2016 Supreme(SC) 939

SUPREME COURT OF INDIA
J. Chelameswar, Prafulla C. Pant, JJ.
Bindeshwari Chaudhary – Appellant
Versus
State of Bihar & Ors. – Respondents
CIVIL APPEAL NO. 3829 OF 2011
Decided On : 29-11-2016

IMPORTANT POINT
When earlier punishment based on departmental enquiry was quashed, the same enquiry report cannot be made basis for subsequent proceeding.
In absence of pecuniary loss to government and grave misconduct of the employee, Rules 43(b) and 139 cannot be applied.

Headnote:(a) Service law – Departmental enquiry and Punishment – High Court quashing the major punishment, not disturbing minor punishment of censure and giving liberty to authorities to proceed in accordance with law – Fresh charge sheet issued on the same grounds – Enquiry report holding appellant guilty on basis of earlier enquiry report – When High Court quashed the punishment, the related enquiry report could not be ace basis for fresh punishment. (Para 12)

       (b) Bihar Pension Rules – Rule 43(b) r/w Rule 139 – Appellant’s action bona fide – No pecuniary loss to government – Rule 43(b) r/w Rule 139 not attracted – Impugned order not sustainable. (Para 12)

       Facts of the case:

       Appellant who was posted as Executive Engineer with Irrigation Department of State of Bihar, in the District of Singhbhum, awarded a contract on 29.08.1989 to one M/s. D.K. Road Lines, for bed and slope lining of canal in Galudih. In terms of the contract, the contractor was required to furnish bank guarantee, and the same was submitted by him for an amount of Rs.23,61,500/-. In order to verify the genuineness of the bank guarantee furnished by the contractor, the appellant sent his Accounts Clerk to Punjab & Sindh Bank, Jamshedpur, with letter dated 29.08.1989. In response to said letter, appellant received letter dated 01.09.1989 from Shri T.S. Gandhok, Branch Manager of the bank, confirming the bank guarantee. The appellant made payment of Rs.15,00,000/-on 02.09.1989 towards mobilization advance to the contractor. The appellant released payment of Rs.8,60,000/-on 31.10.1989 towards second mobilization advance upon permission from competent authority. On 12.02.1990, the appellant made further payment of Rs.2.55 lacs on approval of works by competent authority.

       The new Manager informed the appellant that no such bank guarantee has been issued by the bank. On 04.05.1990, bank cancelled its earlier communication dated 01.09.1989. The appellant finally released Rs.4.4 lacs towards current bill of the contractor.

       C.B.I. registered a case RC37(A)/91, Patna in pursuance to the fraudulent/forged bank guarantee furnished by the contractor.

       On 04.04.1991, appellant was placed under suspension in contemplation of departmental proceedings which was quashed by the High Court.

       C.B.I. submitted charge sheet against accused T.S. Gandhok, Manager of Punjab & Sindh Bank who confirmed the bank guarantee, and accused Ramdahin Singh, Senior Accounts Clerk of the Irrigation Department who received the bank guarantee from the contractor and verified.

       The appellant was not an accused in the charge sheet, still on 18.06.1993, after the departmental enquiry was earlier dropped, the respondent authorities awarded punishment against the appellant withholding his three increments with cumulative effect, and also ‘censured’ for the year 1989-90. High Court held that withholding of three increments with cumulative effect is a major punishment, and could not have been awarded without resorting to regular departmental enquiry. However punishment of “Censure’ was not interfered with by the High Court.

       On 20th May, 1995, the respondent authorities initiated fresh departmental enquiry against the appellant, and second charge sheet was served on him relating to the same allegations of release of unsecured advance of Rs. 14.5 lacs to the contractor against the order of Superintending Engineer. The appellant filed his objections and participated in the enquiry. The enquiry report dated 18.10.1996 recorded the finding that part of the charge stood proved. Thereafter the appellant stood retired on 31.01.1997. On 24.09.1997, appellant was awarded punishment of withholding of 100% pension and gratuity.

       The High Court restricted withholding of gratuity and pension to the extent of fifty percent.

       Finding of the Court:

       Impugned order is not sustainable.

       Result: Appeal allowed.