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Judgment
The penalty order dated 07.10.2011 and the appellate order dated 10.01.2013 are under challenge in this writ petition. Â
The petitioner was appointed as Junior Engineer on 31.12.1987 and while posted as Junior Engineer, MESO Area, Latehar, it is alleged that he did
not complete construction of two hostels and rooms in Schedule Tribe Boys Residential High School, Jonki Pokhar, Netarhat and other works. On
13.07.2007 a showcause notice was issued to the petitioner, why Rs.24, 40,000/- only was adjusted against Rs.91, 50,000/- which was given to him for
execution of different schemes at MESO area, Latehar, however, in order dated 28.08.2007 by which he was put under suspension allegation levelled
against him is of non-adjustment of Rs.40, 47,752/- against the aforesaid advance of Rs.91.50 lacs. A charge-memo dated 27.09.2007 was served
upon him on the allegation that he has failed to account for Rs.91.50 lacs given to him as advance. The respondents have pleaded that in the
departmental proceeding the petitioner appeared only on 15.01.2008 and 21.01.2008.
An enquiry report was submitted by the Deputy Development Commissioner on 26.03.2008 and second show-cause notice was issued to the petitioner
on 24.04.2008. Responding to the second show-cause notice, the petitioner submitted his representation on 07.05.2008 seeking supply of certain
documents, however, documents were not supplied to him. Constrained, he submitted his reply to second show-cause notice on 17.02.2009 and again
submitted a reply on 17.02.2010. However, referring to the enquiry report the penalty order dated 07.10.2011 was passed and the appeal preferred by
the petitioner has been dismissed on 10.01.2013.
Contending that the enquiry report is bereft of foundational facts and it does not disclose how a finding has been arrived by the enquiring officer that
an amount of Rs.19, 16,906/- is recoverable from the petitioner,  Mr. Arvind Kumar Singh, the learned counsel for the petitioner submits that the
penalty order dated 07.10.2011 which has been passed on the basis of such an enquiry report is liable to be quashed. Another contention raised by the
petitioner is, that the appellate order has been passed in breach of the rules of natural justice.
Referring to the enquiry report dated 26.03.2008, Mr. Prem Pujari Roy, the learned State counsel submits that the petitioner in spite of several
notices issued to him when did not appear in the departmental proceeding, the enquiring officer on the basis of the materials on record has concluded
that Rs.19, 16,906/- is the amount which has remained unadjusted, and therefore this amount is recoverable from the petitioner.
 5.  A glance at the charge-memo dated 27.09.2007 would disclose that allegation against the petitioner is, that Rs.91.50 lacs which was given as
advance to him for completion of hostels, boundary wall, gallery and other schemes has remained unadjusted. Apparently, the department is required
to give details of the amount given to the petitioner as advance and the work completed by him. In the enquiry report it is simply recorded that some
documents were produced by the department during the departmental enquiry, however, the enquiring officer has found the charges framed against
the petitioner proved primarily because the petitioner has not produced any evidence in support of his defence. In the first place, this finding recorded
by the enquiring officer is contrary to the charge framed against the petitioner; allegation in the charge-memo pertains to Rs.91.50 lacs whereas the
finding of the enquiring officer is in respect of Rs.19,16,906/-. Assuming that the petitioner has not produced any evidence which may dis-prove the
charges framed against him, it is not mere ipsi-dixit of the enquiring officer which can form a firm foundation  for the enquiry report. On
hypothesis charges framed against a delinquent officer can be held proved. The enquiry report dated 26.03.2008 does not disclose  any calculation
on adjustment of Rs.72, 33,094/- (Rs.91.50 lacs â€" Rs.19, 16,906/-). It also is not reflected which are the records, measurement books etc. which
would establish that Rs.19, 16,906/- is the amount recoverable from the petitioner. In fact, the enquiry report does not refer to the specifies and details
of the materials produced by the department during the enquiry proceeding, and it also does not refer to the schemes which were not completed within
time or have remained incomplete, if any, then the extent of completion. In “M.V. Bijlani vs. Union of India & Others†reported in (2006) 5 SCC
88, the Supreme Court has observed as under:
“25. ……..Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt,
we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analyzing the documents must arrive at a
conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take
into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the
relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent
officer had not been charged with.â€
 6. Obviously, based on such an enquiry report penalty order dated 07.10.2011 could not have been passed. The petitioner has asserted that in the
departmental proceeding he was present on 22.11.2007, 15.01.2008, 21.01.2008 and vide letters dated 05.02.2008, 07.02.2008 and 18.02.2008 he has
informed the conducting officer through Fax and by registered post about his illness and treatment at RIMS, Ranchi, however, the inquiry proceeding
was conducted on 03.03.2008, 12.03.2008, 19.03.2008 and 26.03.2008, illegally, and inquiry was fixed for 24.02.2008 which was a Sunday.  A
copy of the enquiry report was not served to the petitioner and after a second show-cause notice was issued to him on 24.04.2008, only when he
approached the respondent-authority enquiry report dated 26.03.2008 was given to him on 02.05.2008. On absence of the petitioner during the enquiry
proceeding, the learned counsel for the petitioner submits that if the petitioner has not furnished muster-rolls, measurement books etc., how it is
possible that in his absence an amount of Rs.72, 33,094/- has been adjusted by the conducting officer; total advance given to the petitioner was Rs.91,
50,000/- and the total amount allegedly recoverable from him is Rs.19, 16,906/-. The petitioner has taken a stand that the Deputy Secretary,
Department of Road Construction vide its letter dated 21.07.2010 directed the Deputy Commissioner, Latehar to send a report on the unadjusted
amount, if any, pending against the petitioner and the pending amount awaiting government’s sanction, however, without awaiting a report in
compliance of the direction contained in letter dated 21.07.2010 the penalty order dated 07.10.2011 has been passed. This stand of the petitioner has
remained uncontroverted.
The defence taken by the petitioner in his reply dated 17.02.2009 and 17.02.2010 to the second show-cause notice has not been considered by the
disciplinary authority. There is not even a mention of the issues raised by the petitioner or that the documents were supplied to him. Merely stating that
his reply to the second show-cause notice has not been found acceptable (Lohdkj ;kXs; ugha ik;k x;k gS), the disciplinary authority has passed the
penalty order dated 07.10.2011.
The statutory appeal preferred by the petitioner has been dismissed by a cryptic order which again does not reflect the grounds of challenge urged
by the petitioner. A statutory appeal is an appeal both on facts as well as on law and, in law, an appellate authority exercising quasi-judicial powers is
under a duty to refer to the stand of the parties and record its own independent finding, whether agreeing or disagreeing with the penalty order.
Reason is the soul of an order, whether administrative or quasi-judicial. In “Mahabir Prasad Santosh Kumar vs. State of U.P.†reported in (1970)
1 SCC 764, the Supreme Court has observed, thus:-
 “The practice of the executive authority dismissing statutory appeals against orders which prima facie seriously prejudice the rights of the
aggrieved party without giving reasons is a negation of the rule of law.â€
A glance at the appellate order dated 10.01.2013 would disclose not only non-application of mind by the appellate authority, it is a manifest
abdication of the statutory duty by the appellate authority. Apparently, the appellate order has been passed in breach of rules of natural justice.Â
In the above facts, finding serious infirmity in the punishment order dated 07.10.2011 and the appellate order dated 10.01.2013, these are quashed.
Once the penalty order stands quashed, the petitioner becomes entitled for full salary and allowances for the period during which he has remained
under suspension, and also for refund of Rs.68,256/- recovered from him. Ordered accordingly. The writ petition stands allowed, in the aforesaid
terms; other prayers are declined. Â
   I.A.No. 7001 of 2015
This application has been filed seeking stay of further proceeding in the Certificate Case Nos. 32 to 36/2011-12 and Latehar P.S. Case No.144 of
2014.
The learned counsel for the petitioner submits that on the same allegations as many as five certificate cases all filed in the year 2011-12 and a
criminal case has been lodged against the petitioner which is patently illegal.
On initiation of the aforesaid certificate cases, it is pertinent to mention that the petitioner has adequate alternative remedy under the Bihar &
Orissa Public Demands Recovery Act, 1914. It is not known whether before the certificate officer the petitioner has filed his objection under section 9
or not, and if filed whether he has preferred an appeal against the order, if adverse, passed by the certificate officer or not. In view of an efficacious
alternative remedy to the petitioner under the Bihar & Orissa Public Demands Recovery Act, 1914 prayer in this application cannot be granted,
however, the petitioner may raise an additional plea based on the order passed in the main writ petition by which the penalty order dated 07.10.2011
and the appellate order dated 10.01.2013 have been quashed.
Insofar as, prayer seeking stay of further proceeding in Latehar P.S.Case No.144 of 2014 is concerned, suffice would be to indicate that once the
writ petition has been finally disposed of this prayer cannot be granted. Here again, the petitioner may have recourse to other remedy as available to
him in law.
With the aforesaid observations, I.A.No.7001 of 2015 is disposed of.   Â