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Himachal Pradesh High Court · body

2012 DIGILAW 7 (HP)

Chet Ram v. State Of Himachal Pradesh

2012-01-02

RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. 1. Petitioner was appointed as P.E.T. on 1.10.1971. A charge-sheet was served upon the petitioner on 23.8.1984, vide Annexure A-1. The charge-sheet was issued to the petitioner on the basis of complaint received from one Sh. Adarsh Kumar in the year 1983 to the extent that that the petitioner while seeking appointment as P.E.T. in Education Department has shown his date of birth as 15.8.1946, but on the verification from the concerned school record, it transpired that the date of birth of the petitioner was 5.2.1943. Inquiry was held. The petitioner was dismissed on 8.4.1986, vide Annexure A-2. Petitioner preferred an appeal against the order of dismissal dated 8.4.1986. The same was rejected by the appellate authority on 2.7.1986. Petitioner preferred O.A. No. 29 of 1986 in the erstwhile Himachal Pradesh Administrative Tribunal. It was allowed by the Tribunal on 12.1.1996. Respondent-State went in appeal against the judgment dated 12.1.1996. The Hon'ble Supreme Court has upheld the order of the Tribunal, however, the Supreme Court permitted the State to proceed against the petitioner from the stage of inquiry and conclude the same in accordance with law. Thereafter, one Sh. V.K. Mehrotra was appointed as Inquiry Officer. He submitted the report on 9.8.1997. According to the inquiry report, the date of birth of the petitioner was 4.2.1943 and it was changed to 15.8.1946. Petitioner was served with office memorandum dated 12.12.1997. According to the memorandum, the Disciplinary Authority has provisionally come to conclusion that the penalty of dismissal from Government service be imposed upon the petitioner. The copy of the inquiry report was annexed with the memorandum. He was granted 15 days time to make a representation against the penalty proposed. Petitioner made a detailed representation on 25.12.1997. The Disciplinary Authority dismissed the petitioner on 7.10.1999. The appeal preferred by the petitioner was also dismissed by the Appellate Authority on 27.4.2000. Vide Annexure A-11 dated 23.8.1999, the petitioner was ordered to be deemed under suspension with effect from 8.4.1986 to 18.3.1996. 2. Ms. Ranjana Parmar has vehemently argued that the petitioner has not been served with a copy of the inquiry report by the Disciplinary Authority. According to her, the copy of the inquiry report was supplied to the petitioner after the Disciplinary Authority had made up its mind to impose major penalty upon the petitioner. 2. Ms. Ranjana Parmar has vehemently argued that the petitioner has not been served with a copy of the inquiry report by the Disciplinary Authority. According to her, the copy of the inquiry report was supplied to the petitioner after the Disciplinary Authority had made up its mind to impose major penalty upon the petitioner. She also argued that the inquiry is based on conjectures and surmises. She also argued that the order passed by the Disciplinary Authority dated 7.10.1999 is neither speaking nor detailed. She also argued that the Appellate Authority has not taken into consideration the averments contained in the appeal filed by the petitioner against the order of dismissal dated 7.10.1999. She finally contended that the F.I.R. was also registered against the petitioner bearing No. 6/1986 for offences punishable under sections 465, 468, 471, 420 and 120-B of the Indian Penal Code. The petitioner was acquitted by the trial court on 21.11.1992. State preferred a revision petition against the judgment dated 21.11.1992. The same was dismissed by the learned Additional Sessions Judge, Shimla on 17.9.1996. State preferred a revision petition in this Court bearing No. Cr. M.P.(M) No. 881/1998. The same was dismissed by this Court on 13.11.1998. 3. Mr. Vikas Rathore, learned Deputy Advocate General has argued that the inquiry has been instituted and held against the petitioner strictly in accordance with law. He then argued that non-supply of the inquiry report has not caused any prejudice to the petitioner. He further argued that as far as criminal case is concerned, the charge has to be proved beyond reasonable doubt and so far as the disciplinary proceedings are concerned, the same can be proved within the ambit of preponderance of probabilities. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. Petitioner joined duties on 1.10.1971. He was dismissed on 8.4.1986. The learned Tribunal allowed the original application on 12.1.1996. The Hon'ble Supreme Court has upheld the judgment of the Tribunal, as noticed above, on 12.7.1996. However, the respondent-State was permitted to proceed with the matter from the stage of inquiry and conclude the same in accordance with law. It will be apt at this stage to note that on the same charges, F.I.R. bearing No. 6/1986 was registered against the petitioner for offences punishable under sections 465, 468, 471, 420 and 120-B of the Indian Penal Code. It will be apt at this stage to note that on the same charges, F.I.R. bearing No. 6/1986 was registered against the petitioner for offences punishable under sections 465, 468, 471, 420 and 120-B of the Indian Penal Code. The petitioner was charged and tried with for offence that the petitioner was born on 5.2.1943, however, he shown his date of birth as 15.8.1946 at the time of seeking appointment. The petitioner has been exonerated by the learned Judicial Magistrate, 1st Class on 21.11.1992. The learned Additional Sessions Judge has also dismissed the Criminal Revision preferred against the judgment dated 21.11.1992 on 17.9.1996. It is evident from the judgment of the learned Additional Sessions Judge that the petitioner's elder brother, as per Pariwar Register, was also born on 1943. The father of the petitioner has also sworn an affidavit that due to inadvertence in the school register, the date of birth has been recorded as 5.2.1943 instead of 15.8.1946. According to Karam Singh, father of the petitioner, second son was born on 5.2.1943. In the Employment Exchange, the date of birth of the petitioner has been recorded as 15.8.1946. According to learned Additional Sessions Judge, in the Gram Panchayat record, the date of birth of the petitioner has been indicated as 15.8.1946. Sh. Karam Singh was the head of family. The extract of Pariwar Register was issued on 20.7.1970. This Court has dismissed the revision petition preferred by the State against the well reasoned judgment of the Additional Sessions Judge dated 17.9.1996. 6. As far as the charges levelled against the petitioner vide Annexure A-1 are concerned, the same are also based on the fact that the petitioner has shown his date of birth as 15.8.1946 instead of 5.2.1943. The petitioner was exonerated on 21.11.1992. The learned Tribunal had also allowed the O.A. No. 29/1986 preferred by the petitioner on 12.1.1996. The respondent-State despite the order of acquittal of the petitioner, which has been upheld by this Court, has decided to proceed against the petitioner by appointing Sh. V.K. Mehrotra as Inquiry Officer. The only stand taken by the respondent-State is that the Hon'ble Supreme Court has permitted to proceed with the inquiry afresh as per judgment dated 12.7.1996. It is not borne out from the record that the Hon'ble Supreme Court was apprised about the acquittal of the petitioner on 21.11.1992. V.K. Mehrotra as Inquiry Officer. The only stand taken by the respondent-State is that the Hon'ble Supreme Court has permitted to proceed with the inquiry afresh as per judgment dated 12.7.1996. It is not borne out from the record that the Hon'ble Supreme Court was apprised about the acquittal of the petitioner on 21.11.1992. It is settled law by now that in case the charges in criminal and the disciplinary proceedings are the same and incumbent has been acquitted, the disciplinary proceedings may not be permitted to continue. 7. Their Lordships of the Hon'ble Supreme Court in Narinder Mohan Arya Vs. United India Insurance Co. Ltd. and Others, AIR 2006 SC 1748 have held that while exercising the writ jurisdiction, High Court ought to have examined as to whether the evidence adduced before the enquiry officer had nexus with the charge and could or could not lead to the guilt of the employee. Their Lordships have further held that the departmental proceedings are quasi criminal. Their Lordships have further held that despite limited jurisdiction a civil court, it is entitled to interfere in a case where the report of enquiry officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it, it should keep in mind the following: (1) The enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice. (3) Exercise of discretionary power involve two elements (i) Objective and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. (4) It is not possible to lay down any rigid rules of the principles of natural justice which depends on the facts and circumstances of each case but the concept of fair play in action is the basis. (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject matter of the charges is wholly illegal. (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject matter of the charges is wholly illegal. (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. 8. Their Lordships of the Hon'ble Supreme Court in G.M. Tank Vs. State of Gujarat and Another, AIR 2006 SC 2129 have held that when the departmental inquiry and the criminal proceedings are based on same set of facts and the employee has been honorably acquitted in criminal trial, finding to contrary recorded in departmental proceedings were held unjust, unfair and oppressive. Their Lordships have held as under: 30. The judgments relied on by the learned counsel appearing for the respondents are not distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer, Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand. 9. Their Lordships of the Hon'ble Supreme Court in State of U.P. and Others Vs. Saroj Kumar Sinha, AIR 2010 SC 3131 have laid down that the Inquiry 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. He must be wholly unbiased. He should not act as a prosecutor as well as a Judge. He should 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. An 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. This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge. 28. An 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. 10. Their Lordships of the Hon'ble Supreme Court in Mohd. Yunus Khan Vs. State of U.P. and Others, (2010) 10 JT 341 have held that the departmental proceedings are quasi judicial proceedings though technical rules of procedure contained in CPC and Evidence Act, 1872 do not apply, however, principles of natural justice are required to be observed strictly. Their Lordships have held as under: 16. We have to proceed, keeping in mind the trite law that holding disciplinary proceedings against a government employee and imposing a punishment on his being found guilty of misconduct under the statutory rules is in the nature of quasi-judicial proceedings. Though, the technical rules of procedure contained in the Code of Civil Procedure, 1908 and the provisions of the Indian Evidence Act, 1872 do not apply in a domestic enquiry, however, the principles of natural justice require to be observed strictly. Therefore, the enquiry is to be conducted fairly and reasonably and the enquiry report must contain reasons for reaching the conclusion that the charge framed against the delinquent stood proved against him. It cannot be an ipse dixit of the inquiry officer. Punishment for misconduct can be imposed in consonance with the statutory rules and principles of natural justice. (See Bachhittar Singh Vs. The State of Punjab, AIR 1963 SC 395 ; Union of India (UOI) Vs. H.C. Goel, AIR 1964 SC 364 Anil Kumar Vs. Presiding Officer and Others, AIR 1985 SC 1121 Moni Shankar Vs. Union of India (UOI) and Another, (2008) 2 CLT 105; and Union of India (UOI) and Others Vs. Prakash Kumar Tandon, AIR 2009 SC 1375 11. The State of Punjab, AIR 1963 SC 395 ; Union of India (UOI) Vs. H.C. Goel, AIR 1964 SC 364 Anil Kumar Vs. Presiding Officer and Others, AIR 1985 SC 1121 Moni Shankar Vs. Union of India (UOI) and Another, (2008) 2 CLT 105; and Union of India (UOI) and Others Vs. Prakash Kumar Tandon, AIR 2009 SC 1375 11. Now, the Court will advert to the manner in which the inquiry has been held against the petitioner. A bare perusal of inquiry report dated 9.8.1997 shows non-application of mind. The findings recorded are based on conjectures and surmises. The Inquiry Officer instead of discussing the entire oral as well as documentary evidence has attached the statements of PWs with the inquire report. He was required to discuss the entire evidence by adverting to the statements of PWS and the DWs produced by the parties. During the course of inquiry, the department has produced two PWs, namely, Manoj Kumar and G.C. Dogra. Petitioner has relied upon two DWs, namely, Tara Dutt, who was Ex-Secretary of Gram Panchayat, Nandpur, Tehsil Jubbal, District Shimla. He has deposed that he has issued a certificate dated 17.10.1983 Ex.DW-1/B to the petitioner and second certificate on 20.7.1970 Ex.DW-1/A. In these two documents, date of birth has been shown as 15.8.1946. Petitioner has also shown Janam Kundli whereby his date of birth has been shown as 15.8.1946. DW-2 Sarita, Dealing Assistant, Office of the District Education Officer, Shimla has testified that the date of birth of the petitioner was recorded as 15.8.1946 in the service book, which was duly signed by the petitioner and attested by the Block Education Officer, Jubbal. The petitioner has also examined himself. The statement of DW-1 has been brushed aside only on the ground by the Appellate Authority that he has not produced any document that he was Ex-Secretary, Gram Panchayat, Nandpur, Tehsil Jubbal, District Shimla. The disciplinary proceedings are quasi judicial in nature and are required to be proved strictly in accordance with law. The principles of Evidence Act stricto sensu are not applicable, but the charges levelled against the delinquent are to be proved strictly as per law. 12. The Inquiry Officer has submitted the report to the Disciplinary Authority. The Disciplinary Authority was required to supply the copy of the inquiry report to the petitioner as per settled law. The principles of Evidence Act stricto sensu are not applicable, but the charges levelled against the delinquent are to be proved strictly as per law. 12. The Inquiry Officer has submitted the report to the Disciplinary Authority. The Disciplinary Authority was required to supply the copy of the inquiry report to the petitioner as per settled law. However, the Disciplinary Authority, without supplying the copy of the inquiry report to the petitioner, has provisionally come to conclusion that the penalty of dismissal be imposed upon the delinquent. This was not permissible under law. It is settled law that the Disciplinary Authority has to supply the copy of inquiry report and thereafter after receiving the representation against the inquiry report; he can make up his mind as far as penalty is to be imposed upon the delinquent is concerned. The purpose of supplying the copy of inquiry report is to enable the delinquent to point out shortcomings and infraction of law while conducting inquiry. The petitioner has definitely been prejudiced by non-supply of the inquiry report by the Disciplinary Authority. The Disciplinary Authority in the present case, as noticed above, has provisionally come to the conclusion that the penalty of dismissal was to be imposed for which purpose, he was permitted to make representation on 12.12.1997. The petitioner has made a representation on 25.12.1997. The Disciplinary Authority, without taking into consideration the pleas, has dismissed the same on 7.9.1999. The Disciplinary Authority is required to pass a speaking and detailed order after taking into consideration the pleas/grounds taken by the delinquent. In the instant case, the order is very laconic and cryptic. The Appellate Authority has also not taken into consideration all the pleas raised by the petitioner in his appeal while rejecting the same on 27.9.2004. 13. It is settled law by now on the basis of definitive law laid down by their Lordships of the Hon'ble Supreme Court in Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., AIR 1994 SC 1074 that the copy of inquiry report has to be supplied to an employee before the disciplinary authority makes up his mind to impose penalty. The purpose of supplying the copy of inquiry report is to enable an individual to represent against the shortcomings, deficiencies and violation of mandatory rules during the course of departmental inquiry. Their Lordships have held as under:- 26. The purpose of supplying the copy of inquiry report is to enable an individual to represent against the shortcomings, deficiencies and violation of mandatory rules during the course of departmental inquiry. Their Lordships have held as under:- 26. The reason why the right to receive the report of the Inquiry Officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the Inquiry Officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is the negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the Inquiry Officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the Inquiry Officer along with the evidence on record. In the circumstances, the findings of the Inquiry Officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. If the Inquiry Officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the Inquiry Officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary, authority while arriving at its conclusion. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary, authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the Inquiry Officer's findings. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it. 29. Hence it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has right to receive a copy of the inquiry Officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the Inquiry Officer's report before the disciplinary authority takes its decision on the charges is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice. 14. It is settled law by now as per the law laid down by their Lordships of the Hon'ble Supreme Court in G. Vallikumari Vs. Andhra Education Society and Others, AIR 2010 SC 1105 that the disciplinary authority must record reasons while passing the order. 15. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Annexures A-11 dated 7.10.1999 and A-13 are quashed and set aside. The petitioner shall be entitled to all the consequential benefits, which shall be worked out and paid to him within a period of six weeks after the production of certified copy of this judgment by the petitioner. No costs.