Jharkhand High Court
The State Of Jharkhand Through The ... vs Ram Kumar Singh on 3 March, 2022
Bench: Shree Chandrashekhar, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Letters Patent Appellate Jurisdiction)
L.P.A. No. 89 of 2018
[Against the judgment dated 30th November 2016 passed by the learned Single Judge of
this Court in WP(S) No. 1957 of 2016]
1. The State of Jharkhand through the Principal Secretary, Water Resources
Department, Nepal House, PO & PS-Doranda, Ranchi
2. The Joint Secretary, Water Resources Department, Govt. of Jharkhand,
Nepal House, PO&PS-Doranda, District-Ranchi
.....Appellants
Versus
Ram Kumar Singh, son of late Rajendra Prasad Singh, resident of Flat
No. 401, Shyam Kunj Kali Mandir Road, PO &PS-Lalpur, District-Ranchi
..... Respondent
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant-State : Mr. Sachin Kumar, AAG-II
Mr. Ravi Prakash Mishra, AC to AAG-II
For the Respondent : Mr. Siddhartha Ranjan, Advocate
Ms. Tanya Singh, Advocate
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ORDER
rd 3 March 2022 Per, Shree Chandrashekhar, J.
Mr. Sachin Kumar, the learned Additional Advocate-General-II has tendered a copy of written submissions.
2. Taken on record.
3. The State of Jharkhand has filed the present Letters Patent Appeal through its Principal Secretary, Water Resources Department, challenging the writ Court's order dated 30th November 2016 by which Memorandum of Charge vide 'Prapatra K' issued to the respondent has been quashed.
4. The respondent while working as Assistant Engineer under Water Resources Department was brought on deputation to the post of Town Planner under the Ranchi Regional Development Authority (in short, RRDA). While working on the said post, he was implicated in RC Case No. 03(A) of 2011-R registered by the Central Bureau of Investigation 2 LPA No. 89 of 2018 (in short, CBI) pursuant to an order passed in WP(PIL) No. 1531 of 2011. He was put under suspension vide Notification dated 29th July 2011 issued by the Department of Water Resources, Government of Jharkhand and he remained under suspension for more than two years. Finally, vide Notification dated 02nd November 2013 the suspension order was revoked and he was sent to the Minor Irrigation Quality Control Division, Ranchi.
5. The respondent was again placed on suspension under Rule 49(A) of the Civil Services (Classification, Control and Appeal) Rules vide Memorandum dated 5th January 2016, however, by an order dated 16th March 2016 passed in WP(S) No. 116 of 2016 the aforesaid order of suspension was quashed by the writ Court. By a separate order of even date, Memorandum dated 5th January 2016 was issued under the signature of Joint Secretary, Water Resources Department, Government of Jharkhand by which the decision of the competent authority to initiate a departmental proceeding against the respondent was communicated to him. Alongwith the aforesaid Memorandum dated 5th January 2016, charge-memo in 'Prapatra K' was also served upon the respondent.
6. In the meantime, the order of cognizance dated 25th October 2011 in RC Case No. 03(A) of 2011-R and issuance of summons against M/s Ashlesha Corporation Limited were challenged in WP(Cr.) No. 319 of 2011 which was allowed by the judgment dated 27 th November 2015 and the order of cognizance in respect of M/s Ashlesha Corporation Limited was quashed by the writ Court. Mr. Siddhartha Ranjan, the learned counsel for the respondent has drawn our attention to the order dated 12 th August 2016 by which the Special Leave Petition against the judgment dated 27 th November 2015 passed in WP(Cr.) No. 319 of 2011 was dismissed by the Hon'ble Supreme Court.
7. Before the writ Court, with reference to the judgment in "Union of India and Others v. B. V. Gopinath" (2014) 1 SCC 351, the respondent took a specific stand that the decision to proceed against a government employee must be separately approved by the disciplinary authority. Another plea set up before the writ Court was that 'Prapatra K' contains identical allegations which are imputed against the officials of RRDA in the criminal case registered by CBI and such allegations of ignoring the Building Bye-laws to help M/s Ashlesha Corporation Limited 3 LPA No. 89 of 2018 have been found baseless by the writ Court in WP(Cr.) No. 319 of 2011 and, therefore, the department cannot proceed against him under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 on the basis of the same imputations.
8. The writ Court proceeded to examine the aforesaid contentions raised on behalf of the respondent and came to a conclusion that the departmental proceeding is a replica of the criminal proceeding and, therefore, continuance of the departmental proceeding against the respondent would not serve the ends of justice rather would cause miscarriage of justice.
9. In the order dated 30th November 2016, the writ Court has held as under :
"8. Having heard learned counsel for the parties at length and on consideration of the documents available on record, I am of the considered view that the petitioner has been able to make out a case on the following facts and reasons:
In the instant case, admittedly an F.I.R. was lodged by CBI, Ranchi pursuant to direction given by this Court in W.P.(PIL) No.1531 of 2011 pertaining to sanction building plan. Thereafter, the petitioner was placed under suspension vide Notification dated 29.07.2011. After more than two years of the said suspension order, it was revoked vide Notification dated 02.11.2013. After repatriation of the petitioner to Panchayti Raj Department and after more than two years of revocation, again the petitioner was put under suspension under Rule 49A of the Civil Services (Classification, Control and Appeal) Rules, by order dated 05.01.2016. The departmental proceeding as evident from Annexure-5 is based on the charge, which was subject matter of dispute in W.P.(Cr.) no.319 of 2011 and the issue has been decided giving quietus to the controversy pertaining to sanction of the building plan. Since the observation of this Court is that the building plan has been approved as per the specification and there is neither any irregularity nor any deviation made therein, the cognizance taken against the beneficiary of the building plan has been quashed. The very same issue has been incorporated in the impugned charge as Annexure-5 to the writ petition. Therefore, the charge appears to be nonest and cannot be sustained in the eye of law. This Court is conscious of the fact that the power of judicial review under Article 226 of the Constitution of India is very very limited so far as interference in the initiation/continuation of departmental proceeding is concerned and normally, this Court does not interfere at the threshold of initiation of charge, but the instant case, unfold a gloomy picture where the charge, which is replica of the criminal proceeding on which the cognizance taken against the beneficiary of the building plan has been quashed vide Annexure-1 to the writ petition. Further continuance of the proceeding on the very same charge would not subserve the ends of justice rather it would amount to miscarriage of justice. Further on self same charge, the petitioner has been suspended for petty long period and he has undergone rigors of the suspension and the petitioner if again is to undergo the departmental proceeding, the same would amount to double jeopardy."4 LPA No. 89 of 2018
10. Having held so, the writ Court proceeded to quash Memorandum dated 5th January 2016 along with 'Prapatra K' as being not legally sustainable.
11. Mr. Sachin Kumar, the learned Additional Advocate-General-II has raised two grounds to assail legality of the order dated 30 th November 2016 passed in WP(S) No. 1957 of 2016: (i) quashing of the criminal case and, that too, in respect of another accused is not a ground to scuttle the departmental proceeding and (ii) at best an order of remand in view of the judgment in "B. V. Gopinath" would have been made by the writ Court affording an opportunity to the State of Jharkhand to proceed in the matter afresh.
12. We need to indicate at the outset that the proceedings in LPA No. 89 of 2018 disclose that the application for stay of the writ Court's order filed by the State of Jharkhand vide I.A. No. 1785 of 2018 was not granted and disposed of by this Court by an order dated 20th November 2018.
13. There is no dispute that the departmental proceeding against the respondent shall be conducted following the provisions of the Civil Services (Classification, Control and Appeal) Rules, 1930. A glance at various provisions under the Civil Services (Classification, Control and Appeal) Rules, 1930 would indicate that similar provisions have been incorporated in the Rules of 1965. It is trite law that every departmental enquiry must proceed against the delinquent government employee scrupulously following the rules of natural justice and that is the reason a decision by the departmental authority is open to challenge in a proceeding of writ of certiorari on the ground of breach of the rules of natural justice and violation of the Conduct Rules (refer, "Syed Yakoob v. K.S. Radhakrishnan" AIR 1964 SC 477).
14. From the materials on record, we gather that before Memorandum dated 5th January 2016 was issued charge-memo under 'Prapatra K' which bears the date of 1st January 2016 was already in existence. We take note of the fact that Memorandum dated 5 th January 2016 and the accompanying 'Prapatra K' were served upon the respondent together. In our opinion, framing of the charge before taking response of the delinquent government employee as regards the proposed disciplinary enquiry against him vide Memorandum dated 5th January 2016 is not a mere 5 LPA No. 89 of 2018 irregularity rather establishes pre-conceived decision by the department to proceed with the departmental proceeding against the respondent.
15. In "B. V. Gopinath", the Hon'ble Supreme Court with reference to the Central Civil Services (Classification, Control & Appeal) Rules, 1965, held that the stage of initiating the departmental proceeding is distinct and separate from issuing a charge-memo. The Hon'ble Supreme Court further held that both the stages are not continuing acts because it is not necessary that every departmental proceeding initiated against the delinquent employee would definitely result in issuing a charge-memo.
16. Though there was serious controversy raised before the writ Court that the Memorandum dated 5th January 2016 was not approved by the departmental Minister who would be the disciplinary authority in case of the respondent, in view of the materials brought before the writ Court through supplementary affidavit dated 29th April 2016, we are inclined to proceed in the matter on the premise that Memorandum dated 5 th January 2016 has approval of the disciplinary authority. Still, in our opinion, issuance of the charge-memo contained in 'Prapatra K' dated 1st January 2016 cannot be countenanced in law. By framing charges under 'Prapatra K' before a decision to proceed against the respondent was taken which was formally issued vide Memorandum dated 5th January 2016 the department had already made up its mind to proceed against the respondent before an opportunity was given to the respondent to persuade the department not to proceed further in continuation with the Memorandum dated 5 th January 2016.
17. In our opinion, the aforesaid fundamental flaw in the case of the State of Jharkhand is one good reason for this Court not to interfere with the writ Court's order dated 30th November 2016.
18. Mr. Sachin Kumar, the learned Additional Advocate-General-II would press hard to persuade us to interfere with the writ Court's order contending that a departmental proceeding can continue simultaneously with the criminal case and on the basis of a decision in the criminal case the departmental proceeding against a government employee cannot be scuttled.
19. The criminal and departmental proceedings by virtue of their nature are entirely different as they operate in different fields and have different objectives and that is the reason acquittal by the criminal Court 6 LPA No. 89 of 2018 does not debar the department from exercising its powers to conduct domestic enquiry against the delinquent employee in accordance with the rules and regulations. It is also true that the writ Court would interfere with the charge-memo only on limited grounds of lack of jurisdiction and/or bar by any law and the writ Court in exercise of the powers of judicial review cannot act as an appellate forum and examine substance in the charge-memo. Notwithstanding the aforesaid rules of law, the powers of the writ Court to stop initiation of the departmental proceeding shall not be hindered by any technicality if continuance of the departmental proceeding against the delinquent government employee would perpetuate injustice, cause miscarriage of justice, or, shall be a kind of double jeopardy.
20. The charge against the respondent as contained under 'Prapatra K' reads as under:
"Jh jke dqekj flag ds }kjk Hkou Iyku la0 1103@08 esa iwoZ ls yfEcr dsl UC 351@06 ds rF;kas ,oa IykWV ua0 1736 ds lEcU/k esa RRDA ds vf/koDrk }kjk fn;s x;s Li"V earO; dh vuns[kh djrs gq, vkijkf/kd "kM+;a=k ds rgr laosnd dks ykHk igqWapkus ds fy, IykWV u0 1735 dh vksj (tks fd lM+d ds :i esa fpfUgr Fkk) Iyku ds lkbM lsV cSd dh x.kuk dh xbZ tcfd blesa QzaV lsV cSd dh x.kuk dh tkuh FkhA Jh flag }kjk Hkou Iyku la0 706@04 esa miyC/k lR;kiu izfrosnu dh Hkh vuns[kh dh xbZ ftles Li"V fd;k x;k Fkk fd IykV ua0 1735 jksM FkkA bl izdkj Jh flag }kjk vius in dk nq:i;ksx djrs gq, fcYMj dks ykHk igqWpk;k x;k rFkk uD'kk ikl djus esa vfu;ferrk cjrh xbZA"
English Translation "Sri Ram Kumar Singh ignoring pending Case UC 351/06 and the clear opinion given by the advocate of RRDA in the connection with Plot No.1736 in the Building Plan No.1103/08, calculated side set-back towards Plot No.1735 (which was marked as a road) for the benefit of the builder under criminal conspiracy whereas calculation of the front set-back was to be done there. Sri Singh ignored the verification report available in the Building Plan No.706/04 in which it was made clear that Plot No.1735 was a road.
In this way, Sri Singh misusing his position benefited the builder and committed irregularity in approving the plan."
21. A glance at the aforesaid allegations in 'Prapatra K' against the respondent indicates that with a view to give benefit to M/s Ashlesha Corporation Limited the respondent calculated side set-back in the building plan whereas he should have calculated front set-back.
22. In the judgment dated 27th November 2015 passed in WP(Cr.) No. 319 of 2011, the learned Single Judge of this Court dealt with the 7 LPA No. 89 of 2018 similar allegations against the officials of RRDA in the following manner:
"Thus, definition of street clearly suggest that if any land over which the public have right of passage or access or have passed and have access uninterruptedly for a period of one year, would be considered to be a street but it has never been the case of C.B.I that since one year before the searching of map, the land of Plot no.1735 was being used as street rather the C.B.I has been taking the said land as road on the basis of the municipal survey of record prepared in the year 1928 whereas according to the case of the petitioner as stated above, it becomes quite apparent that the said land of Plot No.1735 was never being used as road/street since long. In that event, question of leaving front set back towards northern side in terms of note 5 of the Bye-laws never does arise.
Now the next question does arise as to whether front set back is required to be left in terms of note 5 of the Bye-laws on northern side.
For determining this issue, one needs to take notice of Note 5 of the Table 2AII Ranchi Planning Standards & Building Bye-laws 2002 which reads as follows:
"In case of corner/double frontage/tandem sites all the sides facing the road shall be treated as front sides and regulations applies accordingly to maintain the building's better visibility. Other non road facing sides shall be treated as side setbacks."
From its perusal it does appear that stipulation has been made that on all the sides through which road passes, front set backs are required to be left, in case of corner/double frontage/ tandem sites. Since the word 'all' has been used it is being interpreted by the CBI that front set back should have been left over on northern side on which side land of Plot no.1735 situate which has been recorded as road in municipal record.
Admittedly, the building in question does have double frontage as on the eastern as well as western side road passes. At both the sides front set back has been left out. Now the question does arise as to whether on the northern side towards which plot no.1735 situates one is required to leave the front set back ?
It be stated that the aforesaid note concerns with the pots having characteristic of sites of corner, double frontage and tandem. It does not contemplate of the site having more than double frontage. In that event, the word 'all' appearing in the said provision could mean both in the context of site having double frontage. If the intention would have been there to leave front set back on all the sides through which road passes, the site having more than double frontage would have incorporated in the said note but conspicuously it is not there. In that event, if the building does have double frontage, front set backs are required to be left at both the sides which are presently there in the building in question.
In these events, if the petitioners are allowed to be prosecuted it would be a miscarriage of justice. Accordingly, the order dated 25.10.2011 under which cognizance of the offence has been taken is hereby quashed.
In the result, this application stands allowed. "
23. As we can see, in the WP(Cr.) No. 319 of 2011 the learned Single Judge dealt with the similar allegations in the criminal case and returned a finding that Plot No. 1735 was never used as a road and front set-back in the building plan was in accordance with the Building Bye-laws.
8 LPA No. 89 of 2018The learned Single Judge considered Note-5 under Table-2A (II) of Ranchi Planning Standards & Building Bye-laws 2002 and found that the building plan under consideration had double frontage on the eastern as well as western side and on both the sides front set-back was provided in the plan. In the aforesaid circumstances, the learned Single Judge held that M/s Ashlesha Corporation Limited could not have been prosecuted for entering into a conspiracy with the officials of RRDA to get undue advantage as alleged in RC Case No. 03(A) of 2011-R.
24. As a general rule, the findings recorded in a criminal case are not binding on the parties in a civil proceeding whereas the findings recorded by the civil Court would be accepted as binding in a criminal proceeding between the same parties but a fine line of distinction lies between a proceeding in the civil Court and the disciplinary proceeding. It is well settled in law that the rules of evidence are not strictly applied in a disciplinary proceeding and to a limited extent hearsay materials also can be taken in the domestic enquiry. That seems to be the reason the criminal case against a delinquent government employee is not influenced by outcome of the domestic enquiry against him but acquittal in the criminal case wipes out the order of punishment awarded to the delinquent government employee in the domestic enquiry if the charges in both the proceedings are similar.
25. The situation in the present case is a little different inasmuch as WP(Cr.) No. 319 of 2011 was filed by M/s Ashlesha Corporation Limited but quashing of the criminal proceeding against it shall have the same effect on the proposed domestic enquiry against the respondent and the judgment in WP(Cr.) No. 319 of 2011 shall substantially affect outcome of the domestic enquiry inasmuch as interpretation of Note-5 under Table-2A (II) of Ranchi Planning Standards & Building Bye-laws 2002 by the writ Court would stare at the allegations as contained in 'Prapatra K' against the respondent.
26. The findings recorded by the learned Single Judge in respect of M/s Ashlesha Corporation Limited are the findings of fact which would be binding on the appellants in the domestic enquiry against the respondent. Therefore, on account of similarity in the allegations against the respondent in the departmental enquiry and the criminal case filed against M/s Ashlesha Corporation Limited and the officials of RRDA the findings recorded by the 9 LPA No. 89 of 2018 writ Court would apply in the case of the respondent. We further find that the interpretation by the writ Court as regards applicability of Note-5 under Table-2A (II) of Ranchi Planning Standards & Building Bye-laws 2002 shall be applied in the departmental proceeding against the respondent and it would not be open to the departmental authority to insist on his own interpretation of the Building Bye-laws to press the charges against the respondent.
27. In view of the aforesaid discussions, an order of remand in the nature of a liberty to the departmental authority to proceed against the respondent would not be proper, rather, as held by the writ Court, would cause injustice to the respondent. In the circumstances of the case, any technical plea such as unfettered discretion of the employer to proceed against an employee even after acquittal in the criminal case must not come on the way of cause of justice and, therefore, we are of the opinion that the order of remand with a liberty to the departmental authority to proceed in the matter afresh would not be proper.
28. For the aforesaid reasons, we are not inclined to interfere in this matter and, accordingly, LPA No. 89 of 2018 is dismissed.
(Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 3rd March 2022 Tanuj/ N.A.F.R