IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (SB) No. 289 of 2007 The State of Uttarakhand and others ….Petitioners. Versus Ramesh Kumar Goyal and another …Respondents. Mr. B.K. Gupta, Advocate for the petitioners. Mr. M.C. Pant, Advocate for respondent no. 1. Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. Sudhanshu Dhulia, J. This writ petition has been filed primarily by the State of Uttarakhand through its Secretary, Public Works Department, Dehradun challenging the order of the Public Services Tribunal, Uttarakhand dated 20.7.2007, by which the claim petition of respondent no. 1 has been allowed and the order of punishment dated 20.4.2006 against respondent no. 1 has been set aside. The brief facts of the case are that respondent no. 1, while he was posted in the year 1997-98 as an Executive Engineer, Construction Division, Public Works Department, Dehradun, was entrusted with the construction of a 60 meter span suspension Bridge (Jhoola Pool) on river Aasan between Sehespur-Karbari in district Dehradun of which the estimated cost was Rs. 31.95 lakhs. It has been alleged in the averments in the writ petition that respondent no. 1 was fully responsible for the construction of the bridge and was also responsible for technical standards of the bridge. Respondent no. 1, however, exhibited his incompetence by changing the design/sub structural design from 60 meter span suspension bridge to 100 meter span suspension bridge. Further though the bridge under 2 reference was to be constructed in the plain area of Dehradun district, the design which was adopted by respondent no. 1 was actually for a similar bridge in a hill area. In short, the design of the bridge was substandard and faulty. This was first revealed to the department by an inspection done by Sri M.Z. Haque, the then Chief Engineer, Garhwal who mentioned this in his Inspection Report dated 1.11.1999. Therefore, by an office memorandum dated 30.10.2000, an enquiry was set-up against respondent no. 1. The Enquiry Officer Sri V.V. Gulati who was working as Chief Engineer, Garhwal Zone, P.W.D., in his enquiry came to the conclusion that no charges are made out against respondent no. 1. All the same, the State Government did not accept the recommendation of Sri Gulati and instead sought certain clarification from the Chief Engineer Level -1 vide its letter dated 9.1.2001. In the recommendation of enquiry officer, suspension of respondent no. 1 was to be revoked. Thereafter, one Sri S.K. Gupta was appointed as Enquiry Officer and on the basis of his enquiry, a chargesheet was issued to respondent no. 1. Against the said chargesheet, respondent no. 1 submitted his written explanation on 26.5.2003. In the second enquiry, the Enquiry Officer found that respondent no. 1 has exhibited his ignorance of his technical knowledge as Engineer and, therefore, a punishment of withholding his three annual increments with cumulative effect was proposed. This proposal of the punishment was submitted to the Public Service Commission for approval but the Public Service Commission vide its letter dated 18.10.2005 informed the Government that the Commission has decided not to give its approval for the proposed punishment. The matter was again scrutinised 3 by the Government and forwarded to the Public Service Commission. Thereafter the Public Service Commission accepted the request of the Government vide its letter dated 17.2.2006 and accorded its approval to award punishment of withholding of three annual increments with cumulative effect against respondent no. 1. Aggrieved by the said punishment order, respondent no. 1 filed a Claim Petition No. 56 of 2006 before the Public Services Tribunal, Uttarakhand. After exchange of counter affidavit and rejoinder affidavit and another pleadings, the matter was heard and decided by the Public Services Tribunal by a detailed reasoned order. According to the Tribunal, the first enquiry officer clearly gave its finding that there is no impropriety on the part of respondent no. 1 and that no charges were made out against him and, therefore, the recommendation was made to revoke the suspension of respondent no. 1. According to the Tribunal, once the finding was given that no charges are made out against respondent no. 1, although the Government was free to continue with the enquiry, but while continuing with the enquiry it was necessary on the part of the State Government to pass a speaking order as to why it still wants to continue with the enquiry. This was not done. In the opinion of the Tribunal, the second enquiry officer also never considered the report of the first enquiry officer though the following points should have been considered by the second enquiry officer :- (i) Whether 60 Mt. span design was also supplied to the contractor along with under 100 Mt. span design? (ii) Whether design of 60 Mt. span bridge Jhoola Bridge was also annexed in calculations? 4 (iii) Whether the quantity of the material and the bills were supplied according to 60 Mt. span or 100 Mt. span? (iv) Whether work of 100 Mt. span bridge was actually executed or 60 Mt. span bridge was executed by the contractor? (v) Whether the government incurred any loss in execution of whole work due to supply of 100 Mt. span design to the contractor? According to the Tribunal, the finding of the second enquiry report that the officer was not having the necessary knowledge required for construction of a “jhoola” bridge, are not borne from any evidence on record. Moreover, there was no basis for such findings as the first enquiry officer, who was of the rank of Chief Engineer and Chief Engineer Level -1, did not find any lack of knowledge or any such thing on the part of respondent no. 1. Moreover, the second enquiry officer did not take any expert opinion before arriving to such a conclusion. According to the Tribunal, the necessary witness like that of Sri Hari Kant Garg, who was Superintending Engineer at the relevant time and was involved in the process of construction of “Jhoola” bridge was also been examined. Moreover, although the work was performed by Sri S.K. Birla, Assistant Engineer, who was also a necessary witness, he was also not examined. Therefore, the second enquiry was conducted without examining necessary witnesses and conclusions were drawn merely on conjectures and surmises. It is also the considered opinion of this Court that the order of punishment dated 20.4.2006, passed against Respondent no. 1, has been passed without examining all the aspects of the matter. It is an undisputed fact that 5 there is no allegation of any financial impropriety or embezzlement or any such serious charge against respondent no. 1. The charge is only that he has approved the plan of 100 meter span suspension bridge in place of 60 meter span suspension bridge. What kind of bridge was actually constructed is not clear from the records. Moreover, whether the department has actually suffered any financial loss because of this construction is also not evident from the record. The only charge against respondent no. 1 that he had lack of knowledge for construction of this bridge, a fact which is not borne from the record for two reasons. Firstly, in the first enquiry report, the enquiry officer did not find any lack of knowledge on the part of respondent no. 1 and, secondly, the evidence such as that of Superintendent Engineer and Assistant Engineer and other persons, who were involved in the project have not been taken and they have never been examined. Therefore, to hold that respondent no. 1 has no knowledge or that he was incompetent in his field, is not evident from the record and, therefore, the finding of second enquiry officer on this aspect are totally perverse. As such, the Tribunal has rightly set aside the order of punishment passed against respondent no. 1. For this reason, this Court finds no justification or reason to interfere with the order of the Tribunal dated 20.7.2007. The impugned order dated 20.7.2007 passed by the Public Services Tribunal, Uttarakhand is hereby affirmed. Writ Petition is dismissed. No order as to cost. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J) 19.3.2010 Avneet