Smt. Rasida & Ors vs Mukeem Shah & Anr

This petition filed under Article 226 of the Constitution of India, takes exception to the order dated 31.10.2008 (Annexure-P/1), whereby the punishment of dismissal from service is inflicted on the petitioner.

Draped in brevity, the facts are that a charge-sheet dated 21.07.2006 (Annexure-P/2) was served on the petitioner. The petitioner preferred an application dated 03.08.2006 (Annexure-P/3) and requested the disciplinary authority to provide the documents which were prayed by him through his earlier application dated 25.07.2006. The petitioner preferred another application dated 08.08.2006 and contended that in absence of the documents, the petitioner cannot submit his effective reply. Hence, documents may be provided to him to enable him to file an effective reply. This is followed by another representation dated 30.08.2006 (Annexure-P/4). The petitioner submitted a detailed representation on 11.09.2006 and denied the allegations in toto.

The disciplinary authority was not satisfied with the reply of the petitioner and appointed an Inquiry Officer. Two witness namely, Mr. Rajkumar Chouksey and Mr. R.N. Gupta entered the witness box. Thereafter, Inquiry Officer prepared his report (Annexure-P/9) and found that charges against the petitioner are established. The petitioner filed his detailed response to the inquiry officer''s report on 26.05.2008. The disciplinary authority agreed with the findings of the Inquiry Officer and imposed the impugned punishment of dismissal by order dated 31st October, 2008 (Annexure-P/1).

Mr. Sanjay Verma, learned counsel for the petitioner assailed the disciplinary proceedings by contending (1) Shri Vibhuti Narayan Pateriya who had issued the charge-sheet was not the appointing/disciplinary authority of the petitioner. In view of the judgment of this Court reported in AIR 1966 MP 193, [ Shardul Singh vs. State of M.P .], the charge-sheet was bad in law. (2) The documents mentioned in the charge-sheet were not supplied to him. Certain documents which were supplied to him were given at a later stage of the inquiry, hence these documents could not have been utilized by the petitioner to defend himself. (3) The prosecution witnesses did not depose anything against the petitioner. The statement of Mr. R.N. Gupta refers about his earlier pre-recorded statement dated 07.08.2007, but the said statement was neither produced in the inquiry nor it was ever supplied to the petitioner. (4) The prosecution witnessed did not prove the documents mentioned in the charge-sheet. In absence of proving the documents by leading credible evidence, the said documents cannot become reasons to hold the petitioner as guilty. (5) The petitioner is subjected to discrimination in the matter of imposition of punishment.

It is pertinent to mention here that during the course of arguments, Mr. Sanjay Verma, learned counsel for the petitioner fairly admitted that the judgment of this Court in the case of Shardul Singh (Supra) was set aside by the Supreme Court in the case reported in 1970 (1) SCC 108, [ State of M.P. vs. Shardul Singh ]. Mr. Verma categorically submitted that he is not pressing Point No.1, he also abandoned Point No.5.

Mr. Ishan Mehta, learned counsel for the Corporation relied on the return and contended that the relevant documents were supplied to the petitioner. Reliance is placed on document dated 05.08.2006 (Annexure-R-2/3), whereby petitioner was directed to inspect the record so that necessary documents can be supplied to him. For the same purpose, he relied on the communication dated 29.08.2006 (Annexure-R-2/4), wherein petitioner was informed that the petitioner shall deposit necessary fees for obtaining the relevant documents. Annexure-R-2/5 dated 06.09.2006 is relied upon to show that petitioner was given certain documents. Mr. Ishan Mehta, learned counsel for the Corporation has taken pains to contend that all the relevant documents were supplied to the petitioner on 05.12.2007 (Annexure-R-2/7). He submits that non-supply of documents before this date has not caused any prejudice to the petitioner. He relied on 2012 (11) SCC 565, [ Ministry of Defence vs. Prabhash Chandra Mirdha ]. Armed with the judgment of [ N.K. Prasad vs. Government of India ] reported in 2004 (6) SCC 299, learned counsel for the Corporation submits that when petitioner was given proper notice and he had chosen not to defend himself properly, he at the latter stage cannot be permitted to say that he had not been given a fair opportunity of hearing. The stand of the Corporation is that the departmental inquiry was conducted as per the principles of natural justice and punishment imposed is commensurate to the misconduct.

Parties confined their arguments to the extent indicated hereinabove.

I have heard the learned counsel for the parties at length and perused the record.

This is trite law that the scope of judicial review of departmental inquiry is limited. This judicial review is confined to the decision making process and not on the decision. If decision making process suffers from serious procedural impropriety which violates principles of natural justice and caused prejudice to the delinquent employee, inquiry is vitiated (See: 1999 (1) SCC 759, [ Apparel Export Promotion Council vs. A.K. Chopra ], 2007 (7) SCC 236, [ Bank of India vs. P. Jogram ] & 2009 (8) SCC 310, [ State of U.P. vs. Man Mohan Nath Sinha & others ]). Similarly, if inquiry officer''s report is based on no evidence, interference can be made. The disciplinary authority''s order can be interfered with if it is not passed on credible evidence. If punishment imposed is shockingly disproportionate, the Court can set aside such punishment.

The facts narrated above clearly show that petitioner has made herculean efforts for getting the documents. There are seven documents mentioned in the charge-sheet dated 31.10.2008. These documents were admittedly not provided to the petitioner alongwith the charge-sheet. After preferring umpteen number of representations, the documents were supplied to him on 05.12.2007 (Annexure- R-2/7). However, before this day, the prosecution witnesses Mr. Rajkumar Chouksey and Mr. R.N. Gupta entered into witness box. Mr. Gupta deposed his statement on 07.08.2007 (Annexure-P/7). Thus, the documents were supplied to the petitioner after recording hte evidence of the prosecution.

In all fairness, the respondents should have supplied the said documents to the petitioner either alongwith the charge-sheet or promptly thereafter so that petitioner could have filed detailed and effective reply. If documents aforesaid would have been supplied to the petitioner before recording the evidence of prosecution witnesses, petitioner could have taken assistance of the said documents and could have used them to effectively cross-examine the prosecution witnesses. In Chandrama Tewari vs. Union of India, 1987 Supp. SCC 518, the Apex Court held as under:

"The procedure at the enquiry must be consistent with the principles of natural justice. Principles of natural justice require that the copy of the document if any relied upon against the party charged should be given to him and he should be afforded opportunity to cross-examine the witnesses and to produce his own witnesses in his defence. If findings are recorded against the government servant placing reliance on a document which may not have been disclosed to him or the copy whereof may not have been supplied to him during the enquiry when demanded, that would contravene principles of natural justice rendering the enquiry, and the consequential order of punishment illegal and void. " [Emphasis Supplied]

In the same judgment it was further held that:

"the violation of principles of natural justice arises only when a document, copy of which may not have been supplied to the party charged when demanded is used in recording finding of guilt against him."

In Para No.9 of the same judgment it is again held that:

"9. It is now well settled that if copies of relevant and material documents including the statement of witnesses recorded in the preliminary enquiry or during investigation are not supplied to the delinquent officer facing the enquiry and if such documents are relied in holding the charges framed against the officer, the enquiry would be vitiated for the violation of principles of natural justice "

Similar view is taken by the Supreme Court in the case of Syndicate Bank vs. Venkatesh Gururao Kurati, 2006 (3) SCC 150, wherein it has been held as under:

"It is only those documents, which are relied upon by the enquiry officer to arrive at his conclusion, the non-supply of which would cause prejudice, being violative of principles of natural justice. " [Emphasis Supplied]

In view of aforesaid analysis, there is no scintilla of doubt that the relevant documents were not supplied to the petitioner at relevant time which has caused grave prejudice to the petitioner. Thus, inquiry was not conducted in consonance with the principles of natural justice.

In Para No.5.5 of the petition, the petitioner has categorically pleaded that the Inquiry Officer examined Mr. R.N. Gupta who relied on his prerecorded statement but that copy of statement of Mr. R.N. Gupta dated 07.08.2007 was not supplied to the petitioner. Petitioner requested for supply of copy of statement dated 07.08.2017 of Mr. R.N. Gupta in order to effectively cross-examine him, but the Inquiry Officer never supplied the said statement to the petitioner and proceeded with the inquiry. It is noteworthy that for the reasons best known to the Corporation, the said pleadings have not been denied in the return. No material is placed before this Court to show that said previous statement of Mr. R.N. Gupta dated 07.08.2007 was either supplied to the petitioner or placed before during the inquiry. A plain reading of deposition of Mr. Rajkumar Chouksey dated 28.06.2007 (Annexure-P/6) shows that he stated that he has been made witness for no justifiable reason. He does not have any information about the incident. Mr. R.N. Gupta, Executive Engineer made a short statement (Annexure-P/7). In this statement, he accordingly states that he has given his written statement on 07.08.2007. As noticed above, no such written statement was ever supplied to the petitioner. It was not even placed before the Inquiry

Officer. He merely stated that he is in agreement with the allegations mentioned against the petitioner.

The Inquiry Officer on the basis of aforesaid statements and documents held that the petitioner is guilty of the charges. The inquiry officer''s report shows that he placed reliance on various documents. However, the statements of prosecution witnesses make it clear that no such documents were proved by the prosecution witnesses. In 2009 (2) SCC 570, [ Roop Singh Negi vs. Punjab National Bank ], the Apex Court opined as under:

"14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence." [Emphasis Supplied]

The same view is taken by their Lordship in State of U.P. vs. Saroj Kumar Sinha, 2010 (2) SCC 772, it reads as under:

"28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents." [Emphasis Supplied]

As per the principles laid down in the said judgments, it is clear like noon day that the documents relied upon by the prosecution must be proved by leading evidence. In absence thereto, the said documents cannot become reason to punish the delinquent employee. Hence, I am of the considered opinion that the findings

of Inquiry Officer are based on no evidence. At the cost of repetition, it may be noted that in oral evidence the prosecution witnesses have not narrated anything against the petitioner and they did not prove the documents during their deposition. Hence, the inquiry officer''s finding is based on inadmissible documentary evidence.

The punishment order passed by the disciplinary authority is based on a cryptic inquiry report. Mr. Ishan Mehta, relied on the judgment of Prabhash Chandra Mirdh (Supra) and N.K. Prasad (Supra). The first judgment is about competency of the authority to issue the charge-sheet against the delinquent employee. Since, Mr. Sanjay Verma, has abandoned his Point No.1, the said judgment pales into insignificance. The principles laid down in second judgment is well accepted, but is of no assistance to the Corporation in the facts of the present case.

As noticed, the inquiry suffers from serious procedural impropriety. The principles of natural justice were not followed by the Corporation. Inquiry officer''s report was based on inadmissible evidence and disciplinary authority mechanically accepted it. For these cumulative reasons, the punishment order cannot sustain judicial scrutiny. Consequently, the punishment order 31.10.2008 (Annexure-P/1) is set aside. The respondents shall treat the petitioner as reinstated till he attained the age of superannuation. Since it is a case of no evidence against the petitioner,this order shall reap all consequential benefits to the petitioner . Petition is allowed .