Jharkhand High Court
Awadhesh Pandey Aged 60+ Years Son Of ... vs The State Of Jharkhand on 8 September, 2022
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 626 of 2019
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Awadhesh Pandey aged 60+ years son of Raghunandan Pandey, Resident of 4-A, Sidhi Tower, Bariatu, P.O. and P.S. -Bariatu, Dist-Ranchi.
...... Appellant/Petitioner Versus
1.The State of Jharkhand ..... Respondent/Respondent no. 1
2.The Chief Secretary, Govt. of Jharkhand having it office at Project Building, Dhurwa, P.O. and P.S. - Dhurwa, Dist-Ranchi.
3.The Principal Secretary, Drinking Water and Sanitation Department, Govt. of Jharkhand having its office at Nepal House, Doranda, P.O and P.S. - Doranda, District-Ranchi.
4.Engineer-in-Chief, Drinking Water and Sanitation Department, Govt. of Jharkhand having its office at Nepal House, Doranda, P.O and P.S. - Doranda, District-Ranchi.
...Respondents/Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant : Ms. Rakhi Rani, Advocate For the Respondents : Mr. P.A.S. Pati, G.A-II
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Oral Judgment Order No. 10: Dated 8th September, 2022: I.A. No. 9378 of 2019 2
The present Interlocutory Application has been filed for condonation of delay of 14 days in filing the instant appeal.
2. Heard learned counsel for the parties.
3. No counter affidavit has been filed opposing the prayer for condoning the delay.
4. Having regard to the averments made in this application, we are of the view that the appellant was prevented by sufficient cause from preferring the appeal within the period of limitation.
5. Accordingly, I.A.No.9378 of 2019 is allowed and delay of 14 days in preferring the appeal is condoned. L.P.A. No. 626 of 2019
6. The instant intra-court appeal, under Clause 10 of the Letters Patent, has been preferred against the order/judgment dated 13.06.2019 passed by learned Single Judge in W.P. (S) No. 2033 of 2017, whereby and whereunder the order of punishment, as contained in Notification No. 3656 dated 10.08.2016, by which the petitioner has been awarded a major punishment of withholding of three increments with cumulative effect and petitioner has been placed in a non-working category till the age of superannuation, has been modified to the extent that order of posting the petitioner 3 under non working category till the age of superannuation stood deleted from the order of punishment, which is at Column Gha, however, refused to interfere with other punishments.
7. The brief facts of the case, which requires to be enumerated as per the pleadings made in the writ petition, read as under:
While the petitioner was posted as Superintendent Engineer, Department of Drinking Water and Sanitation at Medininagar Circle, Jharkhand, the respondents- authorities conducted an enquiry, after cognizance of a complaint with regards to irregularities in invitation and execution of tender for disaster management projects. Accordingly, a show cause was issued to the petitioner vide letter No. 2784 dated 10.07.2015 and letter No. 961 dated 26.02.2016 asking for clarification with regard to certain queries, in tabular form, in relation to bidding documents for the tenders floated in Medininagar. The petitioner vide letter No. 390 dated 27.02.2016 replied to said show cause categorically answering all the queries in a tabular form but the respondents having not been satisfied with the reply issued charge-sheet. Pursuant thereto, an Enquiry Committee was constituted to inquire into the charges framed against the petitioner. 4 Pursuant thereto, enquiry was conducted and the enquiry report was submitted with a finding that petitioner has been exonerated from Charges No.2, 3 and 5 but the Charges No.1 and 4 have been partially proved, which relates to allotment of tender against the Rules and lack of dedication and honesty. Thereafter, a show cause was issued to the petitioner vide letter No. 2729 dated 20.06.2016 along with the copy of the Enquiry Report for clarification on the charges partially proved against him, which he replied denying the charges stating therein that Charge No. 1 was prior to the joining of the petitioner and charge No.4 was partially proved without any reason. The Disciplinary Authority considering the reply furnished by the petitioner vis-à-vis enquiry report passed the order of punishment, vide Notification No. 3656 dated 10.08.2016, stating therein that charges against the petitioner has been found to be proved, by which the petitioner was imposed with major punishment of withholding of three increments with cumulative effect and petitioner was placed in a non-working category till the age of superannuation.
Aggrieved thereof, the petitioner preferred an appeal before the Governor vide letter No. 16 (P) 5 dated 31.08.2016 which was rejected in terms of Jharkhand Government Servants Appeal Rules, 2016 (hereinafter referred to as Rules, 2016) and a copy was also forwarded to the petitioner.
Being aggrieved with the order passed by the disciplinary authority as well as by the appellate authority, the petitioner has approached this Court by filing writ petition being W.P. (S) No. 2033 of 2017 on the ground that the order impugned has been passed without adhering to the procedure laid down for initiating departmental proceeding under Rules, 2016. Further, the writ petitioner was not provided adequate opportunity to defend his case before the enquiry officer and also he was not allowed to put forth his defense and cross-examine the witnesses. Further ground has been taken that these issues were raised before the appellate authority but the appeal has been dismissed holding the appeal not maintainable.
The learned Single Judge, after appreciating the argument advanced by the parties declined to interfere with the order of punishment passed by the disciplinary authority as also the appellate order, so far punishment mentioned at Column 'K', 'Kha' and 'Ga' are concerned, however, considering the fact that punishment at 6 Column 'Gha' does not find place under Rule 14 of the Rules, 2016 has quashed and set aside that part of order and thereby modified the order of punishment to the extent that order of posting the petitioner under non working category till the age of superannuation is hereby deleted from the order of punishment, which is the subject matter of instant intra-court appeal.
8. Mr. Rakhi Rani, learned counsel for the petitioner has submitted that the learned Single Judge has not appreciated the fact that procedure laid down in Rules, 2016 has not been observed, which has specifically been agitated before the learned Single Judge but the same has not been appreciated, by declining to interfere with the impugned order of punishment. However, the learned Single Judge considering the fact that punishment at Column 'Gha' does not find place under Rule 14 of the Rules, 2016 quashed that part of order and modified the order of punishment to the extent that order of posting the petitioner under non working category till the age of superannuation is hereby deleted from the order of punishment.
It has been submitted that when the procedure has been laid down under the Rules, 2016, which is strictly to be adhered to since the same provides that 7 adequate and sufficient opportunity to be provided to the delinquent-employee, as provided under the provision of Rule 18 of the Rules, 2016 thereof but the same has not strictly been followed, since the petitioner has not been provided with adequate opportunity to defend his case and cross examine the witnesses.
It has been contended that aforesaid aspect of the matter was raised before the appellate authority but the appeal has been dismissed on the ground of non- maintainability since under Rule 25 there is no provision to file appeal.
It has further been contended by referring to provision to Rule 25 that even though there is no provision of appeal, as would appear from the provision of Rule 25(2) of the Rules, 2016 that there shall no appeal against the order of the Government, however, review petitions can be filed in the form of Memorials. Even though appeal has been filed, the competent authority could well have taken into consideration the aforesaid memorandum of appeal as a memorial under Rule 25(2) of the Rules, 2016.
9. On the other hand, Mr. P.A.S. Pati, learned G.A. II appearing for the respondents-State has submitted that since the petitioner is raising the issue about non- 8 consideration of appeal, which is said to have been rejected on technical ground since according to writ petitioner there is no provision of appeal, as would appear from provision of law contained under Rule 25(2) of the Rules, 2016 but even though the grievance has been raised by way of appeal, which should have been considered as memorial, as per Rule 25(2) of the Rules, 2016.
Therefore, the writ petition may be disposed of by directing the concerned authority to treat the memo of appeal as memorial in order to exercise the power of review as contained under Rule 25(2) of the Rules, 2016.
10. Upon this, learned counsel for the petitioner is having no objection, however, submission has been made that the concerned authority may be directed to dispose of the memorial in terms of provision as contained under Rule 25(2) of the Rules, 2016 within a specific period and also give liberty to the petitioner to raise all the issues, as available on record, which has not been raised in the memorandum of appeal.
11. Learned counsel for the State has submitted that such liberty may be granted to the petitioner.
12. This Court has heard learned counsel for the parties and taken into consideration the argument 9 advanced by learned counsel for the respondents-State that such liberty may be granted to the petitioner to file fresh memorial for its consideration under the provisions of Rule 25(2) of the Rules, 2016 by the competent authority, deems it fit and proper to modify the order passed by learned Single Judge in following terms:
(I).The writ petitioner is given liberty to file petition in the form of Memorial for its consideration by the reviewing authority in terms of provision as contained under Rule 25(2) of the Rules, 2016.
(II).The writ petitioner will be at liberty to raise all the points which are available on record but could not be raised in the memorandum of appeal, for its consideration in accordance with law by the reviewing authority. (III).If such petition is filed in the form of memorial, the concerned authority shall decide the same within a period of three months from the date of receipt/production of copy of this order.
Accordingly, the order passed by the learned Single Judge is modified to the extent, as indicated hereinabove.
With the aforesaid observations and directions, the instant intra-court appeal stands disposed of.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Alankar/ -
N.A.F.R.