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Himachal Pradesh High Court · body

2022 DIGILAW 345 (HP)

Nazra Khan, W/o. Sh. Intizar Ali v. State of Himachal Pradesh, Through Its Secretary (Forest) Shimla

2022-06-27

SABINA, SATYEN VAIDYA

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ORDER : By way of instant petition, petitioner has prayed for the following substantive reliefs:- (i) “That the impugned order dated 27-11-2021, Annexure P-3, passed by the respondent No.3, whereby penal action has been taken against the petitioner may kindly be quashed and set aside. (ii) That the impugned remarks under the column of ‘pending disciplinary authority’ whereby mentioned that “…Bar on promotion” in the list of Forest Guards to be considered for promotion (Annexure P-4) may kindly be set aside.” 2. The facts necessary for adjudication of this petition are as under:- (a) Petitioner is working as Forest Guard. A departmental inquiry was initiated against the petitioner in pursuance to order dated 17.06.2020 (Annexure P-1) issued by the CCF, Forest Circle, Nahan. Petitioner was served with memorandum (Annexure P-2), wherein following article of charges were framed against him:- “Charge No.1 Negligence/dereliction in performance of Government duty (illicit felling). Charge No.2 Pecuniary loss to the loss exchequer amounting to Rs.65,131/- Charge No.3 Misuse of official position and misrepresentation of facts in the official record (malfeasance in Timber removed for cremation purpose).” (b) Respondent No.5 was appointed as Inquiry Officer. The inquiry Officer submitted his report dated 25.10.2021. 3. The grievance of the petitioner is that she was directly served with an order dated 27.11.2021 issued by the Conservator of Forest, Nahan Circle, Nahan, whereby a penalty has been imposed upon the petitioner by withholding two annual grade increments with cumulative effect under Rule 11(iv) of CCS(CCA) Conduct Rules with a bar on promotion during this period. As per petitioner, before imposition of penalty, she was not heard and even inquiry report was not supplied to her. 4. In reply, the factual position has not been denied by the official respondents. It has not been specifically or impliedly denied that before issuance of penalty order Annexure P-3, petitioner was not heard and was not even supplied a copy of inquiry report. 5. We have heard learned counsel for the parties and have gone through the record carefully. 6. In reply, the factual position has not been denied by the official respondents. It has not been specifically or impliedly denied that before issuance of penalty order Annexure P-3, petitioner was not heard and was not even supplied a copy of inquiry report. 5. We have heard learned counsel for the parties and have gone through the record carefully. 6. Rule 15(2) of CCS(CCA) Rules reads as under:- “The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary Authority or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the Inquiring Authority together with its own tentative reasons for disagreement, if any, with the findings of Inquiring Authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the report is favourable or not to the Government Servant.” 7. Non supply of inquiry report to the petitioner (delinquent) clearly amounts to violation of principles of natural justice. Petitioner was entitled to a copy of inquiry report and to represent against it before the final decision could be taken by the disciplinary authority. Undisputedly, in the instant case, the Inquiry Officer and the disciplinary authority was not the same. 8. In Union of India and others vs. Mohd. Ramzan Khan, 1991 (1) SCC 588 , the Hon’ble Apex Court has held as under:- “We make it clear that whenever there has been an Inquiry Officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter.” 9. Similarly, in Managing Director, ECIL, Hyderabad and others vs. B. Karunakar and others, 1993 (4) SCC 727 , the Hon’ble Apex Court has held as under:- “29. Similarly, in Managing Director, ECIL, Hyderabad and others vs. B. Karunakar and others, 1993 (4) SCC 727 , the Hon’ble Apex Court has held as under:- “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.” 10. Thus, on exposition of aforesaid legal position, there remains no doubt that an indefeasible right of the petitioner to have report of Inquiry Officer so as to enable her to represent against such report, has been violated. Therefore, the order dated 27.11.2021 (Annexure P-3) passed by Conservator of Forests, Nahan Circle, Nahan cannot be sustained and the same is quashed with a direction to respondent No.3 to supply a copy of inquiry report to the petitioner and to afford a reasonable opportunity to her to represent and decide the matter thereafter in accordance with law. 11. The writ petition is disposed of in the aforesaid terms. Pending applications, if any, shall also stand disposed of.