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Judgment
366 paragraphs · 2,246 words,
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The Enquiry Officer submitted his enquiry report on 20.4.2017 and the petitioner has been found guilty of all the charges. The conclusion of the,,
enquiry report is quoted below:-,,
“Conclusion:-,,
From the foregoing findings, it is clear that all the charges against the Charged Officer has been proved. In his defence, he has often mentioned that",,
upon relinquishing the charge as officiating Chief Engineer, Bhagalpur and upon joining as Superintending Engineer, Patna he had written a letter",,
(Letter No. 214 dated 11.08.2015) to the Chief Engineer, Bhagalpur justifying his actions. I have carefully gone through Letter No. 214 dated",,
11.08.2015 written by the Charged Officer.,,
In this letter, the Charged Officer concedes that irregularity has been committed by him and the same needs to be rectified. In fact, the language of",,
the letter clearly raises a suspicion in the mind of any reasonable man that the Charged Officer is either too ignorant of Rules and Procedures or is not,,
in the habit of taking the Government Work seriously. In the last paragraph of his letter, he writes that if any regularity in his tenure has been",,
committed then the same may be rectified. Now, the language of the letter is not only laughable but raises a suspicion in the mind of the any",,
Supervisory Authority as to whether the Charged Officer is really competent to hold such senior positions as he is holding right now.,,
His attempt to pin the blame on his Subordinates is not only unofficer like but also smacks of his poor knowledge of Rules and Procedures in the,,
Government in which he has spent about 30 years. He should know that ignorance of law is no excuse.,,
Moreover, it is an admitted fact that the Charged Officer was not holding a substantive charge of Chief Engineer but he was actually posted as a",,
Superintending Engineer and was performing the duties of the Chief Engineer in an officiating capacity. Therefore, I find it rather strange that the",,
Charged Officer proceeded to take substantive decisions regarding appointments and promotions while holding charge in a temporary capacity. In,,
such capacity, the Charged Officer should have confined himself to performing the routine and the emergency nature of duties. Appointments and",,
promotions are neither routine nor emergency situation which cannot wait for a substantive officer to come. In the instant case, in my opinion, the",,
Charged Officer should have waited for a full time Chief Engineer to come and should not have taken important decisions of appointments etc.,,
That be the case, I find no reason to disagree with the Charge Sheet submitted by the Departments. For reasons mentioned above, I find that the",,
charges levelled against the Charged Officer are convincingly proved.,,
In fact, I reiterate that the Charged Officer himself has conceded that irregularities have been committed by him on all the above three charges but he",,
pins the blame for these irregularities on his subordinates including the Head Clerk and the Assistant. I have already held before that the Charged,,
Officer cannot shy away from the responsibility of his decision and cannot take an excuse that his subordinates conspired to get illegal order issued,,
under his hand and seal. Thus, all the charges levelled by the Department against the Charged Officer are proved.â€",,
From the enquiry report it appears that it is more in the nature of opinion than a fact finding report. The Enquiry Commissioner in his conclusion has,,
noted that ‘I find no reason to disagree with the Charge Sheet submitted by the Departments’. Such approach of the Enquiry Officer is contrary,,
to the finding of quasi judicial authority.,,
Mr. Indu Bhushan, learned Counsel appearing on behalf of the petitioner submits that after the enquiry report, the petitioner was asked to submit",,
second show cause reply and the petitioner submitted his reply to the second show cause notice and thereafter the petitioner was inflicted punishment,,
vide order dated 1.2.2018, as contained in Annexure-10 to the writ petition.",,
Learned counsel appearing on behalf of the petitioner submits that departmental proceeding is a fact finding proceedings where the Enquiry Officer,,
was supposed to record finding on the basis of evidence but in the present case, according to the petitioner, not even a single witness was examined in",,
support of the charges against the petitioner. The document on which the Enquiry Commissioner relied upon was not proved in the departmental,,
proceeding and in the departmental proceeding the Enquiry Officer relying on the enquiry report inflicted punishment of reduction in rank and by way,,
of major punishment the petitioner was reduced from the rank of Superintending Engineer and officiating as Chief Engineer to the post of Executive,,
Engineer in the middle scale of pay. It is well settled that in the departmental proceeding the enquiry Officer has to take care like criminal trial as held,,
out by the Apex Court in the case of “Union Of India v . H.C Goel .†AIR 1964 SC 364, Para-27 of the said judgment is quoted below for ready",,
reference to understand the obligation of the prosecution to take care like criminal trial in departmental proceeding.,,
“( 27 ) Now, in this state of the evidence, how can it be said that the respondent even attempted to offer a bribe to Mr. Rajagopalan? Mr.",,
Rajagopalan makes a definite that the respondent did not offer him a bribe He merely refers to the fact that the respondent took out a paper from his,,
wallet and the said paper appeared to him like a hundred rupee note double folded. Undoubtedly, Mr. Rajagopalan suspected the respondent's conduct,",,
and so, made a report immediately. But the suspicion entertained by Mr. Rajagopalan cannot, in law, be treated as evidence against the respondent",,
even though there is no doubt that Mr. Rajagopalan is a straight-forward and an honest officer. Though we fully appreciate the anxiety of the,,
appellant to root out corruption from public service, we cannot ignore the fact that in carrying out the said purpose, mere suspicion should not be",,
allowed to take the place of proof even in domestic enquiries. It may be that the technical rules which govern criminal trials in courts may not,,
necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the",,
innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules. We have very carefully",,
considered the evidence led in the present enquiry and borne in mind the plea made by the learned Attorney General, but we are unable to hold that on",,
the record, there is any evidence which can sustain the finding of the appellant that charge No. 3 has been proved against the respondent. It is in this",,
connection and only incidentally that it may be relevant to add that the U.P.S.C. considered the matter twice and came to the firm decision that the,,
main charge against the respondent had not been established.â€,,
(underlined for emphasis),,
The Apex Court has occasion to examine the necessary requirement of examining witnesses and establishing the charges in the departmental,,
proceedings in the case of Kumaon Mandal Vikas Nigam Ltd vs Girja Shankar Pant & Ors.: (2001) 1 SCC 182 where the Apex Court has laid,,
emphasis on the requirement of examination of witnesses and need to prove the documents in the departmental proceeding. As stated above, neither",,
any witness was examined or cross-examined nor any document was proved on which the charges were based in the departmental proceeding and,,
empty formalities was done by recording opinion in the enquiry report and merely on the basis of enquiry report where the enquiry officer has not, in",,
fact, acted impartially as quasi judicial authority and expressed his opinion that he agreed with the charges framed by the department and on that basis",,
the petitioner has been inflicted major punishment.,,
In view of the above, the court is constrained to hold that the enquiry, enquiry report and the action taken by the respondents on the basis thereof",,
is vitiated in law. The impugned order dated 1.2.2018, as contained in Annexure-10 inflicting major punishment is quashed.",,
Learned counsel for the petitioner submits that the petitioner has superannuated.,,
Accordingly, while quashing the impugned order dated 1.2.2018, the Court grants liberty to the respondents- authority to proceed under the Bihar",,
Pension Rules, if permissible, and decide the matter after opportunity of hearing to the petitioner",,
With the aforesaid, the writ petition stands allowed and disposed of.",,