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2001 DIGILAW 167 (HP)

HARI MAN v. HIGH COURT OF H. P.

2001-07-30

C.K.THAKKER, K.C.SOOD

body2001
JUDGMENT C.K. Thakker, CJ.—This petition is filed by the petitioner for an appropriate writ, direction or order, quashing and setting aside inquiry proceedings initiated against him and order of removal passed by the Disciplinary Authority and confirmed by the Appellate Authority by granting consequential reliefs as this Court may deem fit and proper in the facts and circumstances of the case. 2. The case of the petitioner was that he joined service in the Court of Senior Sub Judge, Bilaspur as Chowkidar on daily wage basis in the year 1986. He was regularised on the said post with effect from September 1, 1987. It was his case that he was co-owner of land situated at village Kosrian, Tehsil and District Bilaspur along with his mother and a brother. One Arjun Singh, by showing false sympathy to the old mother of the petitioner and by taking undue advantage of small differences between family of the petitioner on the one hand and his old mother on the other, got thumb impression on certain documents. It was Arjun Singh who got sale deed registered on June 10, 1991 by the mother of the petitioner by committing fraud and by depriving the petitioner of his rightful claim. The petitioner was obviously aggrieved by such act. He, therefore, filed a Civil Suit in the Court of Senior Sub Judge, Bilaspur against fraudulent act of Arjun Singh. On October 5, 1991, when Arjun Singh came to the Court at Bilaspur, there was exchange of words between Arjun Singh and petitioners mother. The petitioner intervened and asked Arjun Singh not to get excited. Thereupon Arjun Singh, filed a false complaint against the petitioner, pursuant to which a show-cause notice was issued to the petitioner and disciplinary proceedings were initiated. 3. Three charges were levelled against the petitioner. It was, inter alia, alleged that he quarreled with Arjun Singh in the Court premises, that he did not allow Arjun Singh to get his complaint drafted and also failed to obey lawful orders of Senior Sub-Judge intentionally and deliberately. 4. On the basis of the evidence adduced at the inquiry, the Inquiry Officer found the petitioner guilty on all the three charges. On the basis of the findings, notice was served upon the petitioner on August 28, 1998 asking him to show cause as to why major penalty should not be inflicted on him. 4. On the basis of the evidence adduced at the inquiry, the Inquiry Officer found the petitioner guilty on all the three charges. On the basis of the findings, notice was served upon the petitioner on August 28, 1998 asking him to show cause as to why major penalty should not be inflicted on him. The petitioner submitted his reply on September 2, 1998. On November 30, 1998, an order was passed by the Disciplinary Authority in exercise of powers under Central Civil Services (Classification, Control and Appeal) Rules, 1965 and the petitioner was ordered to be removed from service. 5. Being aggrieved by the said order, the petitioner preferred an appeal to the Honble Chief Justice of this Court on administrative side. The said appeal also came to be dismissed and the petitioner was communicated about the said order on August 12, 1999. The said action is challenged by the petitioner in the present petition. 6. We have heard Mr. B.B. Vaid, learned Counsel for the petitioner and Mr. Sharwan Dogra, learned Counsel for the respondents. 7. Several contentions were raised by the learned Counsel for the petitioner. It was contended that the petitioner had not committed misconduct and a false and frivolous complaint was filed against him by Arjun Singh. It was submitted that no reasonable opportunity of being heard was afforded to the petitioner. The counsel contended that neither the statements recorded at the preliminary inquiry nor report of preliminary inquiry was supplied to him. It was urged that the quarrel between the petitioner and Arjun Singh had nothing to do with services of the petitioner as an employee with the respondents and, hence, no action could have been taken against him. The Counsel submitted that the authorities took into account extraneous and irrelevant matters, including a subsequent incident said to have taken place after the inquiry, which had prejudicially affected the petitioner and the order was liable to be set aside. Finally, it was urged that the punishment imposed on the petitioner was grossly disproportionate, excessively high and deserves interference. 8. Mr. Sharwan Dogra, learned Counsel for the respondents, on the other hand, supported the order passed by the Disciplinary Authority and confirmed by this Court on administrative side. He submitted that on the basis of a complaint made by Arjun Singh, departmental proceedings were initiated against the petitioner. 8. Mr. Sharwan Dogra, learned Counsel for the respondents, on the other hand, supported the order passed by the Disciplinary Authority and confirmed by this Court on administrative side. He submitted that on the basis of a complaint made by Arjun Singh, departmental proceedings were initiated against the petitioner. Full and adequate opportunity was afforded to the petitioner. The Inquiry Officer submitted his report observing that all the charges levelled against the petitioner were proved. On the basis of the said report, a show-cause notice for imposition of penalty was issued by the Disciplinary Authority. The petitioner had submitted his reply and after considering pros and cons of the matter, the Disciplinary Authority passed an order of removal, which cannot be termed as illegal or unlawfully Being aggrieved by the said order, the petitioner preferred an appeal on administrative side of this Court, which was also dismissed. The petitioner cannot make grievance against such action and the petition deserves to be dismissed. 9. Having heard the learned Counsel for the parties, in our opinion, some of the grounds raised by the petitioner, have no substance and they cannot be upheld. It is settled law that it is not necessary to supply statements recorded at the preliminary inquiry or the report of such preliminary inquiry to the delinquent. It is not obligatory and incumbent on the employer to hold preliminary inquiry. In case an employer thinks that before holding a regular inquiry, preliminary inquiry would be necessary so as to enable the employer to prima facie form an opinion whether a case for holding regular inquiry is called for, he may do so. What is required by the employer is to afford reasonable opportunity at the departmental inquiry. In the instant case, a regular departmental inquiry was ordered against the petitioner. Statement of allegations was levelled against him and he was given full opportunity to defend. On the basis of the evidence and materials on record at such inquiry, the Inquiry Officer held that the allegations levelled against the delinquent were proved and he submitted his report to that effect. It, therefore, cannot be said that by holding inquiry, by appreciating the evidence and in arriving at a conclusion of guilt of the petitioner, the Inquiry Officer had committed any illegality. It, therefore, cannot be said that by holding inquiry, by appreciating the evidence and in arriving at a conclusion of guilt of the petitioner, the Inquiry Officer had committed any illegality. After the Inquiry Officer submitted his report, a show-cause notice was issued to the petitioner on August 28, 1998 stating therein that the Disciplinary Authority had provisionally come to the conclusion that the petitioner was not a fit person to be retained in service considering the gravity of charges proved against him and he proposed to impose major penalty of removal. The petitioner was also called upon to make representation, if any, against such proposed action. The petitioner replied to the said show-cause notice on September 2, 1998 and only thereafter, an order of removal was passed by the Disciplinary Authority on November 30, 1998. It, therefore, in our considered opinion, cannot be contended by the petitioner that no reasonable opportunity of being heard was afforded to him before taking the impugned action by the Disciplinary Authority and the principles of natural justice were not violated. The said contention, therefore, cannot be upheld. 10. Regarding the case being concocted by Arjun Singh against the petitioner, we are afraid, we cannot enter into the said area, which is in the realm of appreciation and re-appreciation of evidence. 11. On grievance made by the learned Counsel for the petitioner, however, appears to us to be well-founded and must, therefore be upheld. After the report was submitted by the Inquiry Officer, a show cause notice regarding proposed punishment was issued by the Disciplinary Authority on August 28, 1998. In the said notice, the petitioner was called upon to show cause on the statement of allegations levelled against him and on the basis of the findings recorded by the Inquiry Officer that all the three charges levelled against him were held proved. A reply to the said show cause notice was submitted by the petitioner on September 2, 1998. An order of punishment, removing the petitioner from service was passed by the disciplinary authority on November 30, 1998. A reply to the said show cause notice was submitted by the petitioner on September 2, 1998. An order of punishment, removing the petitioner from service was passed by the disciplinary authority on November 30, 1998. When the original record was perused by us, it revealed that over and above the-charges levelled against the petitioner and proved, the Disciplinary Authority had also taken into account an additional factor which was never made subject matter of show cause notice, nor the allegation was part of the Inquiry Officers report, nor even second show cause notice was issued to the petitioner in connection with the said incident. 12. It appears that an order of punishment was passed on November 30, 1998. On that day, another incident was stated to have taken place. According to the petitioner, it was false and concocted complaint by Arjun Singh against him due to enmity. It was alleged that on that very day, i.e. November 30, 1998, the District and Sessions Judge, Bilaspur visited Ghumarwin to enquire into a report against the petitioner by one Smt. Brahmi Devi a Sweeper (Safai Kamdar) who had joined the job before few days in absence of a regular Sweeper of the Court. An anonymous complaint on telephone was received by the District and Sessions Judge complaining about misbehaviour of the petitioner with Brahmi Devi. It was alleged that the petitioner attempted to outrage her modesty and made unreasonable demand. The petitioner tendered apology and stated that he had settled the matter with Smt. Brahmi Devi. He also assured that in future he would not misbehave in such a manner. He entered into a compromise so that Smt. Brahmi Devi might not take any action in future either before police or anywhere else. The compromise was reduced in writing and was signed by Smt. Brahmi Devi, the petitioner and witnesses. 13. The contention of the petitioner before us is that the Disciplinary Authority passed an order of removal by observing that such an employee cannot be retained in service. Now, the said incident did not form part of the departmental proceedings nor the basis of the report of the Inquiry Officer as it was dated August 5, 1998 i.e., prior to the incident. Now, the said incident did not form part of the departmental proceedings nor the basis of the report of the Inquiry Officer as it was dated August 5, 1998 i.e., prior to the incident. In our considered opinion, therefore, the limited submission of the learned Counsel for the petitioner that the incident dated November 30, 1998, could not have been taken into account and the order is vulnerable has substance and deserves to be upheld. 14. The learned Counsel for the petitioner submitted that the petitioner is out of service since long. He is very poor. The allegations levelled at the departmental proceedings and "charges established were not so serious. The submission of the learned Counsel for the petitioner has force. It was because of the apprehension (may be ill-founded), that the petitioner carried an impression that Arjun Singh had deceived widowed mother of the petitioner and got the Sale Deed executed, depriving the petitioner of his rightful claim in the property that resulted in the departmental proceedings against the petitioner. The petitioner prevented Arjun Singh from getting the complaint drafted. 15. Ordinarily, in these circumstances, we would have persuaded ourselves in taking liberal view on the quantum of punishment inflicted upon the petitioner and would have proceeded to consider whether the punishment imposed on the petitioner was excessive, harsh and uncalled for. We would have also considered further prayer of the petitioner either to substitute punishment in exercise of powers under Article 226 of the Constitution or by directing the respondents to reconsider the matter and to pass an appropriate order in accordance with law in the light of the facts and circumstances highlighted before us. We must, however, frankly admit that in the light of subsequent event which was indeed of a serious nature, i.e. a complaint Smt. Brahmi Devi before the learned District and Sessions Judge, Bilaspur regarding outraging her modesty by the petitioner and the compromise said to have been arrived at between Smt. Brahmi Devi and the petitioner in presence of witnesses, we are unable to put final curtain on the matter. 16. No doubt the learned Counsel for the petitioner stated at the Bar that the petitioner is prepared to let go back wages, if he is ordered to be reinstated in service. He also stated that the petitioner is even prepared to be appointed afresh. 16. No doubt the learned Counsel for the petitioner stated at the Bar that the petitioner is prepared to let go back wages, if he is ordered to be reinstated in service. He also stated that the petitioner is even prepared to be appointed afresh. In our considered opinion, however, it would not be proper to ignore or overlook the incident of November 30, 1998 and serious allegations levelled against the petitioner. Hence, though the grievance of the petitioner that when the incident dated November 30, 1998 was not before the Inquiry Officer and ought not to have been taken into consideration by the Disciplinary Authority is well founded and the order passed by the Disciplinary Authority and confirmed by the Appellate Authority deserves to be set aside, in the light of the allegations levelled and the compromise said to have been arrived at on tendering apology by the petitioner, we have no option but. to allow the Disciplinary Authority to proceed in accordance with law by issuing notice and by affording opportunity to the petitioner on the said incident and to take a decision afresh. 17. For the foregoing reasons, the order of removal passed by the Disciplinary Authority on November 30, 1998 as well as by the Appellate Authority on August 12, 1999, are hereby quashed and set aside with a direction to the Disciplinary Authority to proceed to consider the matter in respect of the allegations levelled and proved against the petitioner on three charges as to what punishment should be inflicted on the petitioner. It is further directed that the Disciplinary Authority will also issue a show-cause notice to the petitioner on the incident dated November 30, 1998, will call for his explanation as to what he has to say and to record a finding considering all the relevant documents and further evidence, if any, produced by the parties and to pass an appropriate order in accordance with law. 18. The learned Counsel for the petitioner, prayed that the said incident may not be made subject matter of further inquiry. We are, however, unable to accede to the said prayer. We are clearly of the view that the incident is so serious in nature, that it would not be appropriate on our part to ignore it. Only thing is that the petitioner ought to have been afforded an opportunity of hearing. We are, however, unable to accede to the said prayer. We are clearly of the view that the incident is so serious in nature, that it would not be appropriate on our part to ignore it. Only thing is that the petitioner ought to have been afforded an opportunity of hearing. The Disciplinary Authority will now decide the matter after observing principles of natural justice and fair play. 19. The writ petition is accordingly partly allowed and the District and Sessions Judge, Bilaspur, is directed to reconsider the matter and decide the same in accordance with the observations made in this judgment. In the facts and circumstances, there will be no order as to costs. Petition partly allowed.