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2010 DIGILAW 1548 (PNJ)

Balwant Singh v. Union Of India

2010-04-30

AUGUSTINE GEORGE MASIH

body2010
Judgment Augustine George Masih, J. 1. The prayer in the present writ petition is for quashing of the Order dated 07.05.1996 (Annexure-P-5), passed by respondents, whereby the services of the petitioner were terminated by imposing punishment of removal from service under Rule 11(viii) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. 2. Counsel for the petitioner contends that, although, various grounds have been taken by the petitioner in the present writ petition, but he presses only one ground as of now that the principles of natural justice have been violated as the petitioner was not supplied with copy of the inquiry report despite such request having been made by him before passing the order of punishment against him. He contends that the petitioner was initially appointed in the Army on 19.10.1962 and was discharged on 06.08.1981. As per the Discharge Certificate dated 31.08.1981 (Annexure-P-2), the petitioner was declared fit for civil service. The petitioner was appointed as a Leading Hand (Non-Technical) Grade-II in General Reserve Engineer Force (in short "GREF") in Chandigarh, in the category of ex-serviceman on the basis of Discharge Certificate dated31.08.1981 (Annexure-P-2) issued to the petitioner by the Army authorities. In December, 1994, the petitioner was promoted as Supervisor (Non-Technical) Grade-II. 3. An anonymous complaint was received by respondents and on the basis of the said complaint, a charge-sheet dated 14.05.1995 was issued against the petitioner, stating therein that the petitioner had two living wives and, therefore, he was not entitled to be appointed in the civil service. On the basis of the said complaint, the respondents sought clarification from the Army authorities. The said clarification was received by the Army authorities on 30.12.1994. On the basis of the clarification received, the petitioner was issued a charge-sheet on 14.05.1995. As per the said charge-sheet, the allegations against the petitioner were that the petitioner had been discharged from the Army being unsuitable for further service having contracted plural marriage and this fact was not disclosed by the petitioner at the time of his appointment in GREF, thus, he violated Rule 3(l)(iii) and Rule 21(i) of the Central Civil Service (Conduct) Rules, 1965. The petitioner filed a reply to the charge-sheet dated 14.05,1995. where he took a specific stand that there was no second marriage contracted by the petitioner. The petitioner filed a reply to the charge-sheet dated 14.05,1995. where he took a specific stand that there was no second marriage contracted by the petitioner. As a matter of fact, his wife Joginder Kaur wife of Balwant Singh was incapable of bearing a child and, therefore, she herself had arranged an alliance with one lady relative, so that she could bear a child for her husband. He, therefore, submitted that there was no plural marriage as was alleged against him and the charges were without any basis. His further submission was that the discharge certificate was produced by him at the time of his entry into service and, therefore, there was no question of his not disclosing or withholding any information from the respondents, which would violate and bring the misconduct atrributed to the petitioner within the. ambit of Rule 3(i)(iiii) and Rule 21(i) of the Central Civil Service (Conduct) Rules, 296 4. Not satisfied with the reply submitted by the petitioner, a regular departmental inquiry was held against him. On the basis of the proceedings, inquiry report was submitted by the Enquiry Officer. On the basis of the said inquiry report, the petitioner was issued a Memorandum dated 19.22.1995. In response to the said Memorandum, the petitioner submitted a representation, wherein he clarified his stand with regard to the allegations made against him regarding the plural marriage. In the said representation, he prayed that he be furnished with a copy of the inquiry report upon which reliance had been made by the punishing authority for issuing show cause notice. The statement of witnesses and the statement of the petitioner, as given before the Enquiry Officer, were requested to be supplied to him, vide his representation dated 11.01.1996. The petitioner was supplied a copy of the inquiry proceedings containing six pages on 15.01.1996 and a receipt in this regard was signed by him. On receipt of the said inquiry proceedings, the petitioner further submitted a representation dated 21.01.1996. Without supplying copy of the inquiry report, the punishing authority proceeded to pass the order of punishment against the petitioner, thus, violating the principles of natural justice as well as the law laid down by Honble the Supreme Court in the case of Union of India v. Mohd. Ramzan,AI.R. .1991 S.C. 471. Without supplying copy of the inquiry report, the punishing authority proceeded to pass the order of punishment against the petitioner, thus, violating the principles of natural justice as well as the law laid down by Honble the Supreme Court in the case of Union of India v. Mohd. Ramzan,AI.R. .1991 S.C. 471. He on this basis contends that the impugned Order of punishment dated 07.05.1996 (Annexure-P-5) cannot be sustained and deserves to be set aside. 5. On the other hand, counsel for respondents has pressed into service preliminary objection that this Court does not have the jurisdiction to entertain the present writ petition as the order of termination was passed at Mizoram. Her further submission is that the petitioner had not availed of alternative remedy of Appeal as provided under Rule 23 of the Central Civil Services (Classification, Control, and Appeal) Rules, 1965. Apart from this, she submitted that the petitioner was discharged from the Army on the basis of his having entered into plural marriage. The said discharge certificate was not challenged by the petitioner and was accepted by him. The said fact having not been disclosed at the time of his entry in service with GREF, the charges against the petitioner stood proved in the inquiry proceedings and, therefore, the order passed by the punishing authority relying upon the inquiry proceedings and inquiry report, cannot be said to be without any basis and no interference is called for in this regard. 6. As regards the supply of inquiry report to the petitioner by respondents, counsel for respondents refers to the representation dated 29.01.1996 submitted by the petitioner, wherein he had himself in the heading of the representation stated that he was submitting his supplementary representation on receipt of the inquiry report. On this basis, she submits that the claim of the petitioner cannot be sustained as he was duly supplied with the copy of the inquiry report and it was admitted by him in the representation and, therefore, the principles of natural justice were duly complied with. On this basis, she prays for dismissal of the present writ petition. 7. have heard counsel for the parties and have gone through the records of the case. 8. On this basis, she prays for dismissal of the present writ petition. 7. have heard counsel for the parties and have gone through the records of the case. 8. It would not be out of way to mention here that the records were called for by this Court, vide Order dated 08.03.2010 as there was a dispute between the parties with regard to the fact as to whether the copy of the inquiry report was supplied to the petitioner or not before passing of the impugned order of punishment. The facts are not in dispute as has been spelt out in the above order. A perusal of the records shows that the petitioner was issued Memorandum dated 19.12.1995 proposing the punishment of penalty of removal from service. A representation dated 11.01.1996 was made by the petitioner, wherein request was made for supply of copy of the inquiry report together with statement of witnesses and statement of the petitioner furnished before the Enquiry Officer. In response to the representation submitted by the petitioner, the respondents supplied him with one copy of the inquiry proceedings. In the receipt dated 15.01.1996, which was in response to the representation dated 11.01.1996 submitted by the peritioner, it has been specifically mentioned that the copy of the inquiry proceedings supplied to the petitioner contains six pages. The said receipt is counter signed by the Commanding Officer. The said receipt does not disclose that the copy of the inquiry report was also handed over to the petitioner. A perusal of the records as submitted by respondents in the Court shows that the inquiry proceedings contains six pages. Therefore, it can safely be concluded that what was supplied to the petitioner, was the inquiry proceedings and not the inquiry report. Mere mentioning of the petitioner in the subsequent representation dated 29.01.1996 with regard to the receipt of inquiry report does not prove that the inquiry report was received by the petitioner. It is not the stand of the respondents that after supply of the inquiry proceedings, the petitioner was supplied with the inquiry report. That being so, the order of punishment cannot be said to be in compliance with the principles of natural justice, which mandates that an employee should be given an opportunity to explain his position with regard to the inquiry and the findings recorded in the report submitted by the Enquiry Officer. That being so, the order of punishment cannot be said to be in compliance with the principles of natural justice, which mandates that an employee should be given an opportunity to explain his position with regard to the inquiry and the findings recorded in the report submitted by the Enquiry Officer. Since the inquiry report had not been supplied to the petitioner, the impugned order cannot be sustained. The judgment of Honble the Supreme Court in Mohd. Ramzan s case (supra), can be referred to here. In the light of the judgment of Honble the Supreme Court and the law laid down therein, the impugned order deserves to be quashed. 9. As regards the objection raised by counsel for respondents with regard to the territorial jurisdiction of this Court to entertain the present writ petition, suffice it to say that the initial appointment of the petitioner was in Chandigarh. He is resident of Hoshiarpur, which is within the jurisdiction of this Court. That apart, the present writ petition was filed in the year 1996 and, although, this objection was raised at the initial stage, but at the admission stage, no right to press the said objection was reserved by the respondents. That apart, it would not be just and equitable for this Court to non suit the petitioner at this stage merely on the ground of territorial jurisdiction. This very position would be covering the second objection raised by counsel for respondents that the petitioner should have availed of alternative remedy of filing an Appeal under Rule 23 of the Central Civil Service (Classification, Control, and Appeal) Rules, 1965. When the Court has come to definitive conclusion that the inquiry report had not been supplied to the petitioner, which violates the principles of natural justice, the relegation of the petitioner to avail of the remedy of filing an Appeal as per the statutory Rules at this stage after the passing of 14 years from the date, the present writ petition was preferred, would be an exercise in futility. Accordingly, the objections as raised by counsel for respondents are hereby rejected. 10. In view of the above, the present writ petition is allowed. The impugned Order dated 07.05.1996 (Annexure-P-5), passed by the respondents, is hereby quashed. Accordingly, the objections as raised by counsel for respondents are hereby rejected. 10. In view of the above, the present writ petition is allowed. The impugned Order dated 07.05.1996 (Annexure-P-5), passed by the respondents, is hereby quashed. Liberty is granted to the respondents to supply copy of the inquiry report to the petitioner and thereafter, if the petitioner prefers to file a representation, consider the same and pass appropriate orders in accordance with law. 11. Records as submitted by respondents are perused and the same returned to counsel. Petition allowed.