Punjab-Haryana High Court
Rajwant Kaur vs State Of Punjab And Others on 22 July, 2013
Author: Augustine George Masih
Bench: Augustine George Masih
CIVIL WRIT PETITION NO.3728 OF 2012 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: JULY 22nd, 2013
Rajwant Kaur
.....Petitioner
VERSUS
State of Punjab and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
Present: Mr. G. K. Chatrath, Sr.Advocate with
Ms. Anu Chatrath Kapur, Advocate,
for the petitioner.
Mr. Inder Pal Goyat, Addl.A.G., Punjab,
for the State.
*****
AUGUSTINE GEORGE MASIH, J.
Petitioner has approached this Court praying for quashing of the order dated 8.2.2012 (Annexure P-17), dismissing her from service on the ground that she managed scheduled caste certificates to get appointment under the said category.
Petitioner asserts that she belongs to `darain' caste, which has been declared as scheduled caste by the President of India vide Constitution (Scheduled Castes) Order, 1950. This caste stands mentioned at Sr.No.12 of the said schedule. Petitioner applied for scheduled caste certificate and the same was issued to her by the Sub Divisional Officer (C), Amritsar, vide No.1710, dated 23.6.1992, Khurmi Rakesh 2013.07.23 10:18 I attest to the accuracy and integrity of this document High Court Chandigarh CIVIL WRIT PETITION NO.3728 OF 2012 :{ 2 }:
Annexure P-3, where the caste of the petitioner is mentioned as `darain', a caste which has been also recognized as a scheduled caste by the Government of Punjab.
Petitioner again applied for a caste certificate to the Tehsil Welfare Officer, Amritsar, which was issued to her vide No.9704, dated 14.6.1993, Annexure P-3/1. The said certificate was duly counter signed by the Deputy Commissioner, Amritsar. Petitioner took the benefit of being a scheduled caste category candidate while seeking admission in the College at the graduation and post graduation level. She passed her M.Sc. Agriculture examination.
The Punjab Public Service Commission issued advertisement No.131/97, inviting applications for 21 posts of Horticulture Development Officer in the Department of Horticulture, Punjab. Out of these posts, seven posts were reserved for the scheduled caste category candidates. The petitioner, in pursuance to the said advertisement, applied vide application dated 29.6.1998 under the scheduled caste category. Her name was recommended by the Punjab Public Service Commission, which was accepted by the Government and the petitioner was appointed as Horticulture Development Officer vide letter dated 30.9.1999, Annexure P-6, as a scheduled caste category candidate against one of the posts earmarked for said category. The petitioner submitted her joining report on 8.10.1999, Annexure P-7. Since then, she had been serving the Department regularly.
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While she was working at Amritsar, some anonymous complaints were received, wherein allegation was made that her caste certificates were not genuine. A preliminary enquiry, thus, was got conducted by the Department from the Deputy Director, Horticulture, Amritsar, who in his report dated 28.3.2005, reported that there was no such illegality and the scheduled caste certificates of the petitioner were genuine. On the basis of the said report, the complaints were filed.
Another anonymous complaint was received, on the basis of which another preliminary enquiry was held by the respondent- Department, which was entrusted to the District Welfare Officer, Gurdaspur. In this enquiry, the petitioner was not associated and during the enquiry, the Enquiry Officer collected and relied upon the entries in the admission register, vide which the petitioner was admitted to the Primary Class in the school at Village Janeta, wherein it was mentioned that father of the petitioner was a labourer and belonged to `Kohar' caste, which is a backward class and on that basis, it was concluded that the scheduled caste certificates issued to the petitioner were not genuine.
On the basis of this preliminary enquiry report, which was submitted to the higher authorities, a charge sheet dated 11.8.2010, Annexure P-11, was issued by the the Financial Commissioner, Development and Principal Secretary to Government of Punjab, Department of Agriculture-respondent No.1. Petitioner filed reply to Khurmi Rakesh 2013.07.23 10:18 I attest to the accuracy and integrity of this document High Court Chandigarh CIVIL WRIT PETITION NO.3728 OF 2012 :{ 4 }:
the said charge sheet and denied the allegation levelled against her. The Punishing Authority did not find the reply of the petitioner to be satisfactory and decided to hold a regular departmental enquiry against her. Accordingly, Shri M.M.Oberoi, retired IAS Officer, was appointed as Enquiry Officer, who, after conducting enquiry, submitted his report dated 2.5.2011, Annexure P-13.
On the basis of enquiry report, a show cause notice dated 26.5.2011, Annexure P-14, was issued to the petitioner. Alongwith the said show cause notice, copy of the enquiry report was attached.
Petitioner filed reply dated 20.6.2011, Annexure P-15, to the show cause notice. Respondent No.1 granted personal hearing to the petitioner and thereafter issued notification dated 8.2.2012, Annexure P-17, dismissing the petitioner from service by accepting the findings as recorded by the Enquiry Officer in his enquiry report.
Petitioner, aggrieved by this order of dismissal, has approached this Court, challenging the same as not sustainable on the ground that the Enquiry Officer has proceeded to hold her guilty on the basis of mere conjectures and surmises. The officer, who had conducted the preliminary enquiry against the petitioner, has not been produced as a witness, depriving the petitioner of her right to cross-examine him, especially when the statements recorded by Sh.Manjit Singh, District Welfare Officer, Gurdaspur (the officer who had held the preliminary enquiry) have been relied upon. Till date, the scheduled caste certificates issued to the petitioner have not been Khurmi Rakesh 2013.07.23 10:18 I attest to the accuracy and integrity of this document High Court Chandigarh CIVIL WRIT PETITION NO.3728 OF 2012 :{ 5 }:
cancelled. The evidence led by the petitioner during the enquiry proceedings has not been properly appreciated by the Enquiry Officer. Instead of giving the benefit of scheduled caste certificates issued in favour of her father, Sh.Surjit Singh, and his elder brother, Sh.Harbhajan Singh, stating them to be belonging to scheduled caste category, the same has been used against the petitioner by drawing adverse inference, which is contrary to the record. It has further been stated that the findings recorded against the petitioner by the Enquiry Officer are based upon conclusions, which are based on conjectures and surmises and, thus, cannot be relied upon to terminate the services of the petitioner.
Further stand of the petitioner is that an anonymous complaint could not have been entertained by the State in the light of specific instructions issued by the respondents, when none has come forward to support the contents of the complaint, depriving the petitioner of her right to cross-examine the complainant. On this basis, prayer has been made for setting-aside the order dated 8.2.2012, Annexure P-17.
Arguments have been addressed by learned senior counsel for the petitioner on these grounds and he has also placed reliance on K.C.Arora Vs. State of Haryana and others, 1997 (1) SLR 396, Harbans Lal Gupta Vs. Shri Naranjan Singh, 1993 (3) SCT 680 and Bhagat Ram Vs. State of Himachal Pradesh and others, AIR 1983 Supreme Court 454 in support of his submissions. Khurmi Rakesh 2013.07.23 10:18 I attest to the accuracy and integrity of this document High Court Chandigarh
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Counsel for the respondents, on the other hand, submits that the petitioner had obtained fake scheduled caste certificates for her personal benefit whereas she does not belong to said caste. As per the school entry of the Primary school in the admission register, it has been recorded that father of the petitioner is a labourer and belongs to `Kohar' caste, which is a backward class. The scheduled caste certificates although have not been cancelled as yet, but that cannot be taken as a ground for stating that the enquiry held against the petitioner and the findings recorded therein would have no consequence, which would render the order of dismissal illegal. In the regular enquiry, due opportunity was given to the petitioner to defend herself and the Enquiry Officer has taken due care and caution and taken into consideration all the evidence, which has been produced by the prosecution as well as the delinquent official and thereafter the authorities have come to a conclusion that the petitioner does not belong to the scheduled caste category and, therefore, the certificates of scheduled caste category obtained and produced by her cannot be said to be genuine. Reliance upon the admission register of Class Ist of the School where the petitioner was admitted, cannot be said to be unjustified, especially when there is no tampering or overwriting in the said record. There being no violation of the statutory rules, no interference is called for by this Court in the impugned order. Prayer has, thus, been made for dismissal of the writ petition.
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I have considered the submissions made by counsel for the parties and have gone through the records.
Facts, as have been referred to above, need not be repeated herein again. The question which requires to be addressed at the very outset is whether an anonymous complaint could have been made the basis for initiating a departmental enquiry against the petitioner. The factum that there are instructions issued by the Government of Punjab that on an anonymous complaint no departmental action is to be initiated and the same has to be consigned to records, has a purpose behind it, which is based upon the basic principle of opportunity of confronting the complainant so that the source on the basis of which the said complaint has been made, can be made available to the official against whom the complaint has been submitted. The instructions although may not have a binding effect but the same have been and are required to be adhered to. This aspect has been considered by this Court in Harbans Lal Gupta's case (supra) and it has been concluded that by and large the said instructions are required to be adhered to, which has not been done in the present case.
It is the admitted case that during the preliminary enquiry, which was held against the petitioner by Sh.Manjit Singh, District Welfare Officer, Gurdaspur, on an anonymous complaint received by the Department, he had not associated the petitioner in the said enquiry. The enquiry was held at the back of the petitioner and the Khurmi Rakesh 2013.07.23 10:18 I attest to the accuracy and integrity of this document High Court Chandigarh CIVIL WRIT PETITION NO.3728 OF 2012 :{ 8 }:
said officer has not been produced as a witness during the regular enquiry held against the petitioner. Thus, the petitioner has been deprived of her valuable right of confronting the said Officer with the findings recorded by him during the preliminary enquiry in his report. This would go to the root of the issue as the basis for initiating the regular enquiry against the petitioner is the said report and the same has been produced during enquiry and made the basis for ultimately holding the petitioner guilty of the misconduct and a finding has been recorded that the scheduled caste certificates produced by the petitioner are fake and not genuine. Thus, the petitioner has been denied the basic and valuable right to cross-examine the said Officer as he has not been produced as a witness. The action of the Department by not producing the official as a witness, who had collected the document and recorded the statements of witnesses which have been relied upon during and in the final report of the Enquiry Officer, has resulted in depriving the petitioner of her valuable right to cross-examine the officer who had conducted the preliminary enquiry, vitiate the entire enquiry proceedings, being contrary to the provisions as contained in Rule 7 of the Punjab Punishment and Appeal Rules, 1952, as the principles of natural justice stand violated while holding the departmental enquiry.
This aspect, in detail, has been gone into by this Court in K.C.Arora's case (supra) and it has been held in Paras 8 to 11 as follows:-
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"8. In this case the Enquiry Officer did not follow the procedure indicated in Rule 7. Rather he adopted a strange method of calling upon the petitioner and the departmental representatives to make their respective statements on different dates and permitted the production of certain documents. This procedure was clearly contrary to the requirement of Rule 7, inasmuch as, no evidence was produced by the department to substantiate the allegations levelled against the petitioner.
9. Mere filing of documents by the departmental representative which he may have collected from different sources cannot amount to production of evidence by the department to substantiate the allegations levelled against the petitioner. Neither the persons who prepared those documents were produced nor the person who collected those documents was produced as witnesses and the petitioner had no opportunity to cross-examine such person. This glaring defect in the proceedings of the enquiry caused grave prejudice to the petitioner, inasmuch as, he could not defend himself properly. In State of Madhya Pradesh v.
Chintaman Sadashiva Waishampayan, AIR 1961 SC 1623, the Constitution Bench of the Supreme Court Khurmi Rakesh 2013.07.23 10:18 I attest to the accuracy and integrity of this document High Court Chandigarh CIVIL WRIT PETITION NO.3728 OF 2012 :{ 10 }:
indicated the parameters of reasonable opportunity in disciplinary proceedings by observing :-
"When an order of dismissal passed against a public servant is challenged by him by a petition filed in the High Court under Article 226 it is for the High Court to consider whether the constitutional requirements of Article 311(2) have been satisfied or not. In such a case it cannot be contended that the infirmities on which the public officer relies flow from the exercise of discretion vested in the enquiry officer. The enquiry officer may have acted bonafide but that does not mean that the discretionary orders passed by him are final and conclusive. Whenever it is urged before the High Court that as a result of such orders the public officer has been deprived of a reasonable opportunity it would be open to the High Court to examine the matter and decide whether the requirements of Article 311(2) have been satisfied or not. In such matters it is difficult and inexpedient to lay down any general rules; whether or not the officer in question has had a reasonable opportunity must always depend on the facts in each case. The only general statement that can be safely made in this connection is that the departmental enquiries should observe rules of natural justice, and that if they are fairly and properly conducted the decisions reached by the enquiry officers on the Khurmi Rakesh 2013.07.23 10:18 I attest to the accuracy and integrity of this document High Court Chandigarh CIVIL WRIT PETITION NO.3728 OF 2012 :{ 11 }:
merits are not open to be challenged on the ground that the procedure followed was not exactly in accordance with that which is observed in Course of Law. Stating it broadly and without intending it to be exhaustive it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them. The right to cross-examine the witnesses who give evidence against him is a very valuable right and if it appears that effective exercise of this right has been prevented by the enquiry officer by not giving to the officer relevant documents to which he is entitled, that inevitably would mean that the enquiry had not been held in accordance with rules of natural justice." (Underlining is mine)
10. In Kashinath Dikshita v. Union of India and others, AIR 1986 SC 2118, the Supreme Court held that non- supply of copies of statements of witnesses and copies of documents relied upon by disciplinary authority amounted to violation of Article 311(2) of the Constitution of India. In Khurmi Rakesh 2013.07.23 10:18 I attest to the accuracy and integrity of this document High Court Chandigarh CIVIL WRIT PETITION NO.3728 OF 2012 :{ 12 }:
M/s Bareilly Electricity Supply Co. Ltd. v. The Workmen and others, 1971(2) SCC 617, their Lordships held :-
"The application of principle of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the questions that naturally arise is, is it a genuine document, what are its contents and are the statements contained therein true ? When the appellant produced the balance- sheet and profit and loss account of the Company, it does not by its mere production amount to a proof of it or of the truth of the entries therein. If these entries are challenged the appellant must prove each of such entries by producing the books and speaking from the entries made therein. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the Khurmi Rakesh 2013.07.23 10:18 I attest to the accuracy and integrity of this document High Court Chandigarh CIVIL WRIT PETITION NO.3728 OF 2012 :{ 13 }:
procedure under Order 19, Code of Civil Procedure and the Evidence Act both of which incorporate these general principles".
11. I am also of the opinion that non-production of any witness to prove that the interpolations were made by the petitioner with an ulterior motive to cause loss to the Government constitutes a grave defect in the proceedings of enquiry and the respondent-Government has acted illegally in punishing the petitioner without there being any evidence to prove that the petitioner had in fact made interpolations to help the contractor. It appears that the Government has treated the documents produced during the course of enquiry as automatically proved without considering the fact that no evidence was produced during the course of enquiry."
In the light of the above legal position, which is fully applicable to the facts of the instant case, there being violation of Rule 7 of the Punjab Punishment and Appeal Rules during the enquiry proceedings, the report submitted by the Enquiry Officer cannot sustain and, thus, cannot be relied upon by the respondents for passing the impugned order.
It can, thus, be concluded that except for the findings recorded by the District Welfare Officer, Gurdaspur, in his preliminary enquiry and the material collected by him in the said enquiry in the Khurmi Rakesh 2013.07.23 10:18 I attest to the accuracy and integrity of this document High Court Chandigarh CIVIL WRIT PETITION NO.3728 OF 2012 :{ 14 }:
form of statements and the entry in the admission register to Class 1st of the School, where the petitioner was admitted, no fresh evidence has been produced by the Department during the enquiry proceedings. Since the said enquiry proceedings cannot be relied upon in the absence of production of the said Officer, who had conducted the preliminary enquiry, during the regular enquiry, the findings recorded stand vitiated as the same are based on no evidence. On the contrary, the petitioner has produced witnesses, who were residents of the village, Lambardar and respectable persons, who have submitted their affidavits and have given statements, supporting that the petitioner belongs to `darain' caste, which is included in the scheduled caste category. Therefore, the enquiry report as submitted by the Enquiry Officer cannot legally sustain on this aspect as well.
It would not be out of place to mention here that earlier also on anonymous complaints received against the petitioner to the effect that her scheduled caste certificates are fake, enquiry was held wherein the said certificates have been found to be genuine and on that basis, the complaints have been filed in the year 2005. This fact has also been admitted by the respondents in their reply, which also goes to show that the assertion of the petitioner that she belongs to `darain' caste is correct. Obviously the natural consequence thereof would be that the scheduled caste certificates produced by her at the time of admission to the College and thereafter for seeking Khurmi Rakesh 2013.07.23 10:18 I attest to the accuracy and integrity of this document High Court Chandigarh CIVIL WRIT PETITION NO.3728 OF 2012 :{ 15 }:
appointment to the post of Horticulture Development Officer, asserting therein to be belonging to `darain' caste, a scheduled caste category, are genuine. Further the petitioner has been serving the Department since the year 1999 and at this belated stage, the action initiated against her that too on the basis of anonymous complaint cannot be permitted.
In view of the above, the present writ petition is allowed and the impugned order/notification dated 8.2.2012, Annexure P-17, is hereby quashed. The petitioner is held entitled to all consequential benefits.
July 22nd, 2013 ( AUGUSTINE GEORGE MASIH )
khurmi JUDGE
Khurmi Rakesh
2013.07.23 10:18
I attest to the accuracy and
integrity of this document
High Court Chandigarh