IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 143 of 2006 Garhwal Mandal Vikas Nigam Ltd. .……… Appellant Versus Ram Kumar Sharma. .………. Respondent. Mr. U.K. Uniyal, Senior Advocate with Mr. Sandeep Kothari, Advocate for the appellant. Mr. Manoj Tiwari, Senior Advocate with Mr. Alok Mehra, Advocate for the respondent. JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. SUDHANSHU DHULIA, J. (Oral) This Special Appeal has been filed against the order of the learned Single Judge dated 19.10.2005, by which Writ Petition No. 204 of 2001 (S/S) was allowed and the order dated 08.09.1999, by which the respondent was removed from service was set aside. The employer, i.e. the Garhwal Mandal Vikas Nigam Ltd. (herein after referred to as the “GMVN Ltd.”), has filed the present Special Appeal challenging the order dated 19.10.2005 passed by the learned Single Judge. 2. Brief facts of this case are as follows: The respondent was appointed as a Wireless In-charge in the year 1990, on the salary of Assistant Grade-III. It is an admitted fact, that the appointment of the respondent was a substantive appointment. It is also an admitted fact, that GMVN Ltd., i.e. the appellant before this Court, is a Government company, and therefore, an instrumentality of the State as defined under Article 12 of the Constitution of India. Initially, the respondent was suspended from service vide order dated 12.05.1998 by the Managing Director of the GMVN Ltd., and subsequently, a charge sheet was served upon him on 31.07.1998, which carried 8 charges against the respondent relating to absence from duty and negligence in duty, etc. Thereafter, the respondent was given an opportunity to reply to the said charges. The respondent, on the other hand, sought certain documents from the disciplinary authority, as they were not supplied to him. Though there were 24 documents mentioned in the charge sheet, only 15 documents were supplied to the respondent and therefore the respondent requested that the 2 remaining documents be also supplied to him, since they are being relied upon by the disciplinary authority as they are mentioned in the charge sheet. The disciplinary authority, on the other hand, replied that these documents will not be relied upon by the Inquiry Officer, and therefore, they will not be supplied to the respondent, as no prejudice is going to be caused to the respondent on account of the non-supply of such documents. 3. The case of the respondent / petitioner before the learned Single Judge, therefore, was that in the absence of the relevant documents, he was not able to adequately defend himself or to file a suitable reply to the charges. He repeatedly sought those documents, which were denied to him, and consequently, an order dated 08.09.1999 was passed by the Managing Director, i.e. the disciplinary authority, by which the respondent / petitioner was removed from service. It has been stated in the order dated 08.09.1999, that the respondent / petitioner was repeatedly reminded and requested to file his reply to the charge sheet, and vide order dated 09.04.1999, he was given another notice stating that the Department proposes to terminate his services, and therefore, he must give his reply to the charges latest by 30.04.1999. Since the respondent failed to give reply to the charges, the disciplinary authority concluded, that since the reply to the charge sheet is not being made, it would be presumed that the incumbent, i.e. the respondent, has admitted all the charges against himself. Since the charges are of a serious nature, the service of the respondent is liable to be terminated. Therefore, vide the impugned order dated 08.09.1999, the respondent was removed from his service. 4. The impugned order dated 08.09.1999 was challenged by the respondent / petitioner by filing Writ Petition No. 204 of 2001 (S/S). The learned Single Judge, in his order dated 19.10.2005, after hearing the counsel for the petitioner as well as the counsel for the GMVN Ltd., came to the conclusion that principles of natural justice and fair play have been violated by the authorities, inasmuch as, there was no inquiry held prior to the termination of the services of the petitioner, and therefore, the impugned order was liable to be set aside. The relevant portion of the order passed by the learned Single Judge is as under: 3 “From the operative portion of the order it is apparent that respondents have passed order removing the petitioner from services without concluding the inquiry by the Inquiry Officer. Learned counsel for the respondents has submitted that as many as eight charges were leveled against the petitioner and since the petitioner has not replied the charges there was no option left with the Managing Director, Garhwal Mandal Vikas Nigam except to infer that the charges are admitted by the petitioner and on this assumption the Managing Director, Garhwal Mandal Vikas Nigam has passed impugned order removing the petitioner from service. It is not disputed that the petitioner was regular employee of the department and he cannot be removed from the service without holding proper inquiry into the charges leveled against him. It is also not disputed that the inquiry was not concluded by the Inquiry Officer. No inquiry report was submitted and the Managing Director, Garhwal Mandal Vikas Nigam without holding inquiry has passed impugned order which is absolutely illegal and has been passed in violation of principle of natural justice.” 5. Learned senior counsel appearing for the appellant Sri U.K. Uniyal, before this Court has submitted that the GMVN Ltd. had no alternative, but to pass the said order of termination, as inspite of the repeated opportunities given to the respondent, he failed to reply to the charges, and therefore, the non-reply of the charges would mean that he has admitted all the charges levelled against him. 6. Learned senior counsel appearing for the respondent Sri Manoj Tiwari, on the other hand, has repudiated this contention of the learned counsel for the appellant and cited a Division Bench judgment of Allahabad High Court before us in Radhey Shaym Mishra Vs. State of U.P. & others, 2009 (2) AWC 1666, wherein, on broadly similar facts, the Division Bench of the Allahabad High Court has concluded that in case an employee fails to reply to the charges, it cannot be concluded that there is an admission of these charges. We are in respectful agreement with the conclusion drawn by the Division Bench of Allahabad High Court and hold that merely because the charges were not replied, the same would not amount to admission. Although the non-reply of the charges inspite of repeated opportunities would have justified the action of the GMVN Ltd. in proceeding ex parte in the inquiry against the respondent, but the passing of the impugned order, without there being any inquiry, is wholly illegal and unjustified, as it is clearly violative of the principles of natural justice and fair play. 4 7. Mr. U.K. Uniyal, learned senior counsel appearing for the GMVN Ltd. has fairly admitted that there is no inquiry report before the appointing authority on the basis of which the impugned order dated 08.09.1999 was passed. The relevance of a departmental inquiry, in such cases, has been emphasized by the Apex Court in a number of judgments. One such judgment has been cited by the learned counsel for the respondent before us in the case of Roop Singh Negi Vs. Punjab National Bank & others, (2009) 2 SCC 570, wherein the Apex Court has stated that “…a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges leveled 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.” This exercise has not been done by the GMVN Ltd. 8. We, therefore, hold that in the absence of an inquiry, which is admitted before this Court, the case of the GMVN Ltd. / employer suffers from a flaw, which is fatal. Therefore, the order dated 08.09.1999 passed by the Managing Director of the GMVN Ltd. cannot be justified. Consequently, the decision rendered by the learned Single Judge is liable to be upheld, with which we are wholly in agreement. 9. For the reasons stated above, the Special Appeal, being wholly without any merit, and is accordingly dismissed. 10. Since this Court has held that the order dated 08.09.1999, by which the respondent was removed from service is illegal, we further direct that the respondent shall be treated to have been in continuous service since 08.09.1999 and shall be paid all back-wages and all benefits that would accrue to him, in accordance with law. (Sudhanshu Dhulia, J.) (J.S. Khehar, C. J.) 13.05.2010 13.05.2010 G