GAPAL PD Vs. STATE

JUDGEMENT

(1.) THE petitioner, who is a junior engineer in Water Resources Department, has filed this writ application questioning the order bearing No. 116 dated 3.3.2003, annexure -7, whereunder he has been dismissed from service as also the other order bearing letter No. 700 dated 9.9.2004, annexure -9, whereunder his appeal against the said dismissal order has been rejected. Petitioner was initially placed under suspension in contemplation of a departmental proceeding and thereafter departmental proceeding was initiated against him under Rule 55 of the Civil Services (Classification Control and Appeal) Rules, 1930, vide Resolution of the State Govt. bearing memo No. 287 dated 25.1.1994, annexure -3. The charges relate to irregularities committed in the execution of the works contract in regard to development works undertaken at the Chalgu Rehabilitation Camp, as would appear from the memo of charge contained along with the resolution initiating departmental proceeding dated 25.1.1994. Petitioner filed his show cause reply dated 20.2.1994, annexure -4, whereunder he categorically submitted that as regards irregularities made in the plaster and other works he is not responsible as he was made incharge of the execution of the works under order dated 20.2.1991 and relieved on 14.7.1991 during which period the aforesaid work was neither executed nor supervised by him. He further submitted that the allegation in regard to the other two works included in the memo of charge also does not concern him as he was never associated with them. The enquiry officer having considered the show cause reply filed by the petitioner dated 20.2.1994 as also having examined the relevant material produced by the department submitted his enquiry report dated 2.4.1996, annexure -5, whereunder petitioner was exonerated of all the charges levelled against him. The State Govt. having received the enquiry report considered the same and thereafter served on the petitioner a composite show cause notice dated 11.3.2002, annexure -6, indicating the reasons which, persuaded the Govt. to differ with the findings recorded by the enquiry officer as also the second show cause notice against the proposed punishment of dismissal. Petitioner having received the composite second show cause notice filed his second show cause reply dated 3.7.2002, annexure -11, in which also he clarified that he was not concerned with the charges levelled against him as it was Shri Arvind Kumar Singh who was entrusted with the execution of the job until lintel level. State Govt. having considered the second show cause reply passed the impugned order No. 116 dated 3.3.2003, annexure -7, dismissing the petitioner from service and the order has been communicated under the signature of the Deputy Secretary. Petitioner questioned the aforesaid order by filing a writ application bearing C.W.J.C. No. 4066/2003 which was disposed of on 2.5.2003 permitting him to withdraw the writ application and to move the departmental authorities in appeal. Petitioner having withdrawn the writ application filed the appeal and the appellate order is dated 9.9.2004 as contained in annexure -9, whereunder Dismissal order has been affirmed and the appeal has been dismissed.

(2.) PETITIONER has questioned both the original order dated

(3.) BESIDES , challenging the charges levelled against him on merits Shri Sinha has also assailed, the impugned order on technical ground as he submits that before serving the second show cause notice dated 11.3.2002, annexure -6, petitioner was not given any opportunity to justify the findings recorded by the enquiry officer in the enquiry report as the reasons of difference were never served on him separately with opportunity to justify those findings before issue of composite show cause notice containing both the reasons of difference as also the proposed punishment which is contrary to the Principles of Natural Justice enshrined in Subclause (2) of Article 311 of the Constitution. In support of the aforesaid submission Sri Sinha has relied on the judgement of the apex court in the case of Punjab National Bank V/s. Kunj Bihari Mishra [1998 (7) S.C.C. 84] in which Lordships of the Apex Court have categorically held that when the enquiry officer has exonerated the delinquent and the disciplinary authority proposes to differ with the findings recorded by the enquiry officer then it is incumbent upon the disciplinary authority to furnish the reasons of difference on the delinquent with opportunity to the delinquent to justify the findings reached by the enquiry officer. Second show cause notice proposing the punishment, according to him, should be issued after disciplinary authority has given the opportunity to the delinquent to justify the findings of the enquiry officer.