KAMLESHWAR PRASAD Vs. THE STATE OF JHARKHAND

JUDGEMENT

(1.) In the accompanied writ application, the petitioner has sought for a writ in the nature of certiorari for quashing the Notification dated 11.09.2014 (Annexure -9), pertaining to imposition of multiple and major punishment of censure and withholding of two annual increments with cumulative effect under Rule 55 of the Civil Services (Classification, Control & Appeal) Rules, 1930 and for quashing the chargesheet dated 08.08.2013 (Annexure -3) and has further prayed for issuance of a writ of mandamus commanding upon the respondents to consider the case of the petitioner for promotion to the rank of Superintending Engineer with all consequential benefits from the date, the junior to the petitioner has been given promotion.

(2.) The brief facts, as disclosed in the writ application, are that in the year 1980, the petitioner was initially appointed on the post of Assistant Engineer. Thereafter, in due course of time, the petitioner was promoted to the post of the Executive Engineer on a Class -I post in Class -I Service. On the bifurcation of the State of Bihar, the petitioner has been allocated to the cadre of Jharkhand and in pursuance to the cadre allocation, the petitioner has submitted his joining in the Road Construction Department of the Government of Jharkhand on 31.10.2004. In the month of December, 2004, the petitioner was posted as Executive Engineer, Monitoring, Road Circle, Road Construction Department, Ranchi. Thereafter, he was posted at Gumla. Again, he was posted to Ranchi. Thereafter, petitioner's services were placed at the disposal of the Building Construction Department, where he was posted as Executive Engineer, in August, 2011. In the month of January, 2013, promotion cases for the post of the Superintending Engineer was taken up in the Road Construction Department, wherein, a request was sent to the Jharkhand Public Service Commission (J.P.S.C.) for convening a meeting of the Departmental Promotion Committee (D.P.C.). In response to the letter of the DPC, a date was fixed for 20.04.2013 and a consideration (master) chart containing list of the prospective candidates was prepared, in which the name of the petitioner also figured, as disclosed from Annexure -1 to the writ application. In the month of March, 2013, all of a sudden, an explanation was sought from the petitioner by the Building Construction Department on 20.03.2013, relating to some defects in the construction of the State Data Centre Building. In response thereto, the petitioner submitted his reply denying any perturbation therein, since all the defects were removed by the contractor himself at his own cost as per the terms and conditions of the contract and a third party test was also conducted with the consent of both the executing (B.C.D.) department and the user (I.T) department bearing absolutely successful test results and the said fact has also been concurred by the Engineer - in -Chief, Building Construction Department and it has been recorded therein, that no loss to the Government exchequer has incurred. In August, 2013, vide resolution dated 08.08.2013, a departmental proceeding was initiated against the petitioner by the Road Construction Department and Mrs. Shila Kisku Rapaz, I.A.S. (Retd.) was appointed as the Conducting (enquiry) Officer in the proceeding. During the continuance of the departmental proceeding, fresh date was fixed by the J.P.S.C. for consideration of the cases of the promotion of Executive Engineers to the rank of the Superintending Engineer on 20.08.2013 but the name of the petitioner was dropped from the list on account of the pendency of the departmental proceedings. In the enquiry, the petitioner submitted his defence notwithstanding the non - supply of the relevant documents to the petitioner. The Presenting Officer was asked by the Enquiry Officer to file a rejoinder/opinion on the said defence statement submitted by the petitioner. The Enquiry Officer submitted enquiry report but the copy of the enquiry report was not supplied to the petitioner. Meanwhile, a meeting of the Departmental Promotion Committee for promotion to the rank of the Superintending Engineer was convened on 06.03.2014 and for which again a consideration (master) chart was prepared in which the name of the petitioner got dropped from the recommended (fit list) on account of the pendency of the departmental proceeding. On 11.09.2014, the Road Construction Department, Government of Jharkhand, Ranchi came out with a Notification in exercise of powers under Rule 55 of the Civil Services (Classification, Control & Appeal) Rules, 1930 purported to have inflicted the multiple and major punishment of censure and withholding of two annual increments with cumulative effect as per Anneuxre -9 to the writ application. Being aggrieved and dissatisfied with the impugned order of punishment, dated 11.09.2014, the petitioner left with no other efficacious, alternative and speedy remedy, has been constrained to approach this Court invoking the extraordinary jurisdiction under article 226 of the Constitution of India for redressal of his grievances.

(3.) Mr. A. K. Sinha, learned senior counsel for the petitioner has assailed the impugned order of punishment on the ground that the enquiry report has not been supplied to the petitioner, thereby causing serious prejudice, which has ultimately effected and vitiated the entire proceedings. Learned senior counsel further submits that non -issuance of second show cause notice is another infirmity, which has materially effected the departmental proceedings being infraction of Rule 55 of the Civil Services (Classification, Control & Appeal) Rules, 1930. Moreover, the impugned order of punishment has been imposed in derogation of Rule 49 of the Civil Services (Classification, Control & Appeal) Rules, 1930, which prescribes for only one punishment out of the list of punishments prescribed for an act of misconduct, out of which anyone is supposed to be inflicted depending upon the gravity of the misconduct but the disciplinary authority has inflicted a multiple punishment by imposing a combination of two of the listed punishments, which is not permissible and is beyond its jurisdiction. Learned senior counsel for the petitioner has further submitted that in the instant departmental proceedings, Mrs. Shila Kisku Rapaz, I.A.S. (Retd.) has been appointed as the Conducting (enquiry) Officer but as per Annexure -D to the counter affidavit it stipulates that in the disposal of the matters pertaining to the Works Departments, the departmental enquiry shall be done by one of the said five Departmental Enquiry Officers, who will be the retired officers of not below the senior scale of the State Engineering Service. Therefore, as per his contention, Annexure -3 of the writ application, is in contravention of Annexure -D to the counter affidavit. Therefore, the appointment of the enquiry officer, in the teeth of Annexure -D, appears to be wrong and resultant punishment is liable to be interfered with.