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Himachal Pradesh High Court · body

2009 DIGILAW 265 (HP)

TEK CHAND v. HIMACHAL PRADESH KHADI

2009-04-01

RAJIV SHARMA

body2009
JUDGMENT Rajiv Sharma, J.:-The disciplinary proceedings were initiated against the petitioner vide Annexure A-1 on 4.6.1987. The Inquiry Officer was appointed on 17.10.1987. He submitted the report to the Disciplinary Authority. The Chief Executive Officer sent the copy of the inquiry report to the petitioner on 13.2.1992. The petitioner filed the objections/reply on 19.2.1992. He stated in his objections/reply that he had already deposited the amount in the office of the Board. The Disciplinary Authority on 25.3.1992 imposed the major penalty of removal from service upon the petitioner. He filed mercy appeal on 19.6.1992. The same was not decided by the Appellate Authority. 2. Mr. M.R. Verma, Advocate has strenuously argued that the order dated 25.3.1992 is vitiated due to non-compliance with the principles of natural justice. His precise case is that once the inquiry report has been submitted and he has been given the opportunity to file objections/reply against the same and he had filed the reply thereto/objections, the same was required to be taken into consideration by the Disciplinary Authority. 3. Ms. Rita Goswami, Advocate has supported the order dated 25.3.1992. I have heard the learned counsel for the parties and perused the record carefully. 4. Their Lordships of the Hon’ble Supreme Court in Managing Director, ECIL, Hyderabad and others versus B. Karunakar and others, (1993) 4 SCC 727 have held that it is necessary for the Disciplinary Authority to supply the copy of the inquiry report to the delinquent to enable him to point out shortcomings/deficiencies or infraction of any rules while holding the inquiry against him. Their Lordships have held as under: “The reason why the right to receive the report of the Inquiry Officer is considered an essential part of the reasonable opportunity it the first stage and also a principle of natural justice is that the findings recorded by the Inquiry Officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Inquiry Officer along with the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Inquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary, authority while arriving at its conclusion. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary, authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the Inquiry Officers findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it.” 5. In the present case the disciplinary proceedings were initiated against the petitioner. The Inquiry Officer has submitted the report as noticed above. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it.” 5. In the present case the disciplinary proceedings were initiated against the petitioner. The Inquiry Officer has submitted the report as noticed above. The petitioner had been permitted to file objections/reply against the inquiry report on 13.2.1992. He filed objections/reply on 19.2.1992. It is mentioned in this communication that he had already deposited the amount with the Board. The disciplinary authority has not taken into consideration the objections/reply filed by the petitioner on 19.2.1992 while imposing the penalty of removal upon the petitioner on 25.3.1992. The Disciplinary Authority has not mentioned/noticed that the petitioner had filed objections/reply to the inquiry report in his order dated 25.3.1992. He has merely concurred with the findings of the Inquiry Officer and imposed the penalty of removal upon the petitioner. This course could not be adopted by the Disciplinary Authority. Once the petitioner had submitted the objections/reply to the inquiry report, the same was required to be taken into consideration by the Disciplinary Authority before imposing the penalty upon the petitioner. The order whereby the penalty has been imposed upon the petitioner is a non-speaking. The Disciplinary Authority should ensure that the orders passed by it are self contained /reasoned. This is necessary for the simple reason that the orders passed by the Disciplinary Authority are assailable before the Appellate Authority. 6. Their Lordships of the Hon’ble Supreme Court in Roop Singh Negi and another Punjab National Bank and others, (2009) 2 SCC 570 have held as under: “Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.” 7. In view of the definitive law laid down by their Lordships of the Hon’ble Supreme Court and the facts and circumstances of the case as discussed hereinabove, the order dated 25.3.1992 is vitiated for noncompliance with the principles of natural justice. The order passed by the Disciplinary Authority is also non-speaking/self contained. Accordingly, the petition is allowed. The impugned Annexure A-4 is quashed and set aside. The petitioner is held entitled to all the consequential benefits. However, the Disciplinary Authority is permitted to pass appropriate orders after taking into consideration the objections/reply furnished to the inquiry report. The order passed by the Disciplinary Authority shall be speaking/reasoned. No costs.