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Uttarakhand High Court · body

2017 DIGILAW 256 (UTT)

ASHOK KUMAR GAUTAM v. STATE OF UTTARAKHAND

2017-04-24

RAJIV SHARMA

body2017
JUDGMENT Hon’ble Rajiv Sharma , J. Petitioner was appointed as an Assistant Teacher on 30.7.1991 by the respondent-management school. Disciplinary proceedings were initiated against the petitioner. A Three-Member Committee submitted its report to the Management. Charges, levelled against the petitioner, were proved as per the enquiry report submitted on 29.1.2014. However, surprisingly, the Enquiry Officers have also recommended to impose severe punishment on the petitioner. Thereafter, the Management, in the meeting held on 30.1.2014, accepted the report and decided to impose the penalty of removal upon the petitioner. The communication was sent to the competent authority for its approval. The approval was granted by the Chief Education officer vide order dated 29.4.2015 (Annexure CA12). Ultimately, the services of the petitioner were terminated vide the impugned order dated 2.5.2015. 2. Petitioner has not been supplied the copy of enquiry report dated 29.1.2014 by the disciplinary authority. It was necessary for the disciplinary authority to supply the copy of enquiry report to the petitioner enabling him to make a representation against the enquiry report by pointing out the shortcomings or irregularities in the same. 3. Their Lordships of Hon. Apex Court in the case of 1993 SCC (L&S) 1184 in the case of ‘M.D. ECIL, Hyderabad & others c. B. Karunakar & others’ have held that 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 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 conclusion. Their Lordships, in paragraph nos.26 and 28, 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 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 conclusion. 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. 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. 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 conclusions. 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 conclusion, 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. 28. The position in law can also be looked at from a slightly different angle. The disciplinary authority is then required to consider the evidence, the report of the Inquiry Officer and the representation of the employee against it. 28. The position in law can also be looked at from a slightly different angle. Article 311(2) says that the employee shall be given a “reasonable opportunity of being heard in respect of the charges against him”. The findings on the charges given by a third person like the Inquiry Officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputation. The proviso to Article 311 (2) in effect in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the Inquiry Officer being only his delegate appointed to hold the inquiry and to assist him), the employee’s reply to the Inquiry Officer’s report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. 29. Hence, when the Inquiry Officer is not the disciplinary authority, the delinquent employee has a 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. 61. The proceedings must be just, fair and reasonable and negation thereof offend Articles 14 & 21. It is well settled law that principle of natural justice are integral part of Article 14. No decision prejudicial to a party should be taken without affording an opportunity or supplying the material, which is the basis for the decision. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a postmortem certificate with purifying odour. The enquiry report constitutes fresh material which has great persuasive force or effect on the mind of the disciplinary authority. The supply of the report along with the final order is like a postmortem certificate with purifying odour. The failure to supply copy thereof to the delinquent would be unfair procedure offending not only Articles 14, 21 and 311(2) of the constitution, but also, the principles of natural justice. The contention on behalf of the Govt./management that the report is not evidence adduced during such enquiry envisaged under proviso to Article 311(2) is also devoid of substance. It is settled law that Evidence Act has no application to the enquiry conducted during the disciplinary proceedings. The evidence adduced is not in strict conformity with Indian Evidence Act, though the essential principle of fair play envisaged in the Evidence Act are applicable. What was meant by evidence in the proviso to Article 311(2) is the totality of the material collected during the enquiry including the report or the enquiry officer forming part of the material. Therefore, when reliance is sought to be placed, by the disciplinary authority on the report of the enquiry officer for proof of the charge or for imposition of the penalty, then it is incumbent that the copy thereof should be supplied before reaching any conclusion either on proof of the charge or the nature of the penalty to be imposed on the proved charged or on both.” 4. Moreover, the enquiry officer could not suggest/recommend the severe penalty to be imposed upon the petitioner. The role of the enquiry officer was only to hold the enquiry and it was for the disciplinary authority to impose the punishment. The enquiry must be held in an unbiased manner. 5. Their Lordships in (2008) 2 SCC (L&S) 698, in the case of State of Uttaranchal and others Vs. Kharak Singh, their Lordships of the Hon’ble Supreme Court have held that enquiry officer can offer his views but cannot make strong recommendation for imposition of a particular punishment. “18. Another infirmity in the report of the enquiry officer is that he concluded the enquiry holding that all the charges have been proved and he recommended for dismissal of the delinquent from service. “18. Another infirmity in the report of the enquiry officer is that he concluded the enquiry holding that all the charges have been proved and he recommended for dismissal of the delinquent from service. The last paragraph of his report dated 16-11-1985 reads as under: “During the course of above inquiry, such facts have come into light from which it is proved that the employee who has doubtful character and does not obey the order, does not have the right to continue in the government service and it is recommended to dismiss him from the service with immediate effect.” (emphasis supplied) Though there is no specific bar in offering views by the enquiry officer, in the case on hand, the enquiry officer exceeded his limit by saying that the officer has no right to continue in the government service and he has to be dismissed from service with immediate effect. 19. As pointed out above, awarding appropriate punishment is the exclusive jurisdiction of the punishing/disciplinary authority and it depends upon the nature and gravity of the proved charge/charges and other attended circumstances. It is clear from the materials, the officer, who inspected and noted the shortfall of trees, himself conducted the enquiry, arrived at a conclusion holding the charges proved and also strongly recommended severe punishment of dismissal from service. The entire action and the course adopted by the enquiry officer cannot be accepted and is contrary to the well-known principles enunciated by this Court.” 6. In (2010) 2 SCC 772 in the case of State of Uttar Pradesh and others Vs. Saroj Kumar Sinha, their Lordships of the Hon’ble Supreme Court have held that the Inquiry Officer should be wholly unbiased. The Enquiry officer should not act as a prosecutor as well as a judge. “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 inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry 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 inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge. 28. An 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. 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 unrebutted 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 departmental 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 inquiry 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.” 7. Accordingly, the writ petition is allowed. Impugned termination order of the petitioner passed on 2.5.2015 (Annexure No.7) is quashed and set aside. However, it shall be open to the respondents to proceed with the matter, in accordance with law, from the stage of furnishing the enquiry report submitted by the Enquiry Officers of the management. 8. All pending applications stand disposed of.