IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1656 of 1997 VINAY KUMAR SHARMA, son of Late Brahmdeo Singh, resident of village Belkunda, Police Station Mahua, District Vaishali at present working as Executive Engineer, Water Resources Department at Sinchai Bhawan, Patna. …. Petitioner. Versus 1. THE STATE OF BIHAR , through the Secretary, Water Resources Department, Sinchai Bhawan, Patna. 2. The Special Secretary, Water Resources Department, Government of Bihar, Sinchai Bhawan, Patna. 3. The Joint Secretary, Water Resources Department Government of Bihar, Sinchai Bhawan, Patna. … Respondents. ----------- 7. 18.05.2011 No appears for the petitioner. In this writ application, the petitioner has assailed an order of punishment dated 28.12.1996 which came to be passed in view of the order of this Court dated 20.3.1996 in an earlier writ petition filed by the petitioner, CWJC No. 11706 of 1995. From the perusal of the records, it would appear that the petitioner while holding the post of Executive Engineer was subjected to a departmental proceeding for certain charges and when he was inflicted an order of punishment of reversal of rank from the post of Executive Engineer to Assistant Engineer as also stoppage of three increments with 2 cumulative effect by order dated 8.12.1995, he had filed the aforementioned writ petition, CWJC No. 11706 of 1995 which was disposed of by order dated 20.3.1996 remitting the matter back to the authority. As the purport of the impugned order is basically emanating from the earlier order of this Court dated 20.3.1996 in CWJC No. 11706 of 1995, it would be useful to quote the relevant portion of the said order which reads as follows:- “Charge Nos. 2 and 4, in substance, are as follows:- (a) That the petitioner was made excess payment to the tune of Rs.39.40 lacs for „dewatering‟ item and (b) That the payment were made without proper check and supervision. It would appear, thus, that both the charges rest on the same facts and are inter-connected. It appears from the memo of charges and the enquiry report that sum of Rs.11,51,941 was paid by the Predecessor-in-Office of the petitioner Sri N. L. Roy with respect to the said item of work, while sum of Rs.32,20,521 was paid by the petitioner. A total sum of Rs. 43,72,262 was, thus, paid but as per the terms of the agreement, the payment was not to exceed 4% of the total actual cost of barrage which comes to Rs.3.88 lacs. Thus, Rs.39- 40 lacs is said to have been paid in excess. The enquiry further reveals that sum of Rs.35,64,722 only was 3 available but the amount actually paid was, as stated above, Rs.43,72,262, which was irregular. The Enquiry Officer has noted in his report that Sr. N. K. Roy had got excavation work done over 35,76,000 cubits plinth area, which was compared to the amount of money spent for dewatering. The construction work was stopped thereafter and resumed in December 1956. the work of dewatering, in the circumstances, had to be done over again. During the tenure of the petitioner, between February and June 1987, excavation was done over 43.50 lacs cubits and concrete work was also done over 0.443 lacs cubits for which Rs.23.80 lacs was paid for 6.80 lacs BHP hour. The Enquiry Officer also observed that cost of construction had escalated and that the provision for dewatering was inadequate. He also observed that it was misconception to limit the expenditure with respect to dewatering to 4% of the total actual cost. Nevertheless, he held that payment of the amount without sanction of the competent authority and without proper checks of log books was not proper. One of the submissions of the counsel during course of hearing was that in the departmental proceeding the other employees were let off with minor penalties; only the petitioner has been awarded the …… of reduction in rank. The submission was……. Punishment awarded to him is excessive and …. to the nature of the misconduct. Considering the fact that the petitioner was Executive Engineer and made actual payment, 4 perhaps, the plea would not have appealed to me, but in view of the observations of the Enquiry Officer of the rank of Chief Engineer having technical expertise, I am inclined to think that merely because the amount was paid in excess of the 4% limit, it may not be appropriate and in the ends of justice to award a major penalty. It is true that as per the charge and also the finding of the Enquiry Officer, the petitioner failed to exercise proper check and supervision and he also did not obtain the necessary permission of the competent authority for making excess payment. But the point is whether the work was actually done or not. There is no finding that it was not done or that the money was misappropriated. Even the Enquiry Officer has noted, as seen above, that the proportion with respect to the aforesaid item of work was inadequate. I also feel that while the actual total cost of a project can be found only on its completion, work of dewatering is to be done in the initial stage itself. If payment in excess in stipulated terms of the agreement is made, it may constitute misconduct but if the payment is made for the work actually done the misconduct may not be such as to justify imposition of major penalty. In the instant preceding under Article 226 of the Constitution it is not open to this Court to act as appellate authority and to re- appreciate the evidence and to arrive at its own conclusions. It is also not open to it to substitute another penalty in place of the penalty awarded by the disciplinary 5 authority. In appropriate cases, however, it is open to the high Court to direct the disciplinary authority to reconsider the nature and quantum of punishment. Reference may be made to State Bank of India vs. Samarendra Kishore –(1994)2SCC 537 and Union of India vs. B. C. Chaturvedi- (1995) 6 SCC 750. In my opinion, in the facts and circumstances of the case, as briefly noticed above, it is a fit case where this Court should direct the disciplinary authority to reconsider the question of nature and quantum of punishment. The writ petition is, accordingly, allowed. The order as contained in Annexure-19 A dated 8.12.1995 is set aside. The concerned respondents are directed to reconsider the matter and issue an appropriate order in accordance with law.” Pursuant to the aforementioned order of this Court, the authority had reconsidered the whole issue by passing the impugned order dated 28.12.1996 as contained in Annexure-25 wherein the order of reversal has been reiterated and only the stoppage of three increments with cumulative effect has been recalled. In the impugned order, the authority had considered the whole aspect and its conclusion for modifying the order of punishment is as follows:- 6 “ekuuh; mPp U;k;ky; ds U;k; funs”k ds vkyksd esa ljdkj }kjk vkjksi dh izd`fr ds vk/kkj ij ekeyksa dh iqu% leh{kk dh xbZ ,oa leh{kksijkUr ik;k x;k fd Jh “kekZ }kjk iwoZ ds inkf/kdkjh }kjk djk;s x;s fMckVfjax dk;Z dk Hkqxrku fcuk vko”;d tkap fd;s gks ,oa vius dk;Zdky esa Hkh fMckVfjax dk;Zdk Hkqxrku ,djkjukesa ds fooj.k ls vf/kd dj fn;k x;kA blls Li’V gS fd Jh “kekZ us vius dRrZO; ,oa nkf;Ro dk iw.kZ :is.k fuokZg ugha fd;k ftlds pyrs foHkkx dks Hkkjh vf/kd {kfr gqbZ gSA vr% ekuuh; mPp U;k;ky; ds U;k; funs”k ds vkyksd esa vkjksi dh izd`fr ds vk/kkj ij iwoZ esa lalwfpr naM esa la”kks/ku djrs gq, Jh “kekZ] dk;Zikyd vfHk;Urk dks fuEukafdr naM lalwfpr fd;k tkrk gSA 1- Jh fou; dqekj “kekZ] dk;Zikyd vfHk;Urk ¼vlSfud½ dks lgk;d vfHk;Urk ¼vlSfud½ ds in ij inkoufr ¼fjHkV½ fd;k tkrk gSA 2- fuyEcu vof/k esa thou fuokZg HkRrk ds vfrfjDr dqN Hkh ns; ugha gksxk fdUrq ;g vof/k isa”ku ds iz;kstukFkZ x.kuk dh tk;sxhA Jh fou; dqekj “kekZ] lgk;d vfHk;Urk ds in ij ty lalk/ku foHkkx eq[;ky; iVuk esa inLFkkiu gsrq ;ksxnku djsaxsA ;g vkns”k rkRdkfyd izHkko ls ykxw gksxkAÞ The only question which has been elaborately dealt in the writ application that an order of punishment passed by the authority on remand by this Court is not only excessive but also not in keeping with the observation made by this Court in the order dated 20.3.1996 in CWJC No. 11706 of 1995. This Court in exercise of its power under 7 Article 226 would not be in a position to weigh the evidence for determining the justifiability of the particular punishment and in fact to that extent the power of this court in the disciplinary proceeding gets restricted to examination of the decision making process and not actual decision by going into the merits of the charge. Reference in this connection may be made to the judgment of Apex Court in the case of B. C. Chaturvedi vs. Union of India and others, reported in (1995) 6 SCC 749 wherein as with regard to the scope of disciplinary proceeding and quantum of punishment, the Apex Court had held as follows:- “25. No doubt, while exercising power under Article 226 of the Constitution, the High Courts have to bear in mind the restraints inherent in exercising power of judicial review. It is because of this that substitution of the High Court‟s view regarding appropriate punishment is not permissible. But for this constraint, I would have thought that the law- makers do desire application of judicial mind to the question of even proportionality of punishment/penalty. I have said so because the Industrial Disputes Act, 1947 was amended to insert Section 11-A in it to confer this power even on a labour court/ industrial tribunal. It may be that this 8 power was conferred on these adjudicating authorities because of the prevalence of unfair labour practice or victimization by the management. Even so, the power under Section 11-A is available to be exercised, even if there be no victimization or taking recourse to unfair labour practice. In this background, I do not think if we would be justified in giving much weight to the decision of the employer on the question of appropriate punishment in service matters relating to government employees or employees of public corporations. I have said so because if need for maintenance of office discipline be the reason of our adopting a strict attitude qua the public servants, discipline has to be maintained in the industrial sector also. The availability of appeal etc. to public servants does not make a real difference, as the appellate/revisional authority is known to have taken a different view on the question of sentence only rarely. I would, therefore, think that but for the self- imposed limitation while exercising power under Article 226 of the Constitutions, there is no inherent reason to disallow application of judicial mind to the question of proportionality of punishment/penalty. But then, while seized with this question as a writ court interference is permissible only when the punishment/penalty is shockingly disproportionate.” Therefore, this Court, in making judicial review on the quantum of punishment, will have to 9 only see as to whether it is shockingly disproportionate to misconduct alleged against the delinquent. Here in this case, when the Executive Engineer is said to have been responsible for causing huge financial loss to the State Exchequer and an aspect which was also found by this Court while remitting the matter back on the issue of quantum of punishment, it would now be very difficult for this Court to hold that even after the modification of the order of punishment by taking away the effect of withholding of three increments with cumulative effect, the remaining order of punishment of reversal of the petitioner is disproportionate. The moment, the petitioner is not in a position to dislodge the finding made in the departmental proceeding that payment for dewatering work was made beyond the terms and conditions of the agreement and his such action caused huge financial loss to the State exchequer, this Court would find it difficult to interfere with the reduced order of punishment. That being so, there is no merit in this 10 writ application and accordingly, the same is dismissed. kanchan (Mihir Kumar Jha, J.)