Rajasthan High Court - Jodhpur
Laxman Ram Panwar vs State And Ors (2023/Rjjd/013467) on 4 May, 2023
Author: Dinesh Mehta
Bench: Dinesh Mehta
[2023/RJJD/013467] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 9279/2016 Laxman Ram Panwar S/o Shri Mangi Lalji Panwar, aged about 58 years, R/o 115 Mahaveer Nagar, Mahamandir, Jodhpur.
----Petitioner Versus
1. The State of Rajasthan through the Secretary, DOP, Jaipur (Rajasthan)
2. The State of Rajasthan through the Chief Secretary to the State of Rajasthan, Secretariat, Jaipur (Rajasthan)
3. The Additional Secretary cum Chief Engineer, Water Resource Department, Jaipur (Rajasthan)
----Respondent For Petitioner(s) : Mr. Manoj Bhandari, Senior Advocate assisted by Mr. Aniket Tater For Respondent(s) : Ms. Abhilasha Bora JUSTICE DINESH MEHTA Order 04/05/2023
1. By way of the present writ petition, the petitioner has challenged the disciplinary proceeding that has been initiated against him by way of charge-sheet dated 12.06.2013 ( Annexure-1).
2. Before adverting to the rival contentions, it would be apposite to be abreast of the facts of case to the extent necessary.
3. The petitioner was appointed as a Junior Engineer on 01.03.1983 and was promoted on the post of Assistant Engineer on 12.03.1999.
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4. During his service as an Assistant Engineer, the petitioner was posted for a brief stint at Sankal Khera Pariyojna, Chittorgarh, where he joined on 31.08.2006 and was transferred on 24.02.2007.
5. During his posting at Sankal Khera, a Dam which was being constructed was at its final / finishing stage, where the petitioner had allegedly verified a payment of Rs. 6,18,593/- in relation to 14th running bill which was made to the Contractor.
6. In the year 2007 itself, immediately after the Dam was complete, but before it was inaugurated in July, 2008, a seepage was noticed. A committee was later constituted to enquire into the reasons and lapses which had caused the seepage.
7. Said Committee, which was constituted on 10.03.2011, comprising of one Superintending Engineer and two Executive Engineer gave its report after site inspection on 15.03.2011 indicating that the Dam in question was not constructed as per the approved drawing and design.
8. A notice dated 25.04.2011 came to be issued to the petitioner asking him to explain as to why disciplinary proceedings under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1956 (hereinafter referred to as the 'CCA Rules') be not initiated against him.
9. The petitioner filed a reply dated 07.06.2011 and stated that during his tenure neither any work was done nor was any payment made to the firm.
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10. The comments from the officers of the Department were sought, but the State Government was not satisfied with the petitioner's reply and the comments, resultantly a disciplinary enquiry came to be instituted against the petitioner by way of the charge-sheet dated 12.06.2013.
11. After issuance of the charge-sheet, nothing substantial was done and it was only on 07.04.2016, an inquiry officer came to be appointed. On appointment of the inquiry officer, the petitioner rushed to this Court assailing the disciplinary inquiry on the ground of delay so also on the ground of it being arbitrary and without application of mind.
12. On 10.08.2016, an interim order in petitioner's favour was passed and the inquiry officer was restrained from proceeding in furtherance of the charge-sheet issued to the petitioner.
13. A reply to the writ petition and an application seeking vacation of interim order under Article 226(3) of the Constitution of India too has been filed by the respondent - State.
14. The matter came up for consideration of the Court on various occasions. However, proceedings drawn by the co-ordinate Bench of this Court on 07.02.2017 needs a special mention, in which the Court made the following observations:-
"Learned counsel for the respondents prays for time to satisfy this Court as to why the Enquiry Officer was not appointed for last 03 years in spite of the charges having been framed on 12.06.2013 and also as to why 03 Preliminary Enquiries were conducted during (Downloaded on 08/05/2023 at 09:34:36 PM) [2023/RJJD/013467] (4 of 16) [CW-9279/2016] this period before the Enquiry Officer was appointed. In case, these reports have come at the instance of the department itself, then where was the necessity to appoint an Enquiry Officer when those reports have come in favour of the petitioner.
Put up on 01.03.2017, as prayed.
Interim order to continue till then."
15. Today, the matter has come up for consideration of the application under Article 226(3) of the Constitution of India, but Mr. Bhandari, learned Senior Counsel, appearing on petitioner's behalf prayed that since the matter is old and the petitioner has since superannuated (in the year 2018), the writ petition itself be heard finally, as the arguments in the application under Article 226(3) of the Constitution of India and the main writ petition would be common.
16. Ms. Bora, learned counsel for the respondents did not object to Mr. Bhandari's such request and hence, the Court proceeded to hear the writ petition finally.
17. Calling in question the disciplinary proceedings, learned Senior Counsel argued that when the petitioner was posted at the said Dam (between 31.08.2006 and 24.02.2007), the construction of the Dam was almost complete and only some finishing work remained to be done. While maintaining that neither any work was done nor was any payment made during petitioner's short stint, he submitted that even if it is accepted that the payment of Rs. 6,18,593/- was made to the Contractor with respect to his 14 th running bill during his term, then also, the petitioner cannot be held responsible or liable particularly when the finding of the (Downloaded on 08/05/2023 at 09:34:36 PM) [2023/RJJD/013467] (5 of 16) [CW-9279/2016] committee is, that the work was not done as per approved drawing and design, whereas the payment that the petitioner made, related to minor finishing work done during his period.
18. While reminding the Court that the Dam was constructed in the year 2007 and the untoward incident of seepage occurred in August, 2007, after the petitioner had been transferred from the Dam site, learned counsel submitted that after serving the charge- sheet in June, 2013 even the respondents were in dilemma, as to whether they should proceed against the petitioner or not. He highlighted that during such period, at least three authorities of the Department itself have opined in petitioner's favour. He submitted that during petitioner's tenure only 1.72% of work was done and no specific lapse on the part of the petitioner has been pointed out by any of the authorities. He added that the authorities have rather suggested that the proceedings against the petitioner be dropped.
19. Learned counsel submitted that regardless of such reports/opinions, the State has proceeded to appoint an inquiry officer on 07.04.2016. He argued that the delay in initiation of proceedings has prejudiced the petitioner's rights, inasmuch as the petitioner, who was posted for a short duration, when the Dam was at its finishing stage (in the year 2006-07), would find it very difficult to properly defend his case after about 9 years of his short posting at that place. He argued that an employee cannot be expected to remember the minute details for such a long time and then defend his case, particularly when he has no access to the relevant record.
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20. Learned counsel for the petitioner navigated the Court through various reports placed on record, the reply to the show- cause notice furnished by the petitioner and the report (Annexure-
12) prepared by the Superintending Engineer, which was duly approved by the Additional Chief Engineer and argued that none other than the Additional Chief Engineer of the Department has given a finding in petitioner's favour, hence, there was no justification with the respondent - State to have continued with the disciplinary proceedings given that only 1.72% of work was done during his term. He submitted that the inquiry officer has been appointed mechanically and equally mechanically had the charge-sheet been proposed.
21. In support of his argument, that the disciplinary proceedings can be quashed on the ground of delay, Mr. Bhandari, learned Senior Counsel relied upon judgment of Hon'ble the Supreme Court in the case of State of Madhya Pradesh vs. Bani Singh & Anr., reported in 1990 (Supp.) SCC 738 as also in the case of State of Andhra Pradesh vs. N. Radhakishan, reported in (1998) 4 SCC 154; P.V. Mahadevan vs. Md. T.N. Housing Board reported in (2005) 6 SCC 636 and the judgment dated 30.05.2019 passed by this Court in the case of Laxman Ram Panwar vs. The State of Rajasthan & ors. (S.B. Civil Writ Petition No. 7328/2016), which was affirmed by the Division Bench vide order dated 22.02.2022.
22. Ms. Abhilasha Bora, learned counsel for the respondent - State, vehemently argued that maybe only 1.72% of the work was done during petitioner's tenure, but such fact by itself cannot be a (Downloaded on 08/05/2023 at 09:34:36 PM) [2023/RJJD/013467] (7 of 16) [CW-9279/2016] reason to exonerate the petitioner or to quash the disciplinary proceedings against him. She submitted that the question as to whether the petitioner was at fault or negligent in discharging his duties is better left to be examined and adjudicated by the disciplinary authority, who is having technical knowledge. She added that having no expertise in such field, this Court should refrain from entering into the arena of inquiry considering the nature of the charge framed against the petitioner.
23. In response to Mr. Bhandari's arguments about delay, learned counsel argued that the delay by itself cannot be a reason to quash the disciplinary proceedings. She submitted that the petitioner has not been able to establish before this Court that how purported delay in the disciplinary proceedings has prejudiced his rights much less fundamental rights.
24. It was also argued by Ms. Bora that the competent authority has taken a conscious decision after examining the record and since the disciplinary inquiry is not being challenged on the ground of competence or being without jurisdiction, this Court should be loath to interfere in an otherwise technical matter.
25. Learned counsel also argued that the petitioner has verified and made final payment of 14 th running bill and before verifying and making such payment, he ought to have satisfied himself about the quality of the construction. The detailed memo of allegation sent with the charge-sheet clearly records such allegation against the petitioner and it is for the inquiry officer to pronounce upon petitioner's delinquency or innocence. (Downloaded on 08/05/2023 at 09:34:36 PM) [2023/RJJD/013467] (8 of 16) [CW-9279/2016]
26. In support of her contention that the proceedings in question cannot be quashed on the ground of delay, learned counsel relied upon judgment of Punjab and Haryana High Court dated 16.03.1998 in the case of Bajinder Kumar Chopra vs. The Food Corporation of India reported in 1998 (3) SCT 517 and also the judgment of Hon'ble the Supreme Court in the case of The Secretary, Ministry of Defence & Ors. vs. Prabhash Chandra Mirdha reported in (2012) 11 SCC 565. Reliance was also placed upon the judgment of Hon'ble the Supreme Court in the case of Union of India (UOI) & Ors. vs. Kunisetty Satyanarayana reported in (2006) 12 SCC 28, to assert that the Court should not ordinarily interfere in the disciplinary proceedings initiated against an employee.
27. Heard learned counsel for the parties and perused the record.
28. Considering the principles laid down by Hon'ble the Supreme Court in relation to the scope of High Courts under Article 226 of the Constitution of India in the matters relating to disciplinary proceedings, there cannot be two opinions that normally a charge- sheet should not be quashed on the ground of delay.
29. In the instant case, after the construction of the Dam was over in the year 2007, the accumulated rain water went waste on account of seepage. When the dam was handed over to public in the year 2008 local villagers informed the Minister that a seepage was found in the dam in the preceding year. It appears that such complaint brought the State Machinery in motion and an in-house inquiry began after eliciting response of all concerned. (Downloaded on 08/05/2023 at 09:34:36 PM) [2023/RJJD/013467] (9 of 16) [CW-9279/2016]
30. Lately, a committee was constituted by order dated 10.03.2011 and a fact finding inquiry was got conducted. Member of said committee inspected the dam site on 15.03.2011 and gave its report. Based on the report so furnished, the disciplinary proceedings were initiated against four persons including the petitioner and the charge-sheet impugned came to be served in June, 2013.
31. In the opinion of this Court, there is no substantial delay in initiating disciplinary proceedings given that the incidence of seepage in the Dam was noticed in the rains of 2007, whereafter inter-departmental correspondence continued for quite some time and lately a three member committee was constituted which gave its report in March, 2011.
32. Immediately on receipt of the report of the committee a show cause notice dated 25.04.2011 was issued to the petitioner asking his response as to why disciplinary proceedings be not initiated against him. The petitioner gave his reply and after exchange of a few representations and comments, the charge sheet was served on 12.06.2013.
33. In the extant facts, this Court is clearly of the opinion that the disciplinary proceedings do not suffer from undue delay, because during this period, the State was considering the error/fault and lapse in technicalities of the construction and fixing responsibility/liability of erring officials.
34. According to this Court, neither the date when the petitioner was posted (31.08.2006) nor the date when the seepage was noticed (31.08.2007) can be taken to be a date relevant for the (Downloaded on 08/05/2023 at 09:34:36 PM) [2023/RJJD/013467] (10 of 16) [CW-9279/2016] purpose of counting delay. The relevant date is 15.03.2011, when the committee constituted by the State Government gave its technical report pointing out the fault and lapses. Indisputably, the report dated 15.03.2011 is the basis for the proceedings under challenge. And counted from such date, the facts on record clearly suggest that during such period, the authorities were considering petitioner's representation / reply to the show cause notice and various comments and reports that were furnished by the authorities concerned.
35. Hence, the proceedings oppugned herein cannot be held to be violative of Article 14 of the Constitution on the ground of delay. Since it has been found on facts that there is no significant delay in initiation of the proceedings, applicability of the judgments cited by rival counsel need not be gone into.
36. The proceedings in question have not been challenged on the ground of the same being without jurisdiction.
37. But, upon wading through the record carefully, this Court strongly feels that initiation of the proceedings against the petitioner so also appointment of inquiry officer is without application of mind, for which they fall foul to Article 14 of the Constitution. The reasons for holding such opinion are set out in the following paragraphs.
38. It is not in dispute that when the petitioner was posted at the Dam (from 31.08.2006 to 24.02.2007), the construction of the dam and more particularly, its structural work was already over. The petitioner, as an Assistant Engineer had overseen only (Downloaded on 08/05/2023 at 09:34:36 PM) [2023/RJJD/013467] (11 of 16) [CW-9279/2016] the finishing work of the Dam during his short span of service from 31.08.2006 to 24.02.2007.
39. First time the water was received in the dam in the rainy season of 2007 and seepage was noticed in August 2007, much after the petitioner had been transferred from Sankal Khera Dam.
40. Furthermore, a report was submitted by Executive Engineer on 23.07.2013 to the Superintending Engineer clearly stating that the petitioner was not at fault. Similar opinion was echoed by the Superintending Engineer (Annexure.12), which was duly approved by none other than the Additional Chief Engineer of the Department (Page No. 137 of the paper book).
41. Regardless of such reports, the respondent - State, after keeping the proceedings on hold for quite some time, resurrected it for no good reason. Ideally, the State ought to have dropped the proceedings at least against the petitioner.
42. The basis or reason for kick starting the proceedings against the petitioner and other officers was, the report in pursuance of site inspection done on 15.03.2011 given by the committee, which after inspecting the site found that the dam was not constructed as per the approved design and drawing. Certain fundamental flaws have been pin pointed in the construction of the dam.
43. On going through the report, this Court finds that there is hardly any material to proceed against the petitioner. It is deemed appropriate to reproduce the finding of the committee:-
"Conclusions: following are the reasons for the water seepage from the body of dam as well pick up weir.(Downloaded on 08/05/2023 at 09:34:36 PM)
[2023/RJJD/013467] (12 of 16) [CW-9279/2016] Construction not as per design & drawing supplied by ID & R: The tenders of the work were floated after administrative approval based on tentative drawings. Later on project authorities initiated the proceedings for getting the approval of IDR unit on the drawing & design. The IDR unit approved the drawings on 27.09.05. It was appraised by the staff that, at the time of receiving the drawings from IDR, the work of foundation was already over & masonry work was in progress on higher levels, due to late receipt of Drawings following necessary works could not be incorporated in foundation.
1. Anchoring of foundation of Dam as well as pickup weir.
2. Grouting of foundation of dam & pickup weir (Consolidation & curtain grounding).
Geological Investigation: As per advice of IDR the geological investigations of foundation was necessary before its filling. But only Geological mapping of block no.4 & 5 was got done from Geologist. The project authorities have not taken approval of Geologist for the other components of the project.
Inadequate design of pick up weir: The design of the pickup weir was not approved by ID & R. The Downstream protection works of pickup weir have not been done. This may result in damage to the pickup weir in future."
44. A look at the decision dated 22.01.2015 of the State Government pursuant to petitioner's representation/reply and comments sent by the department reveals that the State Government decided to proceed against the petitioner because the work was not done as per ID & R Essential Norms and according to approved drawing and design. The Deputy Secretary noted following three lapses and faults in the construction of the Dam:- (Downloaded on 08/05/2023 at 09:34:36 PM)
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(i) no proper compaction of sub-grade underneath the lining;
(ii) grit was less in proportion to the sand in the concrete mix;
(iii) concrete was not filled in the alternate panels.
45. Indisputably, above three faults reported in the Dam were the reasons which led the State Government to form an opinion that disciplinary proceedings against the petitioner were warranted. One wonders that if the petitioner can be alleged to be negligent for the above faults completely ignoring the fact that he remained posted when the Dam was at its final stage and only 1.72% work was done during his posting, then how only 4 persons have been roped in while giving clean chit to 70 odd officers right from AEns to the Chief Engineer who were posted during the construction of the Dam.
46. If the lapses, which have been noticed by the State Government while deciding to proceed against the petitioner are examined in the backdrop of the petitioner's reply and more particularly his stand that the structural work of the dam was already over when he was posted (31.08.2006 to 24.02.2007), State's decision turns out to be absolutely without application of mind.
47. That apart, the charge-sheet served upon the petitioner contains a sweeping allegation, no specific role of his delinquency has been mentioned or disclosed.
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48. Though the detailed statement of charges makes a mention of payment of Rs. 6,18,593/- in relation to 14 th running bill, but even such payment does not relate to work which has been found faulty. Normally, an Assistant Engineer or the Officer is expected to verify the work done during his tenure and is supposed to see the quality of the work done before making payment. The petitioner could not have been expected to go into the quality of the work which had earlier been done and in which the fault was found later in the year 2011.
49. This Court is not oblivious of limitation and scope of its jurisdiction in the matters relating to disciplinary inquiries and is fully cognizant of the principle that the Court should not go into technicalities, but the facts of the present case are telling rather startling.
50. Even the respondents' own documents do not reflect any delinquency of the petitioner and so is the charge-sheet and statement of charges drawn against the petitioner. The respondents ought to have applied their mind objectively to the facts available on record. Having regard to the fact that the allegations in relation to the lapses in the Dam do not relate to the petitioner and that do not coincide with petitioner's stint, and in view of the fact that department's officers have found the petitioner to be not liable, the State's action of triggering disciplinary proceedings against the petitioner is without the application of mind.
51. The facts of the instant case do not require rocket science or indepth technical knowledge to determine the delinquency of the (Downloaded on 08/05/2023 at 09:34:36 PM) [2023/RJJD/013467] (15 of 16) [CW-9279/2016] petitioner. A simple look at the committee's report coupled with the undeniable fact that the petitioner remained at the dam - project between 31.08.2006 to 24.02.2007, when only 1.72% work that too finishing work was done, are enough for a man with reasonable prudence to reach to a conclusion that amongst all, at least the petitioner cannot be proceeded with. It appears that the petitioner an officer at the lowest rung of the Engineering staff has been made a 'scapegoat'. He is sure to be made a 'scarecrow' by continuing the proceedings.
52. The inquiry should not be initiated simply because an employee has remained posted at some point of time at a site where the construction was faulty. The State should not conduct disciplinary inquiry against the incumbent merely because it has power to do so. Unless there is some prima-facie material or evidence against an employee, inquiry should not be ordered as a matter of routine, as has been done in the present case.
53. If the disciplinary proceedings against the petitioner is allowed to continue now, when the petitioner has retired (in the year 2018), it will be undue harassment to the petitioner on the one hand and sheer waste of State's manpower and resources on the other.
54. The writ petition, therefore, succeeds.
55. The impugned charge-sheet dated 12.06.2013 (Annexure-1) issued qua the petitioner and the disciplinary proceedings consequent thereto are hereby quashed.
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56. Needless to clarify that the observation made herein are confined to the petitioner's case alone and it shall have no binding effect on the case of any other person(s) against whom disciplinary proceedings are being conducted or has been concluded in relation to the irregularities or lapses in construction of Sankal Khera dam.
57. The stay application also stands disposed of accordingly.
(DINESH MEHTA),J 25-akansha/-Mak (Downloaded on 08/05/2023 at 09:34:36 PM) Powered by TCPDF (www.tcpdf.org)