Umed Singh vs Union Of India And Ors
2015 Latest Caselaw 4630 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                                DECIDED ON: 02.07.2015

+                          W.P. (C) 4931/2005

       UMED SINGH                                            ..... Petitioner
                           Through: Mr. H.S. Dahiya, Advocate.

                           Versus

       UNION OF INDIA AND ORS                        .....Respondents

Through: Mr. Harsh Ahuja and Mr. Abhishek Choudhary, proxy counsel for Ms. Monika Arora, Advocate for UOI.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA S.RAVINDRA BHAT, J. (OPEN COURT)

1. The petitioner is aggrieved by an order dated 25.04.2001 removing him from the services of Central Industrial Security Force ("CISF"). He was issued a chargesheet including statement of imputations in respect of acts alleged to be misconduct which were said to have been committed by him on 15.01.2000. The chargesheet, inter alia, alleged that the petitioner had presented himself for duty in a state of intoxication contrary to the standing orders of CISF and furthermore had misbehaved and abused his superior officer. In support of statement of imputation, the chargesheet had cited several documents and also the list of

W.P.(C)4931/2015 Page 1 witnesses. The chargesheet had cited five documents which the respondents wished to rely upon. The petitioner had replied to the charges refuting the allegations on 2.2.2001. He followed this up with the request for being supplied with the copies of documents (cited along with the chargesheet and statement of imputations) on 12.02.2001. However, this request was rejected on 13.02.2001. When on the first date of hearing before the Inquiry Officer, the petitioner was questioned about whether he was supplied the copies of the documents which the respondent employer relied upon, he replied in the negative. It is not denied that subsequently he did not participate in the proceedings which were held ex parte. Several witnesses were examined and based upon the Enquiry Officer's report, finding of guilt was recorded, which was accepted by the disciplinary authority and subsequently affirmed by the appellate and revisional authority.

2. During the hearing, learned counsel for the petitioner made three submissions. Firstly, that the initiation of proceedings was vitiated on account of mala fides. To support this allegation, the petitioner alleged that an incident occurred on 9.8.2000 where in the normal discharge of his duties, he did not permit the entry of certain personnel who were alleged to have given money to the petitioner's superior officer to get entry, and the petitioner informed about this incident to the authorities. In other words, the petitioner's allegation was that his intimation about this angered the Company Commander, who conspired to implicate him falsely. The second submission is that the officer appointed to enquire into the charges could not have

W.P.(C)4931/2015 Page 2 proceeded and gone into the matter. For this purpose, learned counsel urges that the petitioner's objection was justified since the Enquiry Officer was none other than the Unit Commander and would in the normal course of events exercise control over and influence the course of proceedings. The third submission of the petitioner is that the entire enquiry was vitiated because the documents relied upon by the respondent employer were not furnished at the inception of the proceedings; in fact a request made expressly for this purpose was turned down on 13.02.2001.

3. The respondents contest the submissions stating that the first two arguments are devoid of merit. It is stated that the first charge of mala fides is based on a mere allegation and has not been substantiated in any manner at all. As far as the second submission is concerned, it is urged that the mere circumstance that the Commander was required to preside over the enquiry ipso facto did not constitute prejudice since there is nothing on record to disqualify him or to establish that he had any conflict of interest in the matter. As to the third argument, the respondent submits that the petitioner refused to accept the documents which were furnished during the course of the proceedings - in line with the communication dated 13.02.2001.

4. This Court has carefully considered the record. The allegation of mala fides is at best a mere allegation. The petitioner does not cite any particulars as to why he was singled out for the alleged discriminatory and arbitrary treatment and false charges levelled against him almost five months after the alleged incident of 9.8.2000.

W.P.(C)4931/2015 Page 3 Likewise the second objection, i.e., the participation of the Unit Commander on the ground of alleged bias is insubstantial. During the hearing, learned counsel had sought to urge that the Unit Commander was disqualified since he was in a sense witness to the incident which occurred on 15.01.2001. We are afraid that this submission cannot be countenanced because there is nothing on the record to suggest that this in fact occurred. Furthermore, the petitioner did not so allege in any of the communication objecting to the continuation of Unit Commander as Enquiry Officer. Therefore, this ground is rejected as baseless.

5. So far as the third objection of denial of natural justice is concerned, learned counsel for the petitioner relied upon on the decision in State of U.P. v. Shatrughan Lal & Anr., (1998) 6 SCC

651. The Supreme Court had in the said decision held as follows: -

"4. Now one of the principles of natural justice is that a person against whom an action is proposed to be taken has to be given an opportunity of hearing. This opportunity has to be an effective opportunity and not a mere pretence. In departmental proceedings where charge-sheet is issued and the documents which are proposed to be utilised against that person are indicated in the charge sheet but copies thereof are not supplied to him in spite of his request, and he is, at the same time, called upon to submit his reply, it cannot be said that an effective opportunity to defend was provided to him. (see: Chandrama Tewari vs. Union of India; Kashinath Dikshita vs. Union of India & Ors.; State of Uttar Pradesh vs. Mohd. Sharif .

5. In High Court of Punjab & Haryana vs. Amrik Singh, it was indicated that the delinquent officer must be supplied copies of documents relied upon in support of the charges. It

W.P.(C)4931/2015 Page 4 was further indicated that if the documents are voluminous and copies cannot be supplied, then such officer must be given an opportunity to inspect the same, or else, the principles of natural justice would be violated.

6. 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 vs. Union of India & Ors., 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 document had not caused any prejudice to the delinquent in his defence."

6. The records of this case indicate that the petitioner no doubt replied to the charges on 2.2.2001. However, he followed it up with the request for supply of copies of the documents relied upon, by letter dated 12.02.2001. This representation was rejected on the very next day, i.e., on 13.02.2001. The respondents indicated - in their said reply - that the copies of the documents listed along with the charge memo in the statement of imputations would be furnished during the course of the proceedings. There is no dispute that on the first date of the enquiry proceedings i.e. 2.3.2001 the petitioner had denied receipt of the documents. Equally it is not in dispute that he failed to turn up and did not participate in the proceedings thereafter. The respondents have - in their submissions before this Court - positively alleged that an effort was made to serve copies of the

W.P.(C)4931/2015 Page 5 documents upon the petitioner. However, neither the original records produced by them in the course of the hearing before this Court in this case nor the affidavit filed indicate any details as to who sought to serve the petitioner and, if so, when. During the hearing, counsel for the respondents had relied upon the record of proceedings of 5.3.2001 to say that the petitioner was absent and that the attempt to serve him with the copies of statements recorded during the course of proceedings was unsuccessful and that he refused to accept them. That we are afraid does not answer the basic issue. The decision in Shatrughan Lal's matter (supra) is categorical, in that, as an intrinsic part of fairness in such proceedings, it is imperative that the employer furnishes the documents relied upon by it to the employee at the earliest possible opportunity. The respondents refused to do so - as is evident by the letter dated 13.02.2001. Their effort to urge that the petitioner was sought to be served has not been established by them by any objective material available on the record.

7. In these circumstances, this Court is of the opinion that the departmental proceedings which culminated in the Enquiry Officer's findings of guilt which was accepted by the disciplinary authority and affirmed by the appellate authority cannot be supported. The said impugned orders are hereby set aside. The matter is remitted to the disciplinary authority to initiate proceedings and ensure that the same is completed within three months from today.

8. It is clarified that there is no need to furnish any further documents to the petitioner since all the documents relied upon by the respondents including the statements recorded during the course of

W.P.(C)4931/2015 Page 6 preliminary enquiry and the other documents listed along with the chargesheet are a part of the record in this case. The respondents are also directed to pass an appropriate order as to the manner in which the petitioner's services are to be treated during the interregnum i.e. from the date of his removal till date and the further service/posting of the petitioner. This shall be indicated in a separate order to be made within two weeks from today and directly communicated to the petitioner.

9. The writ petition is allowed in the above terms.

10. Order dasti under the signatures of Courtmaster.

S. RAVINDRA BHAT (JUDGE)

DEEPA SHARMA (JUDGE) JULY 02, 2015 /vikas/

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