Panchanan Kumar vs The Bihar State Electricity Board and Others

A.K. Ganguly, J.—This writ petition is directed against disciplinary enquiry held against the Petitioner on certain charges. Ultimately pursuant to such charges, an enquiry was held against the Petitioner and the enquiry report was submitted. On the basis of the said enquiry report an order of dismissal was passed against the Petitioner by the Respondents on 7th October, 1993. The appeal filed by the Petitioner against order of dismissal was also dismissed by the appellate authority by an order dated 22nd November, 1993.

Challenging both the orders of dismissal passed by the original authority and the order passed by the appellate authority, the Petitioner has come before this Court by filing this writ petition.

In assailing the said disciplinary proceeding, the Petitioner has raised various grounds which are stated below:

Even though an Enquiry Officer was appointed by the Respondents by an order dated 19th July, 1991 passed by the General Manager-cum-Chief Engineer, Bhagalpur Area Electricity Board, Bhagalpur (Respondent No. 3) but no Officer appeared before the Enquiry Officer to present the case of the department.

From a perusal of Annexure-A to the counter affidavit it appears that one Sri R.N. Rai, Deputy Director of Personnel, Bhagalpur Area Electricity Board, Bhagalpur was appointed to present the case of the Department before the Enquiry Officer but from the report of the Enquiry Officer it appears that there is no reference to the said presenting officer and it was also not disputed by the learned Counsel for the Respondents authorities that, in fact, no presenting officer did appear to present the case of the disciplinary authority in the said disciplinary proceeding. Relying on these facts learned Counsel for the Petitioner submitted that the Enquiry Officer has himself presented the case on behalf of the departmental authority and, therefore, he has disabled himself from functioning as an impartial enquiry officer and the enquiry proceeding is vitiated totally.

The next ground of attack is that during the course of enquiry proceeding the Petitioner was not given any opportunity of cross examining any witness presented on behalf of the departmental authority. The Petitioner''s further grievance is that contrary to all procedures, he was first examined by the enquiry officer and thereafter one Sri G.G. Bandopadhaya was produced as a witness but the Petitioner was not allowed to cross examine the said witness. The Petitioner''s positive case is that no other witness was produced on behalf of the department nor any other document was produced by the department in course of the said departmental proceeding.

The next ground of attack to the instant enquiry proceeding is that the enquiry was held only on one date i.e. on 25th January, 1992 but the enquiry report shows that the document of a subsequent date, namely, dated 14th February, 1992 was made enclosure No. IV to the said enquiry report. Relying on this fact, learned Counsel for the Petitioner submits that the enquiry officer has collected documents and evidence after the conclusion of the enquiry without giving the Petitioner any opportunity to controvert the materials thus produced behind his back and which formed part of the enquiry report. Relying on the aforesaid infirmities in the enquiry proceeding, learned Counsel for the Petitioner submitted that the entire enquiry was totally farce and the enquiry procedure has been completely vitiated. As such the dismissal order passed on such enquiry report is also vitiated. Learned Counsel for the Petitioner has also submitted that the appellate authority while passing its order has also failed to apply his mind to the facts and circumstances of the case and has not disclosed any reason in support of the order passed by such authority.

Learned Counsel for the Respondents has sought to support the enquiry proceeding by saying that even though no presenting officer was there to present the case on behalf of the department, the enquiry officer himself looked into the records and documents and upon examination of the witness found the charges have been proved and has given a report of that effect.

Learned Counsel for the Respondents has, however, admitted the position that the enquiry was held only for one day. Even though the enquiry was held only on one date i.e. on 25th January, 1992, the report contained the documents dated 14th February, 1992. Learned Counsel for the Respondents had not been able to explain how the enquiry report on the basis of the enquiry which had concluded on 25th January, 1992, could contain the document dated 14th February, 1992. Learned Counsel for the Respondents said that he cannot improve upon what is there on the record.

Learned Counsel for the Respondents has further stated that in a departmental, proceeding, the rules of evidence which are applicable in a criminal trial, are not attracted and if there is some error in the evidence at the enquiry stage, it is not for this Court to interfere and weigh the evidence. In support of the said submission, learned Counsel for the Respondents has relied upon a decision of the Supreme Court in the case of State of Andhra Pradesh and Ors. v. S. Sree Rama Rao reported in AIR 1963 S.C. page 1723 paragraph 7.

Learned Counsel for the Respondents has also stated that the Petitioner has not suffered any prejudice as a result of absence of the Presenting Officer in presenting the case of the department or as a result of consideration of the contents of the document dated 14th February, 1992 in the enquiry report. Therefore, this Court ought not to interfere.

Considering the rival contentions of the parties, this Court is of the opinion that in the instant case the inquiry has been vitiated inasmuch as the enquiry officer himself has acted as the presenting officer even though the presenting officer was appointed by the Electricity Board. There is no explanation why the said presenting officer did not appear before the enquiry officer to present the case of the department. In the peculiar facts of this case, the action of the enquiry officer to present the case himself on behalf of the department and also to take upon himself the duty of enquiring the correctness or otherwise of the said case clearly shows that the enquiry officer, in the instant case, has failed to discharge his duty as a fair and impartial enquiry authority. He has rolled up within himself the role of both the presenting officer and the enquiry officer and as such has acted in a manner which is not consistent with the principles of nature justice. In this connection, this Court is reminded of the observation of the Supreme Court in the case of D.K. Yadav Vs. J.M.A. Industries Ltd., . In the said judgment of D.K. Yadav (supra) the learned Judges of the Hon''ble Supreme Court has said that in a matter relating to dismissal from service the employee concerned is visited with civil consequences and as such the same amounts to deprivation of right of livelihood guaranteed under Article 21 of the Constitution of India. In the matter of Infliction of penalty of dismissal/termination, the procedure which is to be applied must be just, fair and reasonable. In the instant case, this Court is of the view that the procedure which has been applied by the enquiry officer in coming to his finding is neither just nor fair nor is the same reasonable. As such this Court cannot approve the same. Even though it is well settled that technicalities of rules of evidence are not applicable to a departmental proceeding and this has also been settled by the Supreme Court as far back as in 1964 in its Constitution Bench judgment in the case of Union of India (UOI) Vs. H.C. Goel, that the technical rules which govern criminal trials in Courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trial as to disciplinary enquiries held under the statutory rules.

In the instant case it is not in dispute that such disciplinary proceeding held against the Petitioner has been held in accordance with the provisions of Rule 166 of the Board''s Miscellaneous Rules which has been adopted by the said Board as has been stated by the learned Counsel for the Respondents. Therefore, in the instant case the enquiry has also been held under the rules which are statutory in nature. Therefore, the aforesaid observation of the Supreme Court applies in this case with full force. Apart from that this Court finds that the decision of the appellate authority is wholly impermissible inasmuch as while passing its order, the appellate authority has not acted with due diligence and proper application of mind and the order does not show that there was any consideration of the relevant materials by the appellate authority while passing the order. Therefore, the order of the appellate authority also cannot be sustained in view of the pronouncement of law in the case of Ram Chander Vs. Union of India (UOI) and Others, .

Taking all these facts into account, this Court is of the view that the disciplinary proceeding in this case suffers from various errors in the procedure and the decision making process is wholly infirm and cannot be approved by this Court. This Court is also of the view that the enquiry having not been properly held, the dismissal order passed on the same cannot be sustained. This Court, therefore, quashes the enquiry report in question, the order of dismissal from service of the Petitioner passed by the disciplinary authority on the said report and also the order passed by the appellate authority, whereby the order passed by the disciplinary authority has been affirmed. As a result thereof, the Petitioner must be reinstated in service within a period of seven days from today. The entire back wages from the date of dismissal of the Petitioner, to which he may be entitled under the law, must be made available to him within two months from the date of receipt/production of a copy of this judgment.

This Court, however, does not quash the chargesheet issued against the Petitioner. It is open to the Respondents authorities to hold an enquiry afresh on the basis of the said chargesheet but such enquiry must be held strictly in accordance with law. It is also made clear that if such an enquiry is initiated, it must be concluded within a period of eight months from the date of receipt/production of a copy of this judgment and if no such enquiry is concluded within the period as aforesaid, the chargesheet will also stand automatically quashed on the expiry of the period aforesaid.

With the above observation/direction, this writ petition is thus allowed to the extent indicated above. There will be no order as to cost.