CIVIL WRIT JURISDICTION CASE No.2486 OF 1998 In the matter of an application under Article 226 of the Constitution of India. **** 1. Smt. Sandhya Devi, wife of late Krishna Kumar Kamal 2. Rakesh Ranjan, son of late Krishna Kumar Kamal. 3. Neel Kamal, son of late Krishna Kumar Kamal. 4. Raj Kamal, son of late Krishna Kumar Kamal. All residents of Mohalla L.I.G., 11/373, Hanuman Nagar, Police Station – Kankarbagh (Town), District-Patna. _________ Petitioners Versus 1. The State of Bihar. 2. The Secretary, Water Resources Department, Government of Bihar, Patna. 3. The Special Secretary, Water Resources Department, Government of Bihar, Patna. 4. The Deputy Secretary, Water Resources Department, Government of Bihar, Patna. 5. The Under Secretary, Water Resources Department, Government of Bihar, Patna. 6. The Chief Engineer, Irrigation, Patna cum Conducting Officer. 7. The Chief Engineer (Mechanical), Irrigation, Patna. __________ Respondents For the petitioner: M/S. Siya Ram Shahi and Mrs. Shally Kumari. For the State : AC to AAG-3. ****** P R E S E N T THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI Ajay Kumar Tripathi, J. The original petitioner Krishna Kumar Kamal who was holding the post of Executive Engineer(Mechanical) came to be dismissed from service vide order dated 14.2.1998, which is Annexure-13 to the writ application and is under challenge. He died during the pendency of the writ 2 application and he has been substituted by his wife and other legal heirs by I.A. No. 601 of 2008. 2. Brief background under which the order of punishment came to be passed is that the erstwhile petitioner was posted as an Executive Engineer (Mechanical), Field Machinery Division, Balmikinagar, West Champaran. This was some where in the year 1987. At that point of time, a project was conceptualized which was known as Bagmati Barrage Project. The origin of the said river is from Nepal and keeping in mind recurrence of floods every year, which affected large portions of the district of Champaran, a barrage was thought to be the answer. It is the case of the erstwhile petitioner that he was sounded by the Chief Engineer to keep all equipments and machineries in fighting fit position so that when the project starts it goes full steam and could be completed within a time-frame envisaged in this regard. 3. Based on such a communication petitioner being Incharge of the Field Machinery decided to place certain indents as a Direct Procurement Officer for some spare parts and equipments from such suppliers who had been approved by D.G.S.& D. and on D.G.S.& D. rates. Orders were placed, supplies made and duly received but in the 3 meanwhile the State of Bihar had a change of mind when they learnt that some kind of project of similar kind is being put up by the Government of Nepal. If that was so, then the Bagmati Barrage Project would have amounted to duplication and the Government abandoned the project. 4. However, the issue did not rest at that because by that time petitioner proceeded with the procurement which entailed a sum of Rs.10.62 lacs as expenses. This, according to the respondents, was not only avoidable but also not within the powers of the petitioner without due approval of the authority so empowered. Charges were drawn up and the set of charge is Annexure-6 to the writ application. The charge primarily relates or reads that the petitioner in the year 1989 while being posted as an Executive Engineer (Mechanical), placed orders on 31.3.1989 for procurement from two different firms of Calcutta namely, Wilson Engineerng and M/S. Soni Enterprises beyond his powers and jurisdiction to do so. The other charge related to the petitioner holding on the documents or removed the documents related to such procurement which too was considered to be a case of omission and commission. 5. The enquiry report is Annexure-7 to the writ application. Findings have been given with regard to the two charges. Conclusions have been 4 crystallized at the end of the enquiry report. To be fair to the petitioner, the enquiry officer did not declare the petitioner guilty to the extent which would indicate that it was a serious matter where nothing less than punishment of dismissal could be imposed upon the petitioner. 6. With regard to the procurement and the purchases the enquiry officer does hold that procurement was made beyond the powers of the petitioner as he was not the Procuring Officer under the D.G.S.&D. but the enquiry officer has also held that supplies have been effected. The spare parts etc. have been received and were lying in the godown. To that extent there was no loss to the government. There is no finding or even insinuation that this was done for a consideration or for some kind of quick gain. On the charge with regard to missing documents, the finding of the enquiry officer is that it was alleged under a mistaken understanding because there was acceptance by the Divisional Accountant that documents were available in the office. 7. Despite the above findings having been recorded by the enquiry officer, the respondents namely, the disciplinary authority issued a second show cause which has been brought on record as Annexure-11 to the writ application. The second show cause tries to give a serious look to the 5 set of charges. In fact reading of the second show cause gives an impression to this court that it is a kind of new set of charges for which punishment is going to be imposed on the petitioner. If there was no disagreement with the finding of the enquiry officer then the second show cause should have been or ought to have been in the shadow of what was recorded and was found by the enquiry officer. The explanation offered by the petitioner was not accepted and the impugned order contained in Annexure-13 imposing punishment of dismissal has come to be imposed. 8. Counsel for the erstwhile petitioner first tried to justify that it was within his powers of procurement as he was the officer designated by the DGS&D to procure equipments or spare parts and the exercise of power was part and parcel of the said notification which was in existence. He, however, does fairly concede that in terms of Annexure-3/A this power was withdrawn by the notification issued by the DGS&D on 2.6.1989. If the power to procure was withdrawn after the orders were placed, then the same cannot be held to be against the employee for having committed a misconduct where he ought to have been dismissed. He also submits that taking the line of least résistance even if for some reason it is argued that there was some exercise carried out behind 6 the back of the petitioner to withdraw the power of procurement from him, then he was not aware of and the benefit of doubt ought to have been given to him. Decisions taken at Patna take time to reach or get communicated to the field. It was not the intent and object of the petitioner to procure certain supplies with the object of making some quick buck on the side. There are no findings and there is no evidence but yes, the respondents in retrospect can say now that since the project as originally planned had been abandoned then all those spare parts and equipments procured by the petitioner for putting the machineries in battle ready condition may have lost its meaning or urgency. Divergence or expenses to the extent of Rs.10.62 lacs could have been avoided if the petitioner had probably taken his superiors into his confidence before placing the orders. 9. With the evidence and material which has come during the course of enquiry and the stand taken by the respondents in the counter affidavit the Court has certain reservation in accepting the stand of the respondents through and through. If there is a case that power of procurement was withdrawn from the petitioner and a recommendation in this regard was forwarded to the DGS&D way back in the year 1984 but as to when was the 7 notification actually made has no been fully established or placed before this Court despite indulgence granted. The only document in this regard is Annexure-3/A where the so-called communication dated 23.10.1984, a Xerox copy of which was produced before this Court, has been referred to in the notification contained in Annexure-3/A. It could be a case where the petitioner could have tried to draw advantage in a situation of flux or it could be a case where the petitioner was over enthusiastic and wanted to establish his mettle before the superiors by carrying out the earlier communication, about the readiness in case the go ahead was given about the project. 10. Be that as it may, the fact stands that the records do not show that the petitioner was guilty of the charge and he acted in a manner deliberately to beget benefit to himself and intentionally caused loss to the exchequer or the State. With clear findings not having been given during the course of enquiry on these aspects, the benefit of doubt having been given by the enquiry officer with regard to charge no.1 on procurement and the petitioner having been absolved of the second charge of removing documents related to the procurement having not found to be true, in the opinion of the Court, the punishment of 8 dismissal was uncalled for. The punishment is surely shocking to the conscience of the court because a punishment must commensurate with the findings and seriousness of the charge. 11. There is nothing on record further to establish that the field and track record of the employee was not so where he could be given a chance to mend his ways. He was a young officer and there are occasions where over enthusiasm in such officers looks like indiscretion in retrospect. It may not always be because of ulterior motives as such. 12. In the totality therefore, the Court is of the opinion that punishment of dismissal is disproportionate to the charge and findings. The punishment order is hit by the principle of proportionality. On this ground the punishment contained in Annexure-13 is hereby quashed. 13. The writ application is allowed with a direction upon the respondents that they will now reconsider the matter in light of what has been observed by this court in earlier part of the order with regard to the kind of punishment which ought to be meted out to the erstwhile employee since he is no more. As the impugned order contained in Annexure-13 was issued way back in 1988, the Court desires that the competent authority would be well advised to take a decision 9 within a time frame of six months from the date of communication / receipt of a copy of this order. 14. The writ application is allowed but without any cost. (Ajay Kumar Tripathi,J) Patna High Court: The 7th October, 2010. R K Pathak (NAFR)