Anand Kumar Jaiswal vs State Of Uttarakhand & Others

Ramesh Ranganathan, C.J.

This writ petition is filed seeking a writ of certiorari to quash the enquiry report dated 20.04.2018, the communication dated 18. 07.2018, and the charge-sheet dated 16.08.2018, on the ground that they are contrary to Rule 7 of the Uttarakhand Government Servant (Discipline and Appeal) Rules, 2003.

On being informed, vide letter dated 18.07.2018, that the enquiry report dated 20.04.2018 was forwarded to the disciplinary authority, the petitioner has invoked the jurisdiction of this Court contending that the charge-sheet issued by the Enquiry Officer falls foul of Rule 7 of the Uttarakhand Government Servant (Discipline and Appeal) Rules, 2003 (hereinafter referred as the Rules) as amended in the year 2010.

The petitioner had earlier filed WPSB No.238 of 2017 questioning his being placed under suspension in contemplation of disciplinary proceedings. The said writ petition was disposed of by a Division Bench of this Court, vide order dated 19.07.2017, recording the submission of the learned counsel for the petitioner that a reply would be submitted to the charge-sheet. The Division Bench directed that, on receipt of the reply to the charge-sheet, the concerned competent authority would apply its mind as per law, to the reply; and, if an inquiry is found necessary, he was free to direct an enquiry by appointing an Inquiry Officer, on the ground that the Inquiry Officer lacks jurisdiction to issue a charge-sheet.

The petitioner, thereafter, filed WPSB No.444 of 2017 wherein he sought a writ of certiorari to quash the charge-sheet dated 16.08.2016. During the pendency of this writ petition, on the file of this Court, the petitioner filed WPSB No.103 of 2018 wherein he sought a writ of certiorari to quash the proceedings dated 30.01.2018, and the letter dated 08.03.2018 whereby the petitioner was asked to appear before the enquiry officer and participate in the enquiry. In the said writ petition, he also sought a writ of mandamus directing the authority to supply a certified copy of the documents, and to conclude the enquiry within a specified time frame. WPSB No.103/2018 was disposed of, by order dated 20.03.2018, directing the Inquiry Officer to conclude the inquiry as early as possible; and preferably within a period of ten weeks.

Thereafter, WPSB No.444 of 2017 was disposed of by order dated 25.05.2018 wherein the Division Bench observed that they were confronted with the directions issued in WPSB No.103 of 2018 whereby they had, accepting the prayer of the petitioner himself, directed the enquiry to be concluded; and they were of the view that WPSB No.444 of 2017 should be disposed of leaving it open to the petitioner to raise the contention about the incompetence of the enquiry officer to issue a charge-sheet; and such act on his part violated Rule 7 of the Rules. The Division Bench made it clear that it will be open to the disciplinary authority to go in for a fresh charge-sheet taking note of the alleged illegality, which was pointed out by the petitioner. The petitioner's grievance is that, when WPSB No.444/2017 was disposed of by the Division Bench of this Court on 25.05.2018, the fact, that the enquiry report had already been submitted on 20.04.2018, was not brought to its notice. The petitioner has again invoked the jurisdiction of this Court by way of the present writ petition.

Sri Bhupesh Kandpal, learned counsel for the petitioner, would submit that the action of the enquiry officer in finalizing the enquiry report, and in not bringing this fact to the notice of the Court, is in violation of the order passed in WPSB No.444 of 2017 dated 25.05.2018.

While it is no doubt true that WPSB No.444 of 2017 was disposed of on 25.05.2018 after the enquiry report was finalized on 20.04.2018, it is evident that WPSB No.444 of 2017 was filed in the year 2017 much before the enquiry report was finalized on 20.04.2018. An enquiry officer is merely a delegate of the disciplinary authority, and his role is to record facts and the evidence adduced in the enquiry and give his findings thereon. In Union of India vs. H. C. Goel : AIR 1964 SC 364 the Supreme Court held that at the end of the inquiry, the Inquiry Officer appreciates the evidence, records his conclusions and submits his report to the Government concerned; the Inquiry Officer holds the inquiry against the respondent as a delegate of the disciplinary authority; and the object of inquiry is to enable the Government / employer to hold an investigation into the charges framed against a delinquent public servant so that the Government / employer can, in due course, consider the evidence adduced and decide whether the charges are proved or not. It is for the disciplinary authority to decide whether or not to agree with the findings of the enquiry officer and, if he is of the prima facie view that the findings of the enquiry officer are valid, to then forward a copy of the enquiry report to the delinquent employee, give him an opportunity to file his objections thereto, and, on receipt of the objections, to pass an order in accordance with law. (Managing Director, ECIL, Hyderabad etc. Vs. B. Karunakar, etc. [AIR 1994 SC 1074])

WPSB No.444 of 2017 was disposed of by the Division Bench, vide order dated 25.05.2018, leaving it open to the petitioner to raise the contention regarding lack of jurisdiction, of the enquiry officer to issue a charge-sheet, before the disciplinary authority. The Division Bench also left it open to the disciplinary authority to go in for a fresh charge-sheet taking note of the alleged illegality, which was pointed out by the petitioner. The Division Bench has not held that the action of the enquiry officer, in issuing the charge-sheet, is ultra vires Rule 7 of the Rules, but only left it open to the petitioner to raise his contention, and to the disciplinary authority to examine whether a fresh charge-sheet should be issued. Finalization of the enquiry report on 20.04.2018 cannot be construed to be in violation of the order in WPSB No.444 of 2017 dated 25.05.2018. While it is no doubt true that the respondents ought to have brought to the notice, of the Division Bench, the fact that the enquiry was finalized on 20.04.2018, their failure to do so, when read in the light of the observations of the Division Bench in its order in Writ Petition (SB) No.444 of 2017 dated 25.5.2018, cannot be said to be in willful or deliberate violation of the said order.

Be that as it may all these contentions, which have now been urged before us, can also be urged by the petitioner in his objections to the enquiry officer's report, which the disciplinary authority is obligated to consider. Even if the disciplinary authority were to hold against him, the petitioner can thereafter question the order of the disciplinary authority in appropriate legal proceedings.

The present writ petition has been filed to quash the enquiry report, and the earlier charge-sheet. The reliefs sought in the present writ petition cannot be granted, as the enquiry report is still pending consideration before the disciplinary authority, and the possibility of the disciplinary authority disagreeing with the enquiry report, submitted by the enquiry officer, cannot be ruled out.

We see no reason, in such circumstances, to grant the petitioner the relief sought for in the writ petition, as the disciplinary proceedings have not yet culminated in an order being passed by the disciplinary authority. It is only because of the interim order, passed by this Court on 30.07.2018, that the disciplinary authority is not in a position to pass a final order.

Shri Bhupesh Kandpal, learned counsel for the petitioner, would submit that the petitioner has already filed his objections to the enquiry report. If that be so, and as the petitioner has been continuing under suspension for the past 20 months, it is but appropriate that the disciplinary authority is directed, to pass orders in accordance with law at the earliest, and, in any event, not later than six weeks from the date of production of a certified copy of this order.

The writ petition stands disposed of accordingly.