Allowed

Sanjay Kumar Savita v. Road Construction

Jharkhand HC8 Aug 2019WPC/5239/2013

Case brief

AI extract

What is this about?

The High Court of Jharkhand allowed a writ petition and quashed disciplinary orders imposing punishment on a petitioner suspended as an Assistant Engineer. The Court held that an error of judgment in executing emergent road repair work did not constitute misconduct, as the petitioner acted bonafidely without causing loss to the State.

What did the court decide?

The impugned disciplinary orders dated 04.10.2010 and 11.06.2014 were quashed. The petitioner is entitled to consequential benefits including arrears of salary for the suspension period.

Sanjay Kumar Savita Vs Road Construction — Pension and Retirement Benefits | Jharkhand HC (2019)

¶1

Page 1 of 10 W.P.(S.) No. 5239 of 2013

¶2

IN THE HIGH COURT OF JHARKHAND AT RANCHI

¶3

W.P.(S.) No. 5239 of 2013

¶4

Sanjay Kumar Savita, son of Late Nand Kishore Thakur

¶5

… ... Petitioner

¶6

Versus

¶7

The State of Jharkhand, 2. Principal Secretary, Road Construction Department, Government of Jharkhand, Ranchi. 3. Deputy Secretary, Road Construction Department, Government of Jharkhand, Ranchi. … … Respondents

¶8

¶9

CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

¶10

-------For the Petitioner : Mr. Saurabh Shekhar, Advocate For the Respondents : Mr. Abhay Prakash, A.C. to A.A.G.

¶11

¶12

Order No. 05 : Dated: 8^th August, 2019

¶13

Per Sanjay Kumar Dwivedi, J.:

¶14

Heard Mr. Saurabh Shekhar, learned counsel for the petitioner and Mr. Abhay Prakash, learned A.C. to A.A.G. for the respondents. 2. The petitioner has preferred this writ petition for quashing the order dated 04.10.2010 contained in Annexure-9 to the writ petition and the appellate order dated 11.06.2014 contained in Annexure12.

¶15

The writ petitioner submits that the petitioner has joined as an Assistant Engineer in the year 1987 and he was discharging his duty on the said post from the date of his appointment. It is contended on behalf of the petitioner that the petitioner has appeared in departmental examination in which he has been declared successful in the year 1991 itself. When the petitioner was posted as Assistant Engineer in Road Sub Division–II, Road Division, Dhanbad, he was

¶16

put under suspension vide order dated 17.11.2008. The departmental proceeding was initiated against the petitioner.

¶17

Page 2 of 10 W.P.(S.) No. 5239 of 2013

¶18

During the intervening period, it was directed that the petitioner will be entitled to get subsistence allowance in terms of provisions of Rule 96 of the Service Code . The petitioner was served with memorandum of charge alleging therein that the petitioner has committed irregularities in the payment of labourers and as such he has committed financial irregularities. Other charges related with the irregularity committed by the petitioner in the matter of payment in violation of Rules 226 and 227 of the Public Works Accounts Code .

¶19

After receiving the memorandum of charge, the petitioner appeared before the Enquiry Officer and submitted his defence by way of denial of the allegation levelled against him. The petitioner took the defence that he was discharging his duty in the capacity of Assistant Engineer with the co-operation of Junior Engineer and according to the direction given by the Executive Engineer and as per the provisions of Public Works Accounts Code . He further submits that the work discharged by him in the nature of emergent work and payment has been made in terms of the direction given in the Departmental Order No. 893 dated 06.05.1977 which was later amended by letter dated 10.06.1980 which was in accordance with the hand receipts being valid mode of payment and in pursuance of Rule 242 of the Accounts Code . The petitioner fully cooperated in the enquiry proceeding and enquiry report was submitted in which the

¶20

Page 3 of 10 W.P.(S.) No. 5239 of 2013

¶21

petitioner has been exonerated so far as charge no. 2 is concerned. However, the Enquiry Officer submitted the report to the fact that so far as charge no. 1 is concerned that has been proved against the petitioner. Diligently, the disciplinary authority has passed the order dated 04.10.2010 whereby the petitioner has been incorporated

¶22

with the punishment:

¶23

i. The petitioner has been reverted to the initial stage of his category

¶24

ii. The petitioner will not be entitled to get anything this save and except the subsistence allowance during the period of suspension.

¶25

Thereafter, the petitioner filed an appeal on 30.03.2011 and during the pendency of the writ petition, the appellate authority has passed the order whereby the appellate authority has affirmed the order passed by the disciplinary authority with only subsisting exception being that the conditions/directions of appearance in the departmental examination, as it appeared in the original punishment order dated 4.10.2010, has been deleted and therefore, the petitioner has been put under suspension. Rest of the punishment of the disciplinary authority has been kept same. The same has been brought on record by the petitioner and by way of I.A. the appellate order dated 11.06.2014 has also been challenged.

¶26

Mr. Saurabh Shekhar, learned counsel appearing for the petitioner assailed the impugned order on the ground that he has been asked to do work of potholes on roads pursuant to direction of

¶27

Page 4 of 10 W.P.(S.) No. 5239 of 2013

¶28

the Superintending Engineer who is the competent authority to sanction such types of work order. To substantiate his argument that the Superintending Engineer is the competent authority to sanction such types of work, he referred Rule 293 of the Jharkhand Public Works Department Code and submits that in the Column of Limit of Power full powers of such work has been described into the Superintending Engineer. He further relied in Rule 228 of the Jharkhand Public Works Account Code , which reads as under:

¶29

“228: The payment of daily labour through a contractor, instead of by muster roll in the usual way, is objectionable in principle. In a case of great emergency it may sometimes be found impossible to employ labour otherwise than through a contractor. Should it be possible, in such a case, to determine the quantities of work done after its completion or at intervals during its progress, it is expedient to pay the contractor, at suitable rates, on the basis of work actually executed. But if, as in the case of urgent repair of canal breaches, this method of payments is not practicable, it is permissible to pay the contractor on the basis of the numbers of labourers employed, day by day, his own profit or commission being either included in the rates allowed or paid separately in lump sum or at a percentage rate. When this course is adopted, a report of the numbers of labourers of each class employed day by day should be made by the subordinate in charge of the work daily to the Subdivisional Officer to enable the latter to keep a check on the expenditure and to deal with the contractor’s claim when received. To avoid disputes with the contractors, they should be encouraged to sign the daily reports in token of their acceptance as correct. ”

¶30

He further submits that this rule prescribed how to made payment to the contractor on the basis of the numbers of labourers employed, day by day, his own profit or commission being either

¶31

Page 5 of 10 W.P.(S.) No. 5239 of 2013

¶32

included in the rates allowed or paid separately in lump sum or at a percentage rate. He further submits that he was directed to complete the work within 15 days and the work is emergent in nature and as such it was not possible to follow the rule of inviting tender. He further submits that in view of Rule 228 there is no fault on the part of the petitioner. He draws the attention of this Court to the enquiry report which is contained as Annexure-6 and submits that the Enquiry Officer has not dealt with the defence taken by the petitioner so far as the Rule 228 is concerned. That Rule is meant for the extraordinary circumstances and for that type of work which the petitioner was assigned. The Enquiry Officer has also comes to the findings that in view of the discussions made in the Enquiry report the charge against the petitioner is diluted. The Enquiry Officer comes to the findings that there is no defalcation of Government money as the petitioner has completed the work. He further submits that so far as the payment is concerned, the fund being released from the office of the Executive Engineer received by the divisional Head after being satisfied with the works of the Accounts Officer. The said two officers of the authorities i.e. Executive Engineer and the Accounts Officer have not been charge-sheeted for that work which was done by the petitioner on the direction of the Executive Engineer. He further submits that the petitioner has been made scapegoat. He further submits that he has taken the grounds before

¶33

Page 6 of 10 W.P.(S.) No. 5239 of 2013

¶34

the appellate authority. That in view of the facts, the manner of work to be completed can be said to be an error of judgment. In view of the matter it cannot be said that the petitioner has done it intentionally and caused loss to the State Exchequer.

¶35

He further submits that there is no misrepresentation or

¶36

willful act on behalf of the petitioner and it can be said that he discharged his work which is not an error of judgment. To substantiate his argument he relied in the case of Inspector Prem Chand versus Govt. Of NCT of Delhi and Others reported in (2007) 4 SCC 566 para 10, 11 and 12 which reads as under:

¶37

“ 10: In State of Punjab and Ors. vs. Ram Singh Ex. Constable [1992 (4) SCC 54], it was stated:

¶38

"Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999, thus:

¶39

'A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.'

¶40

Misconduct in office has been defined as:

¶41

"Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the officer holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."

¶42

11: In P. Ramanatha Aiyar's Law Lexicon, 3rd Edn., at page 3027, the term “misconduct” has been defined as under:

¶43

"The term 'misconduct' implies, a wrongful intention, and not a mere error of judgment.

¶44

Page 7 of 10 W.P.(S.) No. 5239 of 2013

¶45

Misconduct is not necessarily the same thing as conduct involving moral turpitude.

¶46

The word 'misconduct' is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct.

¶47

12. It is not in dispute that a disciplinary proceeding was initiated against the appellant in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, necessary for the disciplinary authority to arrive at a finding of fact that the appellant was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was wilful in character. No such finding was arrived at. An error of judgment, as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. In Union of India & Ors. vs. J. Ahmed (1979 (2) SCC 286), whereupon Mr. Sharan himself has placed reliance, this Court held so stating: (SCC pp. 292-93, para 11)

¶48

"11. Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers)]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur, (61 Bom LR 1596), and Satubha K. Vaghela v. Moosa Raza. The High Court has noted the definition of misconduct in Stroud's Judicial Dictionary which runs as under:

¶49

"Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct."

¶50

Page 8 of 10 W.P.(S.) No. 5239 of 2013

¶51

On the other hand, Mr. Prakash appearing for the respondentState submits that there is no lacuna so far as the enquiry proceeding is concerned. The petitioner has been provided sufficient opportunity to participate in the enquiry proceeding. So there is no violation of principle of natural justice. He further submits that in view of the well settled principle of law there is no lacuna in the enquiry proceeding, the High Court under 226 of the Constitution of India restrained itself from interfering into the discussions made by the Enquiry Officer. He further submits that the Technical Advisor, Road Circle, Hazaribagh submitted enquiry report about the serious financial irregularities. The charges were leveled against the petitioner. He further submits that procuring materials of huge amount on hand receipts of less than Rs. 2000/- violating the provisions of such purchase by inviting tender. According to Mr. Prakash, the petitioner has violated the Rule 241 and 242 of Public Works Accounts Code and violates the Rule 226 and 227 of the same Code regarding payment of labourers by not entering the quantity of materials and numbers of labourers on Head Receipt and nonmaintenance of muster rolls. To substantiate his argument he relied in the case of State of A.P. vs Sree Rama Rao r eported in the AIR

¶52

1963 SC 1723 and in the case of Union of India & Ors. vs. P. Gunasekaran reported in ( 2015) 2 SCC 610 .

¶53

Having heard the learned counsel for the parties, this Court

¶54

Page 9 of 10 W.P.(S.) No. 5239 of 2013

¶55

finds that rule 228 of Bihar Public Works Account Code provides certain procedures of payment to the labourers in case of any work which is emergent in nature and amount for that work would be sanctioned by the Superintending Engineer under Rules 292 and 293 of Jharkhand Public Works Department Code , who have having full power to sanction for such types of work. The nature of work was to fill up the potholes of the road that too within 15 days of work order and for that the petitioner has been punished and only subsistence allowance has been paid for suspension period. The petitioner has been saddled with aforesaid punishment. Looking into the Rule 228 Bihar Public Works Account Code and 293 of the Jharkhand Public Works Department Code it appeared that the petitioner has acted bonafidely and completed the work and also appears that he has not tried to put the State exchequer to loss. In view of the case of Inspector Prem Chand (supra), the mode of executing the work can be said to be an error of judgment.

¶56

Moreover, the nature of the punishment also shocks the conscience of this Court. As a cumulative effect of the above discussions and conclusions, the impugned orders dated 04.10.2010 contained in Annexure-9 to the writ petition and the order dated 11.06.2014 contained in Annexure12 to the writ petition cannot sustain in the eyes of law. Accordingly, the impugned orders are, hereby, quashed. It goes without saying that the petitioner will be

¶57

Page 10 of 10 W.P.(S.) No. 5239 of 2013

¶58

entitled for consequential benefits including arrear of salary for the

¶59

period of suspension.

¶60