Research › Search › Judgment

Uttarakhand High Court · body

2006 DIGILAW 242 (UTT)

Kharak Singh v. State of V. P.

2006-05-15

RAJESH TANDON

body2006
JUDGMENT Hon'ble Rajesh Tandon, J.- Heard Sri K.N. Joshi, counsel for the petitioner and Standing Counsel for the respondents. 2. By the present writ petition the petitioner has prayed for a writ of certiorari quashing the order dated 27.4.1991 and 6.3.1986 passed by the respondents nos. 2 and 3 respectively. 3. Briet1y stated the petitioner was posted as Forest Guard in Haldwani Forest Division, Nainital. On 1.6.1984 he was placed under suspension on the allegation of illicit cutting of trees in Asni compartment no. 3 of the aforesaid Forest Division. Charge sheet was served upon him on 19.12.19R4 and he gave his reply on 9.4.1985. Thereafter inquiry was instructed to Sri P.C. Lohni, who without giving any opportunity to the petitioner to place hi~ defence concluded the inquiry and submitted report on 16.11.1985 to the Division Forest Officer, Haldwani who on the basis of inquiry report dismissed the petitioner vide order dated 63.1986. 4. Feeling aggrieved the petitioner preferred an appeal before the respondent no. 2. The appellate authority vide order dated 27.4.1991 dismissed the appeal. 5. A perusal of the inquiry report shows that the inquiry was conducted against the principle of natural justice. The inquiry officer conducted inquiry ex parte and no opportunity was afforded to the petitioner to defend himself. The documents relied upon by the inquiry officer has not been properly proved nor they have been shown to the petitioner. The inquiry officer submitted his report to the Divisional Forest Officer on 16.11.1985 but without issuing any show cause notice to the petitioner the Disciplinary Authority passed order of dismissal on 63.1986. 6. The learned counsel further submitted that the disciplinary as well appellate authority failed to appreciate this aspect of the matter that ~he petitioner had been deprived of an opportunity or adducing evidence in the Inquiry and to cross-examine prosecution witnesses and, therefore. adequate and reasonable opportunities had not been afforded to the petitioner to defend in the Disciplinary Inquiry proceedings. According to the counsel, the impugned orders of punishments passed by the respondents vitiate in law being violative of Article 311 of the Constitution of India. Article 311 (2) of the Constitution or India reads as under. 7. Article 311(2) of the Constitution of India provides for giving reasonable opportunity of hearing", which reads as under: "311 (2). According to the counsel, the impugned orders of punishments passed by the respondents vitiate in law being violative of Article 311 of the Constitution of India. Article 311 (2) of the Constitution or India reads as under. 7. Article 311(2) of the Constitution of India provides for giving reasonable opportunity of hearing", which reads as under: "311 (2). No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect those charges." 8. The Constitution Bench of the Apex court in the, case Khem Chand Vs. Union of India, reported in A.I.R, 1958 SC 300, has explained the term vasonable opportunity' occurring in Article 311 of the Constitution of India in the following way: "The reasonable opportunity envisaged by the provision under consideration includes: (a) An opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based; (b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence. (c) ....... ..................... .......... ................. 9. The same view has been re-iterated by the "Apex court in the case Kashinath Dikhita Vs. Union of India & others, reported in A.I.R. 1986 Supreme Court 2118. The observations are quoted below: "The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the government servant is afforded a reasonable opportunity to defend himself against the charges on which inquiry is held. The government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him." 10. The counsel also submitted that during the ex-parte enquiry, statements of a number of prosecution witnesses were recorded behind the back of the petitioner, which is apparent on perusal of the inquiry officer's report dated 16.11.1985. He can do so by cross-examining the witnesses produced against him." 10. The counsel also submitted that during the ex-parte enquiry, statements of a number of prosecution witnesses were recorded behind the back of the petitioner, which is apparent on perusal of the inquiry officer's report dated 16.11.1985. and no show cause notice was issued to the petitioner, it becomes apparent that the' petitioner was not supplied copies of statements of witnesses along with the show cause notice and in absence of the relevant papers, the petitioner was deprived of defending him reasonably and adequately at the stage of making representation against Inquiry officer's report. 11. Apex Court in the case Uttar Pradesh Government Vs. Sabir Hussain, reported in A.I.R. 1975 SC 2045, while dealing with the question of Non-supply of copies of material documents has observed as under: "In view of these stark facts the High court was right in holding that the plaintiff (respondent) was not given a reasonable opportunity to show cause against the action proposed to be taken against him and that the non-supply of the copies of the material documents had, caused serious prejudice to him in making a proper representation". 12. I find substance in the submission of the counsel for the petitioner to the effect that the petitioner was neither afforded adequate and reasonable opportunity by the Inquiry officer to defend in the inquiry proceeding nor the disciplinary authority afforded such opportunity to the petitioner to defend against the Inquiry officer's report at the stage of making representation. Therefore, I hold that entire inquiry vitiates for non-adherence of the provision as contained under Article 311 (2) of the Constitution of India. 13. It is the legal right of every delinquent employee under the principle of Natural justice that an inquiry conducted against him is free from my bias. A Constitution Bench decision of the Apex court rendered in the case A. K. Kraipak v. Union of India, reported in AIR 1970 SC 150, where in Paragraph 20 of the judgment the following observations were made: "........................The concept of natural justice has undergone a great deal of change ,in recent years. A Constitution Bench decision of the Apex court rendered in the case A. K. Kraipak v. Union of India, reported in AIR 1970 SC 150, where in Paragraph 20 of the judgment the following observations were made: "........................The concept of natural justice has undergone a great deal of change ,in recent years. In the past it was thought that it included just two rules namely: (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is, that quasi-juditial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably......................... ...........An unjust decision in an administrative enquiry may have' more far reaching effect than a decision in a quasi-judicial enquiry............................................................................. ..................The rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of Natural justice." 14. In the case Kuldeep Singh Vs. Commissioner of Police, reported in 1998 (8) Judgment Today 603 and submitted that 'Bias' may be inferred from the conduct of Inquiry officer, in which he dealt with the matter. The relevant portion of the judgment is reproduced below: "31. The Enquiry Officer did not sit with an open mind to hold an impartial domestic enquiry which is an essential component of the principle of natural justice as also that of "Reasonable opportunity" contemplated by Article 311(2) of the Constitution ...............He has acted 'so arbitrarily in the matter and has found the appellant guilty in such a coarse manner that it becomes apparent that he was merely carrying out the command from some superior officer who perhaps directed "fix him up". 15. In the case Raltan Lal Shmma Vs. Managing Committee, reported in A.I.R. 1993 Supreme Court 2155 has held that if 'Bias' is established in conducting one charge, then entire inquiry will vitiate in law and the plea of the department that other charges are proved beyond any 'Bias' or Prejudice, would not be acceptable for the reason that once 'Bias' is established it will percolate throughout entire inquiry proceedings affecting all charges. The relevant portion of Para 12 of the above judgment, is reproduced below: "The Division Bench has also proceeded on the footing that as even apart from Charge No. 12, the Deputy Commissioner has also considered the other charges on consideration of which along with Charge No. 12, the proposed order of dismissal was made, no prejudice has been caused to the appellant. Such view, to say the least, cannot be accepted in the facts and circumstances of the case. The learned single Judge, in our view, has rightly held that the bias of Shri Maru Ram, one of the members of the enquiry committee had percolated throughout the enquiry proceeding thereby vitiating the principles of natural justice and the findings made by the enquiry committee was the product of a biased and prejudiced mind. 16. I find force in the submission of the learned counsel for the petitioner to the effect that once 'Bias' is established on the part of the Inquiry officer or the Disciplin3ry authority, it will percolate throughout entire inquiry proceedings affecting all charges, and therefore entire inquiry will vitiates in law. 17. The Inquiry officer in its Inquiry-report dated 16.11.85, not only proposed punishment for the petitioner but also recommended severe punishments for the petitioner in the following manner: 18. According to the counsel for the petitioner if an inquiry report' proposes or recommends punishment for the delinquent employee, there remains all the possibility of influencing the mind of the disciplinary authority and, therefore, such 'Inquiry-report' cannot be said to be free from bias on the part of the 'Inquiry-officer'. In support of his submission, the learned counsel has referred a case of the Apex court Union of India Mohd. Ramzan khan, reported in AI.R. 1991 SC 471, wherein the Apex court in Paragraph 13 of the judgment made the following passing observation: "As this Court rightly pointed out in the Gujrat case (AIR 1969 SC 1294), the disciplinary authority is very often influenced by the conclusions of the Inquiry officer and even by the recommendations relating to the nature of punishment to be inflicted." 19. The counsel also submitted that the Constitution bench of the Apex court has given certain observations about the duties of the Inquiry officer in the case Managing Director; BCIL, Hyderabad V. B. Karunqkar, reported in ALCR. The counsel also submitted that the Constitution bench of the Apex court has given certain observations about the duties of the Inquiry officer in the case Managing Director; BCIL, Hyderabad V. B. Karunqkar, reported in ALCR. 1994 S. 1074, which is reproduced below "What are the duties of the Inquiry Officer appointed by the disciplinary authority to conduct the inquiry is the next question and this Court in A.N. D'Silva v. Union of India (1962) Supp 1 SCR 968 at p.977 (AIR 1962 SC 1130 at p. 1134) has in terms held that the question of imposing punishment can only arise after inquiry is made and the report of the Inquiry Officer is received. It is for the punishing authority to propose the punishment and not for the inquiring authority to do so ................................ ................................. Two things, therefore, emerge from this decision, viz., that it is not the function of the inquiry Officer to propose any punishment even after he records findings of / guilt against the delinquent employee..........................Secondly, it is for the disciplinary authority to propose the punishment, after receipt of the report of the Inquiry Officer, which suggests that before the authority proposes the punishment, it must have applied its mind to the evidence and the findings recorded by the Inquiry Officer. 20. It is not the job of the Inquiry Officer to propose or recommend any punishment though he may record findings of guilt against the delinquent employee, and if the Inquiry officer does so, then there may be every possibility of biased attitude of the Inquiry officer against the delinquent employee and the report of the Inquiry officer can not be said to be free from bias. Therefore, I hold that the recommendation of the Inquiry officer might have influenced the mind of the disciplinary authority in imposing severe punishment of dismissal from service on the petitioner. The 'Inquiry Report' as well as the impugned orders of punishments, in view of these facts, vitiate in law. 21. In view of above, a writ of certiorari is issued quashing the orders date 5.3.1986 passed by the Divisional Forest Officer, Haldwani as well as order dated 27.4.1991 passed by the Conservator of Forest, Western Circle, Nainital. The petitioner is reinstated in service with all consequential benefits. 22. Accordingly, writ petition is allowed. No order as to costs.