K.L. Aggarwal vs State of Himachal Pradesh, etc.

T.R. Handa, J.—The Petitioner joined the Education Department of the Respondent State of Himachal Pradesh in 1953 and in 1962 he was promoted to the Head Master''s grade of Rs. 250-10-350 which was subsequently revised to Rs. 300-600. It appears that in the year 1970 the Petitioner was posted as Head Master, Government High School, Tharoach, when as a result of some preliminary enquiry it was prima facie established that the Petitioner had misused his official position which was tantamount to gross misconduct on his part and accordingly the Disciplinary Authority of the Petitioner, which in the instant case was the Director of Education, Respondent No. 2, decided to hold a Departmental Enquiry against the Petitioner under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, hereinafter referred to as "The Central Rules", presumably because the charges against the Petitioner, if substantiated called for imposition of a major penalty. Accordingly Respondent No. 2, the Disciplinary Authority issued a memo dated 19th June, 1970, hereinafter called "the charge-sheet", to the Petitioner informing the latter of his proposal to initiate departmental inquiry against the Petitioner and to this charge were annexed (i) a statement of articles of charge framed against the Petitioner, (ii) a statement of allegations, (iii) a list of documents by which the articles of charge were, proposed to be sustained and (iv) a list of witnesses by whom the articles of charge were to be sustained. Shri Dharam Singh Thakur, the then Principal, Government Boys Higher Secondary School, Simla, was appointed as Inquiry Officer in the case vide the aforesaid memo, a copy of which has been attached with the Writ Petition as Annexure PA. It would be expedient at this stage to reproduce the contents of the list of witnesses supplied to the Petitioner along with the charge-sheet and which constituted Annexure IV to the charge-sheet:

Annexure IV

A list of witnesses by whom the articles of charge are proposed to be sustained in respect of Shri K.L. Aggarwal, Head Master, Government High School, Tharoach, District Mahasu, Himachal Pradesh.

Shri Laiq Ram Jhagta, Teacher, Government High School, Tharoach and other Teachers of the said School.

Sd/- Director of Education Himachal Pradesh.

The main charges against the Petitioner were as under:

(i) That the Petitioner did not attend the School from 12-11-1969 to 21-11-69, on 23-12-1969 and again from 2-3-70 to 7-3-70, though he actually drew his salary for these periods as if he was on duty, and further made false entries in the School register showing his presence for the aforesaid days.

(ii) That he drew three false T.A. Bills, being Bill No. 71 amounting to Rs. 82/- for his journey from Tharoach to Simla and back purporting to have been undertaken on 11-3-69 which in fact was not so undertaken, Bill No. 72 of the amount of Rs. 82/- pertaining to his journey from Tharoach to Simla and back pertaining to 5-12-1969 which journey was also not actually undertaken and Bill No. 70 of the amount of Rs. 363.50 which included a false claim of Rs. 90/- on account of luggage charges which were never incurred.

The Enquiry Officer conducted and completed the inquiry in one sitting held on 7-10-1972. He found all the charges against the Petitioner duly proved and submitted his report to that effect to the Disciplinary Authority. The Disciplinary Authority vide his letter dated 29-12-1972 forwarded a copy of the report of the Inquiry Officer to the Petitioner and further called upon the Petitioner to show cause why he should not be reduced in rank and demoted to the rank of a Trained Graduate Teacher in the time scale of pay of Rs. 220-8-300/10 400/20-500 for a period of five years, A copy of this Show-Cause Notice is Annexure PF to the Writ Petition. The Petitioner in response to this Show Cause Notice filed a detailed reply (copy Annexure PG) wherein he highlighted the diverse illegalities and irregularities committed during the course of enquiry and in the end prayed that the notice be discharged. The Disciplinary Authority, however, rejected the explanation furnished by the Petitioner and agreeing with the findings of the Inquiry Officer, passed its order dated 10th May, 1973 (copy Annexure PH) imposing upon the Petitioner the penalty as proposed in the Show Cause Notice, namely, reduction in rank to the post of Trained Graduate Teacher in the time scale of pay of Rs. 220-8-300/10-400/20-500 for a period of five years. The Petitioner next preferred an appeal against the aforesaid order of the Disciplinary Authority before the Secretary of Education, Respondent No. 3, who vide his order dated 17th March, 1975 (copy Annexure PJ) rejected the same.

After exhausting his remedy on the administrative side, the Petitioner has approached this Court with the present Writ Petition under Article 226 of the Constitution of India praying for the issue of a writ of certiorari or some other suitable writ, direction or order quashing the following:

(a) quashing the report of the Enquiry Officer forwarded to the Petitioner with letter No. 5-6/70 Edu. (Vig) dated 29th December, 1972 Annexure PF,

(b) quashing Order No. 5-5/70-Edu. (Vig) dated 10th May, 1973 passed by Respondent No. 2 (Annexure PH), and

(c) quashing order in Appeal No. 1-53/69-Edu.-II dated the 17th March, 1975 (Annexure PJ).

The case of the Petitioner is that on receipt of the charge-sheet, he immediately addressed his letter dated 14th July, 1970, to the Disciplinary Authority wherein after refuting the allegations made against him, he inter alias emanded a complete list of witnesses intended to be produced against him during the enquiry as also copies of the statements of such witnesses made during the course of the preliminary inquiry and on the basis of which the Disciplinary Authority had taken the decision to charge-sheet the Petitioner. It may be recalled that the list of witnesses supplied to the Petitioner with the charge-sheet contained the name of only one witness, namely, Shri Laiq Ram. No action was taken by the Disciplinary Authority on this just and legitimate demand of the Petitioner. Again before the commencement of the inquiry, the Petitioner on 16-12-1971 brought this fact to the notice of the Inquiry Officer and reiterated his demand for the supply of a complete list of witnesses and the copies of their statements recorded during the preliminary inquiry. The Petitioner pointedly brought this fact home to the Inquiry Officer that in the absence of the information demanded by him, it would not be possible for the Petitioner to defend his case. The Inquiry Officer did record the statement of the Petitioner to that effect on the same day but took no steps to furnish the information asked for to the Petitioner. A copy of the statement of the Petitioner recorded by the Inquiry Officer on 16-12-1971 is attached with the Writ Petition as Annexure PE.

The further contention of the Petitioner is that he received a summons from the Inquiry Officer directing the Petitioner to appear before the Inquiry Officer at 10 a.m. on 18-6-1972 at Government High School Tharoach to give evidence in the enquiry and in response to such summons he actually visited the premises of Government High School, Tharoach, at the appointed hour and date but to his surprise he found that neither the Inquiry Officer nor any other person was present there. The Petitioner accordingly came back and on his return he addressed a letter dated 21-6-1972 to the Inquiry Officer with a copy to the Disciplinary Authority narrating about his visit to Tharoach on 18-6-1972 in response to the summons received by him from the Inquiry Officer and further requesting the Inquiry Officer to fix a fresh date in the inquiry. The Petitioner, however, later '' learnt to his surprise that the Inquiry Officer had already conducted an ex part inquiry against the Petitioner on 5-5-1972 and submitted his report to the Disciplinary Authority. In response to the letter dated 21-6-1972 of the Petitioner, the Inquiry Officer denied if he had summoned the Petitioner for 18-6-1972 and insisted that he had summoned the Petitioner only for 5th May, 1972, vide his notice issued to the Petitioner on 27th April, 1972, under a registered cover and which had actually been delivered to the Petitioner. The plea of the Inquiry Officer was since the Petitioner failed to put in appearance on 5-5-1972 despite notice, the Inquiry Officer conducted the inquiry on that date in the absence of the Petitioner. The Disciplinary Authority on being apprised of the contradictory versions of the Petitioner and the Inquiry Officer appears to have made an initial attempt to enquire into the truth or falsehood of such versions and for this rpose he called upon the Petitioner to produce the original summons for 18-6-1972 alleged to have been received by him from the Inquiry Officer and also called upon the Inquiry Officer to produce a copy of the notice alleged to have been issued by him to the Petitioner calling upon the latter to appear on 5-5-1972 to take part in the inquiry. Neither of the two complied with such directions of the Disciplinary Authority who then instead of proceeding further with this side issue, directed the Inquiry Officer to conduct a fresh inquiry into the charges against the Petitioner after affording the latter an opportunity of being heard and to defend himself.

In view of the controversy between the Inquiry Officer and the Petitioner as narrated above, the latter claims to have felt a genuine apprehension that the Inquiry Officer was biased against him and hence the Petitioner vide his letter dated 29-9-1972 addressed to the Disciplinary Authority requested for change of the Inquiry Officer.

Before the Petitioner could receive any reply to his request for change of the Inquiry Officer, he received a notice from Shri Dharam Singh Thakur, the original Inquiry Officer to appear before him on 7-10-1972 to take part in the enquiry. The Petitioner did put in appearance before the Inquiry Officer on 7-10-1972 as directed but straightaway informed the Inquiry Officer about his (Petitioner''s) having already made a request for the change of the Inquiry Officer and requested that the enquiry proceedings be adjourned till the Disciplinary Authority took a decision on the Petitioner''s request for change of the Inquiry Officer. The Inquiry Officer did not consider it a good ground to adjourn the enquiry and hence decided to proceed with the enquiry. On 7-10-1972 there were present as many as nine witnesses of the prosecutior. besides the Presenting Officer nominated on behalf of the Department. The Inquiry Officer proceeded to record the statements of the witnesses present which he did in a rather novel method. No questions were put to these witnesses regarding the facts in issue in their examination-in-chief. They were simply asked to confirm their statements earlier recorded during the course of the preliminary enquiry. No copies of such statements of the witnesses recorded earlier during the preliminary enquiry were furnished or shown to the Petitioner. After the witnesses confirmed having made their earlier statements, the Presenting Officer and not the Inquiry Officer asked the Petitioner if the latter wanted to put any question to the witnesses present. The Petitioner told the Presenting Officer that he had already given his reply to the Inquiry Officer. On this the enquiry was closed without the Inquiry Officer putting any further question to the Petitioner. The Inquiry Officer then prepared his report in which apart from the witnesses referred to above, he relied upon some alleged admission of the Petitioner about which the Petitioner had been afforded no opportunity to explain and which in fact was neither proved nor tendered in evidence before the Inquiry Officer. The Disciplinary Authority on receipt of the report of the Inquiry Officer never cared to apply its mind to the facts of the case but proceeded to pass the impugned order in a mechanical manner.

The Petitioner thus claims that he was afforded no opportunity to defend his case and to show cause against the action proposed to be taken against him, the Inquiry Officer being biased against the Petitioner was not competent to conduct the inquiry and that the inquiry was only an eye wash being in complete violation both, of the principles of natural justice as also the statutory and mandatory provisions of the Central Rules.

Respondent No. 2 (Disciplinary Authority) who alone filed a return to this Writ Petition, in his counter affidavit did not care to make a specific denial of the main illegalities and irregularities alleged to have been committed in the course of the inquiry. The allegations that the Petitioner was neither supplied a complete list of witness nor their statements recorded during the preliminary inquiry in spite of his demand made vide his letter dated 14-7-1970 and then repeated in his oral statement dated 16-12-1971 recorded by the Inquiry Officer were not denied and in fact it is apparent from the report of the Inquiry Officer that as against one witness named in the list of witnesses furnished to the Petitioner, as many as nine witnesses were examined on behalf of the prosecution and none of them was examined in chief in the presence of the Petitioner. It is also not disputed that the Inquiry Officer in his report, relied upon an earlier admission alleged to have been made by the Petitioner and which admission of the Petitioner was neither proved in the inquiry nor tendered in evidence nor put to the Petitioner at any stage.

The first grievance of the Petitioner is that he was neither supplied a list of witnesses who were sought to be produced by the Department to substantiate the charges against him nor the copies of statements of such witnesses recorded during the course of preliminary inquiry in spite of his specific demand contained in his letter dated 14-7-1970 addressed to the Disciplinary Authority and again repeated before the Inquiry Officer vide his statement recorded on 16-12-1971 (copy Annexure PE). The Petitioner had in clear terms brought it to the notice of the Inquiry Officer that it would not be possible for him to defend his case unless he was supplied the particulars of the witnesses and copies of their earlier statements. The Petitioner in making this demand was certainly not soliciting any favour but was only asking for his due. The Respondent, as already stated, impliedly admitted that the Petitioner made the demands for the supply of list of witnesses as also copies of their earlier statements and the same were not supplied. No reason whatsoever could be advanced on behalf of the Respondent in justification for the failure in meeting this legitimate demand of the Petitioner. It was simply argued that the Respondent was under no obligation to supply such documents and whatever demands were considered necessary were supplied to the Petitioner.

The second grievance of the Petitioner was that he was afforded no opportunity to cross-examine the Departmental witnesses inasmuch as none of these witnesses was examined in chief in his presence and no copies of the statements made by these witnesses earlier during the preliminary inquiry conducted at his back were supplied to him. It is apparent from the report of the Inquiry Officer appearing at pages 23 to 38 of the file that none of the nine departmental witnesses reduced before the Inquiry Officer was examined in chief. All that these witnesses are alleged to have stated is that they confirmed their earlier statements recorded on 26-4-1970 by Shri H.R. Aggarwal. The report does not show if, when and by whom the earlier statements of these witnesses were brought on the record or as to what the contents of such statements were. The Counsel appearing for the Respondents had nothing to urge against this grievance except saying that the inquiry be remanded to the Inquiry Officer.

The third objection of the Petitioner was that whereas in the list of witnesses furnished to him the name of only one witness was mentioned, the Inquiry Officer actually examined none witnesses without disclosing under what circumstances he recorded the statements of the witnesses not included in the list. The list simply mentioned the name of Laiq Ram teacher and indicated that some other teachers of the Government High School Tharoach were likely to appear as witnesses. In view of this indication there might have been some justification in recording the statements of some teachers of that School but there was no justification to allow the production of non-teacher witnesses. The inquiry report shows that out of the nine witnesses examined only five were teachers of the Government High School Tharoach and the remaining four were private villagers. The Petitioner in this sense was taken all by surprise and was not in a position to cross-examine them.

The fourth grievance of the Petitioner is that the Inquiry Officer afforded him no opportunity to explain the circumstances appearing against him. After the close of the prosecution case, it was obligatory on the part of the Inquiry Officer to put all the material circumstances appearing against him to the Petitioner and allow him an opportunity to explain the same.

The fifth grievance of the Petitioner is that the Inquiry Officer in reaching his conclusions has relied upon some earlier admission alleged to have been made by the Petitioner without this admission being produced or proved during the inquiry and without confronting the Petitioner with such admission. This was against the provisions of the Central Rules as also against the principles of natural justice.

The last grievance of the Petitioner is that since the Inquiry Officer was biased against him, he was not competent to conduct the inquiry especially when the Petitioner had brought the bias of the Inquiry Officer to the notice of the Disciplinary Authority before the commencement of the inquiry. The entire inquiry and the subsequent actions based upon it are thus vitiated.

A bald argument advanced on behalf of the Respondent against the aforesaid grievances was that the Inquiry Officer being only a domestic tribunal and not a Court of justice was not bound by any technical rules of procedure or evidence and on the other hand was entitled to evolve his own procedure. A further argument was that the Petitioner having wilfully refused to take part in the inquiry it was not now open for him to complain against the procedure adopted by the Inquiry Officer.

The above argument alias been stated just to be rejected. It only shows that the Respondents have no grounds to defend their action and to meet the objections raised on behalf of the Petitioner.

As is apparent from the language of the charge sheet, the inquiry against the Petitioner was conducted under Rule 14 of the Central Rules. Sub-rule (1) of this Rule 14 enjoins that no major penalty (the penalty imposed in the instant case being admittedly a major one) shall be made except after an inquiry is held, as far as may be, in the manner provided in rules 14 and 15. This clearly shows that the Inquiry Officer was bound to observe the procedure laid down in Rule 14 while conducting the inquiry and it was not open for him to devise his own arbitrary procedure. Sub-rules (3) to (23) of Rule 14 lay down the procedure to be followed while conducting such an inquiry. Sub-rule (4) read with Sub-rule (3) makes it obligatory on the part of the Disciplinary Authority to furnish or cause to be furnished to the concerned Government servant inter alias a list of witnesses by whom the articles of charge are proposed to be sustained. There is then a note appended to Sub-rule (11) which lays down that if the Government servant applies orally or in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in Sub-rule (3), the Inquiring Authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the Disciplinary Authority. There is no scope for any difference of opinions that the copies of statements contemplated by the provisions of this note are those of Departmental witnesses recorded during the preliminary inquiry.

Sub-rule (14) then enjoins that on the date fixed oral as well as documentary evidence on the basis of which the charge is proposed to be proved shall be produced on behalf of the Disciplinary Authority. It obviously refers to the documentary and oral evidence as is mentioned in the list of documents and list of witnesses drawn up under Sub-rule (3) and supplied to the Government servant under Sub-rule (4). Sub-rule (15) then lays down that the inquiring authority may, in its discretion, before the close of the case on behalf of the disciplinary authority, allow the Presenting Officer to produce evidence not included in the list given to the Government servant or may itself call for new evidence or recall and re-examine any witness and in such case the Government servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the enquiry for three clear days before the production of such new evidence. A note appended to this Sub-rule further states that new evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally. In the instant case, as already stated, the Inquiry Officer recorded the statements of as many as nine witnesses as against one named in the list of witnesses supplied to the Petitioner and in any case four of such witnesses, namely, Shri Jai Lai Sharma, Pradhan (Tharoach) Madhana, Shri Ganga Ram, Pradhan, Tharoach, Shri Relu Ram, Lamberdar, Parali and Shri Sita Ram Potan, Shopkeeper, Tharoach, were certainly outside the list of witnesses supplied to the Petitioner. No reason whatsoever was recorded by the In quiry Officer for permitting these additional witnesses nor was a copy of the list of such witnesses supplied to the Petitioner nor was he granted an adjournment as provided in this sub-rule. Under Sub-rule (14) the witnesses were required to be examined on behalf of the Presiding Officer and then cross examined on behalf of the Government servant. Naturally the Government servant could cross examine the witnesses in respect of their statements made in the examination-in-chief and when no examination in chief was recorded as in the instant case, there was no opportunity afforded to the Petitioner to cross examine those witnesses. Sub-rule (18) further lays down that the inquiring authority may, after the Government servant closes his case and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him. Admittedly the Petitioner, in this case, had not examined himself nor the inquiring authority questioned him on the circumstances appearing against him for the purpose of enabling the Petitioner to explain the circumstances appearing in evidence against him. Sub-rule (23)(i) further prescribes that after the conclusion of the inquiry, a report shall be prepared and it shall contain-

(a) the articles of charge and the statement of imputations of misconduct or misbehaviour;

(b) the defence of the Government servant in respect of each article of charge;

(c) an assessment of the evidence in respect of each articles of charge;

(d) the findings on each article of charge and the reasons therefore.

A perusal of the report of the Inquiry Officer in this case suggests that he had failed to comply with this sub-rule inasmuch as this report neither contains an assessment of the evidence in respect of each article of charge nor the reasons in respect of the findings of the Inquiry Officer on each article of charge. There has thus been a clear violation of Sub-rules (3), (4), (11), (14), (15), (18) and (23) in the conduct of this enquiry. The Inquiry Officer was certainly bound to observe these rules in terms of his appointment and violation of such rules by him must be said to have vitiated the enquiry as also the report submitted as a result thereof. Since the enquiry, as stated above, had not been conducted in accordance with the procedure laid down in Rule 14, no major penalty could be imposed upon the Petitioner as a result of this enquiry.

Apart from the violation of the statutory provisions of Rule 14, as detailed above, the Inquiry Officer in the instant case was further guilty of violation of the principles of natural justice which are supposed to be attracted in the conduct of such like enquiries and which resulted in the denial of a reasonable opportunity to the Petitioner to defend his case. The mandatory provisions of Article 311(2) of the Constitution of India lay down that no person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. The Supreme Court in The The State of Punjab Vs. Bhagat Ram, while explaining the meaning of the term ''reasonable opportunity'' observed as under:

The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the Government servant is afforded a reasonable opportunity to defend himself against charges on which inquiry is held. The Government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross-examining the witnesses produced against him. The object of supplying statements is that the Government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the Government servant. Unless the statements are given to the Government servant he will not be able to have an effective and useful cross-examination.

It is unjust and unfair to deny the Government servant copies of statements of witnesses examined during investigation and produced at the enquiry in support of the charges levelled against the Government servant. A synopsis does not satisfy the requirements of giving the Government servant a reasonable opportunity of showing cause against the action proposed to be A taken.

Again it has been repeatedly laid down that the basic principles of natural justice which are of universal application in the inquiries of this type are that the person against whom the inquiry is conducted must know in clear terms the charges which he is called upon to meet, the allegations on which such charges are made, the evidence documentary as well as oral by which such charges are intended to be substantiated so that he is in a position to explain his stand. Again he must be afforded an opportunity to associate himself at all stages of the inquiry, the entire evidence is admitted in his presence and in case of oral evidence he is afforded an effective opportunity to cross examine the witnesses. Needless to say that for effective cross examination of the witnesses it is essential that the witnesses to be cross examined are examined-in-chief in the presence of the Government servant concerned or at least he is furnished with the copies of statements of such witnesses which are used as examination-in-chief. A person who is ignorant of the statement of a witness made in his examination-in-chief is certainly not in a position to effectively cross examine that witness and merely offering such a witness for cross examination by the Government servant concerned would not amount to affording the Government servant an opportunity for effectively cross examining that witness. In view of the circumstances of this case which are practically admitted and the principles governing the inquiries, as narrated above, it cannot be said that in the instant case the Petitioner was afforded an opportunity, what to say of a reasonable opportunity, to defend his case. The entire enquiry proceedings conducted against the Petitioner arc thus vitiated and any penalty imposed upon the Petitioner as a result of such an inquiry cannot be allowed to stand. I would accordingly accept this writ petition, quash the report of the Inquiry Officer forwarded to the Petitioner vide letter dated 29-12-1972 (Annexure PF) as also the order dated 10-5-1973 passed by the Respondent No. 2 imposing the penalty of reduction in rank on the Petitioner and the order dated 17-3-1975 passed by the Respondent No. 3 confirming the order dated 10-5-1973 of Respondent No. 2. The Petitioner shall also be entitled to the costs in this writ petition. Counsel fee Rs. 100/-.