vitiated the process by which the decision was arrived at."4
10. In view of observations made in the judgment of the Hon'ble Supreme Court, I am proceeding to adjudicate this legal issue which has been raised by the learned counsel for the petitioner.
11. A departmental Inquiry Officer is an independent adjudicator. He is a quasi-judicial authority. The said Officer is not supposed to be a representative of the department or the Disciplinary Authority. His function is to examine the evidence presented by the Department. Even in the absence of the delinquent employee, the inquiry officer has to perform, his duty to find out independently as to whether charges are proved or not. If the case of the department is based on some documents, those documents also needs to be proved. Some witnesses must be produced by the department and must be examined to prove the documents relied by the department. A document which is not proved by oral evidence must not be taken into consideration to arrive at a conclusion that the charge is proved. The contents of the document must be proved by some person. The Hon'ble Supreme Court in para 14 in the case of "Roop Singh Negi v. Punjab National Bank and Others" reported in (2009) 2 SCC 570 has held 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 investigation 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."5
12. Further in the case of "State of Uttar Pradesh and Others v. Saroj Kumar Sinha" reported in (2010) 2 SCC 772, the Hon'ble Supreme Court has held that the documents which were produced before the Enquiry Officer needs to be proved. Paragraph 28 of the aforesaid judgment reads as under:-
"28. An inquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/ disciplinary authority/ Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents."
These two judgments are already relied upon by this Court in WP(S) No. 5205 of 2018 titled "Arun Kumar Singh v. the State of Jharkhand".
13. Considering the aforesaid proposition of law, I have gone through the inquiry report and the charge-sheet of the departmental proceeding which has been filed against the petitioner. I find from the charge-sheet and the inquiry report that the guilt of the petitioner is proved based on four documents only. These documents are (i) agreement no. 4f2/2006-2007 (ii) indents in respect of supply of bitumen (iii) bitumen invoice verification report and (iv) Departmental Resolution No. 1680 dated 26.03.2002. There is no whisper of any oral evidence in the entire charge-sheet or the inquiry report. There is nothing in the inquiry report to remotely suggests who are the person who has proved the aforesaid document and its contents before the inquiry officer, which prompted the inquiry officer to arrive at a conclusion that the charges levelled against the petitioner stands 6 proved. As held earlier if the department wants to prove the guilt of the delinquent based on some documents, those documents and its contents thereof, needs to be proved by oral evidence. It is true that the Indian Evidence Act in strict sense is not applicable in a Departmental Proceeding but atleast some person should come and prove those documents so far as execution of those documents and its contents thereof, which is admittedly missing in the instant case. Thus, the procedure of the respondents in proving the guilt of the petitioner based on the document which has not been proved by oral evidence is against the mandate of the Hon'ble Supreme Court.
14. Further, one of the document, based on which the inquiry officer had arrived at the conclusion that the petitioner is guilty of misconduct is the bitumen invoice verification report. This report at best can be said to be a preliminary inquiry report. It is well settled that a preliminary inquiry report cannot be a basis to punish and hold a delinquent guilty of the charge.
15. In the case of "Nirmala J. Jhala v. State of Gujarat"
reported in (2013) 4 SCC 301 the Hon'ble Supreme Court held that evidence recorded in a preliminary inquiry cannot be used for a regular inquiry as the delinquent is not associated with it and the opportunity to cross examine persons examined in the preliminary inquiry is not given. It is relevant to quote paragraph nos. 42 to 45 of the aforesaid judgment:
"42. A Constitution Bench of this Court in Amalendu Ghosh v. North Eastern Railway [AIR 1960 SC 992] , held that the purpose of holding a preliminary inquiry in respect of a particular alleged misconduct is only for the purpose of finding a particular fact and prima facie, to know as to whether the alleged misconduct has been committed and on the basis of the findings recorded in preliminary inquiry, no order of punishment can be passed. It may be used only to take a view as to whether a regular disciplinary proceeding against the delinquent is required to be held.7
43. Similarly in Champaklal Chimanlal Shah v. Union of India [AIR 1964 SC 1854] a Constitution Bench of this Court while taking a similar view held that preliminary inquiry should not be confused with regular inquiry. The preliminary inquiry is not governed by the provisions of Article 311(2) of the Constitution of India. Preliminary inquiry may be held ex parte, for it is merely for the satisfaction of the Government though usually for the sake of fairness, an explanation may be sought from the government servant even at such an inquiry. But at that stage, he has no right to be heard as the inquiry is merely for the satisfaction of the Government as to whether a regular inquiry must be held. The Court further held as under : (AIR p. 1862, para 12) "12. ... There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments indicated in Article 311 that the government servant is entitled to the protection of that article [, nor prior to that]."
(emphasis added) (See also Govt. of India v. Tarak Nath Ghosh [(1971) 1 SCC 734 : AIR 1971 SC 823. Ed. : See paras 10 to 14 thereof in SCC where the distinction between a preliminary and regular enquiry has been discussed. Tarak Nath Ghosh has however been overruled on other points in P.R. Nayak v. Union of India, (1972) 1 SCC 332 and T.V. Nataraj v. State of Karnataka, (1994) 2 SCC 32.] .)
44. In Narayan Dattatraya Ramteerthakhar v. State of Maharashtra [(1997) 1 SCC 299 : 1997 SCC (L&S) 152 : AIR 1997 SC 2148] this Court dealt with the issue and held as under:
"... a preliminary inquiry has nothing to do with the enquiry conducted after issue of charge-sheet. The preliminary enquiry is only to find out whether disciplinary enquiry should be initiated against the delinquent. Once regular enquiry is held under the Rules, the preliminary enquiry loses its importance and, whether preliminary enquiry was held strictly in accordance with law or by observing principles of natural justice of (sic) nor, remains of no consequence."
(emphasis added)
45. In view of the above, it is evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and 8 opportunity to cross-examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of natural justice."
16. The case in hand is similar. In a very recent judgment delivered by the Hon'ble Supreme Court in the case of "Satyendra Singh v. State of Uttar Pradesh and Another"
reported in 2024 INSC 873 (neutral citation) the Hon'ble Supreme Court has reiterated the law laid down in the case of "Roop Singh Negi" (supra), "Saroj Kumar Sinha"(supra) and "Nirmala J. Jhala"(supra). I am not quoting the paragraphs of the aforesaid judgments to avoid repetition but I cannot stop myself from quoting only paragraph no. 17 which reads as under:
"17. Thus, even in an ex-parte inquiry, it is sine qua non to record the evidence of the witnesses for proving the charges. Having tested the facts of the case at hand on the touchstone of the Rules of 1999, and the law as expounded by this Court in the cases of Roop Singh Negi and Nirmala J. Jhala, we are of the firm view that the inquiry proceedings conducted against the appellant pertaining to charges punishable with major penalty, were totally vitiated and non-est in the eyes of law since no oral evidence whatsoever was recorded by the department in support of the charges."
17. Be it noted, the Hon'ble Supreme Court in the case of "Satyendra Singh" has not only quashed the departmental proceeding but has not given any liberty to the State to re-open the matter. Further, in this case the petitioner already stood superannuated in the year 2022. Thus, considering the judgment of "Satyendra Singh" and the fact that the petitioner has already superannuated, I am not inclined to grant any liberty to the State to re-open the issue.
18. Considering what has been noted above, I am inclined to allow this writ petition. The impugned orders dated 30.03.2015 and 05.11.2015 are quashed. The petitioner is entitled to receive 9 all the consequential benefits which would be paid within a period of six weeks from the date of the receipt of this order.
19. Accordingly, this writ petition is allowed.
(ANANDA SEN, J.) Tanuj/c-2 AFR 10