Memorandum of charges issued by subordinate without disciplinary authority's approval is non est, vitiating entire departmental proceedings under Rule 17(3) of Jharkhand CCA Rules.

JUDGMENT :

Heard learned counsel for the petitioner and learned counsel for the respondents.

2. The petitioner, in this writ petition, has prayed for the following reliefs:-

I. For issuance of appropriate Writ (s)/ Order (s)/Direction (s), particularly a Writ in the nature of Certiorari for quashing of the order contained in memo no. 1405 (S) dated 13th April, 2021(Annexure No. 11), as the same is a non-speaking order as well as it suffers from perversity;

II. For issuance of appropriate Writ (s)/ Order (s)/Direction (s), particularly a Writ in the nature of Certiorari for quashing of the entire departmental proceeding initiated against the Petitioner vide memo no. 998 (S) W.E. dated 7th February, 2008 as the same is against the provision of Rule 17 (3) of the Jharkhand Government Servant (Classification, Control and Appeal) Rules, 2016, as the charge was neither prepared nor caused to be prepared by the Disciplinary Authority;

III. For issuance of appropriate Writ (s)/ Order (s)/Direction (s), particularly a Writ in the nature of Certiorari for quashing of the order of punishment contained in memo no. 4022 (S) dated 12th August, 2009 (Annexure-No.7) as the same has been passed in an arbitrary and whimsical manner.”

3. The brief facts of the case is that the petitioner while working as Assistant Engineer under the Road Construction Department was served with an order of suspension vide memo no. 7003 (S) dated 5th November, 2007 and a departmental proceeding was initiated against him. The petitioner submitted his reply denying all the charges leveled against him on 6^th August 2008. After conclusion of the enquiry a second show-cause notice was issued to the petitioner stating that the charges had been proved and consequently a decision to impose two punishments i.e. (i) censure and (ii) stoppage of two annual increment with cumulative effect was taken. The petitioners gave his reply to the second show-cause but despite of that he was served with an order of punishment contained in memo No. 4022 (S), dated 12th August, 2009. The petitioner then preferred writ petition being W.P.S. No. 1506 of 2014 which was disposed of granting liberty to the disciplinary authority to pass a fresh order. However, the petitioner was yet again served with a second show-cause notice and he replied immediately. Thereafter, the Respondent authorities declined to accept the same and passed an order holding that there is no need to make any alteration in the order of punishment.

4. Learned counsel for the petitioner submits that as per order contained in memo No. 1405 (S) dated 13th April, 2021, the petitioner is found guilty of three charges which is factually incorrect. The learned counsel submits that the inquiry officer found that the petitioner was guilty of charge no. 3 & 4 and charge no. 1 stood partially proved. Learned counsel further submitted that the charges were framed by the Deputy Secretary without any approval of the Chief Engineer, which is in violation of Rule 17(3) of the Jharkhand Government Servants (Classification, Control & Appeal) Rules, 2016. Further, the learned counsel argues that the concerned staff has not been examined as a witness in the charge of misbehavior during the departmental proceeding.

5. Learned counsel representing the respondent authorities submits that the reply was found unsatisfactory. Learned counsel submits that the enquiry report dated 11.06.2018 submitted by the conducting officer states that charge Nos. 1, 3 and 4 were found proved against the petitioner. Learned counsel further submits that the petitioner filed an Appeal dated 03.09.2009, however it was rejected as there was no base for appeal. Learned cou