Jharkhand High Court
Naveen Bhagat vs The State Of Jharkhand on 18 November, 2019
Equivalent citations: AIRONLINE 2019 JHA 1043, 2020 (1) AJR 142
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.5004 of 2019
With
W.P. (C) No.4989 of 2019
With
W.P. (C) No.4996 of 2019
With
W.P. (C) No.4998 of 2019
With
W.P. (C) No.5087 of 2019
With
W.P. (C) No.5088 of 2019
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Naveen Bhagat. .......... Petitioner.
[In W.P.(C) No.5004/2019]
Pradeep Kumar Singh. .......... Petitioner.
[In W.P.(C) No.4989/2019]
Ranjit Kumar Thakur. .......... Petitioner.
[In W.P.(C) No.4996/2019]
Sumelal Oraon. .......... Petitioner.
[In W.P.(C) No.4998/2019]
Nand Kishore Singh. .......... Petitioner.
[In W.P.(C) No.5087/2019]
Birendra Kumar Singh. .......... Petitioner.
[In W.P.(C) No.5088/2019]
-Versus-
1. The State of Jharkhand.
2. The Secretary, Drinking Water & Sanitation Department, Government of Jharkhand, Ranchi.
3. The Engineer-in-Chief, Drinking Water & Sanitation Department, Government of Jharkhand, Ranchi.
4. The Secretary, Office of Lokayukta, Jharkhand, Ranchi.
.......... Respondents.
[In all cases]
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CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner(s) : Mr. Anil Kumar Sinha, Sr. Advocate, Saurabh Shekhar, Advocate For the State : A.C. to Sr. S.C.III For Respondent no.4: Mr. Rajesh Kumar, Advocate
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Order No.07 Date: 18.11.2019
1. All these writ petitions have been filed for quashing the order dated 19th August, 2019 passed by the Lokayukta in Case No.01/Lok (Drinking Water) 04/2012, whereby a recommendation has been made to the Secretary, Drinking Water and Sanitation Department, Government of Jharkhand (respondent no.2) to submit a report within a period of months in compliance of the recommendation of the Lokayukta to initiate an appropriate proceeding under the law against the petitioners.
22. The petitioners of W.P.(C) No.4998 of 2019, W.P.(C) No.5087 of 2019 and W.P.(C) No.5088 of 2019 are Junior Engineers and the petitioners of W.P.(C) No.4989 of 2019, W.P.(C) No.4996 of 2019 and W.P.(C) No.5004 of 2019 are Assistant Engineers in Drinking Water and Sanitation Department, Government of Jharkhand.
3. The factual matrix of the case, as stated in the writ petitions, is that one complaint was instituted by Abhimanyu Tiwary before the Lokayukta, Jharkhand which was subsequently sent to the Cabinet Vigilance Department, Government of Jharkhand vide letter no.3667 dated 16th August, 2012. Thereafter, an enquiry was conducted and report was submitted to the Lokayukta on 12th March, 2015. Different memorandums of charges were issued against the petitioners under the signature of the Under Secretary, Lokayukta Office, Ranchi (Jharkhand). The allegation levelled in the said charge was that for the year 2012-13 though an expenditure of Rs.6,42,529/- was made for repair of 60 fluoride removal treatment plant, yet there was no justification of such work and the payment thereof. The petitioners submitted their respective replies before the Deputy Secretary, Office of Lokayukta, Ranchi, wherein they categorically denied the allegations levelled against them. However, learned Lokayukta vide impugned order dated 19th August, 2019 made recommendation to the respondent no.2 for taking appropriate legal action against the petitioners and to submit action taken report within a period of three months.
4. Learned senior counsel for the petitioners submits that the allegations have been detailed at paragraph no.4.1 of the enquiry report and the corresponding enquiry placed at paragraph no.5.1-5.12 of the same. In most of the allegations, the petitioners had no role to play, rather their roles have been suspected at paragraph no.4.1(vi). The enquiry report also consists of physical verification which would suggest that the work was done properly without any complaint from any corner. It is further submitted that the action against the petitioners is with regard to repair of work which was duly executed and the plant continued to work for one year thereafter. There is no allegation that any wrongful payment was made in relation to the said work and as such the petitioners cannot be said to be responsible for use of fund and payment made towards the said work. In fact, the allegation is 3 against the high ranking officers of the department of Government of Jharkhand, who were involved in decision making, process of tender and release of payment. The involvement of the petitioners has merely been suspected during the enquiry. As per Rule 292 of the PWD Code, the estimates of the special repair work are to be sanctioned at the level of the Chief Engineer, depending upon the amount of the project. The show cause notices disclose that the repair work was undertaken without any need of such work, however, the petitioners had no role to play in taking decision for doing the repair work, rather the said decision was taken by the Cabinet and, thereafter, the estimate of the work was prepared, technical sanction was given, administrative approval was granted and tender process was undertaken. In all the activities, the petitioners had not role to play and, therefore, they cannot be said to be responsible at all for execution of the concerned work. As per Rule 295 of the PWD Code, the Junior Engineer being the lowest in the hierarchy is responsible for execution of the respective branches of the public works department and has to work under the guidance and supervision of the Assistant Engineer. Since the petitioners are the Assistant Engineers and Junior Engineers having their respective role in execution of work and not in taking decision for utility of the work, their involvement in the present matter is completely unwarranted.
5. Learned senior counsel for the petitioners further submits that the learned Lokayukta has passed the impugned order in violation of the provisions of Sections 12(1) and 12(3) of the Lokayukta Act, 2001 (hereinafter to be referred as 'the Act, 2001'), wherein recommendation can only be made by the Lokayukta and as such any direction to the Secretary of the department to submit a report on such recommendation becomes mandatory in nature, indicating that the proceeding has compulsorily to be initiated against the petitioners. The impugned order dated 19th August, 2019 would itself disclose that the respective replies of the petitioners have not at all been considered by the Lokayukta and as such the same also suffers from violation of the principles of natural justice. Though the charge against the petitioners is that an amount of Rs.6,42,529/- was disbursed for the financial year 2012-13 towards repair of 60 fluoride treatment removal plant, yet the 4 learned Lokayukta travelled beyond the said charge which is not permissible under the law.
6. On the contrary, learned counsel for the respondent no.4 submits that a complaint was filed before the Lokayukta by one Abhimanyu Tiwari of Daltonganj, Dist. Palamau alleging that there have been mass irregularities in installation of fluoride removal machine in different villages of Palamau District under Rural Water Supply Scheme of National Rural Drinking Water Programme, funded by the Government of India. The learned Lokayukta called preliminary enquiry report from the Additional Director General of Police, CID, Ranchi and, thereafter, vide order dated 8th August, 2012, the Vigilance Commissioner, Department of Cabinet Vigilance was directed to enquire into the matter. Thereafter, the Cabinet Vigilance Department submitted report to the office of the Lokayukta finding various irregularities committed by several public servants. Thereafter, the show cause notices were issued to the petitioners and they submitted their respective replies. The Lokayukta in the impugned order dated 19th August, 2019 after thoroughly considering the facts involved in the matter recommended the Secretary, Drinking Water and Sanitation Department, Government of Jharkhand, who is the controlling authority and the head of the department, to take lawful action against 16 public servants including the petitioners. Learned Lokayukta vide impugned order dated 19th August, 2019 has duly considered the specific role of the petitioners wherein it has been found that though no work was ever started for removal of fluoride from the installed plant, yet the payment was made to the contractors for the purpose of repair of 60 fluoride removal treatment plants in the year 2012-13 by preparing improper estimates. It is further submitted that a Bench of this Court, while considering a similar matter in the case of Ravi Shankar Pandey Vs. The State of Jharkhand & Ors. (W.P.(Cr.) no.221 of 2013), has dismissed the said writ petition vide order dated 20th March, 2015 with following observations:-
"6. Having heard learned counsel for both the sides and upon going through the record, I find that there is allegation against the petitioner to have verified the illegal actions of his predecessors and on this allegation, upon due enquiry, the impugned recommendations have been made by the Hon'ble Lokayukta, the respondent no.5. The allegation against the petitioner appears to be substantiated by the concerned record as well.5
7. In that view of the matter, there can be no interference with the impugned order dated 11.09.2013 passed by the Lokayukta, Jharkhand, in complaint case no. 01/Lok (Sahkarita) 02 of 2012. There is no merit in this application and the same is accordingly dismissed."
7. Learned counsel for the respondent no.4 puts reliance on the judgment of the Hon'ble Supreme Court rendered in the case of Rangnath Mishra Vs. State of Uttar Pradesh & Ors., reported in (2015)8 SCC 117, wherein it has been held as under:
"21. Before parting, the issue with regard to the jurisdiction of the Lokayukta to proceed in the instant matter in view of the provisions of the Third Schedule to the Act must be answered. What the Third Schedule to the Act contemplates is that the Lokayukta in the course of an investigation under the Act will not investigate a crime or determine the question as to whether the matter "shall go to, or shall continue to be prosecuted in a court or not". In the present case, the recommendations of the Lokayukta were merely for an investigation as to whether a case for prosecution of the appellant is made out or not. Accordingly, the matter was investigated and presently is under trial in a court of competent jurisdiction. All the said subsequent facts as noted in detail at the very outset make it clear that even if the contentions of the appellant with regard to the Third Schedule to the Act are to be accepted (we make it clear that we do not accept the same), the question that would arise has become wholly academic."
8. Heard learned counsel for the parties and perused the materials available on record. The main submission of learned senior counsel for the petitioners is that the Lokayukta has travelled beyond its jurisdiction while directing the Secretary of the concerned department to submit action taken report within three months, which is against the mandate of the Act, 2001.
9. Learned senior counsel for the petitioners puts reliance on the judgment rendered by this Court in the case of Shashank Kumar Sinha Vs. The Office of Hon'ble Lokayukta, Jharkhand & Ors. [W.P.(C) No.263 of 2019]. I perused the said judgment, wherein this Court after observing the fact that the Lokayukta had recommended the Director General, Anti Corruption Bureau to institute an F.I.R. and to submit action taken report, has held that the Lokayhukta is only empowered to make recommendation leaving it open to the competent authority to take suitable action and to submit action taken report.
10. I perused the provision of Section 12 of the Act, 2001. For better appreciation of the case, the said provision is quoted hereunder:
"12. Reports of Lokayukta--
(1) If, after investigation of any action in respect of which a complaint involving a grievance has been or can be or could 6 have been made, the Lokayukta is satisfied that such action has resulted in injustice or undue hardship to the complainant or any other person, the Lokayukta shall by a report in writing, recommend to the public servant and the competent authority concerned that such injustice or undue hardship shall be remedied or redressed in such manner and within such time as may be specified in the report.
(2) The competent authority to whom a report is sent upon sub-section (1) shall, within one month of the expiry of the term specified in the report, intimate or cause to be intimated to the Lokayukta, the action taken for compliance with the report.
(3) If after investigation of any action in respect of which a complaint involving and allegation has been or can be or could have been made, the Lokayukta is satisfied that such allegation can be substantiated either wholly or partly, he shall by a report in writing communicate his findings and recommendations alongwith the relevant documents, materials and other evidence to the competent authority.
(4) The competent authority shall examine the report forwarded to it under sub-section (3) and intimate within three months of the date of receipt of the report, the Lokayukta, the action taken or proposed to be taken on the basis of the report.
(5) If the Lokayukta is satisfied with the action taken or proposed to be taken on his recommendations or findings referred to in sub-sections (1) and (3), he shall close the case under information to the complainant, the public servant and the competent authority concerned; but where he is not so satisfied and if he considers that the case so deserves, he may make a special report upon the case to the Governor and also information to the complainant concerned.
(5A) Where in a report forwarded by the Lokayukta any recommendation imposing the penalty of removal from the office of a public servant, falling within sub-clause (iv) of clause
(j) of section 2 of the Act, had been made, it shall be lawful for the Government without any further enquiry to take action on the basis of the said recommendation for the removal of such public servant from his office and for making his ineligible for being elected to any office, specified by the Government in this behalf not withstanding anything contained in any law for time being in force.
(6) The Lokayukta shall present annually a consolidated report on the performance of his functions under this Act to the Governor.
(7) On receipt of a special report under sub-section (5), or the annual report under sub-section (6), the Governor shall cause a copy thereof together with an explanatory memorandum to be laid before each House of the State Legislature.
(8) Subject to the provisions of sub-section (2) of section 10, the Lokayukta may, at his discretion, make available from time to time, the substance of cases closed or otherwise disposed of by him which may appear to him to be of general public, academic or professional interest in such manner and to such persons as he may deem appropriate."
11. On perusal of the aforesaid provision, it would be evident that as per sub-section (3) of Section 12 of the Act, if the Lokayukta is satisfied after investigation that the allegations levelled in the complaint can be substantiated wholly or partly, he shall by a report in writing communicate the findings and recommendations along with the relevant documents, materials and other evidence to the competent 7 authority. Sub-section (4) of Section 12 provides that the competent authority to whom the report is sent by the Lokayukta under sub- section(3) shall intimate the Lokayukta within three months from the date of receipt of the report about the action taken or proposed to be taken by him. Moreover, sub-section (5) of Section 12 provides that if the Lokayukta is satisfied with the action taken by the competent authority, he shall close the case with an intimation to the complainant to that effect, but when he is not satisfied with the report, he may make a special report upon the case to be sent to the Governor and also inform the complainant concerned. Sub-section (5A) of Section 12 provides that if the Lokayukta has made recommendation for imposing penalty for removal of any public servant falling within Sub-clause (iv) of clause (j) of section 2 of the Act, 2001, it shall be lawful for the Government without any further inquiry to take action of removal of such public servant from his office and for making him ineligible for being elected to any office on the basis of the said recommendation.
12. Thus, while incorporating the provision for communication of the action taken report to the Lokayukta, the legislature was mindful of the fact that the Lokayukta should be made aware of the action taken by the competent authority in pursuance of his recommendation. The time frame for submitting the compliance report has also been provided with an intention that the competent authority may not sit tight over the said recommendation of the Lokayukta so as to get it frustrated. Hence, I do not find any substance in the argument of the learned senior counsel for the petitioners, particularly keeping in view that it is mandatory on the part of the competent authority under Section 12(4) of the Act, 2001 to send the action taken report within three months of the date of receipt of the report of the Lokayukta.
13. Even if it is assumed that the learned Lokayukta was not required to give any direction to the competent authority to submit the action taken report, the same does not by itself cause any prejudice to the petitioners, as even in absence of such a direction of the Lokayukta, the competent authority is otherwise obliged under the mandate of law to intimate the Lokayukta regarding the action taken in pursuance of his recommendation.
14. The judgment of Shashank Kumar Sinha (Supra.) as has been cited by the learned senior counsel for the petitioners is not relevant 8 so far as the present batch of cases are concerned, as the facts of these cases are entirely different from those cited. In the present cases, there is no direction given by the learned Lokayukta for lodging an F.I.R., rather recommendation has been made to the respondent no.2 to take appropriate legal action on the basis of the report and to submit the action taken report within three months.
15. The next limb of the argument of the learned senior counsel for the petitioners is that the impugned order has been passed without any application of mind and without assigning any reason.
16. To appreciate the said contention of the learned senior counsel for the petitioners, I have gone through the enquiry report as well as the impugned order. It has been mentioned in the enquiry report that ten numbers of schemes were inspected by the enquiry team, which were randomly selected. In none of the said schemes, it was found that water was being supplied through fluoride removal plant, rather the same was being taken by the villagers directly. Even in some cases, the scheme was found closed. When the enquiry team enquired from the villagers, they stated that when they wanted to take water through the fluoride removal plant, the water started coming from inlet point itself and due to the said reason the villagers disconnected the fluoride removal plant and started taking water directly from HYDT and getting it collected in Vats. The enquiry committee observed that the fluoride removal plant had never worked properly even after repair of the same for which an amount of Rs.6,42,529/- was paid to the contractors and in this process the petitioners and others were found responsible.
17. Learned Lokayukta having considered the enquiry report found that prima facie materials were available on record for taking action against the petitioners and others. The contention of the learned senior counsel for the petitioners however is that the petitioners were only responsible for execution of the work and after repair, the plant worked properly. The said argument cannot be accepted, as it has come in the enquiry that the enquiry committee when inspected the said works, in none of the places, the water was found coming from fluoride removal plant. As such, they were also found responsible by the Lokayukta for committing irregularity in the work.
18. The next contention of the learned senior counsel for the petitioners is that the learned Lokayukta while passing the impugned order did not 9 consider the reply submitted by the petitioners. The said contention of the learned senior counsel for the petitioners also cannot be accepted, as on perusal of the impugned order, it would appear that all possible aspects of the matter have been discussed by the learned Lokayukta.
19. Further argument of learned senior counsel for the petitioners is that the learned Lokayukta has committed serious illegality in sending the report to the Secretary of the concerned department with recommendation to take appropriate legal action against the petitioners, as the Secretary is not the competent authority under the Act, 2001 in relation to the petitioners. It has further been submitted that in view of rule 5(i) of the Rules, 2001, the competent authority would be the appointing authority.
20. To appreciate the said contention of learned senior counsel for the petitioners, I have gone through the provision of Section 2(c) of the Act, 2001, which defines "Competent Authority". The same is reproduced hereinunder:
"2(c) "Competent authority" in relation to a public servant means-
(i) In the case of Ministers or a Secretary - The Chief Minister or during the period of operation of any proclamation issued under Article 356 of the Constitution, the Governor;
(ii) In the case of any other public servant - Such authority as may be prescribed."
21. Rule 5 of the Jharkhand Lokayhukta (Investigation) Rules, 2001 defines the competent authority for the purpose of item (ii) of Clause
(c) of Section 2 of the Act, 2001, which is reproduced hereinbelow:-
"5. Competent Authority - Other than in the case of a Minister or a Secretary referred under item (i) of clause
(c) of Section 2 of the Act,
(i) where appropriate disciplinary action is recommended by the Lokayukta the Competent Authority shall be the Appointing Authority of the public servant; and
(ii) where remedial action or redressal of grievances is recommended by the Lokayukta the Competent Authority shall be the head of the department or office in which the public servant has been working or had worked:
.........................................................."
22. As per sub-rule (i) of rule 5, the competent authority would be the appointing authority of the public servant, if the Lokayukta makes recommendation for appropriate disciplinary action against the concerned public servant. As per sub-rule (ii) of rule 5, for the remedial action or the redressal of the grievance, the competent authority would 10 be the head of the department or office in which the public servant has been working or had worked. Hence, it appears that rule 5 of the Rules, 2001 does not specify as to who would be the competent authority in such cases in which the Lokayukta recommends for taking legal action. Rule 5 thus does not appear to be exhaustive in nature, rather it defines the competent authority only for two situations as discussed hereinabove.
23. Coming back to the present cases, on bare perusal of the impugned order, it would be evident that the learned Lokayukta has neither made recommendation for initiating disciplinary action against the petitioners nor has made recommendation for remedial action or redressal of grievance. In fact, the recommendation of the Lokayukta is for initiating appropriate legal action which is a vast term and may not be limited to the disciplinary action only. Considering the said aspect, the recommendation of the learned Lokayukta made to the Secretary of the concerned department cannot be said to be contrary to law. Nonetheless, these are the matters of procedure which do not render the merit of the report prepared by the Lokayukta to be redundant.
24. Under the aforesaid facts and circumstances of the case, I find no infirmity in the impugned order dated 19th August, 2019 passed by the learned Lokayukta in Case No.01/Lok (Drinking Water) 04/2012. All the writ petitions are hereby dismissed.
25. I.A. No.9948 of 2019 in W.P.(C) No.5004 of 2019, I.A. No.9949 of 2019 in W.P.(C) No.5087 of 2019 and I.A. No.9947 of 2019 in W.P.(C) No.5088 of 2019 are also dismissed.
(Rajesh Shankar, J.) Sanjay/AFR