Baldeo Ram Vs the State of Jharkhand

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 778 of 2024

Baldeo Ram, aged about 78 years, Son of Shri Krishna Mahato, Resident of Flat No.09, Govind Bhawan, AG Colony, Kadru, P.S.-Argora, District-Ranchi, at present residing at Flat No. C/302, Bansal Plaza, Station Road, Ranchi, PO & PS-Chutia, District-Ranchi.

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....Petitioner

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Versus

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The State of Jharkhand;

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The Secretary, Water Resources Department, Govt. of Jharkhand, having its office at Nepal House, Doranda, P.O. & P.S.-Doranda, District-Ranchi;

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The Under Secretary, Water Resources Department, Govt. of Jharkhand, having its office at Nepal House, Doranda, P.O. & P.S.-Doranda, District-Ranchi;

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Dy. Secretary, Water Resources Department, Govt. of Jharkhand, having its office at Nepal House, Doranda, P.O. & P.S.-Doranda, District-Ranchi;

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Office of Accountant General through PAG, Ranchi, P.O. & P.S.-Doranda, District-Ranchi, Jharkhand.

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....Respondents

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CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. Saurabh Shekhar, Adv. For the Resp.-State : Mr. K.K. Singh, S.C.-V

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C.A.V. ON: 14.08.2024 PRONOUNCED ON: 04/10/2024

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Heard learned counsels for the parties.

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2. The instant writ application has been preferred by the petitioner praying therein for quashing and setting aside the order as contained in memo No. 4979 dated 12.09.2023 (Annexure-22), issued under the signature of respondent No.3; whereby the respondents have passed and inflicted the punishment of withholding of pension, to the extent of 50%, for life time, under the provisions Rule 43(b) of Pension Rules, for a departmental proceeding that was initiated in pursuance to departmental resolution dated 05.09.2002, under Rule 55 of CS(CCA) Rules, 1930, after the retirement of petitioner on 31.01.2004 and further, it has been directed that for the period of suspension only subsistence allowance will be admissible.

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Petitioner has further prayed for quashing and setting aside of entire departmental proceeding, that was initiated, in pursuance to the Government Resolution as contained in Memo No. 2838, dated 05.09.2002 (Annexure-2), issued under the signature of respondent No.4, under the provisions of Rule 55 of CS(CCA) Rules, 1930, and later on the proceeding was converted into one under Rule 43(b) of Pension Rules, after petitioner's retirement on 31.01.2004, i.e. vide departmental Resolution, as contained in Memo No. 746 dated 13.03.2004 (Annexure-12).

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Petitioner has also prayed for a direction upon the respondent authorities to release the entire arrears of pensionary benefits, which has been withheld, in pursuance to the original order of punishment dated 16.04.2007, and further to direct the respondents to make payment of full pensionary benefits as on current date, and also to enhance the benefit of full salary for the period of suspension.

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3. Learned counsel for the petitioner submits that while the petitioner was in additional charge of Superintending Engineer, under whose jurisdiction, the District of Giridih was also located; he was put under suspension, vide departmental order, as contained in memo No. 2980, dated 06.07.2002, under the provisions of Rule 49(a)(i)(a) of the Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter to be referred as CS(CCA) Rules) and the suspension was inflicted on the ground of the breach of Dam, and the Headquarter was pleased to fix the responsibility upon the petitioner and several others, and decision was taken to initiate departmental proceeding.

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During the period of suspension, the petitioner was to join at the headquarter in the office of Chief Engineer, Designing, Planning, Investigation and Hydrology, Ranchi.

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He further submits that after issuance of order of suspension, the respondents took a decision to initiate

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departmental proceeding against the petitioner, with respect to the irregularity, corruption and indiscipline, for the reason of which the Check Dam had collapsed, while the petitioner was posted as Superintending Engineer, Minor Irrigation Department, Hazaribagh. The proceeding was initiated, when the petitioner was still in services, under the provisions of Rule 55 of CS(CCA Rules), vide departmental Resolution, as contained in memo No. 2838 dated 05.09.2002. Further, one IAS Officer was appointed as Enquiry Officer and the petitioner was to submit his reply before him within the specified period. He submits that in the matter, the presenting officer was also appointed to assist in the departmental enquiry and place the case of department.

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He further submits that the petitioner co-operated in the departmental enquiry and appeared before the Enquiry Officer and the petitioner submitted his reply, vide letter dated 25.09.2002, which was duly received by the Enquiry Officer on the same day.

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4. Learned counsel contended that the Chief Engineer, Minor Irrigation, Ranchi had received one letter and communication, bearing memo No.19, dated 12.01.2019, from the office of Chief Engineer, Design, Planning and Hydrology, Ranchi, wherein, it was intimated that the earlier measurement of the catchment area of the reservoir/Project, prescribed to the extent of 3.50 sq. km. does not seem to be correct. Further, it was called upon to do a fresh contour mapping of the area, so as to get a correct measurement and figure of the catchment area was found to be 1.68 sq. km. and accordingly, length of dam, spillway, outlet, canal, etc. were fixed.

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He further submits that the administrative approval of the project was Rs.87,59,845/- and against that the technical sanction of Rs.98.45 lac was approved, which amounts to increase of 12.38% and the Cabinet Secretariat and Co-ordination Department, Circular No.948, dated 16.07.1986, permits for 15%

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of revise of estimate, in the technical sanction, compared to that prescribed in the administrative sanction, in the matter of the project of Rs.20 lacs to Rs.1 crore.

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He further submits that the revised estimate, at the stage of technical sanction, to the extent of 15% was further duly approved by the Secretary of the Department. The Lead Chart is the measurement chart of the soil and earth used for the purpose of filling up in any project, further, it also includes the measurement of the soil that is cut out from pit and its distance from the project site and in this relation, the government circular bearing Memo No.2/M1-805/80-3587, Patna, dated 11.10.1980, provides that the Lead Chart is to be prepared after the completion of work of the earth filling and even as per common sense, the measurement chart of the quantity of earth cut out and filled, as also the distance from the project site can be done only after the earth filling work is already complete.

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5. Learned counsel further contended that the Enquiry Officer fixed the date of hearing on 26th September, 2002 vide his letter bearing memo No.671 dated 21.09.2002. Thereafter, on different dates, the petitioner has appeared before the Enquiry Officer, and the enquiry was finally concluded on 03.10.2002. Though, the enquiry had been concluded, but the report was not being submitted before the Disciplinary Authority, resulting into non-conclusion of the departmental proceeding.

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He further submits that the State of Bihar through its Department of Personnel and Administrative Reforms, vide circular dated 17.07.1979, had framed a time period to conclude the departmental proceeding within 90 days and this time period had not been complied by the respondents.

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6. He further submits that the petitioner, therefore, immediately moved representation before the respondents, but since nothing was being done, hence, the petitioner was forced to move before this Hon'ble Court in WPS No.3783/2003, wherein

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prayer was made to set aside the order of suspension. The Hon'ble Court did not interfere; rather passed an order that the departmental proceeding should be concluded within a period of three months, vide its judgement and order dated 07.08.2003.

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He submits that since the departmental proceeding could not conclude within a period of three months, as specified by the Hon'ble Court, the decision was taken by the respondents to revoke the suspension and they gave him joining on the post of Superintending Engineer, vide Notification dated 02.01.2004. The notification specified the joining of the petitioner being affected by the department.

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Subsequently, the respondents had offered a second show cause notice to the petitioner, vide departmental letter dated 13.03.2004 and the punishment that was proposed in the second show cause notice was to deduct 50% of pension, under the provisions of Pension Rules, Rule 43(b) along with the copy of the Enquiry Report dated 11.11.2003, which was also supplied to the petitioner. This report, however, did not contain the signature of Enquiry Officer and by the same order dated 13.03.2004, the departmental proceeding initiated under Rule 55 of the CS(CCA) Rules was converted into proceeding under Rule 43(b) of the Pension Rules.

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7. Learned counsel contended that after the retirement of petitioner, his Enquiry Report was submitted, with opinion, but the report did not bear any signature and the reply of the petitioner was also not considered by the enquiry officer. The petitioner had given a detailed reply denying all the allegations and he had also adduced evidences in support of the statements given by him. The petitioner also made series of representations that he should be supplied with the Enquiry Report, bearing signature of the Enquiry Officer. The petitioner's representation was duly received and was dated 09.04.2004. The petitioner had also demanded a copy of report related to the administrative

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approval of the construction of Kodai Baandh medium irrigation scheme, which was signed by the Chief Engineer/Superintending Engineer, Design, Planning and Hydrology, Ranchi (Water Resources Department). He adds that the reason for demand of this document is that it is intrinsically related with the allegations levelled against the petitioner.

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It has been submitted that the document contained the feasibility report, and in pursuance of the said report, the estimate was made by the Design Organization and the detailed report was submitted to the Chief Engineer (Monitoring), Water Resources Department, Ranchi. The petitioner had time and again demanded for supply of copy of the report, which forms the very basis of allegations levelled against the petitioner. The petitioner preferred letters dated 28.03.2004 and 07.04.2004, but the respondents with mala fide intentions, never supplied the copy of the report.

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The petitioner, therefore, has been deprived from submitting his defence, on the basis of valuable document, in the absence of which he was not in a proper position of defending himself and give a proper reply, in order to meet the principles of natural justice. The petitioner thereafter wrote several letters and reminders to the respondents to supply copy of report of design organization, on the basis of which, the administrative approval of the estimate was done, through different reminders dated 19.04.2004, 06.06.2004 and 19.07.2004, but the copies were not made available.

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The petitioner, thereafter on 28.07.2004, represented and stated that he is submitting his reply in the absence of the documents, not being supplied to him. The documents were not supplied at the stage of enquiry, as such, the petitioner is submitting his reply in the absence of documents demanded, in reply to second show cause notice.

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8. Learned counsel contended that the primary allegation, i.e. in relation to breach of the work, is related to administrative

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and technical approval, but the documents in relation to this has not been scrutinized by either the Enquiry Officer or the Disciplinary Authority. The Disciplinary Authority on the mechanical appreciation of the Enquiry Report has passed the final order, whereby a punishment of withholding of 50% of pension has been passed against the petitioner and the order of punishment has been passed on 16.04.2007.

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He further submits that the petitioner had raised his grievances before this Hon'ble Court and challenged the order of punishment dated 16.04.2007, in a writ proceeding, being W.P.(S) No.4885/2004. He submits that the order of punishment was quashed and set aside and the matter was remanded back, with a direction to consider the case of the petitioner with that of similarly situated employees. The case of the petitioner was also allowed, for the want of non-compliance of consultation with JPSC, as has been provided under Rule 43(b) of the Pension Rules.

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He submits that the order passed by the writ court was thereafter challenged by the State before the Division Bench in L.P.A. No.491/2017, in the matter of the State of Jharkhand and others Vs. Baldeo Ram . The matter was heard at length, and the Division Bench declined to interfere in the findings of the Writ Court and the appeal of the State was dismissed, vide Judgment and order dated 04.07.2022. He further submits that the matter was remanded back to the department, and specific direction was passed to the Secretary to consider all the irregularities that have been there in the departmental proceeding.

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The respondents, thereafter, called for a Second Show Cause Notice to the petitioner, being Second Show Cause Notice dated 25.07.2023 and the petitioner has submitted detailed reply in different letters before the respondent, a copy of which are annexed at Annexure 21 series.

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He further submits that the respondent, thereafter,

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has passed the punishment order, vide order as contained in memo No. 4979 dated 12.09.2023, and have decided to keep the order of punishment as it is and the pensionary benefit has been withheld to the level of 50%, for the entire life. Further, the petitioner has been denied to be paid any salary for the period of suspension, other than subsistence allowance.

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He lastly submits that the Respondents have taken decision to exonerate the officials of the department, in connection with same work of the Dam, who are Shri Devbrat Ram (Engineerin-Chief), Shri Binod Kumar Srivastava (Dy.Secretary, Management, additional charge-Executive Engineer, Minor Irrigation, Quality Control Division, Ranchi), Shri Ravi Bhushan Ray (Assistant Engineer, Minor Irrigation Division, Jamua), Shri Abdul Qaem (Assistant Engineer, office of Chief Engineer, Minor Irrigation, Ranchi), Shri Anil Kumar Singh, (Assistant Engineer, Minor Irrigation, Quality Control Division, Ranchi), Shri Mahadev Kumhar (Assistant Engineer, Minor Irrigation, Quality Control Division, Ranchi), all of them have played role in construction of the Dam, and their duty and responsibility was in relation to supervision of quality and execution of work, and despite of collapse of the Dam, all these employees have been exonerated, whereas, the petitioner, who was also connected with the same work has been found to be guilty and has been saddled with major punishment.

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9. Learned counsel for the respondents submits that the presented case is related to Kodai Baandh Jharna Nala Irrigation Project, Block-Tisri, District-Giridih under Minor Irrigation Division, Giridih under the jurisdiction of the then Chief Engineer, Minor Irrigation, Ranchi. He submits that in the year 2002, as a result of damage caused to the dam on 04.07.2002, which was under construction, an investigation was conducted by the departmental flying squad and in the investigation report, work wise engineers were held responsible. He further submits that as

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per the investigation report it prima facie found petitioner guilty in the irregularities committed in the Kodai Baandh Jharna Nala Irrigation Project, henceforth, vide Departmental Order No. 2980 dated 06.07.2002, he was suspended till the completion of the departmental proceedings which was conducted under Rule 55 by Departmental Resolution No 2838 dated 25.09.2002.

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Learned counsel for the respondents further submits that there is no illegality or irregularity in the entire departmental proceeding and further, there is no perversity in the order; as such the impugned order does not require any interference.

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10. Having heard learned counsels for the parties and after going through the documents available on record and the averments made in the respective affidavits, it appears that the petitioner was appointed as Assistant Engineer in Water Resources Department on 24.01.1972 and thereafter, he was promoted in hierarchy. In the year 2000, the petitioner was given Jharkhand cadre and he joined on 30.11.2000. When he was posted in Jharkhand in 2000-01, as Secretary Technical to the Chief Engineer, Minor Irrigation at Ranchi, holding additional charge of Superintending Engineer, Minor Irrigation Circle, Hazaribag, one Check Dam was proposed to be constructed under Kodai Bandh Jharna Nala Irrigation Scheme, Giridih. The construction was undertaken and the said Check Dam collapsed due to heavy rainfall on 04.07.2002 and the petitioner who was posted as Superintendent Engineer was put under suspension under the relevant Rules on 06.07.2022.

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The Departmental proceeding was decided to be initiated against the petitioner on 05.09.2002 for irregularity, misconduct and indiscipline, under Rule 55 of Civil Services (Control Classification and Appeal) Rules, 1930, vide circular, as contained in memo No.2838, dated 05.09.2002, along with Prapatra ‘K’.

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11. From the documents annexed it appears that the first allegation is about interference with the important elements of the irrigation project and getting the estimate a technical approval with such modifications, after the administrative sanction was granted.

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The enquiry report has found the charge to be proved without any oral evidence. Further, the entire finding has been on the basis, as if the enquiry officer was relying upon some preliminary report, in which imputations had already been proved, but the mention of that is totally missing. The enquiry officer has proceeded, as if the facts in the case are already proved, and as such, no fact-finding process has been done and no reliance on evidence has been made. Therefore, the finding of the Enquiry Officer appears to be perverse.

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12. So far as the second allegation that the estimate involved in the project was quoted differently (at increased value) in the technical approval, as compared with that of the administrative sanction, has been said to be against the provision of Circular dated 16.07.1986 is concerned; the enquiry officer starts by saying that on the basis of the evidence produced and thereafter, she does not make reference of any of the evidences; rather, she keeps referring the departmental circular.

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The delinquent has replied that the administrative sanction for the project was Rs.87,59,845/- and there was increase of 12.38% in the technical sanction. The upper limit of 15% has been provided, as per the circular dated 16.07.1986. Therefore, the increase of the estimate at the technical sanction level was less than 15% and therefore, the charge cannot be said to be proved.

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The enquiry officer, however, has added in the finding that the reason for the increase has not been mentioned and therefore, the charge is proved. This however, was not the

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allegation. The allegation was that the increase in the estimate, different from administrative approval, at the level of technical sanction, has been granted against the provision of Circular dated 16.07.1986. The delinquent, therefore, appropriately replied that the increase was within the prescribed limit. However, the enquiry officer travelled beyond the charge and found that the reason for increase has not been provided.

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13. So far as the third allegation which says that the technical sanction, the statistics, dates, etc. that were used for the purpose of designing was on the basis of tentative map, on which the working estimate was approved and the statistics was not actually collected is concerned; the enquiry officer relied upon the report of flying squad and no independent evidence has been tested in order to prove this charge.

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14. So far as the fourth allegation that NIT was invited and bill of quantity was approved, before the estimate was sanctioned and lead chart was approved after the completion of work of earth filling is concerned; the enquiry officer relied upon the report of flying squad and no independent evidence has been tested in order to prove this charge.

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15. So far as the fifth allegation that the spot verification of the project was not done and all statutory officers were not appropriately instructed in performance and supervision of the project is concerned; the enquiry officer relied upon the report of flying squad and no independent evidence has been tested in order to prove this charge.

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16. So far as the sixth allegation regarding criminal conspiracy to commit irregularity in the designing and execution of the work, with an intention to create a situation of embezzlement and misuse of public money is concerned; no evidence has been tested or relied upon.

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17. Now the law is no more res integra that in order to

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prove any charge, the respondents are required to prove the documents by oral evidence. Merely, by placing the documents on record without proving it, cannot be sustained in the eye of law.

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18. In the instant case, the only basis of the departmental proceeding is the report of the flying squad and as stated hereinabove, none of the flying squad has been examined during the departmental proceeding; as such, on this score alone the punishment order is unsustainable and has no legs to stand in the eye of law.

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19. Having regard to the aforesaid discussions, even on merit, the impugned order has no legs to stand in the eye of law and accordingly, the same deserves to be quashed, inasmuch as, in the instant case, the specific reply of the delinquent that the administrative sanction for the project was Rs.87,59,845/- and there was increase of 12.38% in the technical sanction and the upper limit of 15% has been provided, as per the circular dated 16.07.1986. Therefore, the increase of the estimate at the technical sanction level was less than 15% and therefore, the charge cannot be said to be proved. However, this categorical stand of the petitioner has not been addressed either by the Enquiry Officer or by the Disciplinary Authority.

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As stated hereinabove, earlier the petitioner challenged the order of punishment of recovery of 50% of the pension by way of filing writ application being W.P.(S) No.4885 of 2004, which was allowed in favour of the petitioner and the order of punishment was quashed and the matter was remitted to the respondents to take a decision in terms of Rule 43(b) of Bihar Pension Rules on the quantum of punishment and pass appropriate order in accordance with law.

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20. It is also relevant to point out here that the respondent authorities were specifically directed to look into the quantum of punishment as the Executive Engineer and Assistant Engineer,

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who were also proceeded in contemplation of the said faulty construction of the Kodai Baandh Dam Scheme in Tisri Block, Giridih District; were exonerated. However, the impugned order does not transpire that any such type of consideration was given.

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21. As a result, this Court holds that the order of punishment dated 12.09.2023 (Annexure-22) and the departmental proceeding initiated in pursuance to the Government Resolution as contained dated 05.09.2002 (Annexure-2) do not have any legs to stand in the eye of law and is hereby quashed and set aside. Accordingly, the concerned respondents are directed to release the entire arrears of pensionary benefits, which has been withheld in pursuance to the original order of punishment dated 16.04.2007.

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22. Accordingly, the instant writ application stands allowed.

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(Deepak Roshan, J.)

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Jharkhand High Court

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Date: 04/10/2024 vikas/AFR /NAFR

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Baldeo Ram v. the State of Jharkhand

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Baldeo Ram v. the State of Jharkhand

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