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2009 DIGILAW 49 (JK)

N. C. Prabhakar (Dr. ) v. State

2009-02-06

SUNIL HALI

body2009
1. The petitioner has questioned the order dated 22-1-2001 passed by the respondents. In terms of this order the punishment of with holding three increments having the effect of postponing his future increments, was imposed by the respondent No.1. The petitioner has questioned this order essentially on the ground that the copy of the inquiry report was not given to him before imposing the aforementioned punishment. He states that the Inquiry Officer had concluded the inquiry proceedings and forwarded the same to the respondent No.2. The petitioner was entitled to be served with inquiry report so that he could make effective representation against the proposed punishment. 2. In order to understand this controversy some brief facts are required to be given as follows. 3. The petitioner was appointed in the Planning Department and was sent on transfer under Rule 27 of Classification, Control & Appeal Rule of 1956, to the Education Department. During his tenure in the Education Department, some irregularities are alleged to have been committed by the petitioner. He was placed under suspension by the Education Department. The said suspension order was challenged in the writ petition filed in this Court. The writ petition was allowed on the ground that the Education Department was not the Appointing Authority of the petitioner, as his parent Department was Planning Department. The order of suspension was quashed. It is further averred that after quashing the suspension order, respondent No.2 framed charges and referred the matter for inquiry to the Commissioner of Inquiry. 4. The Commissioner of Inquiry was directed to hold the inquiry. It is pertinent to mention here that the Commissioner of Inquiry initiated inquiry proceedings on the basis of charge sheet prepared by the Additional Secretary to Government, Higher Education Department. The petitioner was granted opportunity to defend himself before the Inquiry Officer. The inquiry was concluded. The Inquiry Officer on fact proved some charges against the petitioner. On the basis of the recommendations of the Inquiry Officer the matter was considered by the respondent No.2 who referred the matter to the respondent No.1 on 22-9-2000 for taking action in pursuance to the findings of the Inquiry Officer. On the basis of the said recommendations the respondent No.1 issued the impugned order. 5. I have heard the learned counsel for the parties and perused the record. 6. On the basis of the said recommendations the respondent No.1 issued the impugned order. 5. I have heard the learned counsel for the parties and perused the record. 6. There are no provisions in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The principle of audi alteram partem, which mandates that no one shall be condemned unheard, is part of the rules of natural justice. Natural justice is a great humanizing principle intended to invest law with fairness and to secure justice. The inquiry must always be fairness in action, with the fact that an opportunity of being heard should be given to the person affected. 7. The procedure provided in the present case in Classification, Control & Appeal Rule of 1956, indicates the mechanism and the procedure before any punishment is imposed against the Government official. For purpose of the present controversy Rule 33 and Rule 35 are relevant. Rule 33 envisages that no order of dismissal, removal or reduction in rank shall be passed unless adequate opportunity is provided to the Government official. It proposes that the charge sheet has to be served on the petitioner and he is permitted to lead evidence in the matter. After the conclusion of the inquiry, if the Authority proposes to impose punishment of dismissal, removal or reduction in rank, the official shall be supplied copy of the proceedings including the recommendations and he shall be asked to show cause. This will apply only to the cases specified hereinabove. 8. In cases where the proposed punishment is neither dismissal, removal nor reduction of rank, Rule 35 has to be invoked. Rule 35 states that no order imposing the penalty specified in Clause I, II, III, IV & V shall be imposed on Government servants unless he has been provided adequate opportunity of making representation against the such proposed punishment. 9. Admittedly, the proposed order of punishment has to be preceded by an inquiry. The decision of the Appointing Authority to impose such punishment has to base upon some material which has been collected by it. The proposed punishment cannot be based upon mere allegations. The inquiries in such cases need not to be as comprehensive as under Rule 33. However, the element of fairness has to be adopted by the Appointing Authority before proposing the punishment. The proposed punishment cannot be based upon mere allegations. The inquiries in such cases need not to be as comprehensive as under Rule 33. However, the element of fairness has to be adopted by the Appointing Authority before proposing the punishment. This Court is of the opinion that the proposed punishment to be imposed under Rule 35 has to be preceded by an inquiry which has to be fair. 10. In essence, the proposed punishment can be imposed only if there is sufficient material available to the Appointing Authority. Admittedly, in the present case the respondents have perused the report of the Inquiry Officer and proceeded to pass the impugned order without compliance with the Rule 35. The arguments of the respondents are that the petitioner was given sufficient opportunity before the Inquiry Officer and he has participated in the inquiry. This is sufficient opportunity given to him. In other words, respondents state that his participation before the Inquiry Officer should constitute a sufficient notice under Rule 35. 11. The said argument is misplaced. The words used in Rule 35 are that no order imposing the penalty shall be passed without hearing the petitioner. The order of punishment cannot be passed by an Inquiry Officer but it has to be done by the Disciplinary Authority. The Inquiry Officer only makes a recommendation and does not propose any punishment. Rule contemplates before an order of punishment is passed, an opportunity of being heard has to be given. This is an act to be done by the Appointing Authority only after an inquiry is conducted against the official. 12. In the present case the Inquiry Officer has only recorded his findings on the charge without proposing any punishment. 13. I therefore, hold that there is no compliance of Rule 35 of Classification, Control & Appeal Rule of 1956. No notice as envisaged before imposing the order of punishment under Rule 35 has been served on the petitioner. 14. There is other aspect of the matter also. Neither the Inquiry Officer nor the Disciplinary Authority issued the copy of the charge sheet to the petitioner. The proposed charge sheet has been prepared by the respondent No.2 who was neither Disciplinary Authority nor the Appointing Authority. The charge sheet could have been framed by the Disciplinary Authority or Inquiry Officer. There is other aspect of the matter also. Neither the Inquiry Officer nor the Disciplinary Authority issued the copy of the charge sheet to the petitioner. The proposed charge sheet has been prepared by the respondent No.2 who was neither Disciplinary Authority nor the Appointing Authority. The charge sheet could have been framed by the Disciplinary Authority or Inquiry Officer. It reveals from the report of the Inquiry Officer that charge sheet has been prepared by the Additional Secretary to Government, Higher Education Department who was neither Disciplinary Authority nor the Appointing Authority. The whole process of the inquiry initiated against the petitioner is vitiated. 15. I, therefore, quash the impugned order dated 22-1-2001, and allow the writ petition.