IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 8164 of 2010. Reserved on: 08.07.2011. Decided on: 19.07.2011. _______________________________________________ Dewan Chand Thakur. … Petitioner. Versus Himachal Pradesh State Civil Supplies Corporation Ltd. … Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioner : Mr. H.K. Paul, Advocate. For the Respondent : Ms. Bhavana Dutta, Advocate. Rajiv Sharma, Judge: Disciplinary proceedings were initiated against the petitioner under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as “the Rules” for short) on 11.6.1996. Since the petitioner was not supplied with the documents mentioned in Annexures P-III and P-IV filed alongwith memorandum of 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - charge dated 11.6.1996 (Annexure P-1), he requested the Managing Director of the respondent-Corporation to supply the same on 13.7.1996. The prayer of the petitioner was rejected on 18.7.1996. Thereafter the petitioner again reiterated his request on 2.8.1996. However, he was not supplied the copies of the documents, as requested. Mr. S.K. Acharya was appointed as the Inquiry Officer on 24.8.1996. Statement of PW-1, Vijay Sharma was recorded on 24.5.1997. Petitioner again requested for the supply of the documents, but his request was turned down. The statement of defence witness was recorded on 24.1.1998. The Inquiry Officer submitted his report to Disciplinary Authority on 6.6.1998. Petitioner was served with memorandum alongwith copy of the inquiry report on 19.6.1998. He filed reply to the same on 24.6.1998. The Disciplinary Authority imposed the penalty of withholding of three increments of pay with cumulative effect upon the petitioner on 10.7.1998. The period of absence, if any, was to be treated leave of the kind due. The petitioner preferred an appeal to the Appellate Authority on 29.9.1998. Same was rejected on 8.9.1999. Petitioner preferred Original Application No.1218 of 2000 before the erstwhile learned Himachal Pradesh Administrative Tribunal seeking quashing of orders dated 10.7.1998 and 8.9.1999. The same was transferred to this Court and was assigned CWP(T) No.6601 of - 3 - 2008. The same was decided by this Court on 6.4.2010 and the Appellate Authority was directed to pass fresh orders. The Appellate Authority passed fresh orders dated 19.6.2010, Annexure P-10, whereby the appeal preferred by the petitioner was rejected. 2. Mr. H.K. Paul, learned counsel for the petitioner has strenuously argued that the petitioner was seriously prejudiced since he was not supplied with the documents mentioned in Annexures-III and IV filed alongwith memorandum dated 11.6.1996. According to him, since the fundamental documents were not supplied to the petitioner, the departmental proceedings are vitiated. 3. Ms. Bhavana Dutta, learned counsel for the respondent has argued that the petitioner was not required to be supplied the documents. She has referred to letter dated 18.7.1996 (Annexure P-3). 4. I have heard learned counsel for the parties and gone through the pleadings carefully. 5. Disciplinary proceedings have been initiated against the petitioner under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. It is evident from the plain reading of Sub-rule (4) of Rule 14 of the Rules that it is incumbent upon the Disciplinary Authority to deliver or cause to be delivered to the Government servant - 4 - a copy of articles of charge, statement of imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article or charges is proposed to be proved. It is only thereafter that the incumbent is to be granted specified time to file written statement of his defence and to state whether he desires to be heard in person or not. 6. According to instruction No.20 appended to Rule 14 of the Rules, a list of the documents which are proposed to be relied upon to prove the charge and the facts stated in the statement of allegations should be drawn up at the time of framing the charge(s). This list should normally include the documents like the first information report if there is one on record. The list so prepared should be supplied to the officer either along with the charge-sheet or as soon thereafter as possible. The officer should be permitted access to the documents mentioned in the list, if he so desires. 7. In the instant case, the petitioner has only sought the documents which were mentioned in Annexure-III and list of witnesses as per Annexure-IV of memorandum dated 11.6.1996 (Annexure P-1) vide application dated 13.7.1996. Same has been rejected in a most illegal and arbitrary manner on 18.7.1996. What is stated in letter dated 18.7.1996 is that there is no provision for supply of these documents under Rule 14 of the rules ibid. This ground taken while rejecting - 5 - the prayer of the petitioner for supply of documents was contrary to what is stated in sub-rule (4) of Rule 14 and instruction No.20 appended to Rule 14 of the Rules. 8. The petitioner has also moved an application again as per the pleadings on 2.8.1996 for supply of these documents. These documents were not supplied to him even when the statement of PW-1 was recorded on 24.5.1997. The Inquiry Officer has proceeded with the inquiry without supplying the fundamental documents to the petitioner, which has definitely caused prejudice to him. The petitioner was imposed major penalty on 10.7.1998. In his appeal dated 24.6.1998 preferred against order dated 10.7.1998, the petitioner has specifically taken the ground that the documents mentioned in Annexures III and IV alongwith memorandum dated 11.6.1996 ought to have been supplied to him. The Appellant Authority has not taken this very important question into consideration while rejecting his appeal on 8.9.1999 and again in order dated 19.6.2010. 9. A Constitution Bench of the Hon’ble Supreme Court in Tirlok Nath versus Union of India and Others, 1967 S.L.R., 759 while taking into consideration Rule 55 of the Civil Services (Classification, Control, and Appeal) Rules, 1930 laid down that it is obligatory upon the Inquiry Officer not only to furnish the public servant concerned with a copy of the - 6 - charges levelled against him, the grounds on which those charges are based and the circumstances on which it is proposed to take action against him. Further, if the public servant so requires for his defence, he has to be furnished with copies of all the relevant documents, that is, documents sought to be relied on by the Inquiry Officer or required by the public servant for his defence. Their Lordships of Hon’ble Supreme Court have held as under (para 10):- “We shall assume for the present that r. 55 of the Civil Services (Classification, Control and Appeal) rules applies to this case. But this rule requires that the public servant concerned must be afforded an adequate opportunity of defending himself. It is for this reason that it is obligatory upon the Inquiry Officer not only to furnish the public servant concerned with a copy of the charges levelled against him, the grounds on which those charges are based and the circumstances on which it is proposed to take action against him. Further, if the public servant so requires for his defence, he has to be furnished with copies of all the relevant documents, that is, documents sought to relied on by the Inquiry Officer or required by the public servant for his defence. That the appellant had made a request for the supplies of copies of documents is clear from the following passage in the report of Shri Sharma: “He further pointed out that even the provision of Civil services (Classification, control and Appeal) Rules had not been complied with - 7 - and said that he should have been given a statement of allegations, the grounds on which each charge was based, any other circumstances which it was proposed to take into consideration, a list of the prosecution witnesses and copies of the documents on which the prosecution case rested.” Inspite of this complaint the documents upon the perusal of which alone the Inquiry Officer has based his report were not furnished to him. All that the Inquiry Officer had to say about this is as follows: “I then informed him that in so far as his objections regarding the supply of documents etc., was concerned, it was for him to ask for any documents etc., that he wanted to see, but he did not do so. As for the charge-sheet, I thought that was comprehensive enough to enable him to draw up a statement which he was bound to furnish under r. 55 of the Civil Services (Classification, Control and Appeal) Rules.” Later in his report, the Inquiry Officer observed: “I then asked the Raizada for the statement which he was required to submit; but he told me point blank that he had no intention of submitting any such statement.” - 8 - It may be mentioned that even according to the Inquiry Officer, the appellant did not say that he want to take any part in the Inquiry or that he did not want to adduce any evidence before him. In spite of this, the Inquiry Officer thought that the circumstances warranted his proceeding against the appellant ex-parte. We have no doubt whatsoever that in doing so the Inquiry Officer fell into a grave error. No doubt, the appellant was chary of giving an answer to the charge framed against him and of dealing with the grounds which the charge was based but that was because he apprehended that a charge-sheet might be put up against him. It cannot be inferred from this that the appellant had adopted a defiant attitude and was bent on boycotting the inquiry against him altogether. It seems to us that the attitude adopted by the appellant cannot be characterised as unreasonable. His whole idea in objecting to file the written statement was to obviate the use of any statements made by him for the purpose of improving the criminal case. Indeed, it would be clear from the fact that he was insisting on being furnishing with copies of documents on which the Inquiry Officer proposed to reply that he did not want to take part in the inquiry proceedings. It is no doubt true that the appellant did not say that he wanted an oral inquiry to be held but it was within the discretion of the Inquiry Officer to hold such an Inquiry. Had he decided to do so, the documents would have been useful to the appellant for cross examining the witnesses who deposed against him. Again had the copies of the documents been furnished to the appellant - 9 - he might, after perusing them, will have exercised his right under the rule and asked for an oral inquiry to be held. Therefore, in our view 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 r. 55 but also of Art. 311 (2). Accordingly we quash the order of removal of the appellant from service passed by the Chief Commissioner of Delhi.” 10. In the instant case also, the documents mentioned in Annexures-III and IV of the office memorandum dated 11.6.1996 (Annexure P-1) ought to have been supplied to the petitioner. 11. Their Lordships of Hon’ble Supreme Court in State of U.P. v. Shatrughan Lal and another, AIR 1998 SC 3038 have held that in departmental proceedings where charge-sheet is issued and the documents which are proposed to be utilized against that person are indicated in the charge- sheet but copies thereof are not supplied to him in spite of his request, and he is, at the same time, called upon to submit his reply, it cannot be said that an effective opportunity to - 10 - defend was provided to him. Their Lordships of Hon’ble Supreme Court have held as under (paras 4 and 5):- “Now, one of the principles of natural justice is that a person against whom an action is proposed to be taken has to be given an opportunity of hearing. This opportunity has to be an effective opportunity and not a mere pretence. In departmental proceedings where charge-sheet is issued and the documents which are proposed to be utilised against that person are indicated in the charge-sheet but copies thereof are not supplied to him in spite of his request, and he is, at the same time, called upon to submit his reply, it cannot be said that an effective opportunity to defend was provided to him. (See : Chandrama Tewari v. Union of India, 1987 (Supp) SCC 518 : AIR 1988 SC 117; Kashinath Dikshita v. Union of India, (1986) 3 SCC 229 : AIR 1986 SC 2118; State of Uttar Pradesh v. Mohd. Sharif, (1982) 2 SCC 376 : AIR 1982 SC 937). In High Court of Punjab and Haryana v. Amrik Singh, 1995 Supp (1) SCC 321, it was indicated that the delinquent officer must be supplied copies of documents relied upon in support of the charges. It was further indicated that if the documents are voluminous and copies cannot be supplied, then such officer must be given an opportunity to inspect the same, or else, the principles of natural justice would be violated.” 12. A Division Bench of Allahabad High Court in Hari Nath Singh Yadav v. Administrator/Chairman, - 11 - Provincial Co-operative Federation, Lucknow and others, 2000 LAB.I.C. 2360 have held that non-supply of relevant documents referred to in charge sheet to delinquent despite his repeated requests vitiates the inquiry proceedings. The learned Judges have held as under (paras 4 and 6):- “Learned counsel for the petitioner has relief on a decision of the Supreme Court in State of U.P. v. Shatrughan Lal, AIR 1998 SC 3038 : (1998 All LJ 2159) in which it has been held that the relevant documents which are referred to in the charge sheet and which are relied on by the enquiry officer have to be supplied to the charge sheeted employee. In paragraphs 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 69 of the writ petition it has been contended that copies of the documents referred to in the charge sheet were not supplied to the petitioner despite his requests. A perusal of the charge sheet copy of which is Annexure 3 to the writ petition, shows that a large number of documents have been referred to therein. Hence, in view of the aforesaid decision of the Supreme Court copies of these documents should have been supplied to the petitioner, but it appears that despite his repeated requests they were not supplied to him. Hence, in view of the decision of the Supreme Court in State of U.P. v. Shatrughan Lal (1998 All LJ 2159) (supra) this writ petition has to be allowed. The writ petition is allowed. The impugned order dated 8.6.1999 is quashed. However, it is open to the authority concerned to hold a fresh enquiry and pass a fresh order after - 12 - giving opportunity of hearing to the petitioner in accordance with law.” 13. Their Lordships of Hon’ble Supreme Court in State of Uttar Pradesh and Others Versus Saroj Kumar Sinha, (2010) 2 SCC 772 while referring to sub-rule (v) of Rule 7, U.P. Government Servant (Discipline and Appeal) Rules, 1999 have held as under (para-6):- “Sub-rule (v) of Rule 7 mandates that the copies of the documentary evidence mentioned in the charge-sheet has to be served on the government servant along with the charge-sheet. The aforesaid sub-rule is as under: “7. (v) The charge-sheet, along with the copy of documentary evidences mentioned therein and list of witnesses and their statements, if any shall be served on the charged government servant personally or by registered post at the address mentioned in the official records in case the charge-sheet could not be served in aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulation: Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged government servant shall be permitted to inspect the same before the inquiry officer.” A perusal of the aforesaid rule would clearly show that the disciplinary authority is duty-bound to make available all relevant - 13 - documents which are sought to be relied upon against the government servant in proof of the charges. It is only when the charge-sheet together with documents is supplied that the government servant can be said to have had an effective and reasonable opportunity to present his written statement of defence.” 14. Accordingly, in view of the observations and discussion made hereinabove, it is evident that the petitioner has been prejudiced by not supplying the copies of the documents referred to in the charge-sheet alongwith charge- sheet. These fundamental documents ought to have been supplied to the petitioner in order to effectively defend him. Moreover, the petitioner has specifically taken the ground in his appeal, dated 29.9.1998 that he has not been supplied the copies of the documents filed with the charge-sheet. This has been overlooked by the Appellate Authority. He is seriously prejudiced by non-supply of the relevant documents, which has vitiated the disciplinary proceedings. 15. Consequently, for the aforesaid reasons, the writ petition is allowed. Annexure P-6, dated 10.7.1998 and Annexure P-10, dated 19.6.2010 are quashed. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma), Judge. July 19, 2011. (sck).