KAMESHWAR PRASAD Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) IN this writ application, the petitioner has prayed for quashing the order dated 3.12.2003 issued by the respondent No. 3 - Chief Engineer -cum -Additional Commissioner - cum -Special Secretary, Jharkhand, whereby the petitioner has. been Kiti Rana Versus State Of Bihar (Now Jharkhand) awarded punishment of dismissal and, for quashing of the order dated 30th January, 2004 passed by the Secretary -cum - Commissioner, Road Construction Department, Jharkhand, Ranchi whereby the petitioner 'sdepartmental appeal has been rejected. The main grounds for assailing the said two orders, canvassed in the writ application, are that the impugned orders are mechanical, cryptic and non -speaking and the same have been passed in violation of rule of natural justice.

(2.) IN order to appreciate the said grievance of the petitioner, it is necessary to state the relevant fact in brief. The petitioner was appointed as an Accounts Clerk on 11.4.1980 and was posted in Public Works Department, Koderma Division. Except for the intervening period from 28.6.1991 and 16.1.1993, when he was posted at Hazaribagh, he had been at Koderma. Suddenly on the charge of committing irregularity and defalcation, the petitioner was put under suspension by order dated 3.8.2001. Subsequently, an FIR was lodged on 3.9.2001 alleging that while the petitioner was a Bill Clerk in PWD Koderma, he defalcated the amount of retired employees worth Rs. 5,35,152.00 and that he confessed withdrawal of an amount of Rs. 88,322/ - which he was ready to deposit. He subsequently deposited that amount. The said criminal case was followed by a department proceeding and a charge -sheet was served on him containing several articles of charge and mainly alleging defalcation of a sum of Rs. 7.56 lakhs and odds. According to the petitioner, he filed his reply against the charge before the Enquiry Officer denying the same. According to him, there was no defalcation of the amount. The further case of the petitioner is that after submission of the reply, no date was fixed for further inquiry by the Enquiry Officer to his notice and the same proceeded ex parte. Ultimately the impugned order, contained in Annexure 24, was passed holding the petitioner guilty of the charge and dismissing the petitioner from the service. According to the petitioner, though it has been mentioned that there was an inquiry, yet no inquiry report was ever served on him. There has been blatant violation of the principle of natural justice and he was not given adequate opportunity to defend himself. The further grievance of the petitioner is that even in the impugned orders, no evidence has been mentioned and discussed on the basis of which the conclusion of the guilt of the petitioner has been recorded and in such perfunctory manner the punishment of dismissal has been awarded. The order of the disciplinary authority is non -speaking and cryptic and even no reason has been assigned in support of the conclusion of the said order and thus, the said order is wholly illegal and arbitrary. Further, he filed departmental appeal before the Secretary. Public Works Department, Road Construction Department (respondent No. 2) assailing the order of the disciplinary authority on several grounds, but by his order dated 31.1.2004 the appellate authority also rejected the appeal mechanically without discussing the materials and evidences on record and without any application of his mind on the grounds of the appeal. According to the petitioner, the said order is contrary to the established law and the same is also wholly illegal and without jurisdiction.

(3.) DR . S.N. Pathak, learned counsel on behalf of the petitioner, reiterating the grounds taken in the writ application, submitted that from bare perusal of the impugned order passed by the disciplinary authority (Annexure -24) and that of the appellate authority (Annexure -26), it would be evident that the same are cryptic, mechanical and colourable. The said orders are not supported by any reason and the same do not contain any discussion of the evidences and materials on record or even the details of the enquiry report and they have just recorded the conclusion on the only ground that the petitioner was given opportunity but he failed to appear and take part in the departmental inquiry. According to the learned counsel, even the copy of the inquiry report has not been served on him and he was deprived of his valuable legal right and thus, the impugned orders are unsustainable. Dr. Pathak placed his reliance on the Supreme Court 'sdecision Union of India V/s. Ramjan Khan, 1991 (1) SCC 588. The learned counsel has further submitted that the appellate order which has been passed by the respondent No. 2, is also vitiated due to the said reason and also for the reason that the respondent No. 2 has failed to act as an appellate authority as required by the prescribed rules and also under the provisions of law.