SURENDRA PRASAD Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Since the petitioner in both the writ applications are the same and the relief sought for are more or less similar, with the consent of the learned counsel for the respective parties, both the cases are heard together and disposed of by this common order.

(2.) In W.P. (S) No. 7453 of 2013, prayer has been made for quashing the memo dated 26.09.2013 (Annexure -5), issued by the The Deputy Secretary to the Government, Road Construction Department, Govt. of Jharkhand, Ranchi, Respondent No. 4 and In W.P. (S) No. 7413 of 2013, prayer has been made for quashing the memo dated 30.08.2013 (Annexure -5), issued by the The Deputy Secretary to the Government, Road Construction Department, Govt. of Jharkhand, Ranchi, Respondent No. 4 pertaining to initiation of departmental proceedings and for direction to the respondents not to proceed in the departmental proceedings.

(3.) Factual matrix, as delineated in the writ application, in a nutshell is that the petitioner is an Assistant Engineer of the Road Construction Department, Jharkhand, now posted in the Ranchi Municipal Corporation, Ranchi. In pursuance to the direction issued vide order dated 30.06.2009, passed in W.P. (PIL) No. 803 of 2009, the CBI chose to enquire and investigate the roads having good conditions maintained by the R.E.O. (now RWD) Department instead of the roads maintained by National Highway or the Road Construction Department and that too the roads, such as, improvement of Bano P.W.D. Road to Pabura Nimtur Pangur Path Road in W.P. (S) No. 7453 of 2013 and maintenance and repair of Lachragarh - Jaldega Road in W.P. (S) No. 7413 of 2013 regarding which, there is no public complaint and is in good condition even after lapse of more than 3 years of repairing and maintenance as evident from the relevant part of Joint report dated 08.09.2009 submitted to the CBI in course of preliminary enquiry, wherein, it has been reported that "there is no complain regarding anything in the road work and after completion of road, the riding surface is in good condition and used by the local people". After preliminary enquiry, the C.B.I., ACB, Ranchi on 16.09.2009 lodged a F.I.R. bearing RC Case No. 17 (A)/2009 (R) and the CBI after investigation, submitted the Charge Sheet on 04.12.2010 vide Charge Sheet dated 30.11.2010. In the column No. 11 (2) of the Charge Sheet in which the name of the petitioner has been mentioned, no specific charge has been mentioned against the petitioner by the C.B.I. which itself goes to show that the investigating agency has also not found any specific charge against the petitioner and the said case is pending for trial before the learned Special Judge, CBI, Ranchi. The respondent -authorities after a lapse of 7 years of the completion of the construction work vide Memo dated 30.08.2013, issued by the Deputy Secretary to the Government, Road Construction Department, Govt. of Jharkhand, Ranchi (Respondent no. 4) appointed respondent no. 5 as the Departmental Enquiry Officer and the respondent no.6 as the Presenting Officer by issuing a charge sheet for identical and similar set of facts and the charges for non -verification of original bills produced by the concerned contractor regarding the purchasing of the bitumen from oil companies etc. for which the petitioner has been proceeded in a criminal case bearing RC 17(A) of 2009 lodged by the CBI in compliance to the aforesaid order, passed in W.P. (PIL) No. 803 of 2009. It has been averred in the writ application that vide letter dated 23.03.2010 (Annexure -8), the auditors have submitted their audit report related with the Jharkhand Government on the basis of which, a Government Resolution dated 08.09.2001 has been issued by the Road Construction Department, Government of Bihar. The memo dated 06.07.2004, issued by the Chief Engineer, R.E.O., Ranchi approving the concerned Contract work has been sent to the concerned Executive Engineer, mentioning therein, that only after verification of the Bitumen personally by the Executive Engineer, the contractor will utilize the Bitumen as is evident from memo dated 03.09.2005 (Annexure -10) issued by the named accused Sri Laxman Ram, the then Executive Engineer, REO, (now RWD), Simdega specifically directing the concerned Contractor to submit the original copy of Invoices related to procurement of Bitumen. In the chargesheet, it has been alleged that the petitioner being Assistant Engineer has failed to ensure return of empty drums of bitumen. The criminal case has been instituted against the petitioner for similar set of charges. It has further been averred in the writ application that as per the decision of the Hon'ble Apex Court in the case of Capt. M. Paul Anthony - versus -Bharat Gold Mines Ltd. & Anr. reported in (1999) 3 SCC 679, it is well settled that if the Departmental Proceeding as well as Criminal Proceeding has been initiated on the same set of facts and circumstances, the departmental proceeding should be stayed till conclusion of the Criminal proceeding.