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2022 DIGILAW 1390 (JHR)

Anwar Hussain v. State of Jharkhand

2022-12-12

ANANDA SEN

body2022
JUDGMENT : This writ application can be disposed of at this stage itself on a very short point. 2. The petitioner has been dismissed from service on completion of a departmental proceeding. Petitioner, in this writ application, has prayed for quashing of his dismissal order and for his reinstatement. 3. Learned counsel appearing on behalf of the petitioner submits that though the Enquiry Officer held that the charges were proved, but not a single witness has been examined to prove the aforesaid charges. He submits that the charges, which have been levelled against the petitioner, need to be proved by evidence. When no evidence has been adduced by the respondents, this entire proceeding fails. 4. Mr. Mrinal Kanti Roy, learned counsel appearing on behalf of the respondents submits that the petitioner has committed misconduct for which he has been punished, but after going through the entire records he submits that no witness has been examined in this case to prove the charges and only on the basis of some documents and the opinion of the Deputy Commissioner, the petitioner has been punished. 5. An opinion or an internal inquiry cannot be the basis to punish a delinquent employee. When the departmental inquiry has been initiated and an Enquiry Officer has been appointed, the charges are to be proved before the Enquiry Officer by the employer on the basis of some evidence. In absence of any evidence, it cannot be said that the charges stand proved. Even the documents, which the employer rely upon, need to be placed before the Enquiry Officer by way of evidence. In the instant case, admittedly, no evidence has been led. 6. A departmental Enquiry Officer is an independent adjudicator. He is a quasi-judicial authority. The said Officer is not supposed to be a representative of the department or the Disciplinary Authority. His function is to examine the evidence presented by the Department. Even in the absence of the delinquent employee, the enquiry officer has to perform, his duty to find out independently as to whether charges are proved or not. If the case of the department is based on some documents, those documents also needs to be proved. Some witnesses must be produced by the department and must be examined to prove the documents relied by the department. If the case of the department is based on some documents, those documents also needs to be proved. Some witnesses must be produced by the department and must be examined to prove the documents relied by the department. A document which is not proved by oral evidence could not have been taken into consideration to arrive at a conclusion that the charge is proved. The Hon'ble Supreme Court in the case of “Roop Singh Negi-versus-Punjab National Bank and others, reported in (2009) 2 SCC 570 ” in para 14, has held as under:- “14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The enquiry officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.” 7. Further in the case of “State of Uttar Pradesh and others –versus-Saroj Kumar Sinha, reported in (2010) 2 SCC 772 ”, the Hon'ble Supreme Court has held that the documents which were produced before the Enquiry Officer needs to be proved. Paragraph 28 of the aforesaid judgment reads as under:- “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.” 8. 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.” 8. In both the judgments, the Hon'ble Supreme Court has held that non-examination of witnesses, where some documents are to be proved, will result in violation of the principle of natural justice, which will mean that no reasonable opportunity has been given to the delinquent to defend his/her case. Thus the entire proceeding and the enquiry stand vitiated. 9. Considering the aforesaid judgments, as the case in hand is squarely covered by the law laid down, as admittedly none proved the documents. I am inclined to allow this petition. Accordingly, this writ application is allowed. Consequently, the entire enquiry report as well as the order of punishment contained in Memo No. 10530/Ranchi, dated 11.10.2017 (Annexure-6) is hereby quashed. The respondents are directed to extend all the consequential benefits to the petitioner immediately. The respondents, if so wishes, may proceed afresh. 10. This writ application stands allowed. 11. In view of the final disposal of the writ application, I.A. No. 657 of 2020, filed for early hearing, also stands disposed of.