CIVIL WRIT JURISDICTION CASE No.11962 OF 1995 In the matter of an application under Articles 226 and 227 of the Constitution of India. ----- Debendra Prasad Singh, son of Sri Awadh Kishore Prasad Singh, resident of Patelnagar, P S Shastrinagar, Town and District – Patna. ___________ Petitioner Versus 1. The State of Bihar. 2. Sri Jagadanand Singh, the Minister, Water Resources Development, Bihar, Patna. 3. The Commissioner-cum-Secretary, Department of Water Resources Development, Sinchai Bhawan, Old Secretariat, Bihar, Patna. 4. The Special Secretary, Department of Water Resources Development, Sinchai Bhawan, Old Secretariat, Bihar, Patna. 5. The Deputy Secretary, Department of Water Resources Development, Sinchai Bhawan, Old Secretariat, Bihar, Patna. 6. The Engineer-in-Chief cum Special Secretary cum Addl. Commissioner, Department of Water Resources Development, Sinchai Bhawan, Old Secretariat, Bihar, Patna. _________ Respondents For the petitioner: M/S. Abhay Kumar Singh, Sr. Advocate and Ratnesh Kumar Singh. For the respondents: Mr. Ranjan Kumar, AC to AAG-9. P R E S E N T THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI 2 Ajay Kumar Tripathi,J. Since certain developments had taken place after the writ application was filed, amendment applications were required to be filed. 2. In view of the above, all the amendment applications filed after filing of the writ application stand allowed. 3. It is a long drawn battle spread over a decade now if not more. The present writ application is a sequel to the earlier writ application which was heard and disposed of vide order dated 1.8.1995 and the writ is CWJC No.1375 of 1995. 4. Some of the facts, in brief, is that the petitioner was posted as a Superintending Engineer in the Water Resources Department and was associated or saddled with the responsibility of that post for a minor irrigation project which was going on in the district of Munger. It is known as Dakra Nala Irrigation Project. Somewhere the authorities sitting in Patna came to an opinion that the work being carried out and executed, which included award of contract and the follow up action thereafter, was not strictly within the norms laid down by the department in this regard. Petitioner came to be suspended, remained under suspension for a long time. He had occasion to come before this Court seeking intervention but we are concerned with the order passed in Anexure-1 because the origin of the present dispute is fall-out of the direction of the High Court issued in CWJC No. 1375 of 1995 (Annexure-1). 3 5. After hearing the contentions of the parties the High Court laid down a time-frame within which the departmental enquiry against the petitioner had to be completed. The Court granted four months time to complete the enquiry which was a kind of peremptory order because the Court states that “if the enquiry is not completed within four months, the same will be deemed to come to an end and the petitioner will be entitled to all consequential benefits. If, however, enquiry is complete and report is submitted within the said period, a copy of the report will be supplied to the petitioner, if the same is adverse to him and/or the Department wants to proceed further against him, within one week thereafter. In that event, final order must be passed within two weeks of the filing of the show cause, if any. It is made clear that the four months period, referred to above, will be reckoned from the date of receipt of a copy of this order.” 6. The respondents based on the direction of the Court proceeded in the matter and a final order of punishment contained in Annexure-41 dated 12.1.1996 came to be passed against the petitioner. The order of punishment was demotion from the post of Superintending Engineer to the level of Executive Engineer and recovery of some lacs of rupees from the petitioner. The order of punishment is under challenge in the present writ application along with some other orders, which came to be passed such as, 4 second show cause contained in Annexure-5 dated 20.12.1995 since the final order of punishment had not come in the meanwhile, when the writ application was filed, as well as the order contained in Annexure-67 dated 19.4.2002 by virtue of which the period 3.10.1992 to 16.6.1993 was treated to be a period of extra ordinary leave without entitlement of any pay or perks. All these orders therefore have to be dealt with in the present writ application, which have been brought on record through various amendment applications and supplementary filed from time to time as the events unfolded. 7. The first submission made on behalf of the petitioner by the learned senior counsel is that peremptory nature of the order passed by the High Court contained in Annexure-1 bars further proceeding as the time-frame fixed by the Court was not followed. Any order therefore passed beyond the four months period is no order in the eye of law. Vehement submissions have been made in support of such proposition but the Court has difficulty in accepting the interpretation which is sought to be given by the petitioner to the said order. No doubt a time- frame for completing the enquiry was fixed by the High Court but it is not a case where the enquiry was not completed within the time-frame. However, the second show cause and the punishment order came to be passed beyond the period of four months. There is minor dispute about the date when the order was 5 served on the respondents and when enquiry was completed but they have no meaning in view of the fact that the High Court itself had very categorically stated that if the enquiry is complete within four months, a copy thereof had to be handed over to the petitioner followed by a second show cause etc. etc. 8. According to the learned senior counsel the order has to be read in context that a proceeding starts with the service of charge sheet and concludes with the passing of the punishment order. Since the punishment order was passed after four months period, therefore, the directive of the Court was not followed and the peremptory nature of the order will take over. In support thereof counsel for the petitioner relies on a decision in the case of Yoginath D. Bagde v. State of Maharashtra and another, reported in (1999) 7 SCC 739 (emphasis on para 31 of the said judgment). 9. The proposition of law laid down in the said decision has no application in the present case in view of the order of the High Court itself. It is apparent from the texts which have been quoted in earlier part of the order that the High Court wanted the respondents to complete the process of enquiry within a time-frame of four months and not the departmental proceeding within the time frame of four months. This submission of the counsel therefore is fit to be rejected. 6 10. The next round of submission is based on the enquiry and the enquiry report. Serious challenge is made to the findings of the enquiry officer and the rationale and wisdom of the disciplinary authority to impose such serious punishment on the petitioner on such finding. There were 9 set of charges which were drawn up against the petitioner and the chargesheet is Annexure-9 dated 5.6.1992. The enquiry officer has submitted his report on those set of charges which is Annexure-3 to the writ application. The enquiry report dated 18.12.1995 was placed before the Court extensively because the consequential order of punishment always flows from the findings which are recorded by an enquiry officer in the enquiry report. 11. It must be recorded straightaway that out of 9 charges, 3charges were dropped by the enquiry officer, which is charge Nos.4, 5 and 8. This is so because the enquiry officer did not render any opinion at all on those set of charges. Charge No.6 was dropped by the Government because there was no finding of guilt rendered by the enquiry officer. Therefore, the finding given by the enquiry officer is limited to Charge Nos.1, 2, 3, 7 and 9. 12. Charge No.1 related to award of contract to a single tenderer and that too at 10 per cent higher rate than the estimate. It also deals with the desirability of entering into the supplementary agreement by allowing lifting of soil by mechanical 7 means and allowing certain changes in the original agreement. 13. So far as finding of the enquiry officer on this charge is concerned, he categorically holds that despite several notices inviting tender having been called there were no takers for the said contract, the Department was left with no option but to go for the tender which was available to them even if it meant a single tenderer. It also records that there was provision for mechanized lifting of earth and the agreement entered by the department at the local level to that extent cannot be said to be in breach of the original tender. In so far as allowing escalation of the estimate and award of contract at a higher rate is concerned, specially with regard to lifting of soil etc. he does record that certain accusatory fingers were pointed out towards the Executive Engineer but nothing substantive could be alleged against the present petitioner. However, the enquiry officer was of the opinion that since the petitioner was Superintending Engineer and had a supervisory role he ought to have exercised his control over his subordinates on this aspect of the matter. The reason for finding the petitioner guilty with charge no.1 was basically his failure to exercise control over the Executive Engineer and there is no finding which pins the petitioner down of any serious irregularity or misdemeanour. However, 8 based on the finding and the charge having been proved, order of punishment has been awarded. 14. The second charge is of allowing one M/S. Siwan Constructions to continue with the contract of transportation of cement even beyond the period of contract. Allegation is that even after the expiry of contract, the firm was allowed to continue with the transportation of cement and this was a serious matter as once the contract had come an end, a fresh tender ought to have been invited and settlement ought to have been made well in time. 15. The finding of the enquiry officer is that the Executive Engineer did not take appropriate decision at the relevant time frame. It is again a case of failure of supervision of the petitioner but there is also a finding that there was certain exigencies of service, in the sense that a rack full of cement had arrived at railway siding, which had to be loaded and transported. In absence of new contractor at the relevant time what was required was offloading the cement and its transportation otherwise the department would have ended paying heavy demurrage to the railways. Since M/S. Siwan Constructions was an old hand, his services were taken but there is no allegation that for that service M/S. Siwan Constructions was paid something over and above the contract from the rate which was initially awarded to him. In fact there is a suggestion to show that utilizing the services of 9 M/S. Siwan Constructions, saved the Government a sum of Rs.14,000/-. On this count the enquiry officer does not record his opinion about the guilt of the petitioner but he left to the government to find out whether there was a loss or there was gain by taking the services of M/S. Siwan Constructions. To that extent it cannot be said that charge no.2 stand proved against the petitioner. 16. The third charge related to the earth work which was to be carried out by mechanized process being RD 2.3 and RD 4.0 and the way 7 tenders which were filed by the tenderers came to be decided. 17. There is a finding in the enquiry report that out of the seven tenders, four tenders were not worthy of consideration because they had not been submitted with the required tender documents. With the left over three tenders, two tenders were 6 per cent above the schedule which came to be accepted and this, according to the charge, led to loss of Rs.2.87 lacs. 18. It is evident from the enquiry report on this issue that the four tenderers who were Co- operative Societies did not fulfil the criteria because of their failure to annex all the documents with the tender. Even if the tender came to be awarded to such persons who had quoted 6 per cent higher rate than the schedule but they accepted the work on the schedule rate. To that extent the charge of causing loss to the government by accepting the 10 higher rate of a tenderer who had otherwise fulfilled the requisite requirements does seem to be misplaced. Certain doubts were raised with regard to one contractor namely, Shri Ramanugrah Singh that on a closure scrutiny it was found that even his tender was not in order. If his tender could be accepted then the tenders of the Co-operative Societies i.e. other four ought to be also considered giving a go-by to the objections. There is no finding that the tender was accepted by the petitioner at his level or that the tender which was accepted was not approved by the superior authorities. It is the submission of the learned senior counsel for the petitioner that in absence of a categorical finding that the decision to award the contract with regard to this work was of the petitioner and petitioner alone, he cannot be found guilty. Petitioner was part of the chain of decision making and all tenders are ultimately approved at the highest level. Finding of guilt recorded on this score fixing liability on the petitioner alone to that extent is misplaced if not motivated. There is no effort made by the enquiry officer to find out or record his opinion whether the award of contract was made by the petitioner and petitioner alone or he was part of chain of decision making in this regard. 19. There seems to be force in the submission of the petitioner made on this charge pinning the responsibility and holding the petitioner guilty on 11 this count as it is not based on any substantive evidence. It is the mere opinion of the enquiry officer as to what may have been done or ought to have been done. It is not a finding on as to what had been actually done. To that extent holding the petitioner guilty on this count or charge seems to be misplaced but this finding of guilt has also weighed in award of the punishment in question. 20. The sixth charge with regard to installation of Anti Flood Sluice Gate and the award of work to a debitable agency being allowed is alleged to be an illegal exercise of power and authority. One debitable agency, M/S. Rahul Engineering Works was used since the main contractor M/S. India Engineering Works, Bhagalpur failed to complete the work within the time frame. 21. Petitioner has given his explanation that the nature of the work being such which related to flood protection, there was some kind of emergency to award that work to yet another agency on a debitable basis. Once the work was done it was the duty of the Executive Engineer to have adjusted the amount spent on this kind of work on the main contractor. Since that was not done, the petitioner cannot be held responsible for the said charge. It has also emerged that final settlement of accounts of the main contractor had not been done till then. Therefore, what kind of charge could be made out against the petitioner is not understood. In the given 12 circumstances, even the enquiry officer did not find the petitioner guilty on this count and even the Government decided not to press this charge against the petitioner. 22. The seventh charge related to providing irrigation facility from the Dakra Nala Irrigation Project and installation of pumps and delivery pipes by the engineering sections of the department. The charge was that for this work petitioner had certified payments for Rs.4,77,272/- and the purchase of pipes etc. was at 10 per cent higher rate than the minimum rate fixed. The work was started and completed but proper estimate etc, had not been made. 23. The finding is that this work was done and completed. Whatever estimates were prepared and expenses met was duly approved by the Chief Engineer and once the seal of approval was given by the superiors there was no occasion to hold the petitioner guilty on this count. There is also evidence on record that even a vigilance enquiry had been initiated with regard to the work of Dakra Nala and Vigilance did not find anything substantially amiss on this charge. After having discussed the circumstances and the nature of the work the enquiry officer himself has recorded in his opinion that the benefit of doubt should be given to the petitioner on this count and on this charge. However, even that benefit of doubt has not accrued 13 in favour of the petitioner as this charge also has been made a ground for the order of punishment. 24. Now for the final charge i.e. charge no.9. This charge related to what is known as Suryagarha Canal Pump. Irrigation facility which, according to the charge, was executed in an adhoc and illegal manner and the manner in which this work was divided into four parts. It is also alleged that the work was intentionally divided into four parts to bring it within the ambit of the powers of the present petitioner which existed till the extent of Rs.50,000/-. It is also alleged that for different parts the same supplier made his bids and work was assigned. 25. According to the petitioner, the desirability of Suryagarha Irrigation Project was worked out after a local inspection was carried by the Engineer-in-Chief as well as the Chief Engineer. On a spot visit and verification an estimate of 1.51 lac was worked out by the Executive Engineer and quotations were invited by the Executive Engineer though it is accepted that the estimate of rate proposed by the Executive Engineer was approved and accepted by the present petitioner. But how much does that decision of approval amount to misdemeanour is the question which was required to be answered. 26. There is some discussion on this issue by the enquiry officer but his finding is more directed against the Executive Engineer rather than the present 14 petitioner. There is no clear finding pinning this petitioner down or even insinuating that the project in question was carried out and completed by awarding contract for extraneous reason and consideration. The factum of splitting up the quotations was not denied but the decision taken to do so was taken after a visit by the Engineer-in- Chief or the Chief Engineer who did approve and certify the execution of project and may be within the time frame. The enquiry officer without clear finding of guilt through and through had left this charge also to the government to decide as to what was the indiscretion on the part of the petitioner. 27. From the discussions with regard to all the charges it is urged at the bar that it is not a case of serious omission and commission or indiscretion committed on the part of the petitioner for which a punishment of demotion or recovery of a large sum of rupees could be ordered. The finding of the enquiry officer being what it is the maximum which the petitioner could be charged with was failing to perform his supervisory role or failure to stick to the rule book. But it is also his case that most of his decisions stood affirmed by the superior authority and if there was failure at his level then there was failure at other levels as well. The petitioner alone cannot be held to be guilty on that charge alone. There is no evidence to show that anybody else has been taken to task based on the so-called 15 omission and commission which was committed in the execution of the Dakra Nala Project. 28. It is not a case of omission and commission which called for imposition of punishment or a disciplinary action. The word „misconduct‟ stands well defined by the Hon`ble Supreme Court in various decisions. One of the recent decisions in this regard is the case of Inspector Prem Chand vs. Government of NCT of Delhi and others, (2007) 4 SCC 566. Para 10, 11 and 12 have significance for the proposition which is required to be looked into and they are reproduced hereinbelow for ready reference: “10. In State of Punjab v. Ram Singh, Ex- Constable [(1992) 4 SCC 54: 1992 SCC (L&S) 793: (1992) 21 ATC 435] it was stated : (SCC pp. 57-58, para 5) “5. Misconduct has been defined in Black‟s Law Dictionary, 6th Edn. At p. 999, thus: „A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior; its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.‟ Misconduct in office has been defined as: „Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office-holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act.‟” 16 11. In P. Ramanatha Aiyar‟s Law Lexicon, 3rd Edn. at p. 3027, the term “misconduct” has been defined as under: “The term „misconduct‟ implies a wrongful intention, and not a mere error of judgment. * * * Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word „misconduct‟ is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. „Misconduct‟ literally means wrong conduct or improper conduct.” See also Bharat Petroleum Corpn. Ltd. V. T. K. Raju, (2006) 3 SCC 143 : 2006 SCC (L & S) 480). 12. It is not in dispute that a disciplinary proceeding was initiated against the appellant in terms of the provisions of the Delhi Police (Punishment and Appeal) Rules, 1980. It was, therefore, necessary for the disciplinary authority to arrive at a finding of fact that the appellant was guilty of an unlawful behaviour in relation to discharge of his duties in service, which was wilful in character. No such finding was arrived at. An error of judgment, as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct. In Union of India v. J Ahmed (1979) 2 SCC 286 ; 1979 SCC (L & S) 157, whereupon Mr. Sharan himself has placed reliance, this Court held so stating: (SCC pp. 292-93, para 11) 17 “11. Code of conduct as set out in the Conduct Rules, clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster, 17 QB 536, 542). A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers), (1959) 1 WLR 698]. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Supdt.,Central Rly., Nagpur Division, Nagpur, (1959) 61 Bom LR 1596 and Satubha K. Vaghela v. Moosa Raza, 10 Guj LR 23. The High Court has noted the definition of misconduct