Uttarakhand High Court
Kushal Singh Adhikari vs Chairman Nainital Lake Region Special ... on 12 July, 2017
Author: Manoj K. Tiwari
Bench: Manoj K. Tiwari
IN THE HIGH COURT OF UTTARAKHAND
(Under Article 226 of the Constitution of India)
Writ Petition (S/S) No. 413 of 2015
Kushal Singh Adhikari ....... Petitioner
Versus
Chairman, Nainital Lake Regional Special Area
Development Authority, Nainital
...Respondents
Mr. B.D. Upadhyaya, Senior Advocate assisted by Mr. Gaurav Kandpal, Advocate
for the petitioner.
Mr. Sandeep Kothari, Advocate for the respondent.
Hon'ble Manoj K. Tiwari, J.
By means of this petition, petitioner seeks following reliefs:
"(i) Issue a writ, order or direction in the nature of certiorari to call for the record of the case and quash the order dated 27.1.2015 passed by the respondent, contained in annexure 1 to the writ petition."
Heard learned counsel for the parties.
2. Petitioner is a Class IV employee in Nainital Lake Region Special Area Development Authority (hereinafter referred as Authority), who is challenging the order dated 27.01.2015 passed by Chairman of the Authority, whereby punishment of reduction in pay scale to the minimum of grade pay scale has been imposed upon him.
3. According to learned senior counsel for the petitioner, petitioner was placed under suspension vide order dated 21.06.2014 passed by Chairman of the Authority, on the ground that disciplinary proceeding, in respect of the certain allegations, is contemplated 2 against him. One report dated 20.06.2014 submitted by the Secretary of the Authority was relied upon for placing the petitioner under suspension and it was stated that petitioner has been found prima facie guilty for the charge of not giving information regarding illegal construction in Sector-3, to the concerned Junior Engineer. An inquiry Officer was also appointed by the said order with a direction to him to complete the inquiry within 15 days. The evidence which was to be relied upon in support of the charges was also enumerated in the suspension order.
4. On 21.06.2014 itself chargesheet was issued to the petitioner, in which as many as 6 charges were levelled against the petitioner, which are as follows:
(i) Report dated 20.06.2014 submitted by the Secretary, Nainital Lake Region, Special Area Development Authority.
(ii) Construction raised by Shri Mumtaz Ahmad in Charton Lodge.
(iii) Construction raised by Shri Raiesh Ahmad in Marshall Cottage.
(iv) Construction raised by Shri Ghanshyam Sah in Charton Lodge.
(v) Construction raised by Shri Prem Bahuguna in Marshal Cottage.
(vi) Construction raised by Shri Shahibuddin in Charton Lodge.
5. A comparison of suspension order and chargesheet would reveal that aforesaid charges have been referred as evidence in support of charges, in the suspension order. Even otherwise also, it is not indicated in the aforesaid charges as to how petitioner is responsible for these constructions. The report submitted by the Secretary of the Authority also cannot be treated as a charge against the petitioner. Thus, it is the contention of learned counsel for the petitioner that 3 the charges are absolutely vague, therefore there has been violation of principles of natural justice.
6. In his report, the Secretary of the Authority has stated that on 09.06.2014, while visiting Sector no.
3, he found five illegal constructions. It is further stated in the report that petitioner is attached with the In- charge Junior Engineer of Sector No.3. Thereafter, a show cause notice was given to the petitioner on 10.06.2014, mentioning therein that he has not given information regarding illegal constructions to the concerned Junior Engineer and petitioner was called upon to submit his reply to the said show cause notice within three days. The Secretary of the Authority further stated in his report that illegal construction is still going on, therefore he concluded that petitioner is negligent towards his duties, thus by the said report, the Secretary had recommended for placing the petitioner under suspension.
7. Petitioner submitted reply to the chargesheet on 08.07.2014, wherein he pleaded not guilty. The defence taken by the petitioner was that he had given timely information to the concerned Junior Engineer regarding illegal constructions, and he relied upon the Register maintained by the Authority, which is duly countersigned by the Junior Engineer. He further stated that he has no right to stop illegal constructions and this power is available only to the Junior Engineer. Petitioner also enclosed Photocopy of the Dak Register (annexure no. 8 to the writ petition) maintained in the Authority to prove that he had given timely information regarding illegal construction to the Junior Engineer.
48. The Inquiry Officer has held petitioner guilty in respect of charge nos. 3, 4 & 5. Regarding charge no. 1, no finding was recorded on the ground that illegal construction at five different places highlighted in the report of the Secretary are being dealt with separately. Charge nos. 2 & 6 were found to be not proved. Based on the findings recorded by the Inquiry Officer, Chairman of the Authority has passed punishment order dated 27.02.2015, which is on record as annexure no.1 to the writ petition.
9. Learned senior counsel submits that inquiry report reveals that the Inquiry Officer perused record of certain cases pending before the Authority, while dealing with charge no. 3, 4 & 5. Inquiry Officer has stated that she perused record of certain case. This according to learned senior counsel is clearly impermissible as Inquiry Officer is required to consider only the reply submitted by the chargsheeted employee and evidence relied upon in the chargesheet.
10. Thus it is the submission of learned senior counsel for the petitioner that the Inquiry Officer committed illegality by considering extraneous material, which was neither referred in the chargesheet nor made available to the petitioner. It is further contention of learned counsel for the petitioner that petitioner was not given personal hearing by the Inquiry Officer, which according to him is necessary. He further points out that the documentary evidence i.e. Photocopy of the Dak Register enclosed by the petitioner with his reply was considered by the Inquiry Officer only in respect of charge no.2, therefore finding of 'not guilty' was returned by the Inquiry Officer in respect of charge 5 no.2. According to him, photocopy of Dak Register was relied upon by the petitioner in reply to other charges also, however, Inquiry Officer has completely overlooked this material piece of evidence. Thus, it is the contention of learned senior counsel that findings recorded by the Inquiry Officer in respect of charge no. 3, 4 & 5 are perverse.
11. Learned senior counsel refers to the inquiry report and submits that while dealing with charge no.2, inquiry Officer has also stated that she has perused record of Case No. 30/96, similarly while dealing with charge no.3, 4 & 5, the Inquiry Officer has stated that she has perused record of case no. 92 of 2013, 15 of 2014 and 14 of 2014. This, according to learned Senior Counsel is contrary to law as any material which is not shown to the petitioner, could not have been taken into account by the Inquiry Officer.
12. Learned senior counsel for the petitioner further submits that the charges against the petitioner are vague and there is no evidence to connect the petitioner with the alleged misconduct. According to him, the disciplinary inquiry is vitiated in view of the law laid down by Hon'ble Supreme Court in the case of Sabai Singh Vs. State of Rajasthan (1986) 3 SCC 454. Learned senior counsel also refers to Rule 7(iii) of the Uttarakhand Government Servant (Discipline and Appeal) Rules, 2003 in support of his contention that charges framed must be specific, precise and clear. Rules 7(iii) of the aforesaid Rules is extracted below:
"(iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government Servant of the facts and circumstances against him. The proposed documentary evidences and the name of the witnesses proposed to prove the same alongwith oral evidences, if any, shall be mentioned in the charge sheet."6
13. It is further the contention of learned senior counsel that disciplinary inquiry is vitiated for yet another reason. Inquiry Officer was appointed by the order of suspension issued on 21.06.2014. This, according to learned senior counsel, is contrary to law as Inquiry Officer can be appointed only when the disciplinary authority after considering the reply to charge sheet forms an opinion that full fledged enquiry is needed.
14. Learned counsel for the respondent, on the other hand submits that petitioner has submitted detailed and specific reply to all the charges, therefore he cannot take up the plea that the charges mentioned in the chargesheet are vague. He further submits that no prejudice was caused to the petitioner on account of vagueness of charges. In reply, learned senior counsel submits that similar argument raised on behalf of the employer was repelled by Hon'ble Supreme Court in Sewai Singh vs. State of Rajasthan (Supra). Paragraph no. 15 of the said judgment is extracted below:
"Shri B.D. Sharma, learned Advocate for the respondent, contended that no allegations had been made before the enquiry officer or before the High Court, that the charges were vague. In fact the appellant had participated in the enquiry. That does not by itself exonerate the department to bring home the charges."
15. After considering the rival submissions of parties, this Court is of the view that Inquiry Officer was required to consider the defence taken by the petitioner in his reply to the charges and also the documentary evidence, if any, enclosed by the petitioner in his reply. As stated earlier, petitioner had enclosed Photocopy of the Dak Register in support of 7 his contention that he had given timely information about illegal constructions to the concerned Junior Engineer but the Inquiry Officer has overlooked this material piece of evidence. Moreover, the Inquiry Officer has considered extraneous material in the enquiry report, which was neither referred in the charge sheet nor supplied to the petitioner. In such view of the matter, punishment imposed upon petitioner, on the basis of said inquiry report, cannot be sustained.
16. Accordingly, the writ petition is allowed. Impugned punishment order dated 27.01.2015 is quashed. However, the Competent Authority shall be at liberty to hold de-novo inquiry in respect of the petitioner.
17. Pending application, if any, stands disposed of.
18. No order as to costs.
(Manoj K. Tiwari, J.) 12.07.2017 Mamta