Deepak Roshan, J
1. Heard learned counsel for the parties.
2. The instant writ application has been preferred by the petitioner for the following relief(s):-
(1) For issuance of appropriate writ (s), order (s), direction (s), specifically a writ in the nature of certiorari for quashing of order dated 02.12.2021 (Annexure-9
of this writ application) issued under the signature of respondent no.3, whereby punishment of 'stoppage of one annual increment with non- cumulative effect' has
been passed, and further for quashing of entire departmental proceeding initiated vide resolution dated 17.10.2019 (Annexure-1 of this writ application), passed
in the name of His Excellency the Governor of Jharkhand, under the signature of the respondent no.3.
(ii) For issuance of appropriate writ (s), order (s), direction (s), specifically a writ in the nature of mandamus commanding upon the respondents to release the
arrears of salary, relating to the order of punishment, as also consider the petitioner for promotion, w.e.f. the date 10.08.2021 when batch mates/ juniors have
been promoted, and other consequential benefits.
3. The brief facts of the case as disclosed in the writ application is that on 17.10.2019 a decision was taken by the department to initiate departmental
proceeding, vide resolution dated 17.10.2019; whereby it was pointed out that for the year 2014-15, in the Water Way Division, Hazaribagh, several
irregularities were committed, relating to repair works. Therefore, a departmental proceeding was initiated against the petitioner, under Rule 16 & 17
of Jharkhand Government Servant (Classification Control and Appeal) Rules, 2016 (hereinafter to be referred as 2016 Rules), for imposition of major
penalty. It was also recorded that the petitioner had to submit reply to the PRAPATRA 'KA' being provided along with the decision, within a period of
2 weeks before the appointment of Enquiry Officer. One Presenting Officer was also appointed. One PRAPATRA 'KA' was also provided, along
with decision dated 17.10.2019, under Rule 16 and 17 of the 2016 Rules. The PRAPATRA 'KA narrates two charges against the petitioner. The
petitioner preferred reply, denying all the charges leveled against him.
The petitioner submitted that in relation to charge no.-1, for the payment of first current bill dated 27.03.2015, he was not posted at the site in issue
/dispute. In relation to the second current bill dated 11.07.2015, payment was made on the basis of work done, and as per the agreed amount, provided
in Agreement No. 05 F2/ 2014-15, dated 09.02.2015, entered between the department and the contractor for the project of renovation of Golai Weir
Scheme and renovation of Dulki Reservoir Scheme of the disputed site. It has been further stated that the agreement amount, as also the pre-
estimation raised by the earlier Junior Engineer and Assistant Engineer did not include the petitioner. The technical sanction that was given by the
Chief Engineer for renovation of Golai Weir Scheme and by the Superintending Engineer for renovation of Dulki Reservoir Scheme, and agreement
signed by the Executive Engineer does not involve any role of the petitioner.
4. Mr. Saurabh Shekhar, learned counsel for the petitioner submits that the petitioner joined the place as an additional charge for two months i.e. from
30.06.2015 to 14.09.2015. For this period, he made payment on the basis of agreed amount, as per the agreement. Therefore, none of the allegations
can relate to any misconduct on part of the petitioner. The departmental enquiry took place before the Enquiry Officer and Presenting Officer
submitted his reply supporting the case of the petitioner, and saying that case against the petitioner is not maintainable, as he was not posted at the
time when the estimation had happened, further even the agreement amount that has been alleged as to be more than required has been said to be not
the fault of the petitioner. Thus, he has also opined that the petitioner can be exonerated from the charges.
He further submits that the Enquiry Officer has submitted his report saying that in relation to charge no. i (A) & (B), the petitioner is responsible for
making payment of Rs. 52,732/-; though the fact remains that for bolder pitching, payment has not been made by the petitioner. It has been further
submitted that for the purposes of wrong payment earlier Junior Engineer and Assistant Engineer, as also the Executive Engineer are equally
responsible.
In relation to charge no.ii, it has been found that payment has been made by another Assistant Engineer, namely, Sri Nirmal Kumar Tiwari, and even
thereafter it has been found by the Enquiry Officer that the petitioner is not responsible directly. But, however, since the amount was 'carry
forwarded' by the petitioner in the measurement book, hence the charge has been found partially proved.
5. He further submits that the copy of enquiry report was provided to the petitioner through show-cause dated 04.03.2020, wherein the Disciplinary
Authority has stated that he is in agreement with the finding of the Enquiry Officer; thus, he has disclosed his mind on the finding of the Enquiry
Officer. Hence it can be said that enquiry report was served upon the petitioner to reply on it on the basis of a closed mind. This has been
reprimanded by the Hon'ble Apex Court, in the case of MD ECIL Vrs. K. Karunakar, reported in (1993) 4 SCC 727, at paragraph no.29.
Learned counsel further submits that the petitioner submitted a detailed reply, pointing out the defects of in enquiry report and points of consideration
making out a case of no misconduct against him. The respondents thereafter served second show cause notice on 10.12.2020, which was a show
cause on proposed punishment. The petitioner preferred a detailed reply; however, the respondents thereafter passed order of punishment dated
02.12.2021, whereby punishment of 'stoppage of one annual increment with non-cumulative effect' was passed against the petitioner.
6. Learned counsel further submits that the departmental proceeding has been wrongly started against the charges of excess payment done by the
petitioner to the contractor, inasmuch as, such payment was done on the basis of rate admitted in the agreement between the Department and the
Contractor, being Agreement Nos. 05F2 / 2014-15, dated 09.02.2015 and 07F2 / 2014-15 dated 12.02.2015.
The presenting officer himself in his reply supported the case of the petitioner and submitted that the case against this petitioner is not maintainable
because he was not posted at the time when the estimation had happened and even the agreement amount that has been alleged to be more than
required was not the fault of the petitioner and accordingly the presenting officer opined that the petitioner can be exonerated of the charges. The
enquiry officer had submitted his report in relation to charge no. i (A) & (B) that the petitioner is responsible for making payment of Rs. 52,752/-.
However, it is admitted that for bolder pitching payment has not been made by this petitioner. Further, it has been submitted for the purpose of wrong
payment earlier Junior Engineer and Assistant Engineer as also the Executive Engineer been equally responsible.
In relation to charge no. ii, it has been found that the payment has been made by another Assistant Engineer, namely, Sri Nirmal Kumar Tiwari, and
even thereafter, it has been found by the Enquiry Officer that the petitioner is not responsible directly, but however, he has opined that since the
amount was carry forwarded by the petitioner in the measurement book, hence the charge has been partially proved.
7. Learned counsel lastly submits that the instant case is not a case of excess payment and the payment has been made as per the estimate and the
estimate was done by the previous officer; as such no case is made out against this petitioner and as such the finding of the enquiry officer as well as
the departmental authority is perverse in nature.
8. Mr. Saurav Mahto, learned A.C. to G.P.I representing the respondents submits that in view of the illegality found to be committed by the petitioner
during his posting as an Assistant Engineer, Waterways Division No.2 Gola Camp, Hazaribagh, a decision vide Departmental Resolution No. 5789
dated 17.10.2019 (Annexure-A) was taken to initiate a regular departmental proceeding against the petitioner. Accordingly, a charge memo was
served upon the petitioner, whereby, altogether 3 allegations pertaining to excess/irregular payment of Rs.5,08,586/- was levelled upon the petitioner.
He further submits that in the departmental enquiry, the petitioner had also participated and submitted his reply denying the charges levelled against
him mainly on the ground that the payments of relevant bills were made prior to his posting by his predecessor. However, upon completion of the
departmental enquiry, the inquiry officer submitted his report vide letter dated 14.02.2020 (Annexure-B) wherein as per his finding; it was found that
the petitioner had counter signed at least two bills in his short tenure. Thus, being supervisory authority, the petitioner was found guilty of charges no.
(i) (A) & (B).
However, with respect to charge no. ii, the Inquiry Officer gave a finding that the same has been found partly proved.
9. Learned counsel for the respondent further submits that there is no procedural irregularity in the case nor the order of punishment is perverse and
as a matter of fact, the enquiry officer has rightly observed that since the petitioner was an officer on the spot; as such he should have estimated the
amount before payment. However, learned counsel could not dispute the fact that it is not a case of excess payment; rather it is a case of payment on
the basis of estimate made by the earlier officer.
10. Having heard learned counsel for the parties and after going through the respective affidavits, it appears that out of total allegations two charges
were proved i.e. B of serial no. i and first para of serial no. (ii). So far as B (i) is concerned; it is with respect to excess of payment of Rs. 27,85,848/-;
the charge is also with respect to first para of charge no. ii i.e. with excess payment of Rs. 39,508/-.
It appears that in the year 2014/15 under the Water Division of Hazaribag, renovation scheme was being carried out. The renovation of the Gulai Weir
of the water passage at supply source in a canal was being done. The allegation against this petitioner is that the estimate and payment in regard to the
rate of distilling under the head of “paid clearance was excess and therefore, contractor was paid more amount than warranted and thus there was
an excess payment of Rs.28,38,581/-. Out of the four charges, two were not proved and two were proved. The two charges which were proved was
with respect to payment of Rs.27,85,848/- and Rs.39,50,18/-
It further transpires that a departmental enquiry took place before the Enquiry Officer and Presenting Officer submitted his reply supporting the case
of the petitioner, and saying that case against the petitioner is not maintainable, as he was not posted at the time when the estimation had happened,
further even the agreement amount that has been alleged as to be more than required has been said to be not the fault of the petitioner. Thus, he has
also opined that the petitioner can be exonerated of the charges.
11. The Enquiry Officer has submitted his report saying that in relation to charge no. i (A) & (B), the petitioner is responsible for making payment of
Rs. 52,732/-. For bolder pitching, payment has not been made by the petitioner. Further it has been said that for the purposes of wrong payment earlier
Junior Engineer and Assistant Engineer, as also the Executive Engineer are equally responsible.
In relation to charge no. ii, it has been found that payment has been made by another Assistant Engineer, namely Sri Nirmal Kumar Tiwari, and even
thereafter it has been found by the Enquiry Officer that the petitioner is not responsible directly. However, since the amount was 'carry forwarded' by
the petitioner in the measurement book, hence the charge has been found partially proved.
12. Thus, it appears from the enquiry report which is at internal page 11 running page 45 of the writ application, the enquiry officer himself has
admitted that the payment has been made as per the estimate. However, an observation has been given by the enquiry officer that since he is an
officer at the time of payment, he should have himself estimated in his own way; rather than to blindly accept the estimate done by the previous
officer.
13. This observation of the enquiry officer is perverse in nature, inasmuch as, when the estimate was done, the petitioner was not posted at the
relevant place and moreover the estimate was approved by the senior officers and he has paid whatever amount to the contractor was in accordance
with the estimate. The finding of the enquiry officer that since he was posted at the relevant place at the time of payment therefore, he should have
estimated himself is just misconceived because in any work the procedure is first to make an estimate and thereafter, agreement is to be signed and as
per the terms of agreement the payment is to be made.
14. It is not the case of an excess payment beyond the estimate; rather it is a case of payment which has been made as per the estimate and at the
cost of repetition the estimate was not done by this petitioner; rather the same was done by the previous officer and thus, I am having no hesitation in
holding that the allegation, the observation of the enquiry officer as well as the order of punishment based on the enquiry report has no legs to stand in
the eye of law, inasmuch as, merely the petitioner being an Assistant Engineer and the recommending officer for payment he was not legally
authorized to analyze the system/estimate which was done by the previous officer; somewhat that observation itself is against the settled procedure.
15. Accordingly, the order of punishment being perverse in nature, deserves to be, and is, hereby quashed and set aside and consequently the
petitioner is entitled for payment which has been withheld due to the reason of withholding of increment. It goes without saying that necessary
consequential benefit shall be extended to this petitioner within a period of 12 weeks from the date of receipt/production of copy of this order.
16. Accordingly, the instant writ application stands allowed. Pending I.A. if any, also stand closed.
