Dhup Singh, Kanungo, and others vs The State of Haryana and another

B.R. Tuli, J.—The petitioner was accepted as a direct Kanungo of Rothak District vide Deputy Commissioner''s order dated May 8, 1944. He joined the Military service on May, 6, 1944 and after being relieved therefrom he received his settlement training as Kanungo from December 28, 1946, to January 15, 1949. He also worked as temporary Field Kanungo from March 18, 1949 to May 31, 1950. The petitioner was granted efficiency certificate by the Director of Land Records, Punjab, which qualified him for being brought on the supplementary list of Kanungo candidates. He continued to work as Kanungo except for the period from November 16, 1955 to March 12, 1956 during which period he worked as patwari. The petitioner''s allegation is that the maximum period of probation for a Kanungo according to the Punjab Kanungo Service Rules, 1945, is three years and since he had put in more then three years service, he had been automatically confirmed as his services were not dispensed with after the period of probation. The reply on behalf of the respondents is that the rule with regard to probation did not apply to the petitioner as he continued to hold a temporary post and never, worked against a permanent vacancy. There was, thus, no question of his automatic confirmation. The petitioner, in support of his allegation, relies upon the letter of the Deputy Commissioner, Rothak, No. 413/ S.K. dated March 28, 1961, in which it is stated that a vacancy had been kept in reserve for the petitioner and he requisitioned the confidential report of the petitioner for the year ending 31st of March, 1961. The Deputy Commissioner also confirmed a few Kanungos junior to the petitioner. In my opinion this letter does not support the petitioner that he had been working against a permanent vacancy. He was going to be absorbed in a permanent vacancy by the Deputy Commissioner if his confidential report for the year ending 31st of March, 1961, was found satisfactory. The decision of their Lordships of the Supreme Court in Dharm Singh v. The State of Punjab (1968) S.L.R. 247, therefore, does not govern the case of the petitioner.

In the year 1962-63, while petitioner was serving as Kanungo in Tehsil Sonepat, District Rohtak, under the control of Shri Om Parkash Rao. respondent 2, he alleges to have developed enmity with him with the result that respondent 2 began to find fault with the working of the petitioner and cooked material to harm him. I he allegation of enmity is denied in the written statement. Respondent 2 sent a report to the Deputy Commissioner on the bans of which a charge-sheet was served on the petitioner along with the statement of allegations by the Director of Land Records which was received by him on August 19, 1967. The petitioner was directed to file his explanation to the charge-sheet within fifteen days. The petitioner made an application for the inspection of the record on August 26, 1967. The inspection was permitted, but it appears that the person in charge of the record did not allow him to inspect the records. On August 29, 1967, he made a complaint to the Sub Divisional Officer, Sonepat, respondent 3, who had been appointed the Enquiry Officer to the effect that he had not been allowed inspection of the record and that the time for submitting the reply to the charge-sheet should be extended. He also sent a letter to the Director of Land Records complaining that he had not been allowed the inspection of the record. On September 23, 1967, the Director of the Land Records sent a letter to the Deputy Commissioner requesting that the petitioner should be allowed the inspection of the record and his grievance should be removed. A copy of this letter was endorsed to the petitioner. The petitioner submitted his reply to the charge-sheet on September 15, 1967, without inspecting the record. His grievance in the writ petition is that the copy of the report of the Tahsildar on the basis of which the charge-sheet was prepared against him was not supplied to him in spite of his requests and that he was seriously handicapped in cross-examining the said Tahsildar before the Enquiry Officer. The Enquiry Officer submitted his report on January 1, 1968 and he held that all the charges except Charge No. 6 stood proved against the petitioner. The petitioner was then served with a show-cause notice by the Director Land Records, Haryana, which was received by him on February 29, 1968. In this notice he was informed to show cause within fifteen days of the receipt of the notice as to why his name should not be removed from the list of supplementary candidates maintained in the directorate. On March 11, 1968, the petitioner sent his explanation to the show cause notice. The Director of Land Records, by his order dated June 11, 1968, removed the name of the petitioner from the supplementary list of Kanungo candidates maintained in his directorate. The petitioner thereafter filed the present writ petition in this Court challenging the order of the Director of Land Records dated June 11, 1968, on various grounds.

The reply to the writ petition has been filed by Shri G.L. Nagpal, Director of Land Records Haryana, Chandigarh. The petitioner filed a replication and the Director of Land Records filed be a reply to the replication.

This writ petition must succeed on the ground that the petitioner was not afforded adequate opportunity to defend himself before the Enquiry Officer, because, he was not supplied a copy of the report of the Tahsildar on the basis of which the charges were framed against him. I have seen this document which covers three closely handwritten papers and contains various facts and allegations against the petitioner. It was used against the petitioner at the enquiry and was marked as Exhibit P. A The petitioner bad not been allowed the inspection of the record. He made a complaint of it to the Enquiry Officer and the Director of Land Records, but in spite of that no copy of this report was supplied to him. In his reply to the charge-sheet he had stated that he should be shown the record so that he might be able to know the exact findings of the Tahsildar. In his reply to the show-cause notice sent on March, 11, 1988 he stated that the Enquiry Officer denied him a chance to cross-examine the so called prosecution witnesses In fairness to him he should have been handed over a copy of the complaints made against him, but this was not done. The Director Land Records, while passing the impugned order, does not seem to have given any attention to this complaint of the petitioner. It has been held by their Lordships of the Supreme Court in Tirlok Nath v Union of India, and others 1967 S. L. R. 759 and reported as that the "failure of the Inquiry Officer to furnish the appellant with copies of the documents such as the first information report and the statements recorded at the Shidipura house and during the investigation must be held to have caused prejudice to the appellant in making his defence at the Inquiry. The Inquiry held must, in these circumstances, be regarded as one in violation not only of rule 55 but also of Article 311(2). Accordingly we quash the order of removal of the appellant from service passed by the Chief Commissioner of Delhi."

Again, it was held by their Lordships of the Supreme Court in State of Madya a Pradesh v. Chintaman Sadashiva Waishampayan A. I. R. 1961 S. C. 1623, that the right to cross-examine the witnesses who give evidence against him is a 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".

Reliance is then placed by the learned counsel for the petitioner on a judgment of Narula J. in Shri Kalyan Singh v. The State of Punjab 1967 S. L. R. 129 wherein the learned Judge held as under:

The impugned disciplinary proceedings were taken by the Chief Engineer expressly under rule 8 of the disciplinary rules, I think the admitted non-furnishing of a full copy of the complaint of Karnail Singh and of the absolute withholding of the two reports of the Superintending Engineer exonerating the petitioner and denying to him the personal hearing specifically asked for by him show that the respondents, have not conformed to judicial norms required of them in departmental proceedings which have been repeatedly held to be of quasi judicial nature and this has resulted in denying to the petitioner any adequate and real opportunity of representing against the proposed action to which he was entitled under rule 8 (supra), the requirements of which rule are mandatory. On this additional ground I hold that the impugned orders are liable to be set aside.

In view of the repeated grievance made by the petitioner that he had not been supplied a copy of the report of the Tahsildar which was the basic document in the framing of the charges against him, I have no doubt that the petitioner was seriously handicapped in his defence at the enquiry. It was the duty of the Enquiry Officer to furnish him a copy of that report and his failure to do so has vitiated the enquiry. The impugned order passed by the Director of Land Records is based on the report of the Enquiry Officer and he also did not apply his mind to the grievance of the petitioner that he had not been supplied the copy of the report which prejudiced his defence. On these facts, in my opinion, the impugned order deserves to be quashed.

For the reasons given above, this writ petition is accepted with costs and the impugned order is quashed along with the enquiry report. Respondents will be at liberty to hold another enquiry in accordance with law. Counsel''s fee Rs. 100/-.