IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition (T) No. 7367 of 2008 Judgment reserved on: 31.5.2011 Date of decision: 13.06.2011. Sharat Kapoor …Petitioner. Versus H.P. M.C. and another ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Mr. G.R.Palsra, Advocate. For the Respondents : None. Kuldip Singh, Judge The petitioner has prayed for quashing of punishment order dated 14.8.2001 Annexure PA with further directions to the respondents to regularise the period of alleged absence of petitioner w.e.f. 10.8.1999 to 2.12.1999 and to direct the respondents to treat the suspension period of the petitioner as on duty instead of regularizing the same by granting leave of the kind due. 2. The facts, in brief, are that the petitioner was chargesheeted vide memo dated 9.5.2000 for unauthorized and wilfull absence from duties and non-compliance of the orders of the management as well as acting in a manner unbecoming of an employee of the respondent-Corporation. He was also charged for 1 Whether reporters of Local Papers may be allowed to see the Judgment ?yes 2 wilfull insubordination and repeated defiance of orders of the management and failure to discharge duties in utter dis-regard to the interest of the Corporation. The petitioner denied the charge. The respondent-Corporation without considering the reply of the petitioner to the chargesheet ordered inquiry against the petitioner and appointed Inquiry Officer so also Presenting Officer. 3. It has been alleged that the departmental inquiry was a stage managed affair. The petitioner was not given full opportunity to defend himself. The documents were not supplied to the petitioner. The Inquiry Officer without cogent reasons ignored the expert opinion regarding the health of the petitioner from 10.8.1999 to 2.12.1999 4. The allegations and the charges against the petitioner were false. The petitioner had proved that he had taken over the charge of store at Jarol vide office order dated 13.12.1999. The inquiry was held in a perfunctory manner by the Inquiry Officer. The petitioner was not examined as his own witness and asked questions arising out of material which had come on record against him during the course of domestic inquiry. On this ground alone, the inquiry report and the punishment order are liable to be set-aside. 5. The Inquiry officer did not allow the petitioner to produce several documents in his defence which would have brought out the truth. The petitioner did not get a fair deal at the hands of the Inquiry Officer, who submitted perfunctory inquiry report against the petitioner. 6. The petitioner submitted his representation against the inquiry report but without considering the representation of the 3 petitioner the penalty was imposed. The petitioner filed an appeal dated 3.9.2001 against punishment order dated 14.8.2001 but without any result. 7. The petition has been contested by the respondents by filing reply. It has been denied that reply to the chargesheet dated 9.5.2000 was not considered. It has been asserted that departmental inquiry was rightly initiated against the petitioner. The petitioner and his Defence Assistant were given fair opportunity to represent or object the inquiry. During inquiry, the documents were supplied to the Defence Assistant. The Defence Assistant was also informed that the Bye Laws of the Corporation could be taken from the Presenting Officer. The Inquiry Officer has concluded that the Defence Assistant and petitioner have based their brief arguments on the documents which they never exhibited during the cross- examination of the department witnesses. No defence witness was produced by the petitioner. The petitioner did not report for second medical opinion at Mandi to establish the bonafide of his illness. The Inquiry Officer had given full opportunity to the petitioner during inquiry and defend his case. 8. On joining at Jarol, the petitioner was directed to take over the complete charge vide letter dated 13.12.1999. The petitioner instead of taking over the charge, submitted an application showing his inability to take over the charge of the store items. 9. The Inquiry Officer after conclusion of the inquiry submitted inquiry report to the Disciplinary Authority. The Disciplinary Authority after considering the inquiry report and the reply of the petitioner imposed penalty vide order dated 14.8.2001 4 Annexure PA. The period of suspension of the petitioner has been regularised by grant of leave of the kind due. The reply of the respondents is silent regarding the appeal filed by the petitioner against the punishment order dated 14.8.2001. The petitioner has filed rejoinder to the reply and has reiterated his stand taken in the petition. 10. I have heard Mr. G.R.Palsra, Advocate, learned counsel for the petitioner, none appeared on behalf of the respondents despite service. The inquiry report dated 27.6.2001 has been placed on record. The Inquiry Officer in the inquiry report has recorded a finding that both Charges stand proved. In the inquiry report it has been stated that Charged Officer had not named any defence witnesses for examination, the Presenting Officer was asked to submit written arguments in the case with a copy to Defence Assistant and Defence Assistant was asked to submit his written arguments. The Presenting Officer submitted written arguments on 21.11.2000 and Defence Assistant submitted that the documents are necessary for the defence of the Charged Officer. 11. The respondent No.1 has framed Himachal Pradesh Horticulture Produce Marketing and Processing Corporation Limited, Employees Service Bye-laws (for short ‘Bye-laws’). The memo dated 9.5.200 indicates that inquiry against the petitioner was conducted under bye-laws 6.17 (1) and (2). The bye-law 6.17(1) provides that without prejudice to the provision of other regulation an employee who commits a breach of the regulations of the Corporation or, who knowingly does anything detrimental to the interest of prestige of the Corporation or in conflict with its instructions, or who commits a 5 breach of discipline or is guilty of any other act of misconduct or misbehaviour, shall be liable to (i) minor penalties (ii) major penalties. The penalties have been further elaborated. 12. The bye-law 6.17 (2) provides that no employee shall, after the enforcement of these regulations (bye-laws) be subject to the minor penalties except by an order in writing signed by the Managing Director, and no such order shall be passed with the charge or charges being formulated in writing and given to the said employees so that he shall have reasonable opportunity to answer them in writing. In addition to the provisions in sub-regulation (2) no order imposing any of the major penalties shall be made without holding an inquiry. The bye-law 6.18 provides that penalties referred to in bye-law 6.17 may be imposed by order in writing of the Managing Director. The bye-law 6.20 (b) provides an appeal against the order of the Managing Director to the Board with further stipulation that no appeal shall lie against an order passed on an appeal. 13. The procedure for conducting the inquiry has not been provided in bye-law 6.17 or elsewhere in the bye-laws. It is nobody’s case that the procedure prescribed in CCS(CCA) Rules, 1965 is applicable for conducting inquiry under bye-law 6.17. In these circumstances, the fundamental procedure for holding an inquiry in departmental proceedings is enough in an inquiry to be conducted for imposing penalty provided under bye-law 6.17. 14. The grievance of the petitioner is that the Inquiry Officer has not considered the documents relied in the written arguments submitted on behalf of the petitioner through Defence Assistant. The 6 written arguments of the petitioner have been ignored by the Inquiry Officer on the ground that the documents relied in the arguments were not exhibited during the cross-examination of department witnesses. The Inquiry Officer has not recorded a finding that the documents which have been relied in the written arguments submitted on behalf of the petitioner by the Defence Assistant during inquiry were false, forged or fabricated, not only this, the genuineness of these documents has not at all been doubted by the Inquiry Officer. No bye-law, regulation or instruction has been relied by the Inquiry Officer in the inquiry report to ignore the documents which have not been exhibited. The Inquiry Officer was bound to consider all documents from both sides unless admissibility of those documents was barred by under some provision applicable in the inquiry conducted under bye-law 6.17, but neither in the inquiry report nor in the reply of the respondent such provision has been relied. 15. The petitioner after inquiry report dated 27.6.2001 submitted representation dated 16.7.2001 against the inquiry report in which he raised several contentions. The respondent No.2 in the punishment order dated 14.8.2001 has referred to the representation of the petitioner but the contentions raised in the representations have not been noticed by the respondent No.2 in the punishment order dated 14.8.2001. The representation of the Charged Officer after the inquiry is not an empty formality. Moreso, when the petitioner has raised the contentions in the representation, those contentions were required to be dealt with after consideration and due application of mind. 7 16. In R.P. Bhatt vs. Union of India and others (1986) 2 SCC 651, the Supreme Court has interpreted the word ‘consider’ in Rule 27 (2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The Supreme Court has held that word ‘consider’ in Rule 27(2) implies due application of mind. It has also been held that Director General has also not given any finding on the crucial question as to whether the findings of the Disciplinary Authority were warranted by the evidence on record. The Rule 27 is of consideration of appeal. Applying the principle laid down by the Supreme Court in R.P.Bhatt (supra), the Disciplinary Authority in the present case has not considered the evidence on record and the contentions raised by the petitioner in his representation dated 16.7.2001. There is no application of mind. 17. The Inquiry Officer has ignored the documents relied by the petitioner in his written arguments on the ground that the documents have not been exhibited. The Evidence Act as such, is not applicable in the departmental proceedings. There is no finding that the documents relied by the petitioner are fabricated or not genuine. In Naresh Govind Vaze vs. Government of Maharashtra and others (2008) 1 SCC 514, it has been held that the Inquiry Officer appointed to inquire into the charges levelled against a delinquent officer is neither a court nor the provisions of the Evidence Act are applicable. The Inquiry Officer and the Disciplinary Authority have thus erred in ignoring the documents relied by the petitioner only on the ground that such documents were not exhibited. There is no finding that the documents were fabricated or not genuine. 8 18. In G. Vallikumari vs. Andhra Education Society and others (2010) 2 SCC 497, the Supreme Court has held as follows:- “In his order, the Chairman of the Managing Committee did refer to the allegations levelled against the appellant and representation submitted by her in the light of the findings recorded by the enquiry officer, but without even adverting to the contents of her representation and giving a semblance of indication of application of mind in the context of Rule 120(1)(d)(iv) of the Rules, he directed her removal from service. Therefore, there is no escape from the conclusion that the order of punishment was passed by the Chairman without complying with the mandate of the relevant statutory rule and the principles of natural justice. The requirement of recording reasons by every quasi-judicial or even an administrative authority entrusted with the task of passing an order adversely affecting an individual and communication thereof to the affected person is one of the recognized facts of the rules of natural justice and violation thereof has the effect of violating the order passed by the authority concerned.” 19. The Inquiry Officer in the inquiry report dated 27.6.2001 did not consider the documents relied by the petitioner. The Disciplinary Authority in the impugned order dated 14.8.2001 has not noticed the contentions raised by the petitioner in the representation dated 16.7.2001 against the inquiry report and passed the impugned order without due application of mind. The Apellate Authority has not decided the appeal filed by the petitioner against the order dated 14.8.2001. Thus, at every stage for one reason or the other, the 9 contentions raised by the petitioner remained unanswered on grounds not available in law. In these circumstances, the impugned order dated 14.8.2001 Annexure PA is not sustainable and is liable to be quashed. 20. In view of above, the petition is allowed, impugned order dated 14.8.2001 Annexure PA is quashed. The case is remitted to the respondent No.2 to further remit the case to the Inquiry Officer who will consider the written arguments of the petitioner alongwith documents relied by him and give fresh report to respondent No.2 and thereafter the departmental proceeding will proceed in accordance with law. The matter is quite old, the entire process is directed to be completed within a period of three months which will include the passing of order by the Disciplinary Authority on the basis of inquiry report after giving an opportunity to the petitioner to file objections, if any, against fresh inquiry report. The petition stands disposed of on above terms. ( Kuldip Singh ), June 13, 2011 Judge. (GR)