HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule 32 (2)(b) Description of the case. Old No. 7877 of 1996 W.P. No. 2762 (SS) of 2001 Karan Singh vs. Chief Engineer Ganga Ghati Approved for reporting. _______________________ Date of decision: 04.06.2004 Initial of Judge 1 IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL (Old No. 7877 of 1996) Writ Petition No. 2762 of 2001 (S/S) Karan Singh S/o Late Sri Roop Singh R/o Village Khemra Patti-Sarjula, District Tehri Garhwal, At present Working as Chaukidar, In Srinagar Nirman Mandal Tritiya, Srinagar Garhwal. ………. Petitioner Versus Chief Engineer Ganga Ghati, Jal Vidyut Pariyojana, Yamuna Bahwan, Dehradun & others. ………. Respondents Mr. Rajendra Dobhal, learned counsel for the petitioner. Hon’ble Rajesh Tandon, J. By means of the present writ petition, the petitioner has prayed for the issue of a writ, order or direction in the nature of certiorari quashing the impugned orders dated 30.8.1995 and 19.11.1995 passed by respondents No. 3 & 2 respectively. A further prayer was made for the issue of a writ, order or direction in the nature of mandamus directing the respondents not to recover Rs. 70,000/- from the salary of the petitioner. Brief facts giving to the present writ petition are that the petitioner was working as a Chaukidar in the office of Superintending Engineer, Srinagar Nirman Mandal, Tritiya Srinagar Garhwal. In May, 1996, he was posted as Chaukidar in Tehri Bandh Khand 8, Tehri, District Tehri Garhwal. On 24/25.5.86, a theft was committed in the Store of Tehri Bandh Khand No. 8 in the night and a first information report was lodged at Police Chauki Dobuta, District Tehri Garhwal against the unknown person on 26.5.86. Investigation was done on the basis of this F.I.R., but the police failed to arrest the culprits. On 25.7.91 the petitioner was given a charge sheet on departmental proceedings for the theft alleged to have been committed on 24/25.5.86 in the night. The petitioner replied the said charge-sheet on 29.7.91 and denied his responsibility for the theft. 2 Thereafter, on 30.8.95 the respondent No. 3 i.e. Executive Engineer, Tehri Dam Khand No. 4, Dehradun passed an order of recovery of Rs. 70,000/- against the petitioner as the petitioner was held responsible for the loss suffered by the department of account of theft. After receiving the said order of recovery, petition served a registered notice on 18.9.1995 to the respondent No. 3 through his counsel stating therein that the entire departmental proceedings are conducted against the principles of natural justice and the petitioner has not been given any opportunity to defend himself. He, therefore, prayed for reinvestigation of the matter and for stay of the recovery order till the reinvestigation report. But, thereafter, on 19.11.1995, the respondent No. 2 i.e. Superintending Engineer, Srinagar Nirman Mandal Tritiya, Srinagar Garhwal passed another order by which it was intimated to the petitioner that the recovery proceedings of Rs. 70,000/- cannot be stayed. It is stated by the petitioner that on 24.5.86 from 8 p.m. to 5 a.m. of 25.5.86, the petitioner was on duty in the Store of Tehri Dam Khand No. 8, Dobata District Tehri Garhwal and after completing his duties with honesty and watchfulness, the petitioner handed over his charge to another Chaukidar Sri Vijay Kumar Uniyal on 25.5.86 at 5 a.m. It was stated by the petitioner that during the period of his duties, neither any lock was broken nor any theft was committed and as such the petitioner cannot be held responsible for the loss to the department. The petitioner has stated that he has not been supplied with any documents i.e. statement of Vijay Kumar and Veer Singh Rana, Chaukidar, which were used against the petitioner. Enquiry report, on the basis of which, petitioner was held responsible has also not been supplied to the petitioner. Therefore, it is stated by the petitioner that the whole proceedings are illegal and arbitrary. Petitioner has further stated that the F.I.R. was lodged on 26.5.86 whereas the theft was committed in the night of 24/25.5.86, which shows that the theft was not committed during the duty hours of the petitioner. It is, further, stated by the petitioner that after passing the impugned order of recovery, respondent No. 2 i.e. Superintending Engineer, Sri Nagar Nirman Mandal Tritiya, Srinagar Garhwal started deducting Rs. 500/- per month from the salary of the petitioner since November, 1995. Therefore, the petitioner, having no other 3 alternative, approached this Hon’ble Court by way of this writ petition. At the time of admission of the writ petition, the order impugned was stayed by the Hon’ble Allahabad High Court on 29.2.1996 and as such, the recovery against the petitioner with regard to Rs. 70,000/- has already been stayed. The short submission of the petitioner is that he has not been supplied with any documents regarding the statement of Vijay Kumar and Veer Singh Rana, Chaukidars, which were used against, the petitioner. Enquiry report, on the basis of which, petitioner was held responsible has also not been supplied to the petitioner and as such, the petitioner has been deprived of the right of natural justice. Learned counsel for the petitioner has referred the judgment of the Apex Court in State of U.P. Vs Shatrughan Lal & another reported in 1988(6) Supreme Court Cases 651, wherein, the Apex Court after relying upon the judgment of Kashinath Dikshita Vs Union of India reported in 1986 (3) SCC 229, has held that the petitioner must be supplied a copy of the witnesses proposed to be examined and the copies of the statement of the witnesses recorded during the preliminary enquiry should have been supplied to the petitioner. Relevant observations of the Apex Court are quoted below: “5. In High Court of Punjab & Haryana Vs Amrik Singh reported in 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 principle of natural justice would be violated. 6. Preliminary enquiry which is conducted invariably on the back of the delinquent employee may often constitute the whole basis of the charge-sheet. Before a person is, therefore, called upon to submit his reply to the charge-sheet, he must, on a request made by him in that behalf, be supplied the copies of the statements of witnesses recorded during the preliminary enquiry particularly if those witnesses are proposed to be examined at the departmental trial. This principle was reiterated in Kashinath Dikshita Vs Union of India reported in 4 1986 (3) SCC 229 wherein it was also laid down that this lapse would vitiate the departmental proceedings unless it was shown and established as a fact that non-supply of copies of those documents had not caused any prejudice to the delinquent in his defence. 7. Applying the above principles to the instant case, it will be seen that the copies of the documents which were indicated in the charge-sheet to be relied upon as proof in support of the articles of charges were not supplied to the respondent nor was any offer made to him to inspect those documents. 8. Learned counsel appearing for the appellant has contended that the opportunity to inspect the documents was, as a matter of fact, provided to his as set out in para 10 of the written statement filed before the Tribunal, in which, it was, inter alia, indicated as under: “The petitioner was required to reply to the charge within a period of 15 days from the date of receipt of the charge-sheet and not from the date of the order as alleged in the petition. It is no doubt correct that the copies of the documents mentioned in the charge-sheet purporting to substantiate a particular charge were not supplied to the petitioner because it was not necessary and the petitioner had every right to inspect them at any time. It is, therefore, wrong to say that the petitioner was greatly handicapped for want of the copies of the documents mentioned above.” The averments made by the petitioner in paragraph 11& 12 of the writ petition are quoted below: “11. That the petitioner has not been supplied any documents i.e. statement of Vijay Kumar Chaukidar and statement of Veer Singh Rana, Chaukidar which were used against the petitioner and as such the entire proceedings is against the principles of natural justice. 12. That the copy of the enquiry report filed by the enquiry officer holding the petitioner and other two persons responsible for the loss of the department has not been supplied 5 to the petitioner and as such, the entire proceeding is illegal and arbitrary.” These paragraphs 11 & 12 of the writ petition are denied in paragraphs 12 & 13 of the counter affidavit, the same are quoted below: ^^12- ;g fd izLrj 11 Lohdkj ugha gS D;ksafd ;kph dks tkWp lfefr }kjk fof/kor vkjksii= fn;k x;k gS ,oa deZpkfj;ksa ds c;ku Hkh ntZ fd;s x;s gSa ftuds vk/kkj ij gh ;kph dks nks’kh ?kksf”kr fd;k x;kA 13- ;g Hkh izLrj 12 esa of.kZr rF; bl dFku ds lkFk Lohdkj gSa fd foHkkxh; vf/kdkfj;ksa }kjk pksjh }kjk gqbZ gkfu dk vkadu fd;k x;k Fkk ftldh lwpuk ;kph dks nsus dh vko”;drk ugha FkhA** The reply of the respondent is silent on the question of opportunity to the petitioner as stated in paragraph 11 & 12 of the writ petition. For the aforesaid reasons, the writ petition is allowed. The orders dated 30.8.1995 and 19.11.1995 passed by respondents No. 3 & 2 respectively directing the petitioner to pay a sum of Rs. 70,000/- are, hereby quashed. However, liberty is given to the respondents to initiate fresh enquiry, if at any time, respondents consider the participation of the petitioner in the commission of the offence i.e. theft held on 24/25.5.86. (Rajesh Tandon, J.) Date: 4.6.2004 G