* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 3409/1998
% 5th December, 2016
SH. RAM MEHAR .....Petitioner
Through: Dr. Ashwani Bhardwaj, Advocate.
versus
FOOD CORPORATION OF INDIA & OTHERS ..... Respondents
Through: Mr. Rajeev Sharma, Advocate. CORAM: HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)
1. This writ petition under Article 226 of the Constitution of India impugns the orders passed the by departmental authorities; of the disciplinary authority dated 21.4.1989 and the appellate authority dated 7.1.1997; whereby petitioner was imposed the penalty of reduction in rank from Assistant Manager (Depot) to the post of Assistant Grade I (Depot) in the minimum time scale of the pay of Assistant Grade I (Depot).
2. Learned counsel for the petitioner has argued that the Inquiry proceedings against the petitioner which culminated in the order of the disciplinary authority dated 23.4.1988 is liable to be set aside on account of the violation of principles of natural justice in which the petitioner was W.P. (C) No.3409/1998 Page 1 of 10 proceeded ex-parte and the evidence of the petitioner was closed i.e not allowed to be led. What is argued is that within a period of three days; the evidence of one witness of the department was closed on the first date, evidence of other witnesses was recorded on the second day and on the third day the case was fixed for petitioner's evidence and the evidence of the petitioner was closed on account of petitioner not being present and not leading evidence.
3. What is argued on behalf of the petitioner is that if the department could have been given around three opportunities to lead evidence then there was no reason as to why on the first opportunity the evidence of the petitioner was closed, and that too on the date which was fixed within one day of the evidence of the department being concluded.
4. In support of the arguments urged on behalf of the petitioner reliance is placed upon the order sheets of the Inquiry Officer dated 9.3.1988, 4.4.1988, 5.4.1988 and 6.4.1988 and which read as under:-
" Order Sheet dated 9.3.1988
No.A/Inq. (1260)/87-88 Chandigarh.
9.3.88
ORDER SHEET
Sub :- Departmental inquiry against Sh. Ram Mehar, AM(D), Distt. Ferozpur.
Present :
1. Sh. M.S. Aggarwal, AM(G) .... PO
2. Sh. Ram Mehar, AM(D) ......CO W.P. (C) No.3409/1998 Page 2 of 10 Hearing has been taken up today in continuation of the order sheet recorded yesterday. The CO state that the Corrigendum of the charge-sheet issued by the disciplinary authority has been received by him from the Presenting Officer today morning. Statement of the PW namely, PW1 Sh. A.S> Murthy, DM(QC) has been recorded. S/Sh. P.P.H. Sunder Singh and V.K. Tondon, PWs are present but have been given up by the Presenting Officer as unnecessary. No other PW is present nor any acknowledgements regarding receipt of notices have been received from him. It is an old case, pertains to Action Plan No. I and has, therefore, to be disposed of at the earliest as per the directions of the authorities. Presenting Officer requests for adjournment. In the interest of justice, one adjournment is granted and the Presenting Officer will produce his witnesses at his own responsibility on the next date. Hearing will, now, be taken up on 4.4.1988. Notices to all concerned be issued. Not possible to give a shorter date as other cases pertaining to Action Plans already stand fixed during intervening dates. A copy of this Order sheet is furnished to the PO as well as to the CO for information.
Sd/-
(Kiran Anand Lall) Inquiry Officer.
PO : Sd/-
CO : Sd/-
Order Sheet dated 4.4.1988 No.A/Inq. (1260)/87-88 Chandigarh.
4.4.88
ORDER SHEET
Sub :- Departmental inquiry against Sh. Ram Mehar, AM(D), Distt. Ferozpur.
Present :
1. Sh. M.S. Aggarwal, AM(G) .... PO
2. Sh. Ram Mehar, AM(D) ...... CO (Absent) Hearing has been taken up today in pursuance of notice of even no. dated 11.3.88. The C.O. who was present on the last date, is absent today. No intimation regarding his absence has been received. The PWs summoned for today, S/Sh. H.S. Rajpoor and S.N. Sen Gupta are not present. This inquiry pertains to Action Plan No. 1 and already one adjournment for prosecution evidence was granted on the last date. The Presenting Officer should, therefore, ensure the presence of the said two PWs, on 5.4.88 i.e. tomorrow when the file is to be taken up for recording the statements of other PWs. It is made clear that no further adjournment will be granted in view of the facts that W.P. (C) No.3409/1998 Page 3 of 10 one adjournment has already been granted and also because the inquiry pertains to Action Plan No. 1 and has, therefore to be disposed of at the earliest, as per the directive of the authorities. Hearing is adjourned today and will, now, be taken up tomorrow.
A copy of this Order Sheet is furnished to the PO and be sent to the CO for information.
Sd/-
(Kiran Anand Lall) Inquiry Officer.
PO : Sd/-
CO : (absent)
Order Sheet dated 5.4.1988
No.A/Inq. (1260)/88 Chandigarh.
5.4.88
ORDER SHEET
Sub :- Departmental proceedings against Sh. Ram Mehar, AM(D), Distt. Ferozpur.
Present :
1. Sh. M.S. Aggarwal, AM(G) .... PO
2. Sh. Ram Mehar, AM(D) ...... CO (Absent) Hearing has been taken up today in continuation of the order sheet recorded yesterday and the notice of even no. dated 14.5.88. The C.O. has not turned up even today. Statements of 2 PWs, namely PW-2 Sh. D.N. Mahajan and PW-3 Sh. M.S. Rajpoot, have been recorded. Presenting Officer has closed evidence after giving up remaining PWs who are not present. Hearing is adjourned today and will be taken up tomorrow for recording defence evidence, as scheduled earlier.
A copy of this Order Sheet is furnished to the PO and be sent to the CO for information.
Sd/-
(Kiran Anand Lall) Inquiry Officer.
PO : Sd/-
CO : (absent)
Order Sheet dated 6.4.1988
No.A/Inq. (1260)/88 Chandigarh.
6.4.88
W.P. (C) No.3409/1998 Page 4 of 10
ORDER SHEET
Sub :- Departmental proceedings against Sh. Ram Mehar, AM(D), Distt. Ferozpur.
Present :
1. Sh. M.S. Aggarwal, AM(G) .... PO
2. Sh. Ram Mehar, AM(D) ...... CO (Absent) Hearing has been taken up today in continuation of the Order Sheet recorded yesterday and notice of even no. dated 14.5.88. The C.O. has not put in appearance even today nor any DW is present. Proceedings, thus, stand closed.
PO wants to file written brief. He shall file written brief within three days. A copy of this Order Sheet is furnished to the PO and be sent to the C.O. for information.
Sd/-
(Kiran Anand Lall) Inquiry Officer.
PO : Sd/-
CO : (absent)" (underlining added)
5. A reading of the aforesaid order sheets show that 9.3.1988 was fixed for department's evidence and which was not concluded and therefore the matter was fixed before the Inquiry Officer after roughly a month on 4.4.1988. On 4.4.1988 department's evidence was not completed so the matter was fixed for department's evidence on 5.4.1988. On 5.4.1988 department's evidence was closed and the very next day being 6.4.1988 was fixed for petitioner's/charged officer's evidence and which was closed on the same date on 6.4.1988 on account of absence of the petitioner.
6. Though, counsel for the petitioner argued that petitioner had valid reasons for non-appearance on 4.4.1988 and 5.4.1988 when petitioner W.P. (C) No.3409/1998 Page 5 of 10 was proceeded ex-parte on account of the fact that petitioner had sent a letter dated 2.4.1988 under UPC to the Inquiry Officer that the petitioner would not be able to attend the disciplinary proceedings on 4.4.1988 on account of illness of his wife, this Court however disbelieves the letter dated 2.4.1988 sent under UPC because UPC is a convenient method of claiming that a letter has been posted and there is no reason why this Court should believe the letter of the petitioner dated 2.4.1988 was sent for seeking adjournment on 4.4.1988. Be that as it may, even if the petitioner was not justified in non-appearing on 4.4.1988 there was no reason that from 4.4.1988 to 6.4.1988 i.e within three days the evidence of the department could be closed and even the petitioner's/charged officer's evidence could be closed because not only the date of 6.4.1988, when the case was fixed for petitioner's/charged officer's evidence was the very next date to 5.4.1988 when the evidence of the department was closed, but also 6.4.1988 was the first and only date when the case was fixed for petitioner's/charged officer's evidence.
7. The issue of violation of the principles of natural justice stands concluded also by the fact that the petitioner in fact never knew of the short dates fixed of 5.4.1988 and 6.4.1988 after the date of hearing of 4.4.1988. This is clear from the letter of the department itself dated 14.4.1988 and by which copy of the order sheets dated 4.4.1988, 5.4.1988 and 6.4.1988 along W.P. (C) No.3409/1998 Page 6 of 10 with the statement of three PWs was sent to the petitioner. The letter dated 19.7.1988 of the petitioner to the Inquiry Officer which records this aspect reads as under:-
"To, Mrs. Kiran Anand Lall, Officer on Spl. Duty (Inq.) F.C.I., R/o (Punjab) Chandigarh.
Sub : Departmental Proceeding against Ram Mehar, A.M. (D) Distt. Firozpur-
Defense brief-submission thereof.
R/Madam, Kindly refer to your Memo No. A-Inq. (1260)/88 dated 14.4.88 forwarding therewith the copy of order sheet dated 4 to 6-4-88 and statement of 3 PWs recorded by your honours.
In this connection I am to request your honour that due to serious illness of my wife I could not read on due date 4.4.88 and now I request your honour that I may kindly be given a period of 15 days for submission of my defence brief and oblige. Medical certificate is enclosed herewith in original.
Encl.: One Yours faithfully,
Sd/- 19.7.88
(Ram Mehar)
Asstt. Manager (D)
Ex. Distt. Firozpur
Now at Nagaur.(Raj)"
(underlining added)
8. The present is a classic case of justice hurried is justice buried.
I fail to understand as to how the Inquiry Officer gave the date of 5.4.1988 on 4.4.1988 and even assuming giving the date of 5.4.1988 for department's remaining evidence was justified, yet, there was no justification for giving the very next date on 6.4.1988 for petitioner's/charged officer's evidence when earlier the department was given a date of one month to get its W.P. (C) No.3409/1998 Page 7 of 10 evidence recorded. Even assuming adjournment could be given of only 24 hours for the petitioner to lead evidence, considering that 6.4.1988 was only the first date fixed for the petitioner to lead evidence, there was no reason why evidence of the petitioner was closed on the first date of 6.4.1988 itself, especially when for the department various dates were given for leading of evidence of its witnesses and that too dates which were spread for more than a month.
9. I may note that in the present case the lack of respect of the department to the procedure of law is also clear from the fact that the disciplinary authority which passed the penalty order against the petitioner on 21.4.1989 did so without even giving any personal hearing to the petitioner and without even giving a copy of the Inquiry Report to the petitioner. This becomes clear not only from the order of the disciplinary authority dated 21.4.1989 which does not refer to any show cause notice being issued to the petitioner attaching therewith the Inquiry Report but also from the fact that this order dated 21.4.1989 of the disciplinary authority does not even refer to any hearing being granted to the petitioner. Petitioner had noted such aspects in the appeal filed by the petitioner and so stated in the para 26 of his appeal dated 1.11.1989 to the competent authority. However, I am not deciding the present petition on this aspect and this aspect has been stated herein only to show the hurry in which the W.P. (C) No.3409/1998 Page 8 of 10 department in the present case went ahead with the departmental proceedings.
10. In view of the above this writ petition is allowed and Inquiry Officer will now fix the case for the petitioner to lead evidence. This Court clarifies that though proceedings are being remanded to the Inquiry Officer for leading of the evidence of the petitioner, in view of above discussion, it is clarified that no cross-examination is permitted by the petitioner of the witnesses of the department more so because it will be almost impossible for the department to bring the witnesses for cross-examination and which witnesses deposed way back in the year 1988. Petitioner, however, can lead all evidence in support of his case and the departmental proceedings will be decided as per the principle of preponderance of probabilities, and which principle is applicable in departmental proceedings.
11. It is further clarified that in case the Inquiry Officer gives a report against the petitioner then the disciplinary authority will issue a show cause notice to the petitioner attaching the Inquiry Officer's report for seeking response of the petitioner before the disciplinary authority proceeds to pass any order in the matter.
12. In view of the aforesaid discussion, this writ petition is allowed by remanding the case to the Inquiry Officer from the stage of leading of W.P. (C) No.3409/1998 Page 9 of 10 petitioner's/charged officer's evidence and thereafter for Inquiry Report to be given and orders to be passed by the disciplinary authority after hearing the petitioner. It is clarified that respondent no. 1/employer/department can always appoint a new Inquiry Officer in case the Inquiry Officer who conducted the earlier proceedings is unavailable for some reason or is not able to take up inquiry proceedings. Parties are left to bear their own costs.
DECEMBER 05, 2016 VALMIKI J. MEHTA, J
AK
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