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2012 DIGILAW 363 (HP)

HIMACHAL ROAD TRANSPORT CORPORATION v. PRITHVI CHAND

2012-06-28

DEEPAK GUPTA, RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. 1. This Letter Patent Appeal is directed against the judgment of learned Single Judge, rendered in CWP(T) No. 3818/2008, dated 17.04.2009. 2. Material facts necessary for adjudication of this appeal are that a memorandum under Rule-14 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 was issued to the respondent on 14.08.1986. The Inquiry Officer was appointed. He submitted the report to the disciplinary authority on 22.03.1995. Thereafter, a show-cause notice was issued to the respondent on 27.11.1995 why the penalty of compulsory retirement be not imposed upon him. He filed reply to the same on 31.01.1996. The disciplinary authority passed the office order dated 12.09.1996, whereby the penalty of compulsory retirement from service was imposed upon the petitioner. He assailed this order before the learned erstwhile Himachal Pradesh Administrative Tribunal by filing O.A. No. 1557/96. The matter was transferred to this Court and it was assigned CWP(T) No. 3818/2008. Learned Single Judge allowed the petition on 17.04.2009. 3. Mr. N.K. Thakur, learned Senior Advocate has strenuously argued that the inquiry was held strictly in accordance with law and there is no infraction of principles of natural justice. 4. Ms. Ranjana Parmar, learned counsel for the respondent has supported the judgment dated 17.04.2009. 5. We have heard the learned counsel for the parties and gone through the entire records of CWP(T) No. 3818/2008 carefully. 6. We have gone through the inquiry report. According to the inquiry report, dated 22.03.1995, Charge No. 1 was not proved against the petitioner. Now as far as Charge No. II is concerned, the petitioner was charged for not verifying the bill No. 9510, dated 31.03.84, bill No.8905, dated 28.06.84, bill No. 8930, dated 18.7.84 and bill No. 10652, dated 15.2.85. However, the Inquiry Officer has not discussed these bills, but has discussed bills No. 1416 and 1333, dated 31.3.1979, which did not form integral part of the charge sheet. This position was conceded by the learned Advocate appearing on behalf of the appellant-Corporation before the learned Single Judge. The Inquiry Officer could not go beyond the charge-sheet. Bills No. 1416 and 1333, dated 31.3.1979 were rather exhibited during the course of inquiry. These were required to be mentioned in the charge-sheet and thereafter supplied to the petitioner. 7. Their Lordships of the Hon'ble Supreme Court in Union of India and others v. Mohd. The Inquiry Officer could not go beyond the charge-sheet. Bills No. 1416 and 1333, dated 31.3.1979 were rather exhibited during the course of inquiry. These were required to be mentioned in the charge-sheet and thereafter supplied to the petitioner. 7. Their Lordships of the Hon'ble Supreme Court in Union of India and others v. Mohd. Ramzan Khan, (1991) 1 SCC 588 , have held as under: "To have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure." 8. In State Bank of India and others v. D.C. Aggarwal and another, (1993) 1 SCC 13 , their Lordships of the Hon'ble Supreme Court have held as under: "The disciplinary authority, while imposing punishment, major or minor, cannot act on material which is neither supplied nor shown to the delinquent. Imposition of punishment on an employee, on material which is not only not supplied but not disclosed to him, cannot be countenanced. Procedural fairness is as much essence of right and liberty as the substantive law itself." 9. A Division Bench of Kerala High Court in State of Kerala v. Ranganathan, (1997) 2 1997 Lab IC 2629, has held that when a charge memo is filed specific allegation should be made and the delinquent officer must get reasonable opportunity to deny the allegation. The Division Bench has held as under: "6. The learned counsel for the respondent contended before us that the respondent was not given an opportunity to submit an explanation in respect of the alleged violation of the Conduct Rules stated in Ext. P7. In Ext. P7, it is found that the respondent had sold a car to one M.C. Ahammedkutty, who was a resident of Malappuram District on October 21, 1989 when the respondent was working as the Deputy Superintendent of Police, Malappuram. In Ext. P4, charge memo there is no such allegation. Clause No. 2 of the statement of allegations is to the effect that the respondent purchased a car in the name of his mother-in-law and in the vigilance enquiry it was revealed that the mother-in-law had paid 22,000/- and another son-in-law gave 8,000/- to the respondent for the purchase of the car and the respondent had made arrangements for selling the car and the respondent was holding the car as under the benami name of his mother-in-law. The fact that the respondent sold the vehicle to M.C. Ahmmedkutty and thereby violated R. 24 of the Kerala Government Servants/ Conduct Rules is not specifically stated in the memo of charges. This contention of the respondent is correct. When a charge memo is filed, specific allegations should be made and the delinquent Officer must get reasonable opportunity to deny the allegations. Here the charge related to some other facts and the final order imposing the penalty described another incident. Therefore, it is clear that the respondent had no opportunity to defend his case by submitting a proper explanation. In that view of the matter the proceedings initiated against the respondent is bad in law. Therefore, we sustain the impugned judgment and hold that the appeal filed by the State is liable to be dismissed. Accordingly, this writ appeal is dismissed." 10. Their Lordships of the Hon'ble Supreme Court in State of Uttar Pradesh and others v. Saroj Kumar Sinha, (2010) 2 SCC 772 have held that the Inquiry Officer acts as a quasi judicial authority and his position is of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. He must be wholly unbiased. His function is to examine evidence presented by Department, even in absence of delinquent official to see as to whether un-rebutted evidence is sufficient to hold that charges are proved. Their Lordships have held as under: "27. A bare perusal of the aforesaid sub-Rule shows that when the respondent had failed to submit the explanation to the charge sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the Government servant despite notice of the date fixed failed to appear that the enquiry officer can proceed with the inquiry ex-parte. Even in such circumstances it is incumbent on the enquiry officer to record the statement of witnesses mentioned in the charge sheet. Since the Government servant is absent, he would clearly lose the benefit of cross examination of the witnesses. But nonetheless in order to establish the charges the department is required to produce the necessary evidence before the enquiry officer. This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge. 28. But nonetheless in order to establish the charges the department is required to produce the necessary evidence before the enquiry officer. This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge. 28. Enquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the un-rebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents. 30. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a Government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service." 11. Their Lordships of the Hon'ble Supreme Court in Mohd. Yunus Khan v. State of Uttar Pradesh and others, (2010) 10 SCC 539 , have held that disciplinary proceedings and imposing a punishment is in the nature of quasi-judicial proceedings. Their Lordships have further held that inquiry must be conducted fairly and reasonably. It cannot be ipse dixit of enquiry officer. 12. Their Lordships of the Hon'ble Supreme Court in Union of India and others v. S.K. Kapoor, (2011) 4 SCC 589 , have held that if any material is to be relied upon in departmental proceedings then its copy must be supplied in advance to charge-sheeted employee so that he may have chance to rebut that material. Their Lordships have held as under: "5. Their Lordships have held as under: "5. It is a settled principle of natural justice that if any material is to be relied upon in departmental proceedings, a copy of the same must be supplied in advance to the charge sheeted employee so that he may have a chance to rebut the same. 8. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in the case of S.N. Narula v. Union of India & Others, Civil Appeal No. 642 of 2004 decided on 30th January, 2004." 13. In the instant case, the Inquiry Officer has not given any findings on four bills as per Charge No. II. He has only returned findings with regard to bills No. 1416 and 1333, dated 31.3.1979. In view of this, it cannot be held that Charge No. II stood proved against the petitioner and thereafter the consequential issuance of show-cause notice, dated 27.11.1995 and order dated 12.09.1996 are null and void. 14. The scope of judicial interference in the departmental proceedings is very limited, however, if the inquiry report is perverse, the Court can interfere. Hence, the judgment of learned Single Judge being well reasoned, warrants no interference. 15. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Letter Patent Appeal and the same is dismissed, so also the pending application(s), if any.