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2009 DIGILAW 308 (JK)

Krishan Lal v. Union Of India

2009-06-05

SUNIL HALI

body2009
1. For having remained on unauthorised absence with effect from 14.09.1998 to 06.10.1998 and from 07.10.1998 to 28.02.1999, an enquiry was contemplated against the petitioner by the respondents. Pursuant thereto a notice dated 21.02.2000 was issued by the Enquiry Officer directing the petitioner to participate in the enquiry to be held on 06.03.2000. It seems that on appointment of new Enquiry Officer, another notice dated 06.11.2000 was issued to the petitioner to appear before the Enquiry Officer on 01.05.2000. On receipt of the notice dated 06.04.2000, the petitioner informed the Enquiry Officer that he received notice on 28.04.2000 and it would not be possible for him to him on 01.05.2000 at Durga Pur (West Bengal) within such a short period. Another notice dated 15.05.2000 came to be issued to the petitioner calling upon him to appear before the Enquiry officer on 29.05.2000. This notice has been received by the petitioner on 01.06.2000. On 06.07.2000, the petitioner was informed that on his failure to appear before the Enquiry Officer on 29-5-2000, he has been set ex parte. The petitioner informed the Enquiry Officer that he is unable to appear on 06.07.2000 as he is bed-ridden. It is pertinent to mention that petitioner through a representation made on 10.07.2000 had shown his unwillingness to appear before the Enquiry Officer on the ground that the Enquiry was not conducted fairly and had shown some reservation against the Enquiry Officer. It is important to mention that more than three Enquiry Officers were appointed by the respondents in this case. 2. An ex-parte enquiry was conducted and the report was submitted to the appointing authority for appropriate action. The enquiry report reveals that charges framed against the petitioner relate to his unauthorised absence from 04.04.1999. A copy of the report was given to the petitioner, who has submitted his representation against the same to the respondents. It is revealed from the objections filed to the enquiry report that the enquiry proceeded in respect of charge that the petitioner has left the unit without permission on 04.04.1-999 and not in respect of his absence from duty for the dates mentioned hereinabove. After the receipt of the enquiry report, impugned order dated 21.09.2000 came to be passed whereby petitioner has been removed from service. It is this order, which is the subject matter of challenge in the present writ petition. 3. After the receipt of the enquiry report, impugned order dated 21.09.2000 came to be passed whereby petitioner has been removed from service. It is this order, which is the subject matter of challenge in the present writ petition. 3. I have heard learned counsel for the parties and perused the record. 4. Before adverting to the facts of this case, it is important to mention that vide memorandum dated 26.05.99, an enquiry was contemplated against the petitioner for leaving the Unit without any permission in an unauthorised manner w.e.f. 04.04.1999. This charge sheet is supposed to have been served on the petitioner on 18.06.1999. It seems that enquiry in respect of two charges was conducted by one Enquiry Officer. 5. Petitioners grievance is that for having overstayed his leave, he was served with the charge sheet on 26.05.1999 by the Enquiry Officer. Another charge sheet was served on the petitioner for having left the Unit without permission on 04.04.1999. The record reveals that a notice was sent to petitioner on 15.05.2000 to attend the enquiry on 29.05.2000 failing which enquiry will be held in ex-parte. The said enquiry notice was received by the charged officer on 1-6-1999. On his failure to appear before the Enquiry Officer, the petitioner was set exparte on 06.07.2000. 6. It transpires that two charge sheets were served on the petitioner regarding two different incidents of misconduct committed by him. One relates to the overstaying from 14.09.1998 to 06.10.1998 and 07.10.1998 to 20.02.1998 and the other one for having left the Unit without any authorisation from 04.04.1999. It seems that a joint enquiry was conducted in respect of two charges by one Enquiry Officer. The petitioner has raised the following issues in this case: a) that the charge sheet was not accompanied by statement of imputations of misconduct or misbehaviour nor by list of documents and witnesses by which each article of charge was proposed to be sustained. As a result of this, there is a violation of Rule 34 sub-clause 3 & 4 of CISF Rules, 1969. b) That the enquiry was initiated in respect of charge sheet regarding overstaying of leave and not in respect of leaving the unit without proper permission. As a result of this, there is a violation of Rule 34 sub-clause 3 & 4 of CISF Rules, 1969. b) That the enquiry was initiated in respect of charge sheet regarding overstaying of leave and not in respect of leaving the unit without proper permission. c) That the copy of enquiry report was not given to the petitioner and no reasonable opportunity for defending himself was afforded to the petitioner as he was directed to appear in the enquiry proceeding at a place which was about 2500 Kms. away from his home and the enquiry conducted by Mr. A. Muthaswamy was not in consonance with the law. It is further stated that enquiry was concluded by Enquiry Officer on 04.07.2000 while as he was set exparte on 06.07.2000. 7. On the other hand, respondents state that it is admitted that two charge sheets were served on the petitioner on 26.05.1999. Both the charge sheets have been received, by the petitioner. Enquiry with respect to overstaying of the leave was dropped and the proceedings in respect of second charge sheet were concluded and the petitioner was removed from service after providing him all reasonable opportunities to defend himself. 8. It is not denied that both the charge sheets were served upon the petitioner which have been acknowledged by him. The charge sheet is not accompanied by statement of imputations of misconduct or misbehavior nor by list of documents and witnesses by which each article of charge is proposed to be sustained. The memorandum of charge sheet makes a reference regarding the list of documents by which the articles of charge were framed, but same were required to be supplied to the petitioner. The petitioner has categorically stated in ground - (v) of his petition that material on the basis of which enquiry has proceeded, has not been given to the petitioner. In reply to this ground, the same has not been denied by the respondents. All that the respondents have stated is that the petitioner has adopted dilly-dally tactics to delay the disciplinary proceedings. Nothing has been produced by the respondents before this court to indicate that the material required to be annexed with the memorandum of charge was served on the petitioner. All that the respondents have stated is that the petitioner has adopted dilly-dally tactics to delay the disciplinary proceedings. Nothing has been produced by the respondents before this court to indicate that the material required to be annexed with the memorandum of charge was served on the petitioner. In absence of any averment by the respondents, it clearly emerges that the procedure laid down under Rule 34 Sub-Rule 3&4 of CISF Rules, 1969 have not been complied with. The resultant effect of this is that there is violation of the aforesaid rules. 9. The case of the petitioner is that he was all along under this impression that enquiry in respect of first charge was being conducted and not with respect, to the second charge, is not correct. However, the manner in which the enquiry has been conducted, is not in consonance with the rules of natural justice. It is revealed from notice dated 15.05.2000 that on account of failure of the petitioner to appear before the Enquiry Officer on 01.05.2000, the enquiry has been set ex parte. Next date of enquiry was fixed on 29.05.2000. Notice dated 15.05.2000 was received by the petitioner on 01.06.2000, which is admitted in the impugned order itself. There is one more communication dated 15.05.2000, which indicates that enquiry will be held on 15.05.2000 at 10 hrs. This communication is appended as Annexure --G with the reply filed by the respondents. By virtue of notice dated 15.05.2000, which is appended as Annexure -G with the writ petition, petitioner was required to appear before the Enquiry Officer on 29.05.2000. The said notice has been received by the petitioner on 01.06.2000. From the communication dated 06.07.2000, which is a notice issued by the same Enquiry Officer, revealed that on account of failure on the part of the petitioner , the enquiry has been declared as exparte. The enquiry report annexed with the petition reveals that the enquiry has been concluded on 4-7-2000. If the enquiry has been concluded on 4-7-2000, then what was the object of proceeding exparte against the petitioner vide communication dated 6-7-2000, cannot be comprehended. Notice issued by the Enquiry Officer does not reveal regarding the charge that he is enquiring. Admittedly, there are two enquiries being conducted with respect to two different charges. If the enquiry has been concluded on 4-7-2000, then what was the object of proceeding exparte against the petitioner vide communication dated 6-7-2000, cannot be comprehended. Notice issued by the Enquiry Officer does not reveal regarding the charge that he is enquiring. Admittedly, there are two enquiries being conducted with respect to two different charges. The Enquiry Officers, in this case have been appointed at the drop of hat and the petitioner has not been communicated the same. 10. The manner in which the enquiry has been conducted clearly reveals that the procedure provided under, a rule has been defied with impunity. Notices dated 15-5-2000 and 6-7-2000 clearly reveal that petitioner has been set ex parte on both these occasions and at the same time, the petitioner has been directed to appear before the Enquiry Officer on 25-7-2000, when admittedly the enquiry had already been concluded. 11. I, therefore, hold that the enquiry conducted by the respondents is clearly in violation of the rules of natural justice and it has been conducted in a perfunctory manner without adhering to rules of natural justice. Accordingly, the impugned order is set aside and the respondents are directed to reinstate the petitioner in service. However the respondents are at liberty to conduct a fresh enquiry against the petitioner, if they so desire after providing him an opportunity of being heard. Disposed of alongwith connected CMP, if any.