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Himachal Pradesh High Court · body

2012 DIGILAW 1059 (HP)

Parmod Singh v. State of Himachal Pradesh

2012-12-31

RAJIV SHARMA

body2012
JUDGMENT Rajiv Sharma, Judge, (Oral): Petitioner was appointed as Salesman in the respondent-Society on 15.1.2002. He was served with a charge-sheet on 16.5.2008, to which he filed reply on 4.6.2008. The Inspector, Cooperative Societies was appointed as Inquiry Officer. Petitioner was called upon to attend the proceedings on 27.7.2008. Inquiry Officer completed the proceedings on 27.7.2008 itself. Petitioner was served with a notice vide Annexure P-11 after the submission of the inquiry report to the respondent-society. Petitioner filed detailed reply to the same vide Annexure P-5. Petitioner was also put under suspension. Petitioner’s services were terminated on 19.9.2008. He filed detailed representation before respondent No.2. Respondent No.2 dismissed the same on 21.5.2011. The review petition filed by the petitioner was also dismissed on 13.3.2012. 2. Mr. Sanjeev Bhushan has vehemently argued that no proper inquiry, as visualized under the Himachal Pradesh Primary Agriculture, Cooperative Societies Employees (Terms of Employment and Working Conditions) Rules, 2001 (hereinafter referred to as the ‘rules’ for brevity sake) has been held. He also contended that the petitioner has not been given an opportunity to defend himself during the disciplinary proceedings. He also contended that Inquiry Officer has completed the inquiry on 27.7.2008 itself. He further contended that the reply filed by the petitioner to Annexure P-11 has not been taken into consideration. He lastly contended that neither the termination order dated 19.9.2008 nor the appellate order dated 21.5.2011 is reasoned/speaking. 3. Mr. J.S. Guleria, learned Assistant Advocate General and Mr. Surinder Saklani have argued that the inquiry has been conducted strictly in accordance with law. 4. Petitioner has been served with a charge-sheet on 16.5.2008. He filed the reply, as noticed above, on 4.6.2008. Inquiry Officer was appointed. Petitioner was called upon to appear before the Inquiry Officer on 27.7.2008. Surprisingly, Inquiry Officer has completed the proceedings on 27.7.2008. According to rule 19 of the rules, the employee can be awarded, after holding detailed enquiry, punishment, if found guilty of misconduct, including warning, stoppage of increment, withholding annual increment with/without cumulative effect, termination with the prior approval of the Assistant Registrar Cooperative Societies and dismissal also with the prior approval of the Assistant Registrar Cooperative Societies. The committee of the society is the disciplinary authority to award punishment. The committee of the society is the disciplinary authority to award punishment. According to rule 20, the employee is required to be served with a charge sheet clearly stating therein the misconduct and the circumstances appearing against him and call for his explanation within a period of at least 15 days. In case of denial of charges, the Inspector Cooperative Societies is required to conduct the inquiry into the charges levelled against the employee. The employee is required to be allowed to defend himself. He is required to be permitted to produce witness in his defence and cross-examine any witness on whose evidence the charge rests. The substance of the evidence is required to be recorded and read over to the employee. Thereafter, the Inspector is required to complete the enquiry and submit his report within two months to the committee. The report is required to include the statement of witnesses for and against the employee and the findings of the Inquiry Officer is required to be based on such evidence on each charge. The Assistant Registrar Cooperative Societies, after the receipt of the inquiry report is required to examine the findings and pass necessary orders. 5. In the instant case, petitioner has not been afforded an opportunity to defend himself as visualized under rule 20. Once the petitioner had not admitted the charges, regular inquiry ought to have been conducted against the petitioner by permitting him to defend himself and to cross-examine the witnesses produced by the department and also to produce his own witnesses. In this case, petitioner has also apprised respondent No.3 that he has not even been supplied with the documents. Respondent No.3 has directed the Inquiry Officer on 11.8.2008 to supply the documents to the petitioner. Petitioner’s reply to the notice after the submission of the inquiry report by the Inquiry Officer should have been taken into consideration by the Disciplinary Authority, i.e. society. What has been stated in order dated 19.9.2008 is that the reply furnished by the petitioner was not found satisfactory. How it was not found satisfactory has not been explained. Merely stating that the reply was not found satisfactory will not meet the requirement of law. The grounds taken in the reply were required to be discussed in the office order dated 19.9.2008. Order dated 19.9.2008 is laconic and non-speaking. How it was not found satisfactory has not been explained. Merely stating that the reply was not found satisfactory will not meet the requirement of law. The grounds taken in the reply were required to be discussed in the office order dated 19.9.2008. Order dated 19.9.2008 is laconic and non-speaking. The order passed by the Disciplinary Authority should be speaking and reasoned. 6. Similarly, the appeal of the petitioner has been rejected without assigning any reason and without taking into consideration the grounds taken by him in his appeal. The appellate authority was required to take into consideration all the grounds taken in the appeal and only after discussing the same, order should have been passed by the appellate authority. In the instant case, it was necessary upon the appellate authority to see whether the inquiry has been held against the petitioner as per rules. The main defect in the disciplinary proceedings is not curable at the appellate stage. If there is violation at the initial stage, it could not be pleaded by the department that the same could be cured at the appellate level. According to rule 20, termination of the petitioner could only with the prior approval of the Assistant Registrar Cooperative Societies. Respondent-society has not placed on record any tangible material that the approval of the Assistant Registrar Cooperative Societies was sought before the termination of the petitioner. 7. Accordingly in view of the observations and discussions made hereinabove, the writ petition is allowed. Annexures P-6, P-7 and P-8 dated 19.9.2008, 21.5.2011 and 13.3.2012, respectively are quashed and set aside. Respondent-society is directed to reinstate the petitioner forthwith with all the consequential benefits. However, it shall be open to the respondent-society to proceed with the matter in accordance with law. Pending application(s), if any, also stands disposed of. No costs.