Civil Writ Petition No.10921 of 1988 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No.10921 of 1988 Date of decision: October 28,,2010 Subhash Chander Dang V. State of Haryana and others CORAM: HON'BLE MR. M.JEYAPAUL Present: Mr. Rajiv Atma Ram, Senior Advocate with Mr. Vikas Kuthiala, Advocate for the petitioner. Mr. Sukhvinder Singh Nara,Senior Deputy Advocate General, Haryana for respondent-State. Mr. H.N.Mehtani,Advocate for respondent No.3. M.Jeyapaul,J. The petitioner aggrieved by the order of dismissal passed by the State of Haryana, the first respondent herein, based on the disciplinary enquiry conducted against him, has moved this writ petition praying to quash the enquiry report and direct the respondent-State to treat the petitioner as continued in service throughout. The consequential relief of arrears of pay with interest has also been prayed for by the petitioner. The petitioner was appointed as Assistant Architect in the Haryana Agriculture Marketing Board, Chandigarh in the year 1972. Later on he was selected by the Haryana Public Service Commission and was appointed as Assistant Architect in the respondent-State as on 31.12.1973. Thereafter, he was promoted to the post of Architect with effect from 9.12.1977. Civil Writ Petition No.10921 of 1988 2 After the Government of India formulated a scheme for selection of experts in various fields and deputation to various friendly countries, the petitioner applied for foreign assignment in accordance with the communication issued by the Government of India vide letter dated 28.2.1977. The petitioner was informed that he had been suggested for an assignment with the Government of Nigeria and that the assignment was with the “Armed Foces Development Projects” in Nigeria. The appointment was to be on contract basis for a period of 24 to 36 months in the first instance. A formal communication was sent to the petitioner that he was selected for the said post. In accordance with the selection made by the Government of India for foreign assignment, the services of the petitioner were placed at the disposal of Government of Nigeria for a period of one year. Vide Haryana Government order dated 30.7.1977, the petitioner was relieved by the Chandigarh Administration, Chandigarh to enable him to join foreign assignment with effected from 20.9.1977. It is alleged by the first respondent that the petitioner did not join his foreign assignment in accordance with the terms and conditions of the selection made by the Government of India but chose to stay in Nigeria unauthorisedly even beyond the period allowed by the Government of India. The petitioner was charge sheeted under Rule 7 of the Punishment and Appeal Rules,1952. The sum and substance of three charges are as under: 1) that the petitioner unauthorisedly over-stayed beyond Civil Writ Petition No.10921 of 1988 3 the sanctioned period of deputation to Nigeria Government and thereby he unauthorisedly absented himself from duty with effect from 20.9.1978; 2) that the petitioner failed to report for duty on deputation with Armed Forces Development Project, Government of Nigeria and failed to report his arrival and the address in Nigeria to the Indian High Commission, Government of India and Government of Haryana; and 3) that the petitioner violated the terms agreed upon in his bond dated 8.8.1977 and failed to deposit the leave salary and pension contribution regularly. The petitioner having received the charge sheet responded to the same by submitting some explanation. The first respondent having found the submissions submitted by the petitioner totally unsatisfactory, appointed an enquiry officer. The enquiry proceedings were completed in the month of December,1985 with the active participation of the petitioner during the course of enquiry and the enquiry report finding the petitioner guilty of all the three charges was submitted by the Enquiry Officer as on 27.7.1987. A copy of the Enquiry Report along with the copies of certain documents procured by the Enquiry Officer after the completion of enquiry was circulated to the petitioner and the petitioner submitted his reply. The personal hearing to the petitioner as required under the service regulations was also given and thereafter the first respondent passed the impugned order Civil Writ Petition No.10921 of 1988 4 terminating the services of the petitioner, having accepted the findings rendered by the Enquriy Officer and rejected the submission made by the petitioner therein. I have heard the learned Counsel for the parties and perused the record of the case. The learned senior Counsel appearing for the petitioner assailed the impugned order passed by the first respondent on the ground that the Enquiry Officer has himself become the prosecutor inasmuch as the Enquiry Officer cross-examined the witnesses despite the fact that a presenting Officer on behalf of the department was very much available for the said purpose. It is his further submission that certain documents were procured by the Enquiry Officer,during the last lap of enquiry but unfortunately those documents were not circulated to the petitioner. The Enquiry Officer relied upon those documents in the enquiry report. The learned Counsel for the petitioner has vehemently argued that the enquiry officer should not have relied upon those documents which were not circulated to the petitioner during the course of enquiry. He would further submit that a discrimination was practiced in the matter of awarding punishment against the petitioner, inasmuch as some of the employees who faced similar charges were at the maximum awarded punishment of stoppage of increments and censure. He would further submit that the list of witnesses and the list of documents were also not supplied at the time when the charge sheet was served on the petitioner. It is his submission that the principle of natural justice was violated in this case and,therefore, the Court will have to intervene in this matter. Civil Writ Petition No.10921 of 1988 5 In contrast, the State Counsel has submitted that the documents shown as Annexures P/9 and P/10 in the enquiry report were circulated to the petitioner at the time when the copy of the report was sent to him for his comments. It is his submission that the petitioner was not taken by surprise when the final show cause notice was issued to him after the enquiry report was submitted by the Enquiry Officer. He has also submitted that the Enquiry Officer simply elicited certain answers from the delinquent employee and, therefore, the questions put by the Enquiry Officer cannot be construed as cross-examination done by him. It is his further submission that the punishment which has been awarded by the State only after taking into consideration the gravity of the charges proved as against the petitioner. I also heard the submissions made by the Haryana State Public Service Commission i.e. the third respondent herein. The Enquiry Officer functions as a quasi judicial authority while conducting the enquiry against the delinquent official. The Enquiry Officer appointed by the department cannot take the role of the prosecutor, inasmuch as he was not the representative of the department concerned. Fairness should be writ large in the entire process of the enquiry being conducted by the Enquiry Officer. The principle of natural justice should be adhered to inasmuch as the delinquent official will have to be given the full opportunity to defend himself as against the charges levelled against him. As rightly pointed out by the learned Senior Counsel appearing for the petitioner, it appears that the enquiry officer in this case having disassociated the petitioner from the enquiry chose to collect certain documents from the Nigerian High Commission. Those Civil Writ Petition No.10921 of 1988 6 documents have been specifically referred to in the enquiry report as Annexures P/9 and P/10 by the Enquriy Officer. The delinquent official is entitled to the copies of those documents collected by the Enquiry Officer during the course of enquiry. Those documents are potential documents completely relied upon by the Enquiry Officer while giving findings as against the petitioner in the enquiry report. An empty formality has been followed by the first respondent by circulating those documents to the petitioner after the enquiry was completed and the enquiry report was submitted by the enquiry officer. There is no dispute to the fact that those two vital documents were not at all circulated to the petitioner to defend himself effectively during the course of enquiry. A perusal of the enquiry report submitted by the enquiry officer shows that the enquiry officer has heavily relied upon those two documents to come to the conclusion that no appointment was made through the Nigerian Government, nor was he appointed to any of the Nigerian Government Project. It is found that the Enquiry Officer had not in fact elicited any answer from the delinquent official during the course of enquiry just to clear doubt in his mind. He in fact made cross-examination during the course of enquiry taking the role of Presenting Officer appointed in this case on behalf of the Government. The enquiry Officer who acts in quasi judicial capacity cannot don the role of prosecutor. To say the least the enquiry Officer has not exhibited fairness in conducing the enquiry. The principle of natural justice has been thrown to wind by the Enquiry Officer. In view of the above, I am inclined to interfere with the Civil Writ Petition No.10921 of 1988 7 order passed by the first respondent, dismissing the petitioner from service based on the enquiry report submitted by the enquiry officer. Under such circumstances I am not inclined to go into the issue as to whether discrimination was practiced in the matter of giving punishment to the petitioner. In view of the above facts and circumstances, the enquiry report as well as the order of dismissal passed as against the petitioner based on the said enquiry report stand quashed. As a result, the petitioner shall be treated to have continued in service. The petitioner is entitled to the consequential relief namely payment of arrears of pay with simple interest. It is a unfortunate case where the petitioner has attained the age of superannuation as on 30.6.2007, having faced the ordeal of enquiry right from the year 1985. Liberty is granted to the respondent-State to proceed with the enquiry in accordance with law, if they deem necessary. The writ petition is accordingly allowed with no order as to costs. October 28,2010 ( M.Jeyapaul ) sks Judge Civil Writ Petition No.10921 of 1988 8