Research › Search › Judgment

Himachal Pradesh High Court · body

2004 DIGILAW 345 (HP)

K. C. RAHI v. BOARD OF DIRECTORS

2004-12-23

DEEPAK GUPTA, LOKESHWAR SINGH PANTA

body2004
JUDGMENT Lokeshwar Singh Panta, J.: Petitioner has filed this writ petition under Articles 226/227 of the Constitution of India seeking to quash order dated 28.6.1999 mark Annexure P-12 passed by H.P. State Administrative Tribunal dismissing his O.A. (M) No. 1050/95,1 order dated 16.6.1994 mark Annexure P-9/1 removing him from service with immediate effect and appellate order dated 5th October, 1995 mark Annexure P-10. 2. It is the case of the petitioner that he joined the service of the respondent-Corporation as Chief Inspector on 31.10.1980. He was transferred and posted at Kaza under-Tapri Unit of the respondent-Corporation where he joined on 19.12.1988. On 29.6.1990 the petitioner is stated to have been charge-sheeted (No. 1881) by Assistant Manager, H.R.T.C. Tapri but according to the petitioner, no charge-sheet was ever served upon him though he remained posted at Kaza till 3.9.1990. On 18.8.1990, the petitioner was transferred to Central Booking Agency, Delhi under Solan Region of the respondent-Corporation. Pursuant to order dated 25.8.1990 of the Assistant Manager, Tapri, the petitioner attended the office on 3.9.1990 on which date, his dues were paid to him and he was relieved but without serving charge-sheet dated 29.6.1990 upon him. The petitioner was again transferred from Delhi to Karsog under Tara Devi Region and relieved on 6.12.1990. He consequently, joined at Karsog on 19.12.1990. The Regional Manager, Tara Devi put the petitioner under suspension on 15.5.1991 and his Head Quarter was fixed at Karsog. 3. On 8.8.1991 one charge memo No. DM(N)-IE/9-2026 (other than the charge-sheet No. 1881 dated 29.6.1990) which was sent to the petitioner which was duly replied by him vide memo dated 9.9.1991 mark Annexure P-2 requesting the Divisional Manager, H.R.T.C. Shimla Division to appoint some other Inquiry Officer from other department as the subject-matter of the inquiry pertains to the officers of the Corporation. The petitioner made two representations dated 1.11.1991 mark Annexure P-3/1 and 24.5.1992 mark Annexure. P-3/2 respectively stating therein that without advance payment of T.A., he would not be in a position to attend the inquiry proceedings. The respondent-Corporation appointed Shri S.R. Dogra, Regional Manager, Rampur as Inquiry Officer in- place of Shri K.C. Chauhan. On 22.10.1992 the petitioner submitted a representation to the Inquiry Officer with a request to send his case to Director of Inquiries followed by a reminder dated 30.11.1992. Again on 12.4J993 Shri Nigam Singh Chauhan, Deputy Divisional Manager was appointed as new Inquiry Officer. On 22.10.1992 the petitioner submitted a representation to the Inquiry Officer with a request to send his case to Director of Inquiries followed by a reminder dated 30.11.1992. Again on 12.4J993 Shri Nigam Singh Chauhan, Deputy Divisional Manager was appointed as new Inquiry Officer. The petitioner had no intimation whatsoever till the date that Sh. Nigam Singh Chauhan, Deputy Divisional Manager was appointed as Inquiry Officer in regard to the charge-sheet to be inquired against him more particularly no notice was ever issued or served upon him in regard to chargesheet dated 26.9.1990. A public notice mark Anriexure P-5 appeared in the Tribunal news paper on 22.5.1993 issued by Divisional Manager, H.R.T.C. Shimla Division, Shimla directing the petitioner to appear before the Inquiry Officer in his office at Shimla on 15.6.1992. It is the case of the petitioner that no notice or summon with regard to chargesheet No. 1881 dated 29.6.1990 was sent to him on his address at Karsog where his head quarter during suspension period was fixed whereas other correspondence was regularly sent to him on the said address. 4. The petitioner submitted representation dated 13.8.1993 mark Annexure P-6/1 followed another representation mark Annexure P-6/2. The Inquiry Officer submitted his report Annexure P-7 in the year 1994 to the respondents. The Manager Director, H.R.T.C.-respondent No. 2 herein issued memorandum dated 2.5.1994 mark Annexure P-8/1 to the petitioner to show cause as to why the proposed penalty of dismissal be not imposed upon him. The petitioner submitted his reply dated 22.5.1994 Annexure P-8/2 to the said notice clearly stating therein that chargesheet No. 1881 dated 29.6.1990 was never served upon him. Respondent No. 2 vide office order dated 16.6.1994 Annexure P-9/1 imposed penalty of removal from service upon the petitioner with reference to chargesheet dated 26.6.1990. On 28.11.1994 mark Annexure P-9/2, the petitioner preferred an appeal to the Board of Director-respondent No. 1 maintaining the stand regarding non-service of chargesheet dated 29.6.1990 and also challenging the impugned order of the disciplinary authority as well as the inquiry report of the Inquiry Officer on other grounds. 5. The petitioner received no reply to the appeal. He filed original application (O.A. (M) No. 130/95) before the H.P. State Administrative Tribunal at Mandi Bench. The said O.A. was disposed of vide order dated 23.3.1995 with the direction to the respondents to decide the appeal of the petitioner. 5. The petitioner received no reply to the appeal. He filed original application (O.A. (M) No. 130/95) before the H.P. State Administrative Tribunal at Mandi Bench. The said O.A. was disposed of vide order dated 23.3.1995 with the direction to the respondents to decide the appeal of the petitioner. The appeal of the petitioner was ultimately rejected by respondent No. 1 and the decision thereof was communicated to him by respondent No. 2 vide memorandum dated 5th October, 1995 (Annexure P-10). 6. In December, 1995 the petitioner filed another original application (O.A. (M) No. 1050/95) Annexure P-11 before Mandi Bench of the H.P. State Administrative Tribunal which was finally rejected on 28.6.1999. The order of the Administrative Tribunal dated 28.6.1999 mark Annexure P-12 has been challenged by the petitioner in this writ petition, inter alia, on the ground that the Tribunal has not taken into consideration the fact that the petitioner was not served with chargesheet No. 1881 dated 29.6.1990 which was the subject-matter of the inquiry and recorded its finding on surmises and conjectures without appreciating the pleadings of the parties. 7. This writ petition, was admitted by the Bench of this Court on 25.10.1999. In reply to the writ petition, the stand of the respondents is that the chargesheet dated 29.6.1990 was sent to the petitioner through registered A.D. letter on 30.6.1990 but the same was received back undelivered with the remarks "addressees not at Kaza Returned to sender". The respondents submitted that one of the charge against the petitioner was "leaving head quarter without permission of the competent authority and availing the leave unauthorisedly." In addition to the registered A.D. letters sent to the petitioner, other efforts were also made to contact him but all in vain. The petitioner joined at Delhi on 18.9.1990 and not on 18.8.1990 as contended by him. He came to the office at Kaza on 3.9.1990 and got his dues etc. from the Cashier and also the relieving order from the despatcher but he did not contact the Officer Incharge of the region and the Office Superintendent where the undelivered chargesheet was lying, therefore, the chargesheet could not be delivered to him on the said date. He came to the office at Kaza on 3.9.1990 and got his dues etc. from the Cashier and also the relieving order from the despatcher but he did not contact the Officer Incharge of the region and the Office Superintendent where the undelivered chargesheet was lying, therefore, the chargesheet could not be delivered to him on the said date. The respondents also stated that the petitioner was suspended in another case wherein his head quarter was fixed at Tara Devi but he did not report there and there was no alternative left to the respondents except to correspond with the petitioner at his permanent home address. The petitioner deliberately avoided to join the inquiry. It is the specific deliberately avoided to join the inquiry. It is the specific stand of the respondents that the petitioner was removed on chargesheet No, 1881 dated 29.6.1990 whereas another chargesheet No. 6541 prepared against him is still pending. The respondents have supported and justified the action taken by them against the petitioner. 8. We have heard learned Counsel for the parties and examined the original record of the inquiry produced before us by Mr. Ashok Sharma, (earned Counsel for the respondents. It is not in dispute that the petitioner was initially transferred from Kaza, District Kinnaur to Centra/ Booking Agency, Delhi District So an where he joined on 19.9.1990 and remained posted there till 6.12.1990. Again he was transferred from Delhi to Karsog under Tara Devi Region, District Shimla and was relieved on 6.12.1990. The petitioner joined at Karsog on 19.12.1990. The Regional Manager, Tara Devi put the petitioner under suspension on 15.5.1991 and his head quarter was fixed at Karsog. In the circumstances, it was within the knowledge of the respondents that the petitioner is stationed at Karsog within Tara Devi Region of the Corporation. We find from a copy of the summon dated 17.4.1993 issued by the Inquiry Officer to the petitioner through Regional Manager, Tara Devi, Shimla Region that the petitioner was asked to appear personally before the Inquiry Officer on 1st May, 1993 at 11 a.m. at Divisional Office, Shimla. As many as five chargesheets including charge No. 1881 dated 29.6.1990 are mentioned in the said summon. From the acknowledgement receipt dated 31.7.1992, some communication was sent to the petitioner by Divisional Manager, H.R.T.C, Shimla at his home address at village Nalugali, P.O. Karsog, District Mandi. As many as five chargesheets including charge No. 1881 dated 29.6.1990 are mentioned in the said summon. From the acknowledgement receipt dated 31.7.1992, some communication was sent to the petitioner by Divisional Manager, H.R.T.C, Shimla at his home address at village Nalugali, P.O. Karsog, District Mandi. Again summons were issued to him by the Inquiry Officer dated 1.5.1993 through Regional Manager, Shimla Region at Tara Devi containing five chargesheets directing him to appear before the Inquiry Officer personally on 1st day of May, 1993 at 11 a.m. at the office of Divisional Manager, H.R.T.C. Shimla. In notice dated May 22, 1993 published in the Tribune marked Annexure P-5, five chargesheets numbers were mentioned including chargesheet No. 1881 dated 29.6.1990. There is no clear and positive record to prove that charge-sheet No. 1881 dated 29.6.1990 framed against the petitioner was ever served upon him. Acknowledgement dated 31.7.1992 placed on the original record of the Inquiry Officer does not reflect that charge-sheet No. 1881 dated 29.6.1990 was sent to the petitioner under registration A.D. cover. In the stamp affixed on the said acknowledgement by the Department of Posts, the year is 1992 whereas as per the defence of the respondents, charge-sheet No. 1881 dated 29.6.1990 was sent to the petitioner through summons dated 17.4.1993 arid 1.5.1993 respectively. 9. It appears from the original record of the inquiry that charge-sheet No. 1881 dated 29.6.1990 which was subject-matter of the inquiry and on the basis of which the petitioner was removed from service by respondent No. 2 and finally his appeal was rejected by the, appellate authority, was never served upon the petitioner at the place of head quarter at Karsog fixed by the respondents during his suspension period. The inquiry has been held by the Inquiry Officer ex parte in respect to charge-sheet No. 1881 dated 29.6.1990. The petitioner categorically stated in his reply dated 22.5.1994 mark Annexure P-8/2 against the show cause notice dated 2.5.1994 mark Annexure P-8/1 issued to him by respondent No. 2 proposing to impose penalty of dismissal from service upon him, that charge-sheet No. 1881 dated 29.6.1990 was never served upon him till date nor any registered letter or other office letter was returned undelivered or refused by him. In spite of the representation of the petitioner, respondent No. 2 passed impugned order dated 16.6.1994 (Annexure P-9/1) imposing penalty of removal from service upon the petitioner and the appellate authority rejected his appeal and the said order was communicated to the petitioner on 5.10.1995 mark Annexure P-10 by respondent No. 2. 10. The State Administrative Tribunal in its impugned order has not examined the above said two sets of summons dated 17.4.1993 and 1.5.1993 respectively issued to the petitioner by the Inquiry Officer. It appears that the original file produced before us by the respondents was either not produced before the State Administrative Tribunal or the said documents were not brought to the notice of the learned Members of the Tribunal. In the circumstances, we are of the view that the Inquiry Officer has found the petitioner guilty of Charge No. 1818 dated 29.6.1990 without serving the said chargesheet upon him which has caused prejudice to the petitioner. The Inquiry Officer submitted exparte inquiry report to the disciplinary authority holding the petitioner guilty in charge-sheet No. 1881 dated 29.6.1990. The respondent No. 2 accepted the inquiry report recorded order of removal from service of the petitioner. The appellate authority without properly considering the contents of the appeal made by the petitioner affirmed the order of the disciplinary authority. The State Administrative Tribunal has passed a slip shod order dismissing the original application of the petitioner challenging the orders of the authorities whereby he was removed from the service. The Inquiry Officer has violated the principles of natural justice in holding the petitioner guilty of the charge concerning to charge-sheet No. 1881 dated 29.6.1990 without serving the said chargesheet upon him in accordance with law. It is well settled principles of law that no person shall be held guilty and punished without affording him reasonable and proper opportunity to defend himself against any act for which proceedings are initiated against him. 1t was incumbent upon the Inquiry Officer to have servant punished chargesheet No. 1881 dated 29.6.1990 upon the petitioner to defend himself against any act for which failed to do so, we are left with no option but to set aside report (Annexure P-7) of the Inquiry Officer. The Inquiry Officer has recorded its report in violation of natural justice enshrined in the Constitution. The Inquiry Officer has recorded its report in violation of natural justice enshrined in the Constitution. Office order dated 16.6.1994 (Annexure P-9/1) recorded by respondent No. 2 on the inquiry report, appellate authorities order dated 5.10.1995 (Annexure P-10) and final order of the State Administrative Tribunal dated 28.6.1999 (Annexure P-12) passed on O.A. (M) No. 1050/95 are all not sustainable. The order of punishment passed against the petitioner by the authority pertaining to charge-sheet No. 1881 dated 29.6.1990 is held to be in violation of natural justice. 11. No other point was urged before us. 12. In the result, this writ petition is allowed to the extent indicated above with no order as to costs. Consequently benefits shall be worked out and granted to the petitioner expeditiously by the respondents. 13. We, however, make it clear that the respondents if so advised are not precluded from initiating fresh inquiry against the petitioner in accordance with law pertaining to charge-sheet No. 1881 dated 29.6.1990.