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1999 DIGILAW 233 (PAT)

Dharmendra Kumar Sinha Yadav v. State of Bihar

1999-03-30

M.Y.EQBAL

body1999
Judgment M.Y. Eqbal, J. In this application the petitioner has prayed for quashing the order dated 21.5.97 passed by respondent no.3, the Deputy Commissioner by which the petitioner has been ordered to be removed from service and also the order dated 1.6.92 passed by respondent no.2, Commissioner who dismissed the Service Appeal no. 47/91 preferred by the petitioner and affirmed the order passed by the Deputy Commissioner, Hazaribagh. 2. The facts of the case lie in a narrow compass. The petitioner was appointed as a Revenue karmachari in the year, 1985 and was posted in Topchanchi circle within the district of Dhanbad. Petitioner's case is that since the .date of joining he has been discharging his duties to the satisfaction of all his superiors and there was never any complaint, whatsoever, against him. It appears that in the year, 1991 some complaints were made by the local people making allegations against the petitioner that he demanded bribe for issuance of correction slip. The said complaint was submitted before trainee IAS, Officer who sent an adverse report and recommended for suspension of the petitioner. The petitioner was' accordingly suspended by the Deputy Commissioner and a departmental proceeding was initiated against him. It appears that one Mr. K.L. Deo, Deputy Collector was appointed enquiry officer to conduct the departmental proceeding against the petitioner and a memo of charge was served on the petitioner on 12.3.91. Petitioner's further case is that he demanded for supply for relevant papers on the basis of which charge was framed but the same was not supplied to him and the conducting officer without giving a reasonable opportunity of hearing, examined witnesses and submitted his report to the Deputy Commissioner to the effect that the charges had been proved against the petitioner. On the basis of the report of the Enquiry Officer, the Deputy Commissioner passed the impugned order of dismissal of the petitioner from service. The petitioner then filed service appeal before the Commissioner which was dismissed and the order of dismissal was affirmed. 3. A counter affidavit has been field wherein it is, inter alia, stated that on receipt of the complaint petitions against the petitioner, the then Circle Officer, Sri A.K. Jha, IAS trainee got the matter verified by the local Circle Inspector and found the allegations true. He, therefore, reported the matter to the Deuty Commissioner, Dhanbad and recommended for suspension of the petitioner. He, therefore, reported the matter to the Deuty Commissioner, Dhanbad and recommended for suspension of the petitioner. It is further stated that the Enquiry Officer conducted the enquiry properly after giving opportunity of hearing to the petitioner and found the allegations true. On the basis of the said report the Deputy Commissioner passed order of dismissal of the petitioner from service. According to the respondents the petitioner had participated in the enquiry and the memo of charge and other documents were served on him. It is further stated that a second show cause notice before passing the order of punishment was not necessary in view of the notification no. S.O. 567 dated 19.4.89 whereby the competent authority has been empowered to pass appropriate order of punishment without issuing second show cause notice. 4. I have heard Mr. Lalit Kumar Sinha learned counsel for the petitioner and Mr. Prakash Chandra JC to G.P.1. Mr. Sinha assailed the impugned order as being illegal and wholly without jurisdiction. Learned counsel firstly submitted that along with the charge sheet no connecting papers were supplied to the petitioner as a result of which the petitioner was greatly prejudiced inasmuch as the petitioner was not aware as to the basis of the allegation for which charge sheet was served on him. Learned counsel further submitted that the entire proceeding was vitiated in law for the reason that no opportunity of hearing was given to the petitioner nor a copy of the enquiry report was served on him either before or after the order of dismissal passed by the Deputy Commissioner. In this connection learned counsel has drawn my attention to a copy of the order sheet of the departmental proceeding and the final order of the Enquiry Officer which has been annexed as annexure 6 to .the writ petition. I find force in the submission of the learned counsel. From a perusal of annexure 6 it appears that 14.4.91 was the date fixed by the Conducting Officer for appearance and for hearing in the departmental proceeding but the proceeding was not taken up on 14.4.91, rather, the proceeding was taken up on 15.4.91 which date was not known to the petitioner. On that date one witness was examined from the side of the employer in absence of the petitioner and the case was adjourned to 19.4.91. On that date one witness was examined from the side of the employer in absence of the petitioner and the case was adjourned to 19.4.91. On 19.4.91 also the proceeding was not taken up and adjourned to 2.5.91. The order sheet of 2.5.91 shows that the petitioner was absent. However, it is recorded in the order sheet that the petitioner was orally informed. The enquiry officer considered the petition filed by the petitioner for supply of certain documents but no order could be passed as the documents were not available on record. For better appreciation the relevant portion of the order dated 2.5.91 is reproduced herein-below : Hindi 5. From a perusal of the aforesaid order it is evident that only the memo of charge in form 'ka' was served on the petitioner. It further appears from the order sheet that the Enquiry Officer concluded his enquiry on 16.5.91 holding that on consideration of the allegation and the evidences led in support of thereof, the charges levelled against the petitioner is found to be true. From the order is does not appear that the Enquiry officer either dealt the charges separately or recorded findings on those charges rather, the Enquiry Officer simply held that the charges have been proved. 6. Be that as it may, admittedly the copy of the enquiry report was not supplied to the petitioner either before or after the final order of dismissal passed by the Deputy Commissioner. There is nothing on record to show that either the documents demanded by the petitioner during the departmental proceeding were supplied to him or those documents were made available to the petitioner for inspection. Similarly, copy of the enquiry report was also neither supplied nor was made available to the .petitioner for inspection. 7. Having regard to the admitted position in my opinion the entire departmental proceeding is vitiated in law and the order of dismissal of the petitioner from service is violative of the principles of natural justice. In this regard it is well settled law that if copies of the documents relied on ill the charge sheet is not supplied to the charged employee then he has every right to inspect the documents which must be made available to him for inspection. In this connection reliance may be placed on a recent decision of the Apex Court in the case of State of U.P. Vs. In this connection reliance may be placed on a recent decision of the Apex Court in the case of State of U.P. Vs. Satrughan Lal and anr. [ (1998) 6 S.C.C. 651 ]. Their lordships observed that : "This paragraph of the written statement contains an admission of the appellant that copies of the documents specified in the charge sheet were not supplied to the respondent as the respondent had every right to inspect them at any time. The assertion clearly indicates that although it is admitted that the copies of the documents were not supplied to the respondent and although he had the right to inspect those documents, neither were the copies given to him nor were the records made available to him for inspection. If the appellant did not intend to give copies of the documents to the respondent, it should have been indicated to the respondent in writing that he may inspect those documents. Merely saying that the respondent could have inspected the documents at any time is not enough. He has to be informed that the documents of which the copies were asked for by him may be inspected. The access to record must be assured to him." 8. Admittedly in this case on receipt of the complaint the Circle Officer, IAS trainee, made a preliminary enquiry and finding prima facie case against the petitioner, recommended for his suspension and on the basis of the said inquiry charge sheet was served on the petitioner. Copies of those complaints and other evidences, though asked for by the petitioner, were not supplied to him. I am, therefore, of the opinion that failure on the part of the respondents in the supply of documents so demanded will certainly cause prejudice to the charged employee and failure in giving reasonable opportunity of hearing in the' departmental proceeding will amount to violation of principles of natural justice. 9. As noticed above, even the copies of the documents asked for by the petitioner and the copy of the enquiry report were neither supplied nor made available to the petitioner for inspection. It is, therefore, clear that serious prejudice has been caused to the petitioner for non-supply of documents as also in conducting the departmental proceeding in the manner not provided in law. It is, therefore, clear that serious prejudice has been caused to the petitioner for non-supply of documents as also in conducting the departmental proceeding in the manner not provided in law. Consequently the entire departmental proceeding is vitiated in law and the order of dismissal of the petitioner from service cannot be sustained. 10. In the result, this application is allowed and the impugned order of dismissal of the petitioner from service as contained in annexures 6, 7 and 8 are set aside. The respondents are directed to reinstate the petitioner in service. However, liberty is given to the respondent authorities to proceed with the enquiry by placing the petitioner under suspension and continuing the enquiry from the state of furnishing him with the relevant documents asked for by the petitioner during the departmental proceeding on 2.5.91. It is made clear that the question whether the employee' would be entitled to the back wages and other benefits from the date of his dismissal to the date of his reinstatement, if ultimately ordered, shall be decided by the authority concerned according to law after culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh enquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the date of reinstatement and to what benefits, if any, and the extent of the benefits, he will be entitled to.