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2020 DIGILAW 785 (HP)

Devinder Singh v. State of Himachal Pradesh

2020-10-30

AJAY MOHAN GOEL

body2020
JUDGMENT Ajay Mohan Goel, J. - By way of this petition, petitioner has inter alia prayed for the following reliefs:- "(i) Writ in the nature of certiorari may kindly be issued to the respondents to quash order dated 07.01.2020 i.e. Annexure P-6 whereby the respondent No.1 proposed to initiate de-novo enquiry against the petitioner. (ii) Writ in the nature of mandamus may kindly be issued to conclude the enquiry proceedings as per the enquiry report submitted to the respondent No.1 i.e. Annexure P7". 2. Brief facts necessary for the adjudication of the present petition are as under:- Petitioner is serving in the Forest Department of the respondents/State. Vide Annexure P-1, i.e. Memoradum dated 21.08.2014, the petitioner was informed that the department intended to hold an inquiry against him as well as one Shri Gopal Chand, under Rule-14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and the petitioner was called upon to submit his response to the Article of Charges appended with the Memorandum. Vide Annexure P-2, the petitioner submitted his response to the same. As the Disciplinary Authority was not satisfied with the response so filed by the petitioner, accordingly, an Inquiry Officer was appointed to hold inquiry on the Charges which stood framed against the petitioner. Shri Hardev Singh Negi was appointed as an Inquiry Officer. Probably, feeling aggrieved by the slow speed with which the inquiry proceedings were being dealt with, the petitioner approached this Court by way of CWP No.1990 of 2019, titled as Devinder Singh Versus State of Himachal Pradesh & others, which stood disposed of by this Court vide judgment dated 23.08.2019 in the following terms:- "3. It appears that a Charge Memo was issued under Rule 14 of the CCS (CCA) Rules, 1965, against the petitioner on 21.08.2014. The Inquiry Officer was appointed only in December, 2017. According to the petitioner, the inquiry is now completed but no final orders passed. 4. There is no justification for not concluding the proceedings and passing the final order, despite a lapse of five years. Even the appointment of Inquiry Officer has taken more than three years. Therefore, the writ petition is disposed of directing the respondents to conclude inquiry and pass a final order within two months from the date of receipt of a copy of this order". 3. Even the appointment of Inquiry Officer has taken more than three years. Therefore, the writ petition is disposed of directing the respondents to conclude inquiry and pass a final order within two months from the date of receipt of a copy of this order". 3. After the conclusion of the inquiry, the Inquiry Officer submitted his report and the conclusion reached was that Article of Charge No.1 pertaining to dereliction of mandatory Government duties, i.e. failure to detect large scale of illicit feeling of trees in Patarana Beat thereby causing loss to the tune of Rs.59,43,125/- to the State exchequer as also Article of Charge No.2 that there was connivance of the delinquent officials with the offenders, were not proved and benefit of doubt existed in favour of the charged officials. 4. Upon receipt of the Inquiry Report, the Disciplinary Authority, vide order dated 07.01.2020, feeling dissatisfied with the Inquiry Report, observed on the basis of reasoning assigned therein that the Government was not accepting the Inquiry Report as submitted by the Inquiry Officer and a de-novo inquiry was being proposed to be conducted in the case. Vide same order, the Disciplinary Authority appointed Shri Arvind Kumar, IFS, DFO Rampur as Inquiring Authority to inquire into the charges framed against the petitioner as well as Shri Gopal Chand and vide another order of the even date, Shri Layak Ram Negi, Superintendent Grade-I, Office of CF Rampur was appointed as Presiding Officer to assist the Inquiry Officer. It is in this background that the writ petition has been filed by the petitioner, praying for the reliefs already enumerated hereinabove. 5. Learned Counsel for the petitioner has primarily argued that order dated 07.01.2020 passed by the Disciplinary Authority, vide which the Inquiry Report submitted by the Inquiry Officer has not been accepted and a de-novo inquiry has been ordered by appointing a fresh Inquiry Officer, is not sustainable in the eyes of law as once the Inquiry Officer has submitted his report, then the Disciplinary Authority has to proceed in the matter in terms of the provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, which do not confer any power upon the Disciplinary Authority to order holding of a de-novo inquiry. 6. 6. Learned Counsel for the petitioner has relied upon the following judgment in support of his contention:- " K.R. Dev Versus The Collector of Central Excise, Shillong, (1971) 2 SCC 102 ". 7. On the other hand, supporting the act of the Disciplinary Authority, learned Additional Advocate General has argued that there is no infirmity in the act of the Disciplinary Authority of ordering a de-novo inquiry, as the documents appended with the petition were self-speaking as to why de-novo inquiry was necessary in the case, wherein on account of illicit feeling of trees in Patarana Beat, loss to the tune of Rs.59,43,125/- stood caused to the Government Exchequer. Learned Additional Advocate General has argued that the substantial issues involved in the inquiry with regard to two Jeepable roads, which stood constructed through forest land, was conveniently overlooked by the Inquiry Officer as well as the witnesses which created room for further inquiry and further there was no bar to order such inquiry by the Disciplinary Authority by a different Officer as the same was permissible in terms of the provisions of Rule-15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. 8. I have heard learned counsel for the parties and have gone through the pleadings as well as documents appended therewith. 9. In the present case, this Court is deliberately not making any comments on the merits of the case,i.e. the allegations which have been made against the petitioner in the Article of Charges, for the reason that the moot issue which this Court has to decide is as to whether the act of the Disciplinary Authority of ordering a de-novo inquiry through a new Inquiry Officer is sustainable in the eyes of law or not and this Court is going to answer this limited question only in this writ petition. 10. Rule-14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 deals with the procedure for imposing major penalties. Rule-15 thereof deals with action on the Inquiry Report. This Rule provides that the Disciplinary Authority, if it is not itself the Inquiry Authority, may for reasons to be recorded by it in writing, remit the case to the Inquiry Authority for further inquiry and report and the Inquiry Authority shall thereupon proceed to hold further inquiry in terms of the provisions of Rules 14 as far as may be. 11. 11. Therefore, in the light of the provisions of Rule 15 (1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, it cannot be disputed that in a case where the Disciplinary Authority is itself not the Inquiry Authority, then upon receipt of the Inquiry Report, for the reasons to be recorded by it in writing, it can remit the case back to the Inquiry Authority for further inquiry. 12. Before proceeding further, I will refer to the judgments which have been relied upon by the parties concerned. I will first refer to the judgment relied upon by learned Counsel for the petitioner. 13. Hon'Ble Supreme Court in K.R. Dev Versus The Collector of Central Excise, Shillong, (1971) 2 SCC 102 (Five Judges) has been pleased to hold in para-12 thereof that Rule-15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 on the face of it really provides for one inquiry, but it may be possible, if in a particular case there has been no proper inquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of inquiry or were examined for some other reasons, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. However, there is no provision in Rule 15 for completely setting aside the previous inquiries on the ground that the report of the Inquiry Officer or Officers does not appeals to the Disciplinary Authority. Hon'ble Supreme Court has been further pleased to hold that the Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule-9. 14. Now, I will refer to the judgment relied upon by learned Additional Advocate General. In Union of India and Others Versus P. Thayagarajan, (1999) 1 SCC 733 , Hon'ble Supreme Court of India has been pleased to hold as under:- "5. Shri K.T.S. Tulsi, learned Senior Counsel appearing for the respondent, relied upon the decision of this Court in K.R. Deb v. Collector of Centrai Excise, Shillong, (1971) 2 SCC 102 , wherein, while interpreting Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957, it was held that the Disciplinary Authority has no power to set aside an earlier enquiry and order a fresh enquiry. He submitted that this decision makes it clear that it is not open to the Disciplinary Authority to order to conduct a fresh enquiry in this matter. Therefore, he urged that the view taken by the High Court is justified. 6. In order to satisfy ourselves of the correctness of the contentions raised on behalf of the parties, we called for the original record of the enquiry and of the Disciplinary Authority and on going through the same, we find that letters addressed to the Enauiry Officer have been treated as statements made before him of U.N.Chaini (PW2) and letter sent by K.M.Verghese, who was to be examined as a defence witness. 7. What is contemplated in Rule 27(c) (2) is that evidence material to the charge could be either oral or documentary and if oral, (i) it shall be direct; (ii) it shall be recorded by the officer conducting the enquiry himself or by any officer; and (iii) the accused shall be allowed to cross examine the witness. When reliance is sought to be placed on oral evidence of witnesses it will have to be obtained in the manner indicated in the said Rule and that the oral statement has to be recorded by the officer himself conducting the enquiry in the presence of the parties and it cannot be done in any other manner. The procedure in taking letters as statements is in violation of Rule 27(c) (2). Therefore the contention put forth on behalf of the appellant and the reasons set forth in the course of the order setting aside the enquiry is justified. What Shri Tulsi urged with reference to the decision in K.R.Deb [supra] is that there is no power in the Disciplinary Authority to set aside an earlier enquiry and to order a fresh enquiry. We may, in particular, refer to para 12 of the said decision which is as follows : "12. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason the Disciplinary. Authority may ask the inquiry Officer to record further evidence. Authority may ask the inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9". 8. A careful reading of this passage will make it clear that this Court notices that if in a particular case where there has been no proper enquiry because of some serious defect having crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined, the Disciplinary Authority may ask the Inquiry Officer to record further evidence but that provision would not enable the Disciplinary Authority to set aside the previous enquiries on the ground that the report of the Enquiry Officer does not appeal to the Disciplinary Authority. In the present case the basis upon which the Disciplinary Authority set aside the enquiry is that the procedure adopted by the Enquiry Officer was contrary to the relevant rules and affects the rights of the parties and not that the report does not appeal to him. When important evidence, either to be relied upon by the Department or by the delinquent official, is shut out, this would not result in any advancement of any justice but on the other hand result in a miscarriage thereof. Therefore we are of the view that Rule 27(c) enables the Disciplinary Authority to record his findings on the report and to pass an appropriate order including ordering a de novo enquiry in a case of present nature. 9. The reasoning adopted by the Division Bench of the High Court was plainly incorrect. Whatever may be the powers of the appellate authority, the Disciplinary Authority will have to be satisfied with the procedure adopted by the Enquiry Officer before passing an order. It does not stand the logic that in a given case the appellate authority could order a fresh enquiry and not the Disciplinary Authority at whose instance the enquiry began and which is not satisfied with the enquiry held for some vital defects in the procedure adopted. Therefore the order made by the High Court cannot be sustained. It does not stand the logic that in a given case the appellate authority could order a fresh enquiry and not the Disciplinary Authority at whose instance the enquiry began and which is not satisfied with the enquiry held for some vital defects in the procedure adopted. Therefore the order made by the High Court cannot be sustained. The same stands set aside and we allow the appeal and dismiss the writ petition filed by the respondent". 15. Coming to the facts of this case, a perusal of the order passed by the Disciplinary Authority, vide which denovo inquiry has been ordered, demonstrates that what weighed with the Disciplinary Authority while passing said order inter alia were the facts that the factum of two Jeepable roads having been constructed through the forest land which was apparent from the office record at Government level, had not been addressed by the Inquiry Officer in the Inquiry Report and though the Presenting Officer in his brief had held that delinquent officials were responsible for causing huge loss due to illicit felling of trees, but the Inquiry Officer could not prove the involvement of the delinquent officials. What further weighed with the Disciplinary Authority was the fact that the role of witnesses was suspicious as out of four witnesses, three had stated that the trees were very old whereas the fourth witness had stated that the trees were felled within a year. It was further observed by the Disciplinary Authority that Shri Heera Lal, witness who had stated that list of illicitly felled of trees was prepared on the spot which was duly signed by him and delinquent officials proved that they were guilty. This weighed with the Disciplinary Authority while observing that the Government had not accepted the Inquiry Report as submitted by the Inquiry Officer and a de-novo inquiry was proposed. 16. In my considered view, the order passed by the Disciplinary Authority of not accepting the Inquiry Report on account of the reasons mentioned in order dated 07.01.2020 and further ordering a de-novo inquiry by appointing a fresh Inquiry Officer is not sustainable in the eyes of law in view of the judgment of Hon'ble Supreme Court in K.R. Dev's case (supra). In the aforesaid judgment, Hon'ble Supreme Court has very clearly and categorically laid down the law that there is no provision in Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 for completely setting aside previous inquiry on the ground that the report of the Inquiry Officer/Officers does not appeals to the Disciplinary Authority. Of course, in this very judgment, Hon'ble Supreme Court has further held that Rule-15 indeed provides that if in a particular case there has been no proper inquiry because some serious defect has crept therein or some important witnesses were not available at the time of inquiry or were not examined etc., then the Disciplinary Authority may ask the Inquiry Officer to record further evidence. To this extent, in my considered view the right of the Disciplinary Authority cannot be curtailed by the Court. The judgment of Hon'ble Supreme Court in Union of India and Others Versus P. Thayagarajan, (1999) 1 SCC 733 , relied upon by learned Additional Advocate General is of no assistance to the State in the peculiar facts of this case because said judgment was based on interpretation of provisions of Rule-27 (c) (6) of the Central Reserve Police Force Rules, 1955 and therein was a case where the Disciplinary Authority had set aside the inquiry on the ground that procedure adopted by the Inquiry Officer was contrary to the relevant Rules which affected the rights of the parties and not on the ground that the report did not appeal to him. 17. Accordingly, in view of the discussions held hereinabove and in view of the law laid down by Hon'ble Supreme Court in K.R. Dev's case (supra), this writ petition is partly allowed by setting aside order dated 07.01.2020, passed by the Disciplinary Authority, vide which the Inquiry Report submitted by the Inquiry Officer is stated to be not accepted by the Government and a de-novo inquiry has been ordered, with the direction that the Disciplinary Authority shall be at liberty to proceed with the matter in terms of the provisions of Rule-15 (1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and can remit the matter back to the Inquiry Authority for further Inquiry and report. In the event of the Officer who earlier conducted the inquiry not being available, the Disciplinary Authority will be at liberty to appoint a fresh Inquiry Officer. In the event of the Officer who earlier conducted the inquiry not being available, the Disciplinary Authority will be at liberty to appoint a fresh Inquiry Officer. With these observations, present writ petition stands disposed of. No order as to costs. Pending miscellaneous applications, if any, also stand disposed of. Interim order, if any, stands vacated.