Kashi Nath Prasad vs State of Jharkhand and Others

Sujit Narayan Prasad, J.—The petitioner has approached this Court for quashing the order contained in Memo No. 1793 dated 2.7.2004 (Annexure-7) by which following punishment has been imposed:-

(i) Censure

(ii) Stoppage of two increments with cumulative effect and

(iii) He would be entitled for the payment of subsistence allowances during the period of suspension.

The case of the petitioner is that while the petitioner was posted as Junior Engineer, a departmental proceeding was initiated against him by serving a memorandum of charge vide resolution contained in Memo No. 2180 dated 19.7.2003. The charge which has been alleged against the petitioner is that without inspecting site, he prepared estimate and again by changing the estimate, work had been started.

The petitioner was put under suspension and filed reply to show cause. The inquiry was conducted in which the petitioner had participated. Then inquiry officer submitted its detailed enquiry report on 27.1.2004 in which charges levelled against the petitioner was not found to be proved against the petitioner in the enquiry report but the inquiry officer has given a finding on a charge, which was not the subject matter of the charge i.e. finding with respect of giving contrary statement in his reply to show cause.

The learned counsel for the petitioner has submitted that the order of punishment has been passed on the basis of said inquiry report in which the charge which have been alleged against the petitioner, have not been found to be proved but the disciplinary authority had found the charge proved against the petitioner, which was not alleged against him in the memorandum of charge and was not the subject of charge and as such the disciplinary authorities have imposed punishment inflicting one of the major punishments i.e. stoppage of two increment with cumulative effect.

The submission has been made by referring to the impugned order that when the inquiry officer has not found the charges proved and when the disciplinary authority differed with the findings of the inquiry officer, they should have afforded an opportunity to petitioner of being heard, but since the same has not been done hence the entire matter gets vitiated on the ground of violation of the principles of natural justice.

The second submission has been made by the petitioner that the disciplinary authority deviated from the charge, which was not the subject matter of the charge to which the petitioner has been subjected to the departmental proceeding.

Learned counsel for the respondent has contested the case by filing counter affidavit and has stated that the petitioner, had created confusion before the enquiry officer in his reply to the show cause and as such the inquiry officer has given correct finding and found the said charge proved. The disciplinary authority has accepted the report and thereafter the order of punishment has been passed.

Learned counsel for the respondent further submitted that since the inquiry officer found charge proved against the petitioner, as such there is no question of deviating with the finding of the inquiry officer.

Heard the parties.

To appreciate the arguments made on behalf of the parties, it is necessary to see the memorandum of charge containing allegations wherein it has been alleged that the petitioner has prepared a defective estimate without inspecting the site and again by changing the estimate, the work has been started.

The petitioner has given due reply to the said charge rebutting the same. The inquiry officer has given its finding in the inquiry report dated 27.1.2004 wherein after appreciating all aspect of the matter, he came to the conclusion that it is not case of giving wrong estimate rather it is a case of selection of wrong site of construction for which the Junior Engineer, who is holding lowest post in the technical side, cannot be imposed such punishment. He has further given opinion that if the site would have been selected by the higher authorities instead of the petitioner, such incidence would not have taken place. Hence, enquiry officer came to the conclusion that the said charge was found not to be proved.

Now it is to be decided that as to whether the inquiry officer, who has given the finding on the charge which was the subject matter of the memorandum of charge.

It is a well settled principle of law that when the departmental proceeding is initiated against the Government employee, he should have been given proper opportunity to explain the same. For that purpose provision has been made in Rule 55 of the Civil Services (Classification, Control and Appeal) Rule, 1930 to frame the charge by way of specific allegation so that the delinquent employee may be acquainted at least what allegation has been made against him.

The respondents although have issued a memorandum of charge giving specific allegations regarding preparation of wrong estimate without inspection of the site. But the charge, which has been found to be proved against the petitioner by the inquiry officer was not an issue in the memorandum of charge and enquiry officer deviated from the charges and came to the conclusion with respect to the other fact i.e. the petitioner has given contrary statement in his reply to show cause.

This proved charge as per the enquiry report of the Inquiry Officer was not the subject matter of the charge as contained in memorandum of charge and if this was one of the charges, petitioner could have been provided an opportunity to defend himself but the petitioner has not been provided opportunity to defend with respect to the said charge.

Hence, in view thereof, the inquiry officer has acted without any jurisdiction by coming to the conclusion of proving of other charge.

If the contention of the respondent would be taken to be true that the same is related with the original charge the the said charge should have been included in the memorandum of charge and then principle of natural justice ought to have been followed by giving adequate and proper opportunity to the petitioner of being heard.

From perusal of the order of punishment dated 2.7.2004, it appears that the disciplinary authority has imposed punishment after going through the inquiry report which has been scrutinized at the Government level.

But in entire inquiry report the charge has not been found to be proved. Hence, the disciplinary authority acted without jurisdiction in coming into conclusion that after an analysis of inquiry report the charge has been proved and as such the minor and major punishment has been imposed. The disciplinary authority, however has imposed the punishment but it is the established procedure that the disciplinary authority should have provided an opportunity to the delinquent employee with respect to the charge, which was found proved but the same was not the subject matter of memorandum of charge, but in the instant case, it has not been done.

In this regard, a judgment rendered by Supreme Court reported in (2006) 9SCC 440 in the case of Lav Nigam Vs. Chairman and Md., ITI Ltd. and Another has been referred wherein at para 10 Hon''ble Apex Court held as follows:-

"10................................in case the disciplinary authority differs with the view taken by the inquiry officer, he is bound to give a notice setting out his tentative conclusions to the appellant. It is only after hearing the appellant that the disciplinary authority would at all arrive at a final finding of guilt. Thereafter, the employee would again have to be served with a notice relating to the punishment proposed." 21. On the basis of the said proposition of law as held by the Supreme Court, submission has been made by the learned counsel for the petitioner that the disciplinary authority has came to the conclusion on the basis of the analysis of the inquiry report and on the basis of the said report, punishment has been imposed, the action of the disciplinary authority cannot be said to be in accordance with law.

I find force in the argument of the learned counsel for the petitioner. Here in the instant case, the petitioner has approached this Court for quashing the order passed by the disciplinary authority in which the charge as contained in the memorandum of charge has not been found to be proved but the disciplinary authority has inflicted punishment on the basis of finding of Enquiry Officer regarding charge which was not the subject matter of charge supplied to the petitioner.

So far as the contention of the learned counsel for the respondent regarding petitioner''s giving contrary statement in his reply of show cause relating to the memorandum of charge is concerned, in view of the settled proposition of law that a charge must be specific as per the provision contained in Rule 167(b) of the Bihar Board''s Miscellaneous Rules, 1958 which reads as follows:-

Details of charges:- Each charge must be specific. Charges should be drawn up and separately numbered and should give the date, occasion and nature of the offence committed. A copy of charge should be given to the officer charged. 24. Reliance can be placed in the case of Narshing Choudhary Vs. State of Bihar and Ors. reported in 2005(1) JLJR 484 wherein relying upon the provision of Rule 167(b) of Bihar Board''s Miscellaneous Rules, 1958 this Hon''ble Court has held that charge must be specific and should give the date, occasion and nature of offence committed. But in the present case order of punishment has been passed on the basis of a charge which was not the subject matter of memorandum of charge. Hence, the disciplinary authority has gone beyond its jurisdiction in view of Rule 167(b) of Bihar Board''s Miscellaneous Rules, 1958.

In that view of the matter, order of punishment is not sustainable. Hence, the same is hereby quashed.

Accordingly, the writ petition is allowed.