Full Judgment Text
STATE OF UTTARANCHAL & ORS.
v.
KHARAK SINGH
(Civil Appeal No. 4531 of 2007)
AUGUST 13, 2008.
[R.V. Raveendran and P. Sathasivam, JJ]
The Judgment of the Court was delivered by
P. SATHASIVAM, J. 1. This appeal is directed against the judgment
and order dated 15.5.2006 of the High Court of Uttaranchal at Nainital in
Writ Petition No. 606 of 2003 (SS) whereby the writ petition filed by the
respondent herein was allowed quashing the orders dated 5.3.1986 passed
by the Divisional Forest Officer, Haldwani Forest Division, Dist. Nainital
and dated 27.4.1991 passed by the Conservator of Forest, Western Circle,
Nainital dismissing the respondent from service.
2. The brief facts are stated as under:
The respondent herein was a temporary Forest Guard and was posted in
Nandhaur Range of Haldwani Forest Division, Nainital. In 1984, when he
was incharge of Asani Beat in Nandhor Range of Haldwani Forest Division,
illegal felling of 11 Sal trees and 24 Kokat species took place in Asani Beat
Nos. 1, 3 and 5 which were allotted to the U.P. Forest Corporation for
felling of marked dead, dying and diseased trees. In the diary maintained by
the Department, during the months of March and April, 1984, the
respondent visited the above compartments regularly and certified that there
was no illicit felling of trees in his beat during the period under reporting.
On 23.5.1984, sub-Divisional Forest Officer, Nandhaur seized 27 logs of
Sal bearing transit hammer mark of Dolpokhra Transit Barrier in Haldwani.
Having seen the hammer marks on the seized logs, on 24.5.1984 the SDO
directed Range Officer to trace the illicit felling of trees in and around
Dolpokhra. On being questioned by the SDO, the respondent could not
satisfy the SDO. Having confirmed the involvement of the respondent in the
illicit felling of trees, the Division Forest Officer, Haldwani Forest Division
by letter No. 40/25 dated 1.6.1984, suspended the respondent. On
19.12.1984, the Division Forest Officer served the charge sheet upon the
respondent and the respondent gave his reply on 9.4.1985. Thereafter,
enquiry was entrusted to Sri P.V. Lohni, who submitted his report on
16.11.1985 to the Divisional Forest Officer, Haldwani. On the basis of the
inquiry report, the Divisional Forest Officer vide order dated 6.3.1986
dismissed the respondent herein. Feeling aggrieved, the respondent
preferred an appeal before the Conservator of Forest, Western Circle,
Nainital, Appellant No.2 herein and the same was dismissed vide order
dated 27.4.1981. Questioning the said order, the respondent herein preferred
writ petition before the High Court praying for issuing a writ of certiorari.
The High Court vide order dated 15.5.2005 issued a writ of certiorari
quashing the orders dated 5.3.1986 passed by the Divisional Forest Officer,
Haldwani as well as order dated 27.4.1991 passed by the Conservator of
Forest, Western Circle, Nainital. The High Court has directed the appellants
to reinstate the respondent in service with all consequential benefits.
Aggrieved by the said order, this appeal by special leave has been preferred
by the State of Uttaranchal, Conservator of Forest, Western Circle, Nainital
and Divisional Forest Officer, Haldwani Forest Division, Nainital.
3. We heard Mr. S.S. Shamshy, learned counsel, for the appellants and
Mr. P. Vinay Kumar, learned counsel, for the respondent.
4. Learned counsel appearing for the appellants mainly contended that
the High Court committed an error in quashing the order of dismissal of the
respondent on the ground that the enquiry was not properly conducted and
was not free from bias. On the other hand, according to him, the enquiry
was conducted according to rules and the punishment was awarded based on
the gravity of charges proved. Per contra, learned counsel for the respondent
supported the impugned order of the High Court by pointing out the
infirmities in conducting enquiry.
5. Before analyzing the correctness of the above submissions, it is
useful to refer various principles laid down by this Court as to how enquiry
is to be conducted and which procedures are to be followed.
6. The following observations and principles laid down by this Court in
Associated Cement Co. Ltd. vs. The Workmen and Anr. [1964] 3 SCR 652
are relevant:
“… … In the present case, the first serious infirmity from which
the enquiry suffers proceeds from the fact that the three enquiry
officers claimed that they themselves had witnessed the alleged
misconduct of Malak Ram. Mr. Kolah contends that if the
Manager and the other officers saw Malak Ram committing the
act of misconduct, that itself would not disqualify them from
holding the domestic enquiry. We are not prepared to accept this
argument. If an officer himself sees the misconduct of a
workman, it is desirable that the enquiry should be left to be held
by some other person who does not claim to be an eye-witness
of the impugned incident. As we have repeatedly emphasised,
domestic enquiries must be conducted honestly and bona fide
with a view to determine whether the charge framed against a
particular employee is proved or not, and so, care must be taken
to see that these enquiries do not become empty formalities. If
an officer claims that he had himself seen the misconduct
alleged against an employee, in fairness steps should be taken
to see that the task of holding an enquiry is assigned to some
other officer. How the knowledge claimed by the enquiry officer
can vitiate the entire proceedings of the enquiry is illustrated by
the
present enquiry itself. … …..
….. ….. It is necessary to emphasise that in domestic
enquiries, the employer should take steps first to lead evidence
against the workman charged, give an opportunity to the
workman to cross-examine the said evidence and then should
the workman be asked whether he wants to give any explanation
about the evidence led against him. It seems to us that it is not
fair in domestic enquiries against industrial employees that at the
very commencement of the enquiry, the employee should be
closely cross-examined even before any other evidence is led
against him. In dealing with domestic enquiries held in such
industrial matters, we cannot overlook the fact that in a large
majority of cases, employees are likely to be ignorant, and so, it
is necessary not to expose them to the risk of cross-examination
in the manner adopted in the present enquiry proceedings.
Therefore, we are satisfied that Mr. Sule is right in contending
that the course adopted in the present enquiry proceedings by
which Malak Ram was elaborately cross-examined at the outset
constitutes another infirmity in this enquiry.”
7. In Managing Director, ECIL, Hyderabad and Others vs. B.
Karunakar and Others, (1993) 4 SCC 727, it was held:
“Where the enquiry officer is other than the disciplinary authority,
the disciplinary proceedings break into two stages. The first
stage ends when the disciplinary authority arrives at its
conclusions on the basis of the evidence, enquiry officer’s report
and the delinquent employee’s reply to it. The second stage
begins when the disciplinary authority decides to impose penalty
on the basis of its conclusions. If the disciplinary authority
decides to drop the disciplinary proceedings, the second stage is
not even reached.
While the right to represent against the findings in the report is
part of the reasonable opportunity available during the first stage
of the inquiry viz., before the disciplinary authority takes into
consideration the findings in the report, the right to show cause
against the penalty proposed belongs to the second stage when
the disciplinary authority has considered the findings in the
report and has come to the conclusion with regard to the guilt of
the employee and proposes to award penalty on the basis of its
conclusions. The first right is the right to prove innocence. The
second right is to plead for either no penalty or a lesser penalty
although the conclusion regarding the guilt is accepted. It is the
second right exercisable at the second stage which was taken
away by the Forty-second Amendment. The second stage
consists of the issuance of the notice to show cause against the
proposed penalty and of considering the reply to the notice and
deciding upon the penalty. What is dispensed with is the
opportunity of making representation on the penalty proposed
and not of opportunity of making representation on the report of
the enquiry officer. The latter right was always there. But before
the Forty-second Amendment of the Constitution, the point of
time at which it was to be exercised had stood deferred till the
second stage viz., the stage of considering the penalty. Till that
time, the conclusions that the disciplinary authority might have
arrived at both with regard to the guilt of the employee and the
penalty to be imposed were only tentative. All that has happened
after the Forty-second Amendment of the Constitution is to
advance the point of time at which the representation of the
employee against the enquiry officer’s report would be
considered. Now, the disciplinary authority has to consider the
representation of the employee against the report before it
arrives at its conclusion with regard to his guilt or innocence in
respect of the charges.
Article 311(2) says that the employee shall be given a
“reasonable opportunity of being heard in respect of the charges
against him”. The findings on the charges given by a third person
like the enquiry officer, particularly when they are not borne out
by the evidence or are arrived at by overlooking the evidence or
misconstruing it, could themselves constitute new unwarranted
imputations. The proviso to Article 311(2) in effect accepts two
successive stages of differing scope. Since the penalty is to be
proposed after the inquiry, which inquiry in effect is to be carried
out by the disciplinary authority (the enquiry officer being only his
delegate appointed to hold the inquiry and to assist him), the
employee’s reply to the enquiry officer’s report and consideration
of such reply by the disciplinary authority also constitute an
integral part of such inquiry.
Hence, when the enquiry officer is not the disciplinary authority,
the delinquent employee has a right to receive a copy of the
enquiry officer’s report before the disciplinary authority arrives at
its conclusions with regard to the guilt or innocence of the
employee with regard to the charges levelled against him. That
right is a part of the employee’s right to defend himself against
the charges levelled against him. A denial of the enquiry officer’s
report before the disciplinary authority takes its decision on the
charges, is a denial of reasonable opportunity to the employee to
prove his innocence and is a breach of the principles of natural
justice.
8. In Radhey Shyam Gupta vs. U.P. State Agro Industries
Corporation Ltd. and Another, (1999) 2 SCC 21, it was held:
“34 . But in cases where the termination is preceded by an
enquiry and evidence is received and findings as to misconduct
of a definitive nature are arrived at behind the back of the officer
and where on the basis of such a report, the termination order is
issued, such an order will be violative of the principles of natural
justice inasmuch as the purpose of the enquiry is to find out the
truth of the allegations with a view to punish him and not merely
to gather evidence for a future regular departmental enquiry. In
such cases, the termination is to be treated as based or founded
upon misconduct and will be punitive. These are obviously not
cases where the employer feels that there is a mere cloud
against the employee’s conduct but are cases where the
employer has virtually accepted the definitive and clear findings
of the enquiry officer, which are all arrived at behind the back of
the employee — even though such acceptance of findings is not
recorded in the order of termination. That is why the misconduct
is the foundation and not merely the motive in such cases.”
9. In Syndicate Bank and Others vs. Venkatesh Gururao Kurati,
(2006) 3 SCC 150, the following conclusion is relevant:
“18. In our view, non-supply of documents on which the enquiry
officer does not rely during the course of enquiry does not create
any prejudice to the delinquent. It is only those documents,
which are relied upon by the enquiry officer to arrive at his
conclusion, the non-supply of which would cause prejudice,
being violative of principles of natural justice. Even then, the non-
supply of those documents prejudice the case of the delinquent
officer must be established by the delinquent officer. It is well-
settled law that the doctrine of principles of natural justice are not
embodied rules. It cannot be put in a straitjacket formula. It
depends upon the facts and circumstances of each case. To
sustain the allegation of violation of principles of natural justice,
one must establish that prejudice has been caused to him for
non-observance of principles of natural justice.”
10. In regard to the question whether an enquiry officer can
indicate the proposed punishment in his report, this Court, in a series
of decisions has pointed out that it is for the punishing/disciplinary
authority to impose appropriate punishment and enquiry officer has
no role in awarding punishment. It is useful to refer to the decision of
this Court in A.N.D’Silva vs. Union of India, (1962) Supp 1 SCR 968
wherein it was held:
“In the communication addressed by the Enquiry Officer the
punishment proposed to be imposed upon the appellant if he
was found guilty of the charges could not properly be set out.
The question of imposing punishment can only arise after
enquiry is made and the report of the Enquiry Officer is received.
It is for the punishing authority to propose the punishment and
not for the enquiring authority.”
11. From the above decisions, the following principles would
emerge:
i) The enquiries must be conducted bona fide and care
must be taken to see that the enquiries do not become empty
formalities.
ii) If an officer is a witness to any of the incidents which is the
subject matter of the enquiry or if the enquiry was initiated
on a report of an officer, then in all fairness he should not be
the Enquiry Officer. If the said position becomes known after
the appointment of the Enquiry Officer, during the enquiry,
steps should be taken to see that the task of holding an
enquiry is assigned to some other officer.
iii) In an enquiry, the employer/department should take steps
first to lead evidence against the workman/delinquent
charged, give an opportunity to him to cross-examine the
witnesses of the employer. Only thereafter, the
workman/delinquent be asked whether he wants to lead any
evidence and asked to give any explanation about the
evidence led against him.
iv) On receipt of the enquiry report, before proceeding further, it
is incumbent on the part of the disciplinary/punishing
authority to supply a copy of the enquiry report and all
connected materials relied on by the enquiry officer to
enable him to offer his views, if any.
12. Now, let us consider the merits of the case on hand and
whether the High Court is justified in quashing the orders passed by
the disciplinary authority as well as the appellate authority dismissing
the respondent from service. In the proceedings Letter No. 1644/8
Haldwani dated December 19, 1984 (Annexure-P1) after furnishing
certain factual details, the following charges have been levelled
against the delinquent:
“Charge 1: You have concealed the illegal cutting which took
place in Asani Block from your higher officials deliberately which
caused huge financial loss to the department.
Charge 2: You have not obeyed the orders of your higher
officials and you have traveled leaving your working without any
reason in arbitrary manner.
Charge 3: You have shown negligence in discharging your
duties.”
Though a detailed explanation has been submitted controverting
the above charges, no enquiry in terms of the above-mentioned
principles was ever conducted. On the other hand, one Mr. P.C.
Lohani, Dy. Divisional Forest Officer, Nadhor acting as an enquiry
officer after putting certain questions and securing answers
submitted a report on 16.11.1985. No witnesses were examined.
Apparently there was not even a presenting officer. A perusal of the
report shows that the enquiry officer himself inspected the areas in
the forest and after taking note of certain alleged deficiencies
secured some answers from the delinquent by putting some
questions. It is clear that the Enquiry Officer himself has acted on the
Investigator, Prosecutor and Judge. Such a procedure is opposed to
principles of natural justice and has been frowned upon by this Court.
13. Another infirmity in the report of the enquiry officer is that he
concluded the enquiry holding that all the charges have been proved
and he recommended for dismissal of the delinquent from service.
The last paragraph of his report dated 16.11.1985 reads as under:-
“During the course of above inquiry, such facts have come into
light from which it is proved that the employee who has doubtful
character and does not obey the order, does not have the right
to continue in the government service and it is recommended to
dismiss him from the service with immediate effect.”
(emphasis supplied)
Though there is no specific bar in offering views by the enquiry
officer, in the case on hand, the enquiry officer exceeded his limit by
saying that the officer has no right to continue in the government
service and he has to be dismissed from service with immediate
effect. As pointed out above, awarding appropriate punishment is the
exclusive jurisdiction of the punishing /disciplinary authority and it
depends upon the nature and gravity of the proved charge/charges
and other attended circumstances. It is clear from the materials, the
officer, who inspected and noted the shortfall of trees, himself
conducted the enquiry, arrived at a conclusion holding the charges
proved and also strongly recommended severe punishment of
dismissal from service. The entire action and the course adopted by
the enquiry officer cannot be accepted and is contrary to the well-
known principles enunciated by this Court.
14. A reading of the enquiry report also shows that the
respondent herein was not furnished with the required documents.
The department’s witnesses were not examined in his presence.
Though the respondent who was the writ petitioner specifically stated
so in the affidavit before the High Court in the writ proceedings, those
averments were specifically controverted in the reply affidavit filed by
the department. Mere denial for the sake of denial is not an answer
to the specific allegations made in the affidavit. Likewise, there is no
evidence to show that after submission of the report by the enquiry
officer to the disciplinary authority, the respondent herein was
furnished with the copy of the said report along with all the relied
upon documents. When all these infirmities were specifically pleaded
and brought to the notice of the appellate authority (i.e. Forest
Conservator), he rejected the same but has not pointed the relevant
materials from the records of the enquiry officer and disciplinary
authority to support his decision. Hence, the appellate authority has
also committed an error in dismissing the appeal of the respondent.
15. After taking note of all the infirmities and in the light of the
various principles enunciated by this Court, the High Court has rightly
interfered and quashed the orders dated 05.03.1986 passed by the
Divisional Forest Officer, Haldwani as well as order dated 27.04.1991
passed by the Conservator of Forest, Western Circle, Nainital.
16. In view of the above discussion and conclusion, the appeal
fails and the same is dismissed. However, there will be no order as to
costs.