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Rajasthan High Court · body

2006 DIGILAW 2197 (RAJ)

Swaroop Tankha v. The Managing Director, URMUL Dairy, Bikaner

2006-07-13

GOVIND MATHUR

body2006
Judgment Govind Mathur, J.-On behalf of the respondents caveat is entered to oppose admission of the writ petition and any interim order in favour of the petitioner. A reply to the writ petition and rejoinder to that has been filed, as such pleadings of the case are complete, therefore, with consent of the parties the petition is heard for final disposal at admission stage. 2. By order dated 012.2005 the Managing Director, Uttari Rajasthan Sahkari Dugdh Utpadak Sangh Ltd., Bikaner while exercising powers under Regulation 12 of the Rajasthan Co-operative Dairy Federation Employees (Disciplinary Action & Appeals) Regulations, 1980 (hereinafter referred to as the Regulations of 1980") imposed a penalty of dismissal upon the petitioner. Challenge to the aforesaid is given by this petition for writ. While doing so it is contended by the petitioner that the respondents did not adhere the procedure prescribed under Regulation 12 of the Regulations of 1980, while holding the inquiry against the petitioner and imposing the penalty of dismissal. It is also urged that neither the order impugned nor the report of the inquiry officer bear reasons to hold the petitioner guilty, as such the violation of the principles of natural justice is apparent. 3. In reply to the writ petition respondents came forward with a stand that ample opportunity was given to the petitioner but he failed to avail the same. According to respondents the petitioner did not choose to produce any evidence in his defence and, therefore, the inquiry officer rightly held the petitioner guilty for misconduct and the disciplinary authority after considering the inquiry report and also to explanation submitted by the petitioner rightly imposed a penalty of dismissal. 4. Heard Counsel for the parties. 5. The respondents are required to hold an inquiry for imposing a major penalty upon an employee in accordance with the Regulations of 1980. Regulation 12 of the Regulations of 1980 provides a procedure for awarding major penalties. Clause (2) of Regulation 12 of the Regulations of 1980, that deals with the procedure for imposition of major penalties, reads as under:- "12(2) Procedure for imposition of major penalties:- .(a) Aperson against whom action is proposed to be taken for a major penalty, shall be provided with a copy of the charge or charges as well as a statement of allegations that have been made against him and about which enquiry is proposed to be held. Such copy of charge-sheet and allegations shall be sent under postal certificate to the employees permanent address available and recorded with the Federation and such an issue of charge-sheet under postal certificate shall be conclusive proof of service of the charge-sheet and statement of allegations on him and no plea of non receipt against this shall be admitted. .(b) The person charged shall be required within a period of 15 days of the receipt of the charge-sheet by him to put in his written statement of the defence giving a complete list of documents and defence witnesses. If no such statement is furnished by the person charged within the period prescribed time and unless extended, it shall be presumed that the person charge-sheeted admits his guilt and the competent authority is within its right to pass final ex-parte orders against him in the enquiry. .(c) If after furnishing the written statement the person charged desires to see the relevant documents such of the documents as are being taken into consideration or are to be relied upon for the purpose of supporting the charge or charges may at the discretion of the Enquiry Officer be shown to him. .(d) Theperson charged shall also produce all the relevant documents required by him in his defence together with a list of his defence witnesses if any alongwith his written statement so that enquiry may not be delayed unnecessarily. However, the Enquiry Officer may admit evidence of relevant documents if any even at a later stage of the enquiry by either side before the final orders are passed by the officer provided he finds that such documents provide necessary evidence for arriving at a fair decision. (e) Oral evidence may be recorded by the Enquiry Officer if he permits any witness to be produced by either side. After the person charged has presented his written statement as per Clause (b). The evidence of the prosecution shall be recorded first and thereafter the defence shall be recorded. All such statements shall be read over to the witness and then signed by the witness. If the witness is illeterate then his thumb impression shall be taken and the enquiry officer shall also sign the same in proof of the same being read over to him and admitted to be correct by the witness. All such statements shall be read over to the witness and then signed by the witness. If the witness is illeterate then his thumb impression shall be taken and the enquiry officer shall also sign the same in proof of the same being read over to him and admitted to be correct by the witness. .(f) Normally it shall be responsibility of the prosecution and defence to produce their witnesses by themselves unless the enquiry officer otherwise directs the summoning of the witnesses through its agency but unnecessary adjournments shall not be given for calling or appearances of witness which may prolong enquiry and defeat the justice. .(g) The expenses of witness, if any, called by the Federation to given evidence against the person charged shall be borne by the Federation and the expenses of witness called by, or at the instance of the person charged shall be borne by him. .(h) After completing the enquiry and giving the person charged a further opportunity of making a written or oral statement, the enquiry officer shall record his findings on such charges and reasons for such findings. .(i) The competent authority, on the basis of its own findings or on those of the Enquiry Officer, shall pass such orders as he may deem fit provided that before the competent authority passes the final order imposing the penalty of dismissal or removal, the person concerned shall be supplied with a copy of the findings of the competent authority or of the enquiry officer, as the case may be and give a 15 days notice to show cause why the penalty should not be imposed. .(j) Everyorder imposing a penalty on the Federation Employees shall be communicated to him in writing unless the same has been announced personally to him by the competent authority and a note to this effect made on the order sheet by the competent authority." 6. From perusal of Clause (2) of Regulation 12 of the Regulations of 1980 it is clear that the inquiry officer shall first record the evidence of prosecution and thereafter record the evidence of the delinquent employee and all the statements recorded during inquiry are required to be read over to the witnesses and also required to be signed by them. 7. 7. In the instant matter the respondents-alongwith their reply have filed all the order sheets of the disciplinary proceedings, reading wherefrom it reveals that on 29.09.2005 the prosecution placed photocopies of 19 documents before the inquiry officer to substantiate the charges. Certain more documents were placed on record by the presenting officer on 011.2005, however, those documents were never become part of the inquiry as the documents concerned were never put before any witness to prove their contents. The inquiry officer on 011.2005 itself closed the inquiry on the count that the delinquent employee ( present petitioner) refused to produce any document in his defence. After closure of inquiry the inquiry officer submitted inquiry report to the disciplinary authority on 10.11.2005. The inquiry officer without discussing the evidence whatever available on record found the petitioner guilty for all the allegations. On basis of aforesaid inquiry report the disciplinary authority by order dated 012.2005 imposed a penalty of dismissal upon the petitioner. 8. From perusal of the inquiry proceedings it is crystal clear that in fact no inquiry was conducted by the inquiry officer. It is true that photocopies of certain documents were produced by the presenting officer but contents of those documents were not at all proved. In fact the prosecution led no evidence to substantiate the allegations levelled against the petitioner. The inquiry officer merely after accepting the photocopies of some documents asked the petitioner to tender his defence and also to submit documents in defence. The petitioner refused for that and only on that count the inquiry officer closed the inquiry proceedings. In the event to refusal by the petitioner for placing documents in defence he should have proceeded with inquiry and should have asked the defence prosecution to place required evidence to substantiate the charges. An opportunity thereafter was required to be given to the petitioner for his defence. Clauses (d) and (e) of Regulation 12 of the Regulations of 1980 are also quite clear in this regard. As a matter of fact method adopted by the inquiry officer is absolutely illegal and whatever inquiry conducted is no inquiry in eye of law. 9. As no proper inquiry was conducted and no evidence was produced to prove the charges, the finding given by the inquiry officer obviously lack reasons. As a matter of fact method adopted by the inquiry officer is absolutely illegal and whatever inquiry conducted is no inquiry in eye of law. 9. As no proper inquiry was conducted and no evidence was produced to prove the charges, the finding given by the inquiry officer obviously lack reasons. Clause (h) of Regulation 12 of the Regulations of 1980 also requires that the inquiry officer should record his findings on charges alleged with reasons. The violation of Clause (h) of Regulation 12 of the Regulations of 1980 is also on face. It merely bears findings without the support of the reasons. The order of the disciplinary authority is also illegal being based on an inquiry i.e., no inquiry in eye of law. The disciplinary authority should have looked into entire record and should have examined the procedure adopted by the inquiry officer. It appears that the respondents were much interested in imposing penalty upon the petitioner than to inquire into the truth of allegations. The order imposing penalty being a consequent to an illegal inquiry is patently bad in eye of law. 10. For the reasons given above, this writ petition deserves acceptance, therefore, the same is allowed. The order impugned passed by the disciplinary authority dated 012.2005 and the inquiry proceedings conducted by the inquiry officer in pursuant to the charge-sheet dated 22.06.2006 is declared illegal and the same is hereby quashed. The respondents are directed to reinstate the petitioner with all consequential benefits. 11. No order to cost.