Sujit Narayan Prasad, J.@mdashThe petitioner has challenged the order dated 21.9.2005, as contained in memo No. 907 issued by the Deputy Commissioner, Hazaribag, whereby and whereunder the removal order earlier passed has been kept as it was. The petitioner has also prayed for his reinstatement with all consequential benefits.
2. The brief facts of the case is that the petitioner has joined his service as Lower Division Clerk in the year 1961 in the Hazaribag Collectorate and after being posted from one place to another, he was posted as District Hindi Instructor in the year 1971 in the office of the Deputy Commissioner, Hazaribag wherein he was placed as In-charge of the Arms and Explosive Section in Hazaribag Collectorate in addition to his original duty as Hindi Instructor.
3. On 6.4.1975 the petitioner was transferred to Keredari Circle and, as such, he was asked to hand over charge of Hindi Section in favour of one Shri M. Tiwary, Lower Division Clerk and the charge of the office of the Arms and Explosives Section in favour of one Shri Lakhan Das Ram as per the orders of the Deputy Commissioner, Hazaribag and after doing all things the petitioner joined his new place of posting in Keredari Anchal after handing over the charge of the post.
4. It has been submitted by the petitioner that immediately after his joining to the new post in Keredari Anchal, he was served with a memo being memo No. 3130/g dated 9.7.1975 under the signature of Deputy Commissioner, Hazaribag by which the petitioner has been put under suspension with immediate effect.
5. It has been submitted by the petitioner that a criminal case has also been instituted against him for the offence under Section 420, 467 and 468 of the Indian Penal Code on 2.8.1975 being G.R. Case No. 2210/1975.
6. It has further been submitted by the petitioner that vide order dated 30.9.1975, the petitioner was directed to appear before the Inquiry Officer along with one memorandum of charge wherein the following charges have been levelled against the petitioner:-
(i) Petitioner while holding post of Ex. Arms Clerk issued a Gun Licence No. 8/75 to Sri Parmanand Upadhya without the orders of the competent authority after forging the signature of District Arms Magistrate Sri R.P. Mukherjee.
(ii) Petitioner made interpolation in Col. 5 of page 92 of Arms Register Vol. 1 by making some entry and forged the initial of the District Arms Magistrate.
(iii) Petitioner was the custodian of all arms records, Registers, etc. as Arms Clerk he did not make over the charge of case records of the above Licence No. 276/74 after he was transferred to Keredari. On 23.6.75 when he was availing E.L. at Hazaribag he was called and ordered to trace out the record in question but he could not trace out the record in question. It was therefore alleged that petitioner deliberately concealed the record in question as he had issued fake licence without obtaining orders of the competent authority.
(iv) On 18.1.75 several arms licences were put for signature of the District Arms Magistrate in the licence Register Vol. 1 which were all signed and returned to office by the District Arms Magistrate. Petitioner managed to get the initial of District Arms Magistrate in Col. 8 of page 92 of the Licence Register by entering subsequently the forged licence of Shri Parmanand Upadhya. Thereby he misguided the District Arms Magistrate and obtained his initial in the above Register fraudulently.
(v) Petitioner made false entry in the Arms Act Register against serial 276/74 when there was no such orders of Deputy Commissioner, Hazaribagh.
7. It has further been submitted by the petitioner that after receiving the memorandum of charges the petitioner has put his appearance before the Inquiry Officer and demanded the statement of allegations, copies of the relevant documents. But without following the due procedure of law the petitioner was removed from services vide order dated 12.8.1983. Before order of removal the petitioner has been acquitted from the liability of the criminal charges vide order/judgment dated 16.4.1983 passed by the Judicial Magistrate, 1st Class, Hazaribag and it has been submitted that against the said judgment no appeal has been preferred by the respondents-authorities.
8. The petitioner has submitted that against the order of removal dated 12.8.1983 he has preferred the writ petition before the Hon''ble Patna High Court being C.W.J.C. No. 1422 of 1995 and vide judgment pronounced on 23.2.2004 a Bench of this Court, after taking into consideration the facts that the petitioner has not been provided an adequate and sufficient opportunity to defend his case and without providing any relevant documents, the order of removal dated 12.8.1983 has been passed, hence the order of removal has been set aside and matter has been remitted back before the Disciplinary Authority to initiate a fresh proceeding after supplying the entire relevant documents demanded by the petitioner. That order has been annexed as Annexure-4 to the writ petition.
9. It has been submitted by the writ petitioner that thereafter a fresh proceeding has been initiated and the petitioner, before Inquiry Officer, has made a specific application dated 16.4.2004 (Annexure-7 to the writ petition) stating the facts related to the background of the case and also stating therein that the documents, as required by him vide his application dated 9.10.1975 (Annexure-1 to the writ petition) may kindly be supplied to him to defend himself.
10. It has been argued by the counsel for the petitioner that the Inquiry Officer has not provided the documents on the garb of provision as contained in para-2 of Rule-55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter to be referred as the CS Rules, 1930) and found the charges proved against the petitioner with the recommendation to dismiss the petitioner from services and thereafter, the order of removal has been passed which has been assailed on the following grounds by the counsel for the petitioner:-
(I) The petitioner has been proceeded by initiating a regular departmental proceeding vide memorandum of charges issued in this regard on 30.9.1975 which has been challenged by him vide C.W.J.C. No. 1422 of 1995 which has been allowed by quashing the earlier order of removal dated 12.8.1983 with a specific direction upon the Disciplinary Authority to initiate a fresh proceeding after supplying the entire relevant documents demanded by the petitioner, but very surprisingly while the fresh proceeding has been initiated, in spite of the specific demand having been made by the petitioner in terms of order dated 23.2.2004 passed in C.W.J.C. No. 1422 of 1995, the relevant documents have not been supplied and the report of the handwriting expert has also not been brought on record before coming to the conclusion with respect to the allegations levelled against the petitioner.
(II) The Inquiry Officer has wrongly relied upon para-2 of Rule 55 of the CS Rules, 1930 on the basis of which the documents have not been supplied to the petitioner.
(III) The Inquiry Officer has exceeded his jurisdiction by making recommendation to impose punishment as because the Inquiry Officer is only supposed to give finding with respect to charges have been proved or not proved and he has got no business to make any recommendation with respect to nature of punishment.
11. As against this, the respondents have filed a detailed counter affidavit disputing the claim of the petitioner mainly on the ground that the petitioner is not entitled to get the relevant documents as per paragraph-2 of Rule-55 of the CS Rules, 1930. The order of removal has been passed in which there is no infirmity and as such it has been argued on behalf of the respondents-authorities that the petitioner is not entitled to get any relief as has been prayed by him in the writ petition.
12. After hearing the counsel for the parties at length, following are the admitted facts:-
(a) Admittedly, the departmental proceeding was initiated against the petitioner on 30.9.1975 and on the basis of the said memorandum of charges the petitioner was removed from service on 12.8.1983. The said removal was assailed by the petitioner by virtue of CWJC No. 1422 of 1995 which has been allowed vide order dated 23.2.2004 on the ground that the petitioner has not been provided adequate and sufficient opportunity of being heard since the relevant documents have not been supplied and after coming to the conclusion that the first Inquiry Officer submitted his report to the effect that the fate of the proceeding depends on the report of the handwriting expert which was not forthwith coming and on that account he was unable to come to a conclusion regarding the charges levelled against the petitioner. However, the disciplinary authority did not agree with the said report and appointed another officer as an Inquiry Officer and thereafter the petitioner requested for the copies of the concerned papers including the gun licence which allegedly contains the forged signature but it could not be produced because of non-availability and in absence thereof, the Inquiry Officer submitted a report holding that some of the charges have been proved and on the basis of the said report the Disciplinary Authority passed the impugned order of removal from service. The appellate authority i.e. the Commissioner affirmed the order of the Disciplinary Authority but found that relevant documents are not supplied to the petitioner. Hence, he has observed in his order as under:-
"I have heard the learned advocate for the appellant and the Govt. Pleader. The first point to be examined is whether or not copies of all the relevant documents were furnished to the petitioner and afforded a reasonable opportunity to defend himself. It appears from the record that the appellant had requested for showing him original licence as far back as January, 1978. A number of attempts were made by the Enquiry Officer as also the District Administration but it could not be supplied to him. He was compelled to file his show cause without it. There is nothing on the record to show that the appellant had asked for other documents which were not supplied to him. Non-production of the original licence will not amount to denial of proper opportunity for his defence.
Then, again, I find that the then Arms Magistrate Sri R.P. Mukherjee was a material witness in this case was neither examined nor cross examined. This might have prejudiced the case of the appellant. But he never insisted on that as per the record.
Thirdly, one of the charges relates to interpolation and forgery. In order to prove this charges it was necessary to obtain the opinion of the handwriting experts. But since the record had disappeared this was not possible."
But the appellate authority has further held that:-
"As regards the charges of interpolation and forgery these could not be proved beyond doubt as the records had disappeared. The learned Deputy Commissioner was justified in drawing adverse inference that the appellant was instrumental in causing disappearance with a view to saving himself."
13. Thus, it is clear that the documents demanded by the petitioner was not produced before the Inquiry Officer and the material witness i.e. the Arms Magistrate was not examined which according to the appellate authority prejudiced the case of the petitioner and on the basis of these facts the order of removal has been quashed and the matter has been remitted back before the disciplinary authority to proceed a fresh after supplying the entire relevant documents demanded by the petitioner by the order passed by this Court in C.W.J.C. No. 1422 of 1995.
14. It further appears that before the fresh inquiry the petitioner has demanded the documents again vide his application dated 16.4.2004 which has been annexed as Annexure-7 to the writ petition and the same has not been denied by the respondents authority in the counter affidavit and only stated in paragraph-51 of the counter affidavit which is as under:-
"51. In reply to paragraphs 38 to 40 of the said writ application, it is stated that the statements made therein are matters of records."
15. Thus, it is clear that the petitioner has demanded again the relevant documents in terms of the order passed in C.W.J.C. No. 1422/1995.
16. It further appears that the Inquiry Officer, without appreciating the order passed by this Court in C.W.J.C. No. 1422 of 1995, has denied to supply the relevant documents in view of the provisions as contained in para-2 of Rule-55 of the CS Rules, 1930.
17. It further appears that while proving the charges the Inquiry Officer has also made recommendation to impose punishment of removal from services against the petitioner.
18. On the basis of the said inquiry report the impugned order dated 21.9.2005 has been passed in exercise of power conferred under Rule 168(D) of the Bihar Board Miscellaneous Rules and thereby the petitioner has been dismissed from service.
19. It is a cardinal principle of law that initiation of departmental proceeding is a right of the disciplinary authority against its employee, if something has been found against him related to misconduct and for that provision has been made under the Statute wherein it has been provided that the penal order has to be passed after providing adequate and sufficient opportunity of being heard to the delinquent employee.
20. The petitioner against whom the departmental proceeding has been initiated on 30.9.1975, that proceeding has continued till 12.8.1983, the date of first order of removal, which has been challenged by the petitioner and ultimately the same has been set aside on the ground that the petitioner has not been provided adequate and sufficient opportunity of being heard by not supplying the relevant document, which has also been observed by the appellate authority.
21. However, while denying the said claim of the petitioner by the inquiry officer, the ground has been taken that in view of para-2 of Rule-55, the petitioner is not entitled to get the relevant documents, as such it is necessary to deal with paragraph-2 of Rule-55 of the CS Rules, 1930:-
"This rule shall not apply where the person concerned has absconded or where it is for other reasons impracticable to communicate with him. All or any of the provisions of the rule may, in exceptional cases, for special and sufficient reasons to be recorded in writing be waived, where there is a difficulty in observing exactly the requirement of the rule and those requirements can be waived without injustice to the person charged."
22. From perusal of paragraph-2 of Rule-55 of the CS Rules, 1930 it is apparent that the same does not speak with respect to not providing the relevant documents. If the provision of Rule-55 will be taken into consideration, it is very much clear that before passing the major punishment the delinquent employee shall be required to give adequate and sufficient opportunity of being heard, which also includes the supply of relevant documents as has been held by the Hon''ble Supreme Court in the case of Tirlok Nath vs. Union of India & Ors. as reported in (1967) 1 SLR 759 wherein the Hon''ble Court has been pleased to hold at paragraph-12 as follows:-
"12. We shall assume for the present that R. 55 of the Civil Services (Classification, Control and Appeal) rules applies to this case. But this rules requires that the public servant concerned must be afforded an adequate opportunity of defending himself. It is for the 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."
23. Further in the case of
"28. Enquiry Officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
29. Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee.
33. As noticed earlier in the present case not only the respondent has been denied access to documents sought to be relied upon against him, but he has been condemned unheard as the enquiry officer failed to fix any date for conduct of the enquiry. In other words, not a single witness has been examined in support of the charges levelled against the respondent. The High Court, therefore, has rightly observed that the entire proceedings are vitiated having been conducted in complete violation of principles of natural justice and total disregard of fair play. The respondent never had any opportunity at any stage of the proceedings to offer an explanation against the allegations made in the charge-sheet."
24. From perusal of the charges levelled against the petitioner it is clear that all the charges are based upon the official documents and, as such, the charges have been framed on the basis of the documents but very surprisingly the said documents have not been part and parcel of the proceeding.
25. Thus, in the departmental proceeding the procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied, as has been said in the case of Shaughnessy vs. United States as reported in 197 L. Ed. 956.
26. The effect of non-disclosure of relevant documents has been stated in Judicial Review of Administrative Action by De Smith, Woolf and Jowell in its 5th edition P. 442 as follows:-
"If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness, irrespective hearing. This proposition can be illustrated by a large number of modern cases involving the use of undisclosed reports by administrative tribunals and other adjudicating bodies. If the deciding body is or has the trappings of a judicial tribunal and receives or appears to receive evidence ex parte which is not fully disclosed, or holds ex parte inspections during the course or after the conclusion of the hearing, the case for setting the decision aside is obviously very strong; the maxim that justice must be seen to be done can readily be invoked."
27. Thus, on the basis of the said judicial pronouncement and on the basis of the basic principle of service jurisprudence a delinquent employee is entitled to be given sufficient opportunity of hearing. Admittedly, in the instant case the earlier order dated 12.8.1983 has been quashed on the ground that the petitioner has not been provided with sufficient and adequate opportunity and the relevant documents have not been provided to him but again the same thing has been repeated by the respondent authorities. However, they have not challenged the order passed in C.W.J.C. No. 1422 of 1995 and thereby the order which was passed on 12.8.1983 has been directed to remain as same in the impugned order. However, the respondent authority has exercised the power under Section 168(D) of the Bihar Board Miscellaneous Rules but the said rule is not applicable with respect to the petitioner because the same deals with the charges of discharge of temporary Government servant. In the entire pleading the respondent authority has not taken the plea that the petitioner was temporary Government servant.
28. In the backdrop of the facts stated herein above, the impugned order dated 21.9.2005 is not sustainable in the eyes of law and as such the same is quashed. Since the petitioner has already superannuated from service, no direction can be given for his reinstatement. However, the intervening period, during which the petitioner was out of service, will be counted for the purpose of pension.
So far as claim of back wages is concerned, the State Exchequer cannot be burdened for passing any direction in this regard, but however considering the fact that the petitioner has been put to unnecessary harassment for such a long period and he has been forced to attain age of normal superannuation, hence in peculiar facts of this case, the respondents are directed to pay lump-sum compensation of Rs. Two Lacs to the petitioner within four months from the date of receipt/production of a copy of this order.
