Jharkhand High Court: Anubha Rawat Choudhary, J., while dismissing the writ petition dealing with a service matter preferred by the petitioner, for quashing the Notification issued under Memo dated 29-08-2013, held that there is no error, much less any manifest error of law and procedure leading to any injustice to the petitioner.
The petitioner has been imposed with the punishment of withholding 25% of Pension and Salary for the suspension period and a direction has been issued to the respondents to pay all retiral benefits including the amount towards GPF, Gratuity, Full Pension, Leave Salary, arrears of salary from the date of suspension till retirement and consequential benefits of Modified Assured Career Progression and other admissible dues with interest @ 10% per annum from the date of such dues till the actual date of payment and within a specified period.
The petitioner was appointed as Assistant Engineer on 29-09-1981 and the petitioner was repatriated to the Road Construction Department in the month of July 2009. In the month of November 2009, the petitioner joined as Executive Engineer in charge in Giridih Works Division.
The present case came out of an order passed in Public Interest Litigation where the preliminary inquiry was initiated by CBI and a criminal case was also instituted. The disciplinary proceeding was also instituted against the petitioner and was placed under suspension vide order dated 07-12-2009nmunder the provisions of Rule 49 (A) of Civil Services (Classification, Control and Appeal) Rules, 1930 (‘Rules').
Counsel for the Petitioner:
The counsel for the petitioner contended that petitioner being a Class I Officer, the proposal seeking approval of charge sheet should have been approved by the Chief Minister and not the Minister-in- Charge. Hence, the entire disciplinary proceedings initiated on the basis of the charge sheet stands vitiated.
The counsel submitted that the petitioner demanded a large number of documents vide representation dated 25-02-2012 and the enquiry officer was also appointed in the year 2012. The documents that were not provided were the measurement book and the so-called fake bills. The objection regarding the supply of documents was raised before the enquiry officer and also by the authority who imposed the punishment, but it was not considered properly. Hence, on account of non- supply of the documents, the entire disciplinary proceedings stand vitiated due to non-compliance of the Principle of Natural Justice (‘PNJ').
The counsel for the petitioner submitted that charge was required to be substantiated by the department by adducing evidence and the documents were required to be formerly approved by oral evidence and no such oral evidence was adduced. Hence, the case is a case of no evidence.
The counsel further submitted that a huge recovery has been directed from the petitioner and the petitioner is already retired. It was pointed out that no order under Section 43 (b) of the Bihar Pension Rules, 1950 has been passed to enable the respondents to pass an order of recovery from the pensionary benefits of the petitioner.
Counsel for the respondent:
The Counsel for the respondent opposed the petitioner’s prayer and submitted that the scope of interference in the departmental proceedings is very limited and there was neither any perversity nor any illegality in the matter of departmental proceedings.
Regarding the violation of PNJ, the counsel for the respondent submits that the enquiry report clearly mentions that the documents were duly provided to the petitioner.
While addressing the issue of the charge sheet having been issued by the Minister-in-Charge, the counsel submitted that the petitioner was never promoted to the post of Executive Engineer, instead he was just Executive Engineer (In-Charge), Class II Officer. Hence, the charge sheet was rightly issued.
The counsel while answering the arguments regarding requirement to substantiate the charge by oral evidence before the Enquiry Officer referred to Rule 55 of Rules, 1930 wherein the procedure prescribed does not require that the oral evidence is to be necessarily adduced in the departmental proceedings.
Whether the charge sheet was issued to the petitioner by the competent authority?
Whether the disciplinary proceeding is vitiated on account of alleged failure to supply material documents?
Whether the enquiry proceeding is vitiated being based on no evidence?
Observation and Analysis:
The Court mentioned a judgment passed by the Supreme Court, Pravin Kumar v. Union of India, (2020) 9 SCC 471, in which the scope of interference in the matter of disciplinary proceedings was summarized. The scope of judicial review in service matters was discussed. The power of judicial review discharged by constitutional courts under Article 226 or 32, or when sitting in appeal under Article 136, is distinct from the appellate power exercised by a departmental appellate authority. It would be gainsaid that judicial review is an evaluation of the decision-making process, and not the merits of the decision itself. Judicial review seeks to ensure fairness in treatment and not fairness of conclusion. It ought to be used to correct manifest errors of law or procedure, which might result in significant injustice; or in case of bias or gross unreasonableness of outcome.”
The Court is of the view that merely because the petitioner was officiating the post of Executive Engineer in charge does not confer the status of Class I post. Consequently, the issue that the approval of Chief Minister was needed before starting proceedings, is devoid of merit.
The Court held that the petitioner has failed to make out a case for interference in the departmental proceedings on account of violation of the principles of natural justice alleging non-supply of certain documents, denial of opportunity to cross-examination of witnesses.
The Court further held that there is no legal impediment in resting the departmental proceeding merely on documents produced by the department in the shape of memo of evidence without formally exhibiting the same through oral evidence of any witness.
The Court also held that “It is well settled that judicial review is an evaluation of the decision-making process, and not the merits of the decision itself. Judicial review seeks to ensure fairness in treatment and not fairness of conclusion. There is no allegation of any bias, and no case has been made out alleging gross unreasonableness of outcome. There is no scope for reconsidering the materials produced before the enquiry officer and coming to a different finding. All the issues framed based on the arguments of the parties having been decided in favour of the Respondents as aforesaid, there is no scope for any interference in the impugned order and proceedings under Article 226 of the Constitution of India. Accordingly, the present writ petition is dismissed”.
[Mathura Prasad v. State of Jharkhand, 2022 SCC OnLine Jhar 598 decided on 30-06-2022]
Advocates who appeared in this case :
Mr. A.K. Sahani, Advocate, for the Petitioner;
Mrs. Darshana Poddar Mishra, A.A.G. I, Advocate, for the Respondents.