R.K.Agarwal vs The Secy. Brdb & Ors.
2012 Latest Caselaw 6084 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Judgment Reserved on: August 22, 2012
                              Judgment Pronounced on: October 10, 2012

+                         WP(C) 4748/1999

       R.K.AGARWAL                              ... Petitioner
               Represented by: Mr.Atulesh Bhardwaj, Advocate.
                             versus

       THE SECY. BRDB & ORS.                           ... Respondent
                 Represented by:       Ms.Barkha Babbar, Advocate.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE MANMOHAN SINGH

PRADEEP NANDRAJOG, J.

1. Appointed on May 10, 1985 as an AEE (Civil) in Border Roads Organization, the petitioner was attached with 387 Road Maint Platoon (hereinafter referred to as the „387 RMP‟); deployed at Rishikesh sector.

2. In December 1987 the petitioner was transferred to 331 Surfacing Platoon (hereinafter referred to as the „331 SPL‟) deployed at Manali sector.

3. In July, 1988 the petitioner submitted a TA/DA claim in sum of `5,100/- for transporting his luggage from Rishikesh to Manali in a civil truck. In support of the said claim the petitioner submitted a receipt in sum of `5,100/- issued by „Himachal Hill Truck Operators Benevolent Funds and Charitable Association, Kullu‟ recording that luggage had been transported from Rishikesh to Manali in truck bearing registration No.HIE

555.

4. A doubt was raised by the audit department pertaining to the correctness of the claim. In view thereof, vide order dated December 03,

1988, a Court of Inquiry was constituted to determine:- (a) Whether the personal luggage was transported by Civil Lorry No.HIE-555 from Rishikesh to Manali on 26 Jun 88 as per receipt produced by Shri Agarwal, AEE (C) alongwith the claim; and (b) Whether M/s New Himachal Truck Operator, Kullu own or disown issue of receipt for `5,100/- produced by the officer.

5. The Court of Inquiry examined witnesses, the details whereof, together with a brief nature of the statements made are as under:- S. No. Details of Witness Details of Deposition of Witness

1. Major C.R. Jayawant, senior of He made inquiries regarding the petitioner the correctness of the claim lodged by the petitioner whereupon he learnt that said claim is false.

2. Supdt NT Gde II V.K. Pandey On 22.12.1987 MT driver Sarwan Singh informed him that he had transported the personal belongings of the petitioner from Chandigarh to Manali in a departmental vehicle.

3. MT/Driver Sarwan Singh On 21/22.12.1987 he had transported the entire personal belongings of the petitioner from Chandigarh to Manali in a departmental vehicle.

4. Amar Singh, Chairman, New The receipt submitted by the Himachal Hill Truck petitioner in support of his Operators Benevolent Funds claim is fictitious inasmuch and Charitable Association as same was not issued by his association

5. MT Driver Jagir Singh In the year 1987 he had transported a scooter, almirah and refrigerator belonging to

the petitioner from Chandigarh to Manali in a departmental vehicle.

6. L/ Hand Shingara Singh In December, 1987 he had unloaded the luggage of the petitioner at Manali sector from 2 departmental vehicles.

7.       MT Driver Bishan Singh            In December, 1987 he
                                           transported the luggage of
                                           the       petitioner      from
                                           Rishikesh to Chandigarh in
                                           a departmental vehicle. He
                                           deposed that: 'I do not
                                           remember the exact date of
                                           this particular trip. It may be
                                           23 or 24 Dec 1987, and it can
                                           be verified from Duty Slip
                                           only.'

8.       R.K. Agarwal (Petitioner)         His luggage was transported
                                           from Rishikesh to Manali in a
                                           truck bearing No.HIE-555
                                           owned by Himachal Hill
                                           Truck Operators Benevolent
                                           Funds      and     Charitable
                                           Association.

6. On July 31, 1989, the Court of Inquiry submitted its report opining that the TA/DA claim lodged by the petitioner was fraudulent and recommending initiation of major penalty proceedings against the petitioner. And it needs to be highlighted that in forming the opinion, the Court of Inquiry placed heavy reliance upon the statements made by Amar Singh and MT Driver Bishan Singh.

7. Nearly 2 years after the report of the Court of Inquiry was submitted, on August 26, 1991, Border Roads Development Board, the

Disciplinary Authority, issued a charge sheet to the petitioner listing 1 article of charge, which reads as under:-

"That the said Shri R.K.Agarwal, while functioning as AEE (civil) during the period from December, 87 to August, 1988, preferred a false claim for transporting his luggage on his transfer from 387 RMP (GREF) to 331 Surfacing Platoon (GREF) from Rishikesh to Manali and, by doing so, he committed gross misconduct and exhibited lack of integrity, thereby violating Rule 3(1)(i) of the Central Civil Services (Conduct) Rules, 1964".

8. Along with the charge-sheet a list of documents as per which the department intended to prove its case was supplied to the petitioner.

9. For reasons unknown, the Disciplinary Authority appointed an inquiry officer to conduct an inquiry under Rule 14(2) of the CCS (CCA) Rules, 1965 only on January 21, 1993. On February 28, 1993 the Inquiry Officer wrote a letter to the petitioner informing him about his appointment and seeking details of the Defence Assistant, if any, nominated by the petitioner. Pursuant to which letter the petitioner intimated that either V.K.Bhargava or H.C.Devrani be appointed as his Defence Assistant; and obviously the intent was to furnish two names so that if the inquiry officer had an issue pertaining to one, the other could have been accepted as the Defence Assistant and necessary orders passed. But, the Controlling Authority intimated that the two officers were unwilling to act as defence assistants. When informed of the same, on June 28, 1993, the petitioner intimated the Inquiry Officer that he nominated R.C.Murriya as his Defence Assistant, but was informed by the Inquiry Officer on July 14, 1993, that the Controlling Authority had refused to spare the said officer to act as the Defence Assistant for the petitioner. But, in the meanwhile, on July 05, 1993, the Inquiry Officer conducted a preliminary hearing.

10. To break the impasse, in August, 1993, the petitioner wrote a letter to the Inquiry Officer seeking his permission to nominate a lawyer as his Defence Assistant, which permission was granted on August 12, 1993. The next date of inquiry was fixed as August 16, 1993.

11. Apart from requiring a Defence Assistant to represent him at the inquiry, the petitioner had also filed application before the Inquiry Officer that the documents which were filed before the Inquiry Officer and were relied upon by the department be supplied to him. The petitioner also requested that statements of witnesses recorded during Court of Inquiry be supplied to him to enable him to effectively cross-examine the witnesses at the domestic inquiry.

12. On August 16, 1993, ignoring that orders had to be passed with respect to petitioner‟s request to be supplied the documents which the department had relied upon and had filed before the Inquiry Officer; and dealing only with the request of the petitioner pertaining to time being extended to enable him to engage a lawyer (keeping in view that either nobody from the department was willing to act as his Defence Assistant or the department was not sparing the willing person) as also the request pertaining to supply of statements made by witnesses during Court of Inquiry proceedings, the Inquiry Officer passed an order as under:-

"Charged Officer has submitted a letter No.1770/RKA/DE/TA-DA dated 16 Aug 93 addressed to Inquiry Officer. Charged Officer has requested for the following:-

(a) To provide copies of statements recorded during investigation (C of I held in Jan - Feb 89).

(b) Charged Officer has informed inquiry officer about his inability to engage lawyer due to short notice given to him on 12 Aug 93. Charged Officer has pointed out that he is money less and no lawyer is willing to take up his case in Departmental Enquiry.

(c) To stop recording/proceedings of Inquiry till services of Department Assistant from Department is provided to him, or some time be given for engaging a suitable lawyer.

Request of charged officer has been examined and following ruling is given on the points of charged officer:-

(a) Statements of witnesses are being recorded by inquiry officer in the presence of charged officer. If any statement of any statement recorded earlier is incorporated in this inquiry, copy of same will be provided to the charged officer.

(b) Points of having short notice for engaging civil advocate is not correct. BRDB has served memorandum dated 26 Aug 91 during Aug/Sep 91. Moreover Departmental Enquiry has been ordered on 05 May 92. Therefore enough time/opportunity was available to charged officer for arranging Defence Assistance. Moreover concurrence of competent authority to engage civil advocate has been obtained on the request of charged officer. Since concurrence of competent authority for allowing civil advocate to act as Defence Assistance has been received on 12 Aug 93, accordingly charged officer has been permitted to engage civil advocate. However initially only statements of state witness will be recorded, and before commencement of cross examination of state witnesses, sufficient time will be given to enable charged officer to plan his Defence.

(d) Efforts are being made to obtain Departmental Assistance on request of charged officer. Recording of statements of state witness will continue."

13. On the same date i.e. August 16, 1993, the Inquiry Officer recorded the examination-in-chief of 3 witnesses of the department; namely, C.R.Jayawant, MT/Driver Bishan Singh and MT/Driver Sarwan Singh and fixed the next date of inquiry as August 17, 1993. On August 17, 1993 the Inquiry Officer recorded the examination-in-chief of remaining 4 witnesses of the department; namely, Supervisor NT-II Vijay Kumar

Pandey, L/Hand Shingara Singh, MT/Driver Jagir Singh and MT/Driver Nirmal Singh.

14. Thus, all witnesses were examined over two days on 16 th and 17th August 1993; and in the absence of a Defence Assistant.

15. In spite of the handicap, required to cross-examine the witnesses examined by the department, the petitioner filed an application praying to the Inquiry Officer to provide him with:- (i) duty slips of the vehicles driven by Bishan Singh, Sharvan Singh and Jagir Singh on the dates of alleged transport of the luggage of the petitioner to Manali to enable the petitioner to effectively cross-examine said witnesses and prepare his statement of defence; (ii) documents mentioned in the list of documents annexed with the charge sheet, and (iii) statements of the witnesses recorded during the Court of Inquiry.

16. The Inquiry Officer considered the aforesaid request of the petitioner at the inquiry proceedings held on August 27, 1993, and passed an order recording: 'Request of charged officer for providing document before cross-examination has been examined. Presenting officer has pleaded that said documents are not required immediately from defence point of view, before commencement of cross examination of state witnesses.'

17. We do not understand as to what was intended by the Inquiry Officer when he wrote as above for the reason all witnesses of the department had been examined in chief and the stage of cross-examination had reached.

18. But, we highlight that neither were the documents supplied on which the department had relied upon and had proved the same with reference to the deposition of its witnesses. The duty slips of the vehicles driven by Bishan Singh, Shrawan Singh and Jagir Singh were not directed

to be filed by the department. Statements made by witnesses during Court of Inquiry proceedings were not supplied.

19. Handicapped as he was, the petitioner cross-examined Maj.C.R.Jayawant and two more witnesses of the department on 27 th, 28th and 30th August 1993. It was only on August 28, 1993 that the petitioner was supplied with the documents relied upon and in respect of the statements recorded during Court of Inquiry, it was opined that the same need not be supplied. As regards duty slips of vehicles driven by Bishan Singh, Shrawan Singh and Jagir Singh, it was recorded that being old documents, the same were not available. Relevant part of the order dated August 28, 1993 reads as under:-

"5. Information given by the presiding officer on behalf of disciplinary authority in respect of documents is as under:-

a) Copies of documents listed in Annexure III to charge sheet have been handed over to the charged officer today.

(b) Copies of statements recorded earlier: - Copies of statement are not being given because same are not being used as evidence against officer during course of the departmental enquiry.

(c) Duty slips of vehicles concerned: - Duty slips being old documents are not available. These duty slips can not be produced.

(d) Convoy Notes/Receipted vouchers: - It is not possible at this stage to find out connected vouchers.

Points raised by defence assistant on behalf of charged officer and Presenting Officer on behalf of Disciplinary Authority, have been examined keeping in view all aspects following decisions are taken in respect of above documents.

Sl (a) and (b):- No further action is required as documents at sl (a) have been given to charged officer and documents at sl

(b) will not affect this departmental enquiry.

Sl (c):- Request of presenting officer is accepted since documents are not readily available. However efforts should again be made to trace the duty slips of these 3 vehicles. Now cross examination of state witnesses should continue. Meanwhile efforts to trace duty slips should not end due to commencement of cross examination.

Sl (d) - Again efforts should be made to locate the convoy notes, issue/receipt voucher and same should be produced before inquiry officer as early as possible and before the case on behalf of disciplinary authority is closed. Cross examination of state witnesses should continue meanwhile. State witnesses shall be recalled if on receipt of Voucher vital points crop up prejudicing the interests of charged officer."

20. The petitioner cross-examined the witnesses examined by the department except Bishan Singh and Amar Singh who were required to be present on September 02, 1993 but did not turn up and the Inquiry Officer simply closed the evidence of the department requiring the petitioner to submit his statement of defence by September 16, 1993.

21. We may note that the witnesses examined by the department deposed on lines as per their statements made during Court of Inquiry proceedings, briefly extracted by us in paragraph 5 above.

22. The petitioner denied the charge and stood by his version that he had transported his luggage and belongings through a truck taken on hire by the New Himachal Hill Truck Operators Benevolent Funds and Charitable Association and had paid `5,100/- and that the receipt submitted by him was genuine.

23. Vide report dated September 28, 1993, the Inquiry Officer concluded that the charge stood proved and we simply need to highlight that while so holding, the Inquiry Officer relied very heavily upon the statements made in examination-in-chief by Amar Singh and MT Driver Bishan Singh, both of whom did not turn up to be cross-examined on

September 02, 1993 i.e. the date fixed for their presence for being cross- examined. This was in spite of the fact that in his statement of defence the petitioner had stated that the testimony of Bishan Singh and Amar Singh could not be relied upon for the reason said witnesses did not offer themselves to be cross-examined, which contention was repelled by the Inquiry Officer in the following terms:-

"iii) Statement of person not available is relevant (as per section 32 of I.E.A.), if the person was not be found or whose attendance cannot be produced without on amount of delay or expense, which under the circumstances of the case appears to the court unreasonable, since statement is made in course of conducting his normal duty.

iv) Standard of proof in Departmental Enquiry has been held to be Preponderance of probability and not „proof beyond doubt‟ vide Sardar Bahadur‟s case Supreme Court, 1972 SLR 355."

(Note: With respect to the reasoning in sub-para (iii) it is apparent that the Inquiry Officer had in mind Section 33 of the Indian Evidence Act and not Section 32)

24. Supplying the report of the Inquiry Officer to the petitioner as also advise received from UPSC that the appropriate penalty should be removal from service; and considering the reply of the petitioner, but not accepting the same, vide order dated July 07, 1998, accepting the report of the Inquiry Officer, the Disciplinary Authority imposed the penalty of removal from service upon the petitioner.

25. The Inquiry Officer has held that as per MT Driver Bishan Singh, he had transported the luggage of the petitioner from Rishikesh to Chandigarh in a departmental vehicle and as per MT Driver Shrawan Singh and MT Driver Jagir Singh, they had transported the same from Chandigarh to Manali in two departmental vehicles. As per Amar Singh, the Chairman of New Himachal Hill Truck Operators Benevolent Fund

and Charitable Association, the receipt relied upon by the petitioner pertaining to Truck No.HIE-555 evidencing transportation of luggage on June 26, 1998 from Rishikesh to Manali was not issued by the said association.

26. As noted above, the Inquiry Officer has heavily relied upon the testimony of Amar Singh and MT Driver Bishan Singh, both of whom did not turn up for cross-examination and the Inquiry Officer closed the inquiry post haste. With respect to the evidentiary worth of the testimony of the said two persons, as noted above, the Inquiry Officer has relied upon Section 33 of the Evidence Act.

27. Section 33 of Indian Evidence Act, 1872 reads as under:-

"Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated- Evidence given by the witness in a judicial proceeding or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by adverse party, or if his presence cannot be obtained without an amount of delay or expense, which under the circumstances of the case, the Court considers unreasonable."

28. While dealing with Section 33 of the Indian Evidence Act, 1872, in the decision reported as 2002 Supp.(1) ALD 600 Somagutta Sivasankara Reddy v Palapandla Chinna Gangappa, a Division Bench of Andhra Pradesh High Court observed as under:-

"10. We may also refer to a Division Bench of Madras High Court in MAHARAJA OF KOHLAPUR (supra), which after considering various authorities laid down the law as under:-

"I do not think that the evidence can be rejected as inadmissible, though it is clear that evidence untested by cross-examination on a question like the present can

have little value. I need only refer to Tahlor on Evidence, Section 1469: DAVIES v. OTTY ((1865) 35 Beav. 208 = 5 N.R. 391 = 34 L.J. Ch. 252), ELIAS v. GRIFFITH (1877) 46 L.J. Ch. 806), MAN GOBINDA CHOWDHURI v. SHAHINDIA CHANDRA and DHANU RAM MAHTO v MURLI MAHTO it was pointed out that the evidence was admissible though the learned Judges were of opinion that it should not be acted upon. I think the correct rule is that the evidence is admissible but that the weight to be attached to such evidence should depend upon the circumstances of each case and that, though in some cases the Court may act upon, if there is other evidence on record, its probative value may be very small and may even be disregarded."

11. We respectfully follow the above principles.

12. However the evidence would be inadmissible, if cross- examination was avoided or deliberately prevented. In some cases, however, evidences had not been taken having regard to the fact situation involved therein.

xxx xxx

17. Section 33 of the Evidence Act, in our opinion, is clear and unambiguous. If a witness is not deliberately produced and/or if the conditions precedent for admissibility of the evidence of a witness as specified in Section 33 are not fulfilled, such evidence, evidently, would not be admissible in evidence."

29. In the instant case, no reason what-so-ever is forthcoming from the record of the Inquiry Officer as to why Bishan Singh and Amar Singh did not turn up for cross-examination. Furthermore, the record indicates that no effort what-so-ever was made by the Inquiry Officer to ensure that the two were produced by the department for being cross-examined. Thus, in view of the law afore-noted, which is the only logical legal inference when we read Section 33 of the Evidence Act, it has to be held that no

reliance could be placed upon the testimony of Bishan Singh and Amar Singh.

30. The report of the Inquiry Officer is clearly vitiated in law. The testimony of said witnesses has to be ignored. We highlight once again that as written, if the testimony of the said two persons is ignored, nothing much of worth would survive in the report submitted by the Inquiry Officer.

31. But there are some other aspects of the present matter which need to be highlighted.

32. The principles of natural justice requires that a person against whom an action is proposed to be taken should be given an opportunity of fair hearing. The opportunity of fair hearing has to be an effective opportunity and not mere pretence. In a departmental proceeding where charge sheet is issued to an employee and the documents which are proposed to be used against him are indicated in the charge sheet, but copies thereof are not timely supplied to the charged officer, require it to be held that an opportunity of fair defence was denied. (See the decision of the Supreme Court reported as (1998) 6 SCC 651 State of U.P. v Shatrughan Lal & Anr. and AIR 1986 SC 2118 Kashinath Dikshita v Union of India). In the two decisions it was emphasized by the Supreme Court that principles of natural justice require an employee facing departmental enquiry should have access to the documents sought to be relied upon by the department through-out the course of the inquiry.

33. In the instant case, the department did not supply the documents relied upon by it to the petitioner before the inquiry commenced; and in spite of several requests made. The documents were supplied when all the witnesses were examined and cross-examination of one witness had concluded.

34. As already noted hereinabove, the petitioner had repeatedly demanded the statements of the witnesses recorded during the Court of Inquiry to be supplied to him and he kept on highlighting that he required the same to cross-examine the witnesses. The same were never supplied and do not form a part of the record of inquiry. We do not know what was stated by the witnesses at the Court of Inquiry and thus cannot comment whether they could be effectively used for cross-examination or not. But we note that in the decision reported as AIR 1974 SC 2335 State of Punjab v Bhagat Ram the Supreme Court was considering the question that whether an employee facing departmental inquiry is entitled to receive the copies of the statements of the witness recorded during investigation. Answering in affirmative, the Supreme Court observed as under:-

"The meaning of a reasonable opportunity of showing cause against the action proposed to be taken is that the Government servant is afforded a reasonable opportunity to defend himself against charges on which inquiry is held. The Government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so when he is told what the charges against him are. He can do so by cross examining the witnesses produced against them. The object of supplying statements is that the Government servant will be able to refer to the previous statements of the witnesses proposed to be examined against the Government servant. Unless the statements are given to the Government servant he will not be able to have an effective and useful cross-examination.

It is unjust and unfair to deny the Government servant copies of statements of witnesses examined during investigation and produced at the inquiry in support of the charges leveled against the Government servant. A synopsis does not satisfy the requirements of giving the Government servant a reasonable opportunity of showing cause against the action proposed to be taken."

35. In Shatrughan Lal‟s case (supra) the Supreme Court observed as under:-

"Preliminary inquiry 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 v Union of India (1986) 3 SCC 229 (supra), 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 in his defence."

36. Rule 14(8)(a) of CCS (CCA) Rules 1965 reads as under:-

"14. Procedure for imposing major penalties.

(8)(a) The Government servant may take the assistance of any other Government servant posted in any officer either at his headquarters or at the place where the inquiry is held, to present the case on his behalf, but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the Disciplinary Authority is a legal practitioner, or, the Disciplinary Authority, having regard to the circumstances of the case, so permits:

Provided that the Government servant may take the assistance of any other Government servant posted at any other station, if the Inquiring Authority having regard to the circumstances of the case, and for reasons to be recorded in writing so permits."

37. Taking recourse to the above provision, the petitioner nominated 2 officers viz. V.K.Bhargava and H.C.Devrani to act his Defence Assistant. However both the officers expressed their inability to defend the petitioner and the Controlling Authority also refused to spare them. Thereafter the petitioner nominated another officer viz. R.C.Murraiya to act his Defence

Assistant but the Controlling Authority refused to spare said officer. Faced with such situation, the petitioner sought permission from the Inquiry Officer to nominate a lawyer to act as his Defence Assistant, which permission was granted to him on August 12, 1993. 4 days after the grant of such permission, the inquiry proceedings were held on August 16, 1993, on which date the petitioner requested the Inquiry Officer to grant an adjournment informing that he was unable to engage a lawyer at such short notice and due to his precarious condition. However, the Inquiry Officer declined the request of the petitioner and proceeded to record the examination-in-chief of the witnesses of the department. The Inquiry Officer declined the request of the petitioner on the ground that he had sufficient time to engage a lawyer as the charge sheet was issued to him in August, 1991.

38. The reason given by the Inquiry Officer for denying the request of the petitioner for grant of an adjournment is not tenable, for the permission was granted to the petitioner to engage a lawyer as his Defence Assistant only on August 12, 1993. Thus, the petitioner had only 3 days at his disposal to engage a lawyer till the next date of inquiry i.e. August 16, 1993. In that view of the matter, the Inquiry Officer ought to have adjourned the inquiry proceedings on August 16, 1993 and should not have recorded the examination-in-chief of the witnesses of the department in the absence of the Defence Assistant of the petitioner, which action of the Inquiry Officer caused serious prejudice to the petitioner.

39. In the instant case, the petitioner was transferred from Rishikesh to Manali in December, 1987. The TA/DA claim in question was lodged by the petitioner in July, 1988. The Court of Inquiry was constituted in December 1988 and its report was submitted in July 1989. Nearly 2 years thereafter on August 26, 1991 the Disciplinary Authority issued a charge

sheet to the petitioner and thereafter an Inquiry Officer was appointed on January 21, 1993.

40. As evident from the aforesaid, there is a time gap of nearly 2 years between the submission of the report of the Court of Inquiry and issuance of charge sheet to the petitioner.

41. It is settled law that mere delay in the initiation of the departmental inquiry does not vitiate the inquiry but where the delay has caused prejudice to the delinquent employee, the delay would be fatal. (See the decision of the Supreme Court reported as 2005 SCC (L&S) 891 P.V. Mahadevan v M.D. Tamil Nadu Housing Board.)

42. Has a prejudice being caused in the instant case?

43. As already noted hereinabove, the department had sought to prove the charge leveled against the petitioner by adducing evidence to the effect that the luggage of the petitioner was transported in the departmental vehicle(s) firstly from Rishikesh to Chandigarh and there-from in two vehicles to Manali. Whereas MT Driver Bishan Singh (who never turned up for cross-examination) stated that he had transported the luggage of the petitioner from Rishikesh to Chandigarh, MT Driver Shrawan Singh and MT Driver Jagir Singh claimed to have further transported the same from Chandigarh to Manali in two different vehicles.

44. The petitioner had desired duty slips pertaining to the dates on which the three persons claimed to have transported the goods in official vehicles; and obviously these duty slips would have been relevant documentary evidence to show whether the three drivers were assigned duties on the dates they claimed to have transported the luggage and the goods of the petitioner and further whether at all one had driven vehicle from Rishikesh to Chandigarh and the other two from Chandigarh to Manali; as claimed. As noted above, the department expressed inability to

produce the duty slips stating that the matter being old they were unable to locate the slips.

45. Thus, apparently a prejudice has been caused to the petitioner.

46. The cumulative effect of the five deficiencies noted above, and principally two; being heavy reliance in the report of the Inquiry Officer upon the testimony of Amar Singh and MT Driver Bishan Singh who did not turn up for cross-examination, and delay in the inquiry causing prejudice in the form of duty slips not being available; require us to hold in favour of the petitioner and we thereby not only quash the report of the Inquiry Officer but even the order dated July 07, 1998 passed by the Disciplinary Authority and direct that the petitioner be reinstated in service with all consequential benefits; but would observe that if for the purposes of promotion, the petitioner stakes a claim as a part of consequential relief, the same would not flow automatically but would require petitioner‟s case to be considered as per applicable Recruitment Rules before a specially constituted Departmental Promotion Committee. However, the consequential relief would include salary and increments and benefit of service rendered for purpose of pension.

47. No costs.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE OCTOBER 10, 2012 dk