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Himachal Pradesh High Court · body

2012 DIGILAW 159 (HP)

Ravi Kant v. State Of Himachal Pradesh

2012-04-03

DEV DARSHAN SUD

body2012
JUDGMENT : Dev Darshan Sud, J. - The petitioner is aggrieved by the order dated 25th November, 2009 (Annexure:P2) passed by the Director, Animal Husbandry, Himachal Pradesh terminating the services of the petitioner herein on the allegations that he was guilty of the charges levelled against hi m. The operative part of the order reads: "In this connection, you are informed that on the basis of the relevant records as well as detailed inquiry reports received in this office, you have been found guilty of the charges imposed upon you. As such, your services on contract basis, under Animal Husbandry Department, in terms of condition No.10 of your offer of appointment letter, are hereby terminated with immediate effect." 2. Show cause notice (Annexure: P8) was issued by the Director, Animal Husbandry to the petitioner herein which reads: " ........you are informed that Mandladhayaksh, Bhajpa 29-Nadaunta, District Hamirpur, Himachal Pradesh has informed that you have openly canvassed in favour of Congress Party at the time of bye election to Parliamentary Seat during the year 2008, in proof of which your photographs with motor vehicles of Congress Party are showing. Accordingly, the allegation that you have canvassed in bye election, prima facie seems proved....." 3. It is also undisputed before me that show cause notice Annexure:P9 was issued which was followed by another notice Annexure:P10 calling upon the petitioner to explain his stand. Thereafter notice Annexure:P11 was issued giving him a chance of furnishing an explanation. Ultimately, vide Annexure:P12, it was stated that two inquires one by Deputy Director Animal Health and Breeding, Hamirpur and one by the Assistant Election Officer (SDM), Badsar, prima facie established his involvement in the entire episode. At this juncture, I also notice that vide Anneuxre:P5, the Deputy Director, Department of Animal Husbandry, Hamirpur, was appointed as the Inquiry Officer. The petitioner was asked to fill in a questionnaire (Annexure:P6). These questions would be relevant for the decision of the present petition. The first question is as to at what time the petitioner went to cast his vote. The answer and response is 9.30 A.M. The second question relates to the time spent by the petitioner for participating in the electoral process of voting. The response is that due to the rush at the booth, it took about one hour. The third question is as to who were the persons sitting in the polling booth. The answer and response is 9.30 A.M. The second question relates to the time spent by the petitioner for participating in the electoral process of voting. The response is that due to the rush at the booth, it took about one hour. The third question is as to who were the persons sitting in the polling booth. The petitioner re plies that one Vijay Kumar and Sh. Gian Chand. The fourth question is whose help he took to search his name in the polling list. The response is 'None'. The fifth question relates to the fact as to whether he is present in the photographs which were shown to him. The response is in the positive; saying that he has been shown sitting in the photographs and at that time he was trying to search for his voting slip. He then denies his participation in the polling process as an agent of any of the candidates. This is the only opportunity which he has got. This is followed by a very short statement (Annexure:P7 ) in which he denies each and every allegations levelled against him. This is the entire inquiry which has been conducted against the petitioner. 4. It is his case that no report(s) of inquiry has been furnished to him. He is not aware about the evidence which has been used against him establishing his active participation in the election as an agent of any candidate. The petitioner submits that the action of his dismissal from service is in gross violation of the Principles of Natural Justice inasmuch as (a) he was never supplied any material which forms the basis of the inquiry (b) he does not know who are the witnesses/persons who stated anything against him (c) he was never allowed to cross ex amine these witnesses (d) the purported reports of the Deputy Director Animal Health and Breeding, Hamirpur and Assistant Election Officer (SDM), Badsar were not made available to him so that he could rebut whatever has been stated against him. His participation has been restricted only to answering five questions and the entire proceedings have been conducted behind his back. 5. This is a blatant violation of the Principles of Natural Justice. The respondent s should and ought to have made the records/materials available to the petitioner, on the basis of which inquiry was initiated against him and punishment imposed. 6. 5. This is a blatant violation of the Principles of Natural Justice. The respondent s should and ought to have made the records/materials available to the petitioner, on the basis of which inquiry was initiated against him and punishment imposed. 6. In reply to the writ petition, respondents No. 1 to 3 plead that the petitioner has not appended any material or documents with the petition to prove that he was not involved in canvassing and favouring the Congress party during the Lok Sabha bye-election, 2008. (whatever that means). They rely upon the communication sent by the Chief Electoral Officer, Hamirpur to the Director Animal Husbandry stating that a complaint was received from Sh. Subhash Banyal, Divisional President, BJP against the petitioner. This complaint was sent to the Returning Officer (D.C.), Hamirpur for inquiry. The inquiry was conducted by the Assistant Returning Officer (SDM), Badsar, the petitioner was found involved in electioneering, therefore, he asked that disciplinary proceedings be initiated against the petitioner. Annexure:R2 is the communication sent by the S.D.O. (Civil)-cum-Assistant Returning Officer, Badsar to the Returning Officer (D.C.), Hamirpur. According to this communication, the petitioner was, in fact, involved in the electioneering process. The S.D.O (Civil) sets number of grounds which according to him indicate the petitioner's active participation in the electoral process. Respondent No.7 has no t filed any reply to the writ petition. No reply on behalf of respondents No. 5 and 6 has been filed. 7. What the respondents do not realise is that the petitioner has been charged with serious offences involving electoral malpractice. This purported finding would affect not only the petitioner but also the entire election process. 8. Be that as it may, some basic compliance of the Principles of Natural Justice was required which would mean that the petitioner should at least have been made aware about the materials on the basis of which the respondents wanted to proceed against the petitioner and to have given to him an effective opportunity to rebut the allegations made against him as also to defend himself against the serious charges levelled against him. In these circumstances, the entire process is vitiated as contravening Article 14 of the Constitution of India. 9. A submission has been made on behalf of the respondents that violation of the Principles of Natural Justice per se does not entitle the petitioner to any relief. In these circumstances, the entire process is vitiated as contravening Article 14 of the Constitution of India. 9. A submission has been made on behalf of the respondents that violation of the Principles of Natural Justice per se does not entitle the petitioner to any relief. Reliance in this behalf is placed on the decision of the Supreme Court in State Bank of India v. S.P. Sharma, (1996) 3 SCC 364 to urge that there is no substantive failure of Natural Justice. Learned Additional Advocate General submits that there is no inflexible rules which provides that the order passed in violation of the Principles of Natural Justice, the entire action requires to be set aside. The court holds: "33 We may summarise the principles emerging from the above discussion. [These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee]: (1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. (2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. (3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer /employee in defending himself properly and effectively. If it is found that he ha s been so prejudiced, appropriate orders have to be made to repair and remedy the prejudicate, including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted there from, it is obvious, no interference is called for. If it is found that he ha s been so prejudiced, appropriate orders have to be made to repair and remedy the prejudicate, including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted there from, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/Government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) here in below is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle. (4)(a) In the case of a procedural provision which is not of a mandatory character the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. (b) In the case of violation of a procedural provisional which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirements either expressly or by his conduct. If he is found to have waived it then the order of punishment cannot be set aside on the ground of said violation. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirements either expressly or by his conduct. If he is found to have waived it then the order of punishment cannot be set aside on the ground of said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could no be waived by him, then the Court or Tribunal should make appropriate directions [include the setting aside of the order of punishment ], keeping in mind the approach adopted by the Constitution Bench in B.Karunkar. The ultimate test is always the same viz., test of prejudice or the test of fair hearing, as it may be called. (5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice -or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action the Court or the Tribunal should make a distinction between a total violation of natural justice [rule of audi alteram partem] and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid [one may call it "void" or a nullity if one chooses to]. In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule [audi alteram partem]. (b) But in the latter case, the effect of violation [of a facet of the rule of [audi alteram partem] has to be examined from the standpoint of prejudice; in other word in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle [No.5] does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.] (6) While applying the rule of audi alteram partem [the primary principle of natural justice] the Court/Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them. (7) There may be situations where the interests of state or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision". (Pp.389,390 and 391) 10. Applying this ratio to the facts of the present case, what I find is that of the Principles of Natural Justice have not been complied with. The ultimate result is the dismissal of the petitioner from service. In these circumstances, it cannot be said that no injustice has been caused to the petitioner on account of failure on the part of the respondents to comply with the basic minimum requirements of Principles of Natural Justice. Two inquires relied upon have been conducted behind the back of the petitioner and no opportunity was given to him to rebut the veracity of these reports. The only opportunity which the petitioner was given was to f ill in a short five question questionnaire to provide brief answers to the questions and one short statement made on his behalf that he was not guilty of electoral malpractice. This participation can hardly be described as meeting the requirements of the Principles of Natural Justice. 11. In these circumstance s, Anneuxre:P2 is quashed and set aside. It will be open to the respondents to conduct an inquiry in accordance with la w if so permitted and then to proceed against the petitioner. The writ petition is disposed of. All miscellaneous applications are also disposed of.